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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."
MS has deep pockets
The discs had labels nearly identical to the discs provided by Dell for its computers and had the Windows and Dell logos. "If I had just written 'Eric's Restore Disc' on there, it would have been fine," Lundgren said.
A copy of a Windows disc is clearly not illegal. It is the license which Microsoft sells and which end-users or manufacturers pay for. They ruined this mans life over a trademark logo.
Let's make like a bird... and get the flock outta here.
"But we've changed", said Microsoft. "We're different. We're not the same bully we used to be. We're a kinder gentler Microsoft. See, we have Linux stuff in Windows now. Lots of nerdy Linux stuff. How could we be evil with Linux stuff, that automatically makes us good, right?"
It's no wonder the PC market as a whole has taken a beating over phones and tablets. It doesn't matter that most laptops still have Windows when most people for their day-to-day interactions want nothing to do with laptops, and desktops are essentially non-existent outside the corporate environment where they survive only because they are easier to physically chain to a desk. It's for this very reason, where Microsoft sues and arranges charges for its customers, where they have been high-handedly trying to extinguish anything like true innovation for decades that causes people to want to move away from the platform entirely.
It's telling how Microsoft's attempts to break out of the PC market have universally failed. It's like people have put Microsoft in its own jail. We have reluctantly accepted they remain a necessary evil for certain things, but no one will let them into any other market or paradigm because, quite frankly, they have repeatedly demonstrated (and still are) they simply cannot be trusted. Just as the internet moves to heal censorship, the computing world naturally moves to contain zMicrosoft. Their short and medium term strategies that were antagonistic to their consumers just can't create long term goodwill.
It's also interesting that Microsoft appears to have decided that they simply cannot innovate, since their strategy continues to be to threaten and extort their user base to continue to pay them.
Holy cow, did it ever occur to him, say after creating 10,000 20,000 illegal copies that MAYBE he should ask Microsoft for permission?
How did he make 28K discs? Did he hire a CD production house or some robot arm drive-feeding machine to make them?
Ken
He didn't sell the discs. He provided the discs for free with computers that already had an OS license sticker on them. If the computer didn't have a license sticker then he didn't provide a disc.
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.
Well he didn't sell the discs, but shipping 28 000 discs from China with Microsoft/Dell logos on them...
brake the EULA = jail!
Lundgren does not deny that he made the discs or that he hoped to sell them
I browse on +1 so AC's need not respond, I won't see it.
woops, replied to the wrong post. Meant for a reply to your post
I browse on +1 so AC's need not respond, I won't see it.
so ok jail time for an trademark miss usage?
I can see an civil law suit for misusing an logo but not jail/prison. Now what about just an disk the says jay's DELL windows restore disk. I can see dumber computer users saying is not an real disk vs the people who really want clean windows install disks.
Restore disks are NOT illegal the systems had keys with them just not the RESTORE DISKS.
Perhaps technically - but he was redistributing something that's already freely available. Sounds like he was basically just doing the "locate, download, and burn DVD" step - no new licenses, no breaking of copy protection, just saving people the trouble of finding, downloading and burning the discs themselves.
Of course the bit about "If I had just written 'Eric's Restore Disc' on there, it would have been fine," suggests that perhaps the real crime is trademark infringement, as the discs were made to resemble the original restore discs, right down to the trademarked logos. Or perhaps he just meant they wouldn't have drawn official attention.
--- Most topics have many sides worth arguing, allow me to take one opposite you.
MS does not make XP ISO's. Vista have to hunt for an link. 7 on the MS site just punch in your key to get it. (needed to hunt for it the past for it) 8 and newer tool to download ISO no key needed for download load.
that ended with vista (some iso are ver locked) easy to mod them to all. After vista they went all in one.
You can download windows images for free straight from microsoft.com
Yup, when you're the copyright holder you can do exactly that. Allowing anyone to download it in no way implies any relinquishment of Microsoft's distribution rights. It's like when Weird Al made "Don't download this song" available as a free download. He can do that, but unless he gives you permission to do the same, you'd still be violating his copyright by redistributing it.
Also, the OEM license you'd typically find on a Dell or its ilk requires a specific OEM copy of Windows (or some hackery of the installation files, last I checked). You usually can't just download Windows from Microsoft and have it accept the OEM license serial number.
The best solution for these type of used computers is to simply restore Windows yourself (as part of the refurbishment process), and dump the Windows ISO onto the hard drive, for the end user to burn as a "recovery disc". That way, everything on the computer is licensed, and it's the end user making a "backup" (which they are legally entitled to do).
---
DRM is like antifreeze, to the MPAA/RIAA it's sweet, to the consumers it's poison.
If copying software which has already been paid for and is specifically attached to hardware isn't "fair use," what is?
That's why there's a case - your claim that "he illegally copied copyrighted software" isn't cut-and-dry.
