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.

Comments

No good deed goes unpunished!

[Anonymous Coward]

Brave new world ! Hail Microsoft !

Re: No good deed goes unpunished!

[Anonymous Coward]

It wasn;'t illegal. Remember, they claim that they're not selling the disk, else they would have to replace damages and loss, but the license to use, hence you "need" an agreement (EULA). Making the disk itself worthless. And, no, if you have a license, you do not need to use the original disks,you just use the license key. Not even the disk s were illegally copied. So complete fail there, moron.

Re:No good deed goes unpunished!

[Anonymous Coward]

I wish the U.S. had a well-functioning government.

Re:No good deed goes unpunished!

[Anonymous Coward]

Yep. This case proves conclusively that the US legal system is worth approximately $0.

Re: No good deed goes unpunished!

[Jerry]

Laughs in Linux.

Error! Broken depository.

Dang it...

"depository" ? LOL!
Windows doesn't use a "depository", unless you are referring to the OS itself, and Linux uses repositories.

Re: No good deed goes unpunished!

[theshowmecanuck]

Whoosh

Re: No good deed goes unpunished!

[Anonymous Coward]

I was on his side until I read the article. While it is indeed legal to download and burn the software to CD, it is not okay to redistribute that CD. Even giving it away is distribution.

That's really what this whole thing comes down to. He did not have the right to distribute that software. He could of passed out a piece of paper with instructions on how to get to the download site and how to burn the disc, but clearly he was selling the used hardware and wanted it to be easy for anyone to buy a computer from him.

I don't like Microsoft, but if you want to use their software, you need to follow the rules. Otherwise use Linux and this would of never come up.

Re: No good deed goes unpunished!

[Anonymous Coward]

I'm a so-called grammar Nazi, as well. However, his/her statement is very valid. Given so, I believe your comment added a negative connotation to his comment and, therefore, won't be well received by folks that share a similar thought process as my own. Hell, it detracts from his standpoint all together.

Kudos on catching the error; but in this case we could have gone without the correction.

Re: No good deed goes unpunished!

[lsatenstein]

He should appeal. With that ruling, spare parts manufacturers who make brake pads and car components should be found likewise guilty too. The argument is that what is against this benevolent person applies to all manufacturers of replacement parts.

Re: No good deed goes unpunished!

[Rakarra]

Are you a fucking moron?

Asks the stupid and entitled kid who doesn't understand copyright law.

The law is not moral. That's the whole point. This seems like it's just gone over your head several times now.

Re: No good deed goes unpunished!

[Rakarra]

The law is what society as a whole deems to be right, otherwise it wouldn't be a law.

I'm pretty sure you don't want to walk down that rhetorical road. Because if you gave people the specifics of this case and asked them if it seemed right that the law should jail this man, I guarantee you that far more people would be on his side than against.

Pretty much the only people that agree with this are the IP-rights lovers and their astroturf-posting AC accounts.

Legal system is broken

[sinij]

It boggles my mind that such verdict is possible. How come jury nullification didn't happen in this case?

Re:Legal system is broken

[fodder69]

Is ruled on by a judge not a jury in this case (my guess cause I don't care to look more).

Re:Legal system is broken

[bjdevil66]

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.

Re:Legal system is broken

[AmiMoJo]

Microsoft spent more on lawyers.

Re:Legal system is broken

[Anonymous Coward]

Strange isn't it, that we allow governors and presidents power to usurp law by use of pardon. But when we the people want to do the same through jury nullification we are shunned by authority. It is your right and duty in cases of gross unjust punishment to use jury nullification.

Re:Legal system is broken

[tomhath]

It was a clear case of copyright infringement. Lundgren himself admitted that:

the disks had “labels nearly identical to the discs provided by Dell for its computers and had the Windows and Dell logos,” the Times wrote. As a result, Lundgren pleaded guilty to two of 21 charges, conspiracy and copyright infringement. He told the paper, “If I had just written ‘Eric’s Restore Disc’ on there, it would have been fine.”

It probably wouldn't have been fine though, he was still distributing copies of software without the copyright owner's permission.

What he probably could have done legally was write his own software and made restore disks with that. But copying software is much cheaper than writing software.

Re:Legal system is broken

[Anonymous Coward]

Because no one is actually looking at this with all the facts, we all just jump on a bandwagon when we read between the lines.
From the original news story about the original court case (not the appeal) "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."

You can freely download and burn the restore disk without any legal ramifications, you CAN NOT sell the restore disk unless you have authorization to do so.

Re:Legal system is broken

[Kielistic]

The question is: why not? If Microsoft doesn't want to provide this service and other people value it enough to pay for it why should he not be paid for his labour?

Re:Legal system is broken

[Anonymous Coward]

Politics is the mind-killer.

Re:Legal system is broken

[Sarten-X]

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.

Re: Legal system is broken

[Anonymous Coward]

So you crowbar Trump and some weird pretend victimhood into every conversation?

