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Electronics-Recycling Innovator Faces Prison For Extending Computers' Lives
schwit1 shares a report from Los Angeles Times: Prosecutors said 33-year-old [Eric Lundgren, an electronic-waste recycling innovator] ripped off Microsoft by manufacturing 28,000 counterfeit discs with the company's Windows operating system on them. He was convicted of conspiracy and copyright infringement, which brought a 15-month prison sentence and a $50,000 fine. In a rare move though, a federal appeals court has granted an emergency stay of the sentence, giving Lundgren another chance to make his argument that the whole thing was a misunderstanding. Lundgren does not deny that he made the discs or that he hoped to sell them. But he says this was no profit-making scheme. By his account, he just wanted to make it easier to extend the usefulness of secondhand computers -- keeping more of them out of the trash.
The case centers on "restore discs," which can be used only on computers that already have the licensed Windows software and can be downloaded free from the computer's manufacturer, in this case Dell. The discs are routinely provided to buyers of new computers to enable them to reinstall their operating systems if the computers' hardware fails or must be wiped clean. But they often are lost by the time used computers find their way to a refurbisher. Lundgren said he thought electronics companies wanted the reuse of computers to be difficult so that people would buy new ones. He thought that producing and selling restore discs to computer refurbishers -- saving them the hassle of downloading the software and burning new discs -- would encourage more secondhand sales. In his view, the new owners were entitled to the software, and this just made it easier. The government, and Microsoft, did not see it that way. Federal prosecutors in Florida obtained a 21-count indictment against Lundgren and his business partner, and Microsoft filed a letter seeking $420,000 in restitution for lost sales. Lundgren claims that the assistant U.S. attorney on the case told him, "Microsoft wants your head on a platter and I'm going to give it to them."
The case centers on "restore discs," which can be used only on computers that already have the licensed Windows software and can be downloaded free from the computer's manufacturer, in this case Dell. The discs are routinely provided to buyers of new computers to enable them to reinstall their operating systems if the computers' hardware fails or must be wiped clean. But they often are lost by the time used computers find their way to a refurbisher. Lundgren said he thought electronics companies wanted the reuse of computers to be difficult so that people would buy new ones. He thought that producing and selling restore discs to computer refurbishers -- saving them the hassle of downloading the software and burning new discs -- would encourage more secondhand sales. In his view, the new owners were entitled to the software, and this just made it easier. The government, and Microsoft, did not see it that way. Federal prosecutors in Florida obtained a 21-count indictment against Lundgren and his business partner, and Microsoft filed a letter seeking $420,000 in restitution for lost sales. Lundgren claims that the assistant U.S. attorney on the case told him, "Microsoft wants your head on a platter and I'm going to give it to them."
He gave CDs to make computers that had already had licensed versions of Windows on them able to run Windows again. It's not like those licensed versions of Windows were moved to another computer.
"If he didn't have a piece of paper showing he got a license for every single piece of hardware, he has no rights to sell the software."
If Microsoft doesn't have a piece of paper with the original purchaser's signature on it, they have no contract.
"National Security is the chief cause of national insecurity." - Celine's First Law
> If copying software which has already been paid for and is specifically attached to hardware isn't "fair use," what is
Well the discs this guy was selling weren't attached to any particular hardware, and he didn't pay Microsoft for them, but that still leaves your question "what is fair use?"
The four factors considered for fair use are:
transformative use
the nature of the copyrighted work
the amount and substantiality of the portion taken
the effect of the use upon the potential market
Transformative use is the degree to which the user turns one thing into something else. Making a statute from baseball cards would transform them from cards to sculpture. This person did no transformation, just straight duplication.
The nature of the copyrighted work is considered on at least two axis. Non-fiction works are easier to use fairly than more creative, fictional, and especially complete fantasy works. Facts themselves have no copyright protection at all, only the particular expression and arrangement of them can have any protection. A fictional work that takes place in a completely fictional universe is less likely to be fair use because the author created that whole universe - there's probably no reason you *have* to step into their universe.
Also regarding the character of the original work, published works are more available for fair use than unpublished works. I have the right to keep my private writing private, and decide when and how to make it public. Similarly, works that have become a widely recognized part of the culture have less protection. If you wrote a book about American culture in 2018, you might have very good reason to quote CNN, etc.
The amount of the work taken is fairly self-explanatory. It's generally fair to use a five-word quote out of a book. Copying the entire book is not okay. There is a wide range of in-between. Also, what percentage of the new work consists of stuff taken from other people's work? If you write a 20,000-word book and have 300 words of quotes in it, that's probably okay. This guy copied the entirety of MS Windows, and added nothing of his own. That's the opposite of fair use.
The effect of the use upon the potential market - will some people buy the infringing work *instead of* the original work? If you make wall plaques each with a quotes from a bunch of books, nobody is going to buy the wall plaques instead of the books. You haven't hurt the market for the books. This guy was going to be selling Windows discs. Had he not had these 28,000 Windows discs for sale, would some people instead buy from Microsoft?
One could make the argument that some users may already have a Windows license, they effectively already own a copy of Windows, and he was helping them use the licensed copy of Windows they already owned. That may be a cogent argument. Fair use? Not by a long shot.