Microsoft's argument is that they're being deprived of revenue for something they've already been paid for - how does that make it all right?
"National Security is the chief cause of national insecurity." - Celine's First Law
Well, that is still copyright infringement though. Just because MS is giving things away for free, doesn't mean that you can do so - it's still protected by copyright law, which means you need an explicit license to duplicate it.
Perhaps you could have an argument if you individually downloaded every copy before burning. Horribly wasteful of course, but then you could argue that Microsoft was the one distributing copies, and you were only redistributing software you had acquired legally. The fact that the final result is identical either way might be enough to give a savvy lawyer an argument to stand on.
--- Most topics have many sides worth arguing, allow me to take one opposite you.
So let's say you know someone who is recycling used computers with valid OEM licenses and following this exact process and you need the Windows OEM install media to restore windows on the machine. Now, you can go to Dell's web site and download and burn one for free, or you have a friend who has done that already and he gives you a copy of it for you to use.
Should your friend in that situation then go to jail for giving you a copy to use to restore the computer with a valid license with? 'Cause that's what this case is about.
The party of stupid and the party of evil get together and do something both stupid and evil, then call it bipartisan.
Lundgren does not deny that he made the discs or that he hoped to sell them
what is next PRISON for not paying windows core packs for each server in your VM farm even if you just need say 3-4 windows VM and the rest is all Linux VM's running under ESXI or LIBVIRT. That is an civil issue over licensing rules not an criminal case. This case seems to be more about BS over licensing rules and not an criminal case like shoplifting.
Say like Accidental Shoplifting and "Accidental" as in you did not fully follow out very complex rules in full.
The OEM license only extends to the original manufacturer and its first consumer or another consumer they directly transfer the license to (both parties have to explicitly agree to the transfer and the original owner is seemingly liable for compliance of its next owner) and the hardware has to stay with the software.
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. You can't even sell an original OEM install disc without the original hardware.
If you want to sell Windows computers, shell out for a license, it would only double the cost of a second hand computer. For all others, there is Linux or other alternatives.
Custom electronics and digital signage for your business: www.evcircuits.com
windows 8 and newer auto load bios keys and reuse old keys from the same hardware after an os reload. ALSO ALL 7 and 8.X systems get free windows 10
Windows 10 with a Windows 7/8.x Key issues where it still works but MS that was to be temporary. So on paper we have an at BEST an EULA issue with doing that but MS really does not want cut it off for real also there is the issue if the systems did have 10 on them at some before the paper cut off they are OK to reload 10 again on paper.
But Still it's not an criminal issue to do any thing with this.
This man should be charged with two crimes:
1) Possible trademark infringement.
2) Thinking that installing Windows on a computer would make it useful.
If the first deserves jail, the second is most likely a death sentence.
For those not aware of how this works, it's not an illegal copy. To install Windows on a PC, you need a install disc PLUS a key... the content of those discs can be downloaded online or made with any Windows computer to be used in another. In order for you to install it in a new pc, you need a key that will be validated for that machine alone. The recycled computers had them... Dell desktops comes with a sticked on it with said key. No one getting those DVDs needed a pirated copy, just a install disc, which again, anyone can get without paying a dime.
https://www.microsoft.com/en-u...
The restitution for lost sales is just bullshit, even if the dvds had pirated content, which they didn't.
It is fucking shameful that a corporation this big would throw a guy that's trying to do some good in jail without understanding how their own OS works.
Right to repair needs to say that restore files are free and that an EULA / DMCA can not be used to stop people from hosting files and or selling EPROM's at CHIP cost + shipping.
If I had a fetish about authentic logos and installation media, then it would depend on whether your friend was lending me an authentic product or if he had ripped a copy and faked the original logo on it. How do I know he hasn't unknowingly let a virus slip in there?
What if somebody in the production and supply chain this guy used had slipped a trojan into the installer, and people were buying the disk and trusting it because of the logo on it? They might then believe that Microsoft had provided infected media, which is damaging to Microsoft, even though they would be innocent in this case.
The computers in question would have been more useful if he had installed Linux on them! And he would not now be in trouble.
Still an EULA case not an criminal case
What he should do publicly with as much publicity as he can is to install Linux on the old computers.
Tell everyone that by using Linux they can restore an old computer into something useful, Tell them it comes with a word processor, spreadsheet etc all for FREE.
Tell that they come with Linux and Open Office because they can NOT be used any longer with Microsoft products
Make a BIG noise about 28,000 linux boxes being available because MS/Dell won't allow them to used as Windows boxes.
Make it a big public event, "world biggest linux install marathon" or some such even, get volunteers, school kids wanting to learn, make as much fucking noise about it that you can.
Call it a " what you can do without windows" event, see if one of the Linux Magazines will supply 28,000 CDs to give away.
