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E-Waste Innovator Will Go To Jail For Making Windows Restore Disks That Only Worked With Valid Licenses (gizmodo.com)
An anonymous reader quotes a report from The Washington Post: California man Eric Lundgren, an electronic waste entrepreneur who produced tens of thousands of Windows restore disks intended to extend the lifespan of aging computers, lost a federal appeals court case in Miami after it ruled "he had infringed Microsoft's products to the tune of $700,000," the Washington Post reported on Tuesday. Per the Post, the appeals court ruled Lundgren's original sentence of 15 months in prison and a $50,000 fine would stay, despite the software being freely available online and only compatible with valid Windows licenses: "The appeals court upheld a federal district judge's ruling that the disks made by Eric Lundgren to restore Microsoft operating systems had a value of $25 apiece, even though they could be downloaded free and could be used only on computers with a valid Microsoft license. The U.S. Court of Appeals for the 11th Circuit initially granted Lundgren an emergency stay of his prison sentence, shortly before he was to surrender, but then affirmed his original 15-month sentence and $50,000 fine without hearing oral argument in a ruling issued April 11." All told, the court valued 28,000 restore disks he produced at $700,000, despite testimony from software expert Glenn Weadock that they were worth essentially zero.
There's your problem. The judges disagreed and felt that $25 was likely.
TBH, while I intensely dislike Windows and would discourage its use if I ever owned my own business, the reality is that the software definitely has a market value of more than $0. Whether it's $25 is up in the air, but the aim was to make old hardware functional, presumably with "functional" being defined as "being capable of running Windows applications"; at the very least, the value of the operating system would be tied to what it would cost to replace the old hardware with equivalent functionality.
You are not alone. This is not normal. None of this is normal.
.... but if you can download the ISO for free (if you have a valid license or sticker, like a Dell for instance) how is that depriving Microsoft of any modicum of revenue?
That's what I can't wrap my head around.
It may be that the value is in the license, but that doesn't change the way the actual laws work. The idea is in the word: "copyright" is a right to make copies. It doesn't matter whether money changed hands: Microsoft has a copyright on those bits, and he copied them without their permission, so legally, he violated their copyright.
Is it a jerk move on Microsoft's part, to prosecute this guy for helping people keep software working which they've already paid for? Sure, and they deserve to be publicly shamed for it.
But there's nothing wrong with this ruling from a legal perspective. Everyone benefits when the law is clear and applied consistently, and in this case it was. Remember that those same laws which allow Microsoft to prosecute a guy for copying "free" bits also allow people who write GPL software to prosecute companies for copying "free" bits without giving back their changes.
TCP: Why the Internet is full of SYN.
That's because 99.9% of jury members aren't aware of jury nullification and the true power they wield. Trial lawyers definitely don't want juries to know about that right, either - especially prosecutors - because those jurors become wildcards. If the lawyers even get a hint of a juror knowing about it, they are thrown out of the jury pool during the selection process.
This ruling is pretty terrifying.
I'm the OCD type who nearly always keeps everything that came with a new product I purchase, all of the manuals, cables, discs, and depending on size sometimes even the original box it came in.
The last two OEM computers of mine that I've sold, or three if you include the one I gave away, all still had the smaller box insert with everything in them I didn't use, down to the original purchase receipt and the twist-ties for the cables - including whatever pack-in discs that came with it.
This ruling states I'm a criminal in violation of copyright law for including the original Windows restore discs that came with the machine.
Burnt DVDs or original pressed DVDs makes no difference, both are distributing a copyrighted work.
Despite the fact it was $25 of my own money spent on that component, the court has ruled I don't have first sale doctrine rights to resell what I paid for and even included the receipt with.
I wonder how many weeks or months of jail time those three PCs alone would get me...
Ever seen a used PC with the orignal COA scratched off and replaced with a Microsoft Reseller Program COA? That's what this is all about. Microsoft wanted the license to only apply to first owner, but that got struck down in court. So then they strong-armed computer resellers into purchasing low-cost refurbished PC COAs with intimidation and implied threats. (pc shop i worked at didn't fall for it). Every PC this guy sold with the orginal COA was about $20 out of microsoft's pockets.
