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ANALYSIS: Impact of Microsoft's TestKing.com Lawsuit Unclear

When Microsoft filed a federal copyright infringement lawsuit against braindump site Testking.com, many hailed the action. But the suit explores uncharted legal waters, with unpredictable results.

• By Becky Nagel
• 08/24/2006

However, even if Microsoft wins the legal battle against TestKing.com, the war against braindumps could remain unchanged due to the difficulties of collecting overseas judgments.

The IT braindump industry has been dominated by foreign providers, most prominently TestKing.com, ever since two criminal suits (one successful, one ultimately unsuccesssful) took down the two major U.S.-based braindump providers a few years ago.

While the parent company of TestKing.com, Certification Trendz, is registered in the United Kingdom, it is widely believed that the company itself operates out of Pakistan.

In fact, since at least 2001, TestKing.com and other sites owned by Certification Trendz have been associated with a Shahzad Shahnawaz, based in Faisalabad, Pakistan. A signature on a corporation document from 2005 appear to indicate that Shahnawaz owned the company at least up to last year, and is at a minimum still affiliated with the company, based on a post made earlier this month using a Certification Trendz-related e-mail address.

Still, other names have been associated with the company in the past. CertCities.com attempted to contact the company and Shahnawaz via various e-mail addresses to confirm his identity, ownership and get the company's take on this suit, but did not receive a response by press time.

The uncertainty over who owns TestKing.com as well as opportunities for legal discovery -- however difficult with a Pakistan-based company -- may be why Microsoft filed the suit against “John Does”s instead of naming Shahnawaz, said Paul Lesko, head of patent and intellectual property litigation at East Alton, Ill.-based Simmons Cooper LLC. “It could be one of those things…at least it will keep it open to potentially conduct discovery [or see] if there are other names are out there.”

If Microsoft cannot identify the owners, or if TestKing chooses not to defend itself, Redmond could get a judgment in its favor fairly quickly -- months versus years – as long as it proves its case, Lesko said.

But no matter how the lawsuit plays out, if Microsoft wins, the company may have troubles collecting. Lesko said that anything awarded to Microsoft will be valid in the United States, but to collect overseas, Microsoft will need to get the cooperation of a Pakistani court. Without that, damages, property, business records and other relief the company is seeking are unlikely -- leaving only the domain names of the violating sites.

“It's easier to shut down their Web site, but it's a lot more difficult to [shut them down],” he said. “Just because you shut them down somewhere, doesn't mean they can't pop up somewhere else.”

The expense of litigation and uncertain outcome is one reason it's often the last resort for an IT certification company to sue an overseas braindump provider.

As for the timing of the suit, Lesko says there's no real change in the law that would make it more sensible for Microsoft to file the suit now versus a few years ago.

When asked why the company filed this suit now, Microsoft Learning's Lead Project Manager Al Valvano said, “ Nothing honestly has really changed in terms of strategy. We've always been focused on protecting the value of certification as an asset."

"I think this [case] is particularly noteworthy just because of the size of Test King,” he continued. “But there's really been no deviation in terms of [our] strategy."

Microsoft declined to comment further on the specifics of the suit.

Whether or not the suit turns out successful for Microsoft, the industry is taking other steps to help combat braindumps, says Jamie Mulkey, Ed.D., senior director of Test Security Services for the test security consulting group Caveon.

Over the past few years, groups like Caveon, the testing centers and IT certification programs themselves have developed and are using technologies that can help identify cheating at various levels throughout the testing system.

And Mulkey, who is also chair of the Association of Test Publishers' Certification Licensing Division and head of its security initiative, said that the initiative is making significant progress toward identifying the source of major test leaks in the industry, although that research is ongoing.

So while lawsuits may not be the ultimate answer, Mulkey still has high hopes for this one. “I think it's huge,” she commented. “[TestKing.com] are the kingpin, so if Microsoft's successful, I think it would…take a lot of braindump sites with them.” -- Additional reporting by Scott Bekker