Basically tell Microsoft they can shove themselves from now on
Tell the world that MS wants a line of working/usefull PCS approx 8000 miles long trashed for no good reason
Put the figure into tons of waste
How high the pile would be if they were sacked on top of each other
How much energy will be wasted (ie something like enough energy to power 5,000 homes, or drive a Prius around the world or what ever.
Make them look like polluting wankers
At that point I see the whole problem going away real quick
"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
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.
Where is this link where you can download the Windows restore installation disc for a Dell PC?
Seriously, I have to look at my uncle's Dell PC this weekend and he does not have the restore discs for it. The sticker with the product key is on the machine. I've tried to reinstall the DVD codec drivers for it in the past and could find no place on Dell's site I could download the installer at all.
Technically a temporary violation has the copy was waiting for a licensed computer, until it reached a licensed computer a copyright violation, clearly a civil matter not a criminal matter once it was investigated. That the filthy animal prosecutor choose to serve the corrupt entity M$ to destroy some old dude for a technicality is disgusting, why not just kill him you POSs, fucking disgusting.
Chaos - everything, everywhere, everywhen
First sale doctrine applies to the one original (and all its backups) in one transaction. He was selling (planning to sell) these discs to other refurbishers, directly profiting from more than just transferring a license.
Yeah, this is clear-cut copyright infringement, and the headline is a flat out lie. If he was just refurbishing old hardware, no problem. If he was refurbishing old hardware and had made arrangements with Microsoft regarding copies of Windows, that would be fine. If he was refurbishing old hardware and pre-installing Linux or another operating system that allows copies to be handed out for free, still completely fine.
Whatever other details are going on, he got busted for distributing copyrighted software he didn't have the right to, not recycling hardware.
The US attorney just shows what is wrong with the US justice system.
That guys probably already got his place in the Microsoft legal team...
> 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.
He didn't sell the discs.
Yes he did. Both TFS and TFA make that clear.
He provided the discs for free ...
No he didn't.
If the computer didn't have a license sticker then he didn't provide a disc.
He claims to have sold the discs to "refurbishers" who may, or may not, have checked for stickers.
Seriously, you have to at least read the posted summary to comment - OK?
Lundgren does not deny that he made the discs or that he hoped to sell them.
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.
So, do you still think he made 28,000 restore CDs to give away?
Ken
Microsoft has a program for refurbishers, because everyone's understanding that the OEM software license survives any number of private party sales is wrong.
He literally is competing with a Microsoft program, how can he be surprised that MS went after him?
Ken
That works just fine for them. If there is no contract then you are violating their copyright and they win by default.
Sounds like he was basically just doing the "locate, download, and burn DVD" step - no new licenses, no breaking of copy protection, just saving people the trouble of finding, downloading and burning the discs themselves.
Except, you forgot to add that he tried to sell them. He wasn't burning and selling CDs of shareware as was so popular in the 1990s, he was burning and selling a disc full of MS software.
Ken
All he did was burn it on a dvd and hand it out as a freebie.
No, he wanted to sell the CDs, not give them away as a "freebie."
Ken
That is an civil issue over licensing rules not an criminal case.
The two are not mutually exclusive. If you steal my wallet, that's a criminal case because the government has an interest in preventing theft, and it's a civil case because I want you to pay back the money you took. If you get drunk and rear end my car, it's a criminal case because the government has an interest in preventing drunk driving, and it's a civil case because I want you to pay for the damage and my injuries.
Licencing issues cross over into criminal territory when they involve fraud, or when you do it "willfully and for purposes of commercial advantage" (see Copyright Act, section 506). In practice, this means it becomes criminal when you cross over a loose threshold and make a business out of infringing copyrights. Which numbnuts here certainly did.
Should your friend in that situation then go to jail for giving you a copy to use to restore the computer with a valid license with? 'Cause that's what this case is about.
Except, like so many others on this thread, you ignore the fact that he admitted he wanted to sell the discs. Sell - not give away.
Ken
all he did for all intensive purposes was make a backup of a CD that was locked to the systems he clearly had a license for
No. He didn't have 28,000 computers on-hand that needed restore CDs, if he did, you MIGHT have a good argument, but he hired a Chinese CD duplication house to burn 28,000 CDs so that he could sell them to other refurbishers.
Ken
He wanted to sell CDs to other refurbishers that contained Microsoft copyright protected software and had Microsoft logos on the disc.
That's a little different than running unlicensed Windows VMs on a server.
Ken
It says right on the Windows CD: "Do not make illegal copies of this disk". That's why I only make completely legal copies of my Windows disks.
Pretty much as useful and no hassles with copyright. Probably also runs a lot better on old hardware.
Most ACs are not even worth the keystrokes to insult them. Be generically insulted by this and ignored otherwise.