"Prediction: within 10 years, Windows will be a Linux distribution." Me, 7-6-2016
I'm okay with that.
Jury nullification is, by necessity, a complete undermining of the legal and judicial process. It is essentially taking the Constitutional architecture for our three branches of government, throwing it out the window, and saying "this mob will rule today". To ask a jury to nullify a case is to declare no confidence in the duly-elected representatives, judges, or attorneys involved.
It is the ultimate power of the people, as the judicial equivalent of a nuclear weapon. There is no return, no appeal, and no way to fix the harm caused by a jury nullifying inappropriately. It is a power that should be used when there is no other option that aligns with America's founding principles. If an executive branch starts persecuting religious leaders, nullification would be appropriate. If people are being prosecuted simply for meeting each other, nullification is appropriate. If someone is being tried for their thoughts rather than their actions, nullification would be appropriate.
I, for one, can't trust that someone promoting nullification can actually respect the law or its application. In the public eye, it's become seen as a minor anarchy; just a way to escape consequences for crimes against acceptable targets. After all, who cares if it's Microsoft, or Disney, or Monsanto being harmed? How bad can it be to remove legal protection from groups or people we don't like, anyway?
Now in this case, Lundgren violated the letter, spirit, and intent of the law. There are other (legal) routes to accomplish what he tried to do. Just because we happen to agree with the cause he champions is no reason to tear down the pillars of justice. It's just not worth the high cost.
You do not have a moral or legal right to do absolutely anything you want.
The court can check the power of the executive. That's how our system works.
It's almost as though copyright law is broken. Can I be paid for my labour of building a PC, installing Windows and then selling the PC? I don't have the "right" to distribute Windows.
I never doubted that this verdict was within the confines of the law. The question was should it be? I would say no.
The answer is copyright. And he didn't have the right to copy and distribute. Technically not even for free.
So because fuck you that's why? He didn't cause 700K worth of damage to anyone because product doesn't even exists. If he didn't sell discs, nobody would have. In fact you could argue he saved Microsoft and other companies money by reducing traffic and work hours to countless repair shops.
So "fuck me?", "fuck YOU" should have been a pretty legitimate response from the jury in this particular case. They could have just told the guy to stop with a slap on the wrist. But noooo, someone needs to make an example out of this poor asshole.
I've always found the most interesting example of the "commit the crime on purpose to get the law in front of a court" case to be Plessy v Ferguson where everyone involved, the perpetrator, "victim," and arresting agent were all intent on having the law overturned. And failed:
In 1890, the state of Louisiana passed the Separate Car Act, which required separate accommodations for blacks and whites on railroads, including separate railway cars. Concerned, a group of prominent black, creole, and white New Orleans residents formed the Comité des Citoyens (Committee of Citizens) dedicated to repeal the law or fight its effect. They persuaded Homer Plessy, a man of mixed race, to participate in an orchestrated test case. Plessy was born a free man and was an "octoroon" (of seven-eighths European descent and one-eighth African descent). However, under Louisiana law, he was classified as black, and thus required to sit in the "colored" car.
On June 7, 1892, Plessy bought a first-class ticket at the Press Street Depot and boarded a "whites only" car of the East Louisiana Railroad in New Orleans, Louisiana, bound for Covington, Louisiana. The railroad company, which had opposed the law on the grounds that it would require the purchase of more railcars, had been previously informed of Plessy's racial lineage, and the intent to challenge the law. Additionally, the committee hired a private detective with arrest powers to detain Plessy, to ensure that he would be charged for violating the Separate Car Act, as opposed to a vagrancy or some other offense. After Plessy took a seat in the whites-only railway car, he was asked to vacate it, and sit instead in the blacks-only car. Plessy refused and was arrested immediately by the detective. As planned, the train was stopped, and Plessy was taken off the train at Press and Royal streets. Plessy was remanded for trial in Orleans Parish.
We don't have a state-run media we have a media-run state.