The problem, I think, is the selling of these disks. If he had just given them away, this may have been gray area or even legal.
Most ACs are not even worth the keystrokes to insult them. Be generically insulted by this and ignored otherwise.
It is true those are the four factors that MUST be considered. A court CAN consider other factors. Indeed a judge, and police as well, often consider the universal factor "is he being a bad guy or a good guy?" The letter of the law only goes so far - judges also seek justice, most of the time. (Obviously in plea bargains the judge never hears the case, but that's a different topic entirely.)
Having said that, the factors that MUST be considered all weigh very much against this defendant *for a fair use defense*. There are other defenses, besides fair use. Remember these factors MUST be considered:
How much of the work did the defendant take? A six-word quote from a book is normally okay, taking the whole work almost never is. This defendant took the whole thing.
How much new and original did the defendant add?
If the infringing work is mostly new, with only a small part borrowed, that may be fair use. If the infringer added nothing of their own, it's likely not fair use. This defendant added nothing.
Transformative - is the infringing work of a fundamentally different kind than the original work? In this case it's not at all different, it's a duplicate.
This person may have a good defense, but not a fair use defense.
The OEM license only extends to the original manufacturer and its first consumer or another consumer they directly transfer the license to (both parties have to explicitly agree to the transfer and the original owner is seemingly liable for compliance of its next owner) and the hardware has to stay with the software.
This is factually incorrect.
The law says you are wrong, and Microsoft says you are wrong.
A retail license extends to a consumer. An OEM license extends to a computer.
A computer can not grant permission for anything, let alone transferring its license. An OEM license never applies to a human being, so it can't be transferred by one.
Even Microsoft says this:
https://blogs.msdn.microsoft.com/mssmallbiz/2009/10/27/no-oem-microsoft-windows-licenses-cannot-be-transferred-to-another-pc/
As you can see, the OEM Windows license is âoelockedâ to the original PC it comes with and cannot be transferred to any other PC.
The license remains with the computer. The original owner discarded the computer+license. This shop picked up the computer+license. When they resell it, it will still be the computer+license.
The license MUST remain with the computer, the reseller shop can't legally seperate the two if they wanted.
All of these computers have a valid license
What's more, the Windows Restore disks were downloaded by the reseller shop at the time the computer+license was in their possession!
Once the computer+license was sold, the restore disk went along with the computer+license.
There was simply no copyright infringement at all.
If you walk into a 7-11, and steal a 50 cent pack of gum, it's a criminal matter. If Comcast knowingly overcharges 10 million people, it's a civil matter. What little punishment there is for companies, they're not allowed to write themselves out of with a single sentence in a 27 page EULA. Google violates copyright all day long, but nobody there worries about jailtime. This guy has to worry about it, though. And regardless of what the "law" says (which was created by wealthy people for wealthy people), people are getting sick of the disparity. As they should be.
With that "transformative" bit, you grossly misrepresented one of the four pillars of fair use. The law actually says that one of the factors that must be considered is the purpose and character of the use. The transformative nature of that use is just one of many possible purposes and characters that copying can involve. By narrowing that pillar to a fraction of its actual size, you're fairly seriously understating the types of use that can constitute fair use.
If the content is truly available for them to download already from the manufacturer, then arguably the person merely provided an offline cache of the content, which otherwise the customer would have been forced to download and burn him/herself. You might even argue that he was merely serving as an agent of the purchaser, which would entirely relieve him of any responsibility for the copying. It is laughable to argue that it is not a copyright violation for the end owner to download the content, burn it to a disc, install the OS, keep the disc, and later sell the computer with the disc to someone else, but that it somehow becomes a copyright violation if someone skips the installation and forces the person who buys the machine to do that part. This fails on grounds of reductio ad absurdum. Yet unless I'm misunderstanding, that's exactly the finding in this case.
You're also grossly misrepresenting the effect on the value of the work. From a legal perspective, making a backup copy of software is a right. Therefore, the original owner of that hardware had a legal right to make a backup, and because OEM licenses are not transferrable to new hardware, that right is automatically transferred to any subsequent owner of the hardware.
The fact that the original disc was lost, and that the backup was made from someone else's physical copy of that disc is immaterial from a legal perspective, as copyright law generally does not specify any requirements about how a backup must be made (with the exception of DMCA nonsense). If I can make an identical copy by scraping the bits off a DVD-ROM or downloading the file from somewhere on the Internet, one act cannot reasonably be legal while the other is not unless the person never had a license to possess a copy of that software in the first place. Such an interpretation of the law would, again, be utterly prima facie absurd.
The fact that some users might not know they have the right to make a backup copy of their operating system, and therefore might be tricked into paying for something that they already legally owned is also immaterial, as the exact same impact on Microsoft's sales could be caused by instead including a piece of paper that says, "Did you know that you have a legal right to download a copy of Windows from [insert website], burn it to a disk, and install it on this machine?" which is absolutely not a copyright violation. Therefore, the additional impact of the copyright violation is precisely zero, and thus, the total financial impact to Microsoft from this person's actions is also precisely zero.
IMO, this being fair use really should be inarguable, at least in any sane universe. The judge is simply interpreting the law incorrectly, in a way that, when taken to its logical conclusion, leads to some bafflingly absurd consequences.
Check out my sci-fi/humor trilogy at PatriotsBooks.
...the hardware has to stay with the software.
Correct, OEM hardware cannot be sold without software rights. So the hardware was licensed.
This is mostly a trademark violation case. The OS restore disks this man burned had Microsoft and Dell logos. There's may be a small amount of copyright violation here - he burned OS restore images (available for free download from Dell's website), in anticipation of selling to eventual customers: PC refurbishment companies. If he already had an understanding with his customers to sell these disks to them, you could argue he acting an agent for them, in anticipation of custom. If so, this case boils down his violation of Microsoft and Dell trademarks.
The main problem is below:
The discs had labels nearly identical to the discs provided by Dell for its computers and had the Windows and Dell logos. "If I had just written 'Eric's Restore Disc' on there, it would have been fine," Lundgren said.
I think the judge didn't quite understand that the software was licensed for use anyways and only a total idiot would have bought a store bought version of windows for it when they could have downloaded the same software from dell or ms themselves
WHAT IS MORE IMPORTANT IS THAT THE ORIGINAL WINDOWS THAT CAME ON THEM CAN'T EVEN BE TRANSFERRED TO AN ANOTHER COMPUTER. so after that you would be stuck with two windows licenses for one computer, with one license thats not even transferable(which is bullshit in its own).
world was created 5 seconds before this post as it is.
So, you agree that license keys are a violation of copyright law? And that EULAs that stipulate OEM license transfer are legally non-binding?
What kind of crackhead question is this? When did I say anything remotely like that? So you agree that slavery is, like, totally cool?
If you do, then I'd definitely agree with the point about the copies being illegal. Otherwise, every retail box of Windows is illegal until such point as someone actually agrees to the EULA. Ie, retail shops sell illegal copies of Windows. Same with OEMs selling computers with Windows pre-installed and a restore CD.
Again, I have to wonder what kind of drugs you're on. What's illegal about a shop selling licensed copies of an operating system? WTF does the EULA have to do with what a store is or isn't allowed to do?
This jackass isn't accused of violating the EULA; he's accused of making and selling unauthorized reproductions of a copyrighted work. It has absolutely nothing to do with the EULA.
> The law actually says that one of the factors that must be considered is the purpose and character of the use.
Let's read exactly what the copyright statute says:
---
Purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes
---
The law says the court must consider if it's commercial (he was selling them for $20) as opposed to nonprofit educational.
> The additional impact of the copyright violation is precisely zero, and thus, the total financial impact to Microsoft from this person's actions is also precisely zero.
And THAT is a reasonable defense. Or half defense. The penalty does depend on the amount of financial harm.
The refurbishers buying his discs for $20 could instead download a restore disc from Dell for free. So he argues there is no loss.
They could also buy a fresh Windows from Microsoft for $25. If they DID pay $20 for his bootleg disc instead of downloading for free, it's reasonable to figure some of them would otherwise pay $25 for a genuine Windows. Again, his customers are companies paying $20 for a disc with the Windows logo - knowing they'll all pay $20, some would go to $25 for the real thing, if his $20 bootleg wasn't available. Therefore we can say that some, but not all, would have otherwise bought from MS. Therefore his penalty was perhaps greater than it should have been under the law - it was based on $25 per disc.
>. only a total idiot would have bought
The refurbishers he was selling to had three options:
Legitimate copies from Microsoft for $25
His copies with the Microsoft logo for $20
Download for free from Dell
If they WOULD pay him $20 for the fake, some would have paid $25 for an original Microsoft copy, if he hadn't been selling them for $20.
Why not just download a copy from Dell and burn it to a CD-R? Thanks would be an interesting question to ask the shops who would have bought from him.
It is true those are the four factors that MUST be considered. A court CAN consider other factors. Indeed a judge, and police as well, often consider the universal factor "is he being a bad guy or a good guy?" The letter of the law only goes so far - judges also seek justice, most of the time. (Obviously in plea bargains the judge never hears the case, but that's a different topic entirely.) ...
Plea bargains are a perversion of justice and should be abolished sooner rather than later, together with other perversions of justice like capital punishment and strict liability offenses.
If a prosecutor has to resort to tactics such as plea bargaining, his case is very weak to say the least and there is 99% chance that the suspect is innocent of the crime he is being accussed of.
And on the Eighth Day, Man created God.
I remembered that this would only work for retail keys, and it said so on the website. Now it doesn't. Interesting. I should try with a Windows 7 OEM key, one of these days.
Ahhh...the great dumpster continuum. Many a free computer will be found there. -- sowth (748135)
License was paid for by OEM to sell with the computer. The guy has the computer and the license belongs to the machine.
No, he doesn't have the computer. Even if he did, it doesn't give him the right to sell copies of disks.
I don't actually know or care about the law.
Then you have no place in society, other than behind bars.
I use morality.
So did Dahmer. The problem with "morality" is that it's entirely personal.
Well, not on planet earth, it isn't.
Sent from my ASR33 using ASCII
No. He provided backups of software the customer already legally owns a license to, and which can only be used by MS customers with valid licenses. MS just want to sell another license to people that lose their restore disk.
The OEM sticker licenses can only be used on one computer.
No.. Not in non-3rdworld countries. EULAs are not legally binding and can be ignored. The only hinderance is local copyright, but if you don't copy the restore disk and just use it to move the installation, you have to have a pretty corrupt legal system to be breaking any laws.
If he didn't have a piece of paper showing he got a license for every single piece of hardware
Just what do you think those stickers on the side of PCs are? Decals to make you look cool?
No Windows 7 and 8.x do not get free windows 10 that was last year
Mendacem Memorem Esse Oportet
That's a great argument, but it doesn't apply to this case. The guy wasn't 'copying software which has already been paid for,' he was 'selling somebody else's software and keeping the money.'
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The OEM license only extends to the original manufacturer and its first consumer or another consumer they directly transfer the license to (both parties have to explicitly agree to the transfer and the original owner is seemingly liable for compliance of its next owner) and the hardware has to stay with the software.
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. You can't even sell an original OEM install disc without the original hardware.
If you want to sell Windows computers, shell out for a license, it would only double the cost of a second hand computer. For all others, there is Linux or other alternatives.
If this is going to be the legal argument that MS uses, then they will eventually lose at some point, because it violates the doctrine of first sale. It may take the Supreme Court to remind them, so as long as Drumpf hasn't replaced most of the justices with corporate shills by the time this case arrives, Mr. Lundgren will prevail.
That's the thing. This wasn't 'I've got a DVD-R drive, I'll download and burn you the disc you need for reinstalling it.' It wasn't even 'I'll charge you 20 cents for the cost of a blank DVD-R.' Nor was it 'Every time I dumpster dive a computer, I burn the appropriate cd, scrawl 'recovery CD downloaded from [oem]' on it, and tape it to the chassis.'
No, it was 'I'll commission a fucking factory in China to crank out a production run, with somebody else's trademarked logos, and sell them for a profit.' Despite the fact that the OEMs will already quite happily sell you those discs, or let you download them for free.
If he'd given them away, he'd probably have been fine. He didn't. He attempted to sell other people's work for a profit.
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That can also be explained as selling for a small fee just to cover his production costs. However the wording in the article does make it sound like more than that ;)
Dell used to include an install partition on the disk to re-install the O/S. Where Mr. Lundgren screwed up was when he was selling those discs. That's the fraud part.
Useless MS software though, which you can download free from Microsoft, since MS has shifted everything to usage licenses with online activation. If you don't already have a license, the software is useless. He was selling the convenience of not having to download and burn it yourself.
Of course, copyright still applies, so useless or not, he would need a license to copy it legally.
--- Most topics have many sides worth arguing, allow me to take one opposite you.
Yep. And you can download Win10 from MS today, and install it on a PC with a Win7/8 license, so long as you either use assistive technologies or are at least willing to fraudulently claim to. Nothing he's doing changes things in the slightest - except that you don't have to download the several gig .iso file and burn it yourself.
--- Most topics have many sides worth arguing, allow me to take one opposite you.
That's a death threat right there. The assistant U.S. attorney should be sent to prison.
#DeleteFacebook
He was trying to make money using someone else's property that makes him a thief plain and simple. Just because he was stealing from scumbags doesn't make it legal. If he was illegally selling LINUX discs or any other freeware you people would be calling for his execution. Giving something away for free doesn't negate your copyright that is a key cornerstone of open source.
" He thought that producing and selling restore discs to computer refurbishers"
He was not giving them away, he was selling them.
Sorry, teleporters just kill you and then make a copy. A perfect, soul-less copy.
This is a completely stupid dick ass fucking move by Microsoft. How dare they screw this guy over, after all the good he has done. FUCK MICROSOFT for caring about a few pennies instead of the environment and the poor ass motherfuckers who want ancient refurbed computers.
From the likes of you that's the ultimate compliment. Thanks for letting me know I'm on the right track.
My understanding is a "restore" disk does not have the OS image. It only has tools to help fix a broken installation.
If the hard drive in the PC has been wiped there is nothing it can do.
But this post says he put the OS image on the disk too.
Also, the OS image and restore disk is still insufficient. Post install the OS will contact the Microsoft activation servers to match the hardware signature. If it can't match it will not have a valid license.
So I'm not sure what he's done here.
Maybe it's just about mass producing disks for distribution with Microsoft and Dell logos on them without a license.
That was a bad idea. I wouldn't want to see his life destroyed over it though. I hope they can come to some reasonable arrangement.
My immediate reply to the AG could have been,"Yeah? Well I know your wife already has your dick in her handbag, so good luck!"
-
I think the website did not like the OEM keys but the installer DID
Where in the article did you read "What's more, the Windows Restore disks were downloaded by the reseller shop at the time the computer+license was in their possession!"
The article and the summary clearly state: "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."
IE: selling discs to other people without being attached to a pc. A direct violation of OEM licenses.
Sorry, teleporters just kill you and then make a copy. A perfect, soul-less copy.
Reading comprehension. He made 28000 discs to sell to other refurbishers. Pretty sure he was not selling them PCs.
Sorry, teleporters just kill you and then make a copy. A perfect, soul-less copy.
doctrine of first sale says OEM software does
"Activist faces prison for feeding hungry"
Activist steals food from grocery store to sell to hungry people, faces prison time.
How is that different from what this electronics recycler did?
(OK, stealing copyright-protected software is not exactly the same as stealing physical food stuffs from a store.)
Ken
The discs had labels nearly identical to the discs provided by Dell for its computers and had the Windows and Dell logos. "If I had just written 'Eric's Restore Disc' on there, it would have been fine," Lundgren said.
I'm not sure what he was trying to do here. Why make it look like an official MS disc? Why not just label it 'Restore Disc'? He had to have known that he had no right to go producing things that had another company's logo/information on it and trying to pass it off as his own.
This is another case where Linux could be a niche. You would think Linux would be perfect for old computers, that this would be a market niche they could capitalize on. You would be wrong. Unfortunately Linux breaks its driver compatability WITH EVERY RELEASE. They absolutely refuse backward compatability. They also on an irrational whim deleted XAA and dozens of drivers for older cards. The mentality of Linux devs seems to be that no one would ever want to use a computer that is older than three years and everyone should have the latest and greatest $1000 workstation. Not only does this make life hell for hardware manufacturers that would want to provide a driver but also means Linux shoots itself in the foot by neglecting a prime market segment due to the arrogant mentality of some developers. The lack of backward compatibility and cross compatability with Windows (with Wine thinking 40% compatibility is "adequate") remains Linux biggest barriers to adoption.
But hasn't M$ (and others) been telling us for years that the license is irrevocably tied to the hardware? Doesn't Windows 7 and above explicitly say it is tied to identifiers in the CPU, MOBO etc?
The dirty truth is they just want as much money as they can possibly get, any way they can get it. They have made the saying "digital no rights" a defacto truth. And nothing will change as long as we keep electing politicians more interested in lobbyist dollars than representing their constituent's interests. The Democrats held super-majorities in both houses and the presidency from 2008 for two years and did nothing. Sad.
If you disagree, please post your argument. (-1, Overrated) isn't your personal censorship tool for views you don't like
According to the article:
1. He wasn't planning on making a profit on them. He was going to sell them for a nominal cost.
2. He never actually sold any of them. They were intercepted by customs before he ever even got the disks.
3. He runs a massive computer recycling business. Ordering a set of disks from China and selling them to his recycling customers is the equiv. of what you're saying, it's just scaled up to match the scale of the number of computers and customers he deals with. His goal was primarily to make it easier for his customers to recycle Dell computers.
The party of stupid and the party of evil get together and do something both stupid and evil, then call it bipartisan.
It says he made lots and lots of disks, many more than he could have refurbished computers. Had he just provided the disks with the refurbished computers, your argument would be good. Since he intended to pass them on to others, who didn't receive computers from him, it doesn't cover everything.
"When you have eliminated the unacceptable, whatever is left, however improbable, must be the truthiness" - Holmes
"everyone's understanding that the OEM software license survives any number of private party sales is wrong."
How wrong is it? When does the license expire? After the second sale? The tenth sale? Motherboard repair? CPU upgrade? Motherboard upgrade? Selling off one of the RAM modules (no licensed transfer)? MS sticker getting a bit worn? MS sticker falling off? SMPS failing?
I reckon it survives all these events: as long as you have one objectively identifiable 'computer', you are good.
Interesting comments in the article you posted.
It says he made lots and lots of disks, many more than he could have refurbished computers. Had he just provided the disks with the refurbished computers, your argument would be good. Since he intended to pass them on to others, who didn't receive computers from him, it doesn't cover everything.
That would be a good argument against him, if he indeed sold it outside of computers who knew had a license.... THEN AGAIN. Microsoft requires you to enter a license when reinstalling, if you don't have one, an install disk is kind of useless (unless it is an enterprise version, but those have other caveats).
If they wanted a couple bucks to cover the cost of the physical media that would be acceptable but the ISO to burn your own restore disk ought to be a free download with proof of a system purchase.
The ISOs can be downloaded for free from Microsoft without any proof of purchase requirement. The proof of purchase requirement is when you run the installer on those ISOs and it asks for your license key.
Not so fast there. You still don't own the copyright to the book and you didn't get a license to the book (unless it was an e-book). Microsoft only sells you a license to use the book, they don't actually sell the book.
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You can't sell the discs without the hardware which is what this person was doing. He wasn't selling used computers with a copy of the restore disc, he was selling the restore discs without the hardware which according to the OEM license is illegal.
And given I suggested Linux, I've not run Microsoft Windows since RHL (not RHEL) 5.0
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I read the license document. The OEM license extends to the user for that specific computer, a computer cannot own a license after all, you're fairly correct that far.
The problem is when you sell the computer, you have to keep the OEM license, the sticker and the license key with the computer but you also have to explicitly agree to transfer the license: "you may transfer the license to use the software directly to another user, only with the licensed device ... Before any permitted transfer, the other party must agree that this agreement applies to the transfer and use of the software."
Once the computer+license was sold, the restore disk went along with the computer+license:
No, the case surrounds the electronics recycler selling the restore discs separately in order to 'help' people that no longer had said restore discs.
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Not necessarily, the SCOTUS has already agreed with Microsoft on this, Microsoft is selling licenses, not the actual software.
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1) Doesn't matter. He was downloading somebody else's work, and selling it, including using their trademarked logos to confuse matters.
2) Doesn't matter. Intent does, as do 'substantial steps' towards the crime. They were seized being imported to the US on the way to his 'Sales partner.'
3) Doesn't matter. If his business was that massive, both Dell and Microsoft would have happily worked with him to provide the appropriate discs.
Vintage computer games and RPG books available. Email me if you're interested.
> Why should there be ANY cost attached when the computer already has a legitimate license that has already been paid in full?
In most cases like this, Windows has an enterprise-licensed copy of windows that's bound to both the original computer AND licensee & can't be transferred to another user, EVEN IF it's the original installation with the original hard drive.
If Windows is installed from a literal retail-licensed copy of Windows, you can officially reuse the license on new computers in perpetuity, as long as you practice strict "serial monogamy" & never have multiple computers capable of using that license at any one time (and especially never have 2+ computers using the same license online simultaneously -- the BIG "no-no" that Microsoft notices). In practice, VERY FEW actual retail-licensed copies of Windows exist because they're SO EXPENSIVE compared to OEM-licensed copies.
In theory, a business could buy & resell retail windows licenses, but it would be legal suicide since you (the reseller) could never truly guarantee the seller actually complied with the terms & destroyed all other copies & installations of it.
OEM-licensed Windows is black & white on paper, but gray & blurry in practice. Officially, if a computer is sold by an official volume reseller like Dell with Windows, it's unambiguously legal to reinstall windows from the original hard drive recovery image using the original serial... but in practice, the original hard drive is usually long gone (or in a state whose integrity from malware can't be guaranteed). All other commercial resale scenarios probably violate Microsoft's licensing terms.
If you're an individual, Microsoft doesn't particularly care. They'll unofficially tolerate quite a few things that are officially forbidden. Reinstall an OEM copy of Windows on 3 or 4 different computers, and they're unlikely to do much beyond make you phone in to activate it (subtly letting you know, "We're watching you") as long as their servers never see a computer with an older-activated copy of that license online after you've activated it on a newer computer. ESPECIALLY if you're just using an old OEM copy to do a clean installation of Windows on a new computer that shipped with its own OEM license for the same version of Windows ANYWAY.
TL/DR: just because a once-valid Windows license code WORKS to (re)install Windows doesn't necessarily mean it's officially legit NOW in Microsoft's eyes... especially if you're doing it commercially and reselling computers.
Not necessarily, the SCOTUS has already agreed with Microsoft on this, Microsoft is selling licenses, not the actual software.
That's not the point here. Microsoft is selling licenses, but they do not have the legal authority to revoke that license when the original purchaser/licecsee sells the hardware. That's the part of EULAs that hasn't been tested, and should be.
I don't think you understand the difference between a license and a tangible item. You can indeed resell a CD or book or whatever, you cannot necessarily sell the license if you have agreed to it.
The case has been seen in various courts and the contract you 'agreed' to has been upheld (eg. Vernor v. Autodesk) and although the SCOTUS has so far not necessarily agreed but simply left lower court rulings stand.
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Never said they couldn't.