I bet it makes you the life and soul of the party.

Or maybe you're just slowly ostracising yourself from the people around you.

Re:Legal system is broken

[Rhipf]

Judges don't have the authority to "usurps the executive powers of the President regarding immigration" but only the legality of how that power is used (hence balance of powers). Without that check the President would become a defacto dictator.

If you are a judge and you have both sides of the political debate upset with you over different rulings you are probably doing your job properly.

Re:Legal system is broken

[omnichad]

The answer is copyright. And he didn't have the right to copy and distribute. Technically not even for free.

Re:Legal system is broken

[Anonymous Coward]

Because the image he is burning and trying to sell is not his labour at all, it's Microsoft's. If M$ wants to make sure that only authorized resellers sell their restore cd's to distributors that is their choice. Even small stuff like how was the CD labeled would have implications, did he have the windows logo anywhere on the cd or the case?

  I'm not saying I agree with the verdict but at the end of the day unless you sit in on the actual court case/appeal process and/or everything was published and there was no publication bans. It's hard to have a clear view of exactly that legalities were argued.

Re:Legal system is broken

[Anonymous Coward]

So you can pay an employee to do it but not another company? The point is that this is just another demonstration of why copyright law is broken.

Re:Legal system is broken

[king neckbeard]

Yeah, it's almost as if they view an important part of the judicial branch as being a check on the power of the other branches of government. Of course, that would also mean realizing that the judge didn't "usurp" power, but instead "checked" it. Usurping the power would be if the judges themselves were deporting immigrants.

Re:Legal system is broken

[JD-1027]

I, for one, can't trust that someone promoting nullification can actually respect the law or its application

Exactly. When we have no trust in the specific law being tried, nullification might be the appropriate response.

I'm not qualified to comment on the case, but what I've seen so far, I'm not sure the punishment fits the crime.

But, then again, I'm not a soulless corporation, so it follows that most of the laws of our land wouldn't make sense to me, especially in the realm of copyright.

Re:Legal system is broken

[Cajun Hell]

I wouldn't have nullified in this particular case, but...

Because they will ask you during "voir dire" whether you will uphold the judges instructions and weigh the evidence against the law. .. If you say yes, then you just admitted under oath that you will obey the judge's instructions.

"When I said yes, I didn't realize the [judge's instructions | written law] was going to be so nutty. I went into this with faith and confidence but then your fucked up court showed me that its entire purpose is to harm the innocent."

Again, not what I'd have done in this case, but let's face it: most people don't know the details of most laws, but generally expect them to be sane, or at least well-meaning. A person can very easily answer yes before they know what the law is. Once they hear it, and once the judge starts doing things they think are shady, or issuing instructions that appear to be designed to prevent a fair trail from happening, there's nothing wrong with someone changing their mind. That initial "yes" (or more realistically, "I think so") is a question, not a pledge or promise. It's a statement of the juror's opinion. It's a prediction.

That's how I'd take it. If the law and court are reasonably in line with peoples' expectations, there's nothing to worry about.

Re:Legal system is broken

[Sarten-X]

If it's a specific law you don't trust, ask your representatives to have that law changed, either through a direct petition or through indirect activism. That's how the system is designed to work, in accordance with the Constitution. As the saying goes, there are the four boxes of liberty: soap, ballot, jury, and ammo. The third box is when the first two have failed completely.

Re:Legal system is broken

[UnknownSoldier]

> Jury nullification is, by necessity, a complete undermining of the legal and judicial process.

Uh, that's it purpose, McFly. It is supposed to be used to nullify BAD laws.

It is basically the equivalent of civil disobedience but in the legal framework.

Re: Legal system is broken

[Anonymous Coward]

The court can check the power of the executive. That's how our system works.

Re:Legal system is broken

[Applehu Akbar]

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.

Which in a case like this would have been exactly the right thing to do!

Jury nullification cannot be used to execute or imprison someone who by law might not have been punished. It can only be used in the other direction, to serve notice that in the eyes of the people the law was wrongly applied to this case and that more freedom applies, not less.

Re:Legal system is broken

[mysidia]

This was an appeals case. Only the original trial would have been by jury.

Re:Legal system is broken

[Sarten-X]

It doesn't do anything to the law, though. It only nullifies the specific case. The whole premise of a law-abiding society is that the laws are predictable and fairly applied. Using jury nullification turns the legal system into a popularity contest, where the winners can get away with anything if they can convince enough jurors that they should be above the law.

If you want to get rid of a bad law, the best way to do that is to convince your representative to take up that cause, or even run for that position yourself.

As for civil disobedience, please recall that that's also still breaking the law, and folks still get arrested for it, and folks still go to jail for it, and only rarely do they ever see their preferred form of outcome. Usually, civil disobedience (at least, when coordinated by people who know what they're doing) is intended to be an opportunity to draw media attention to an issue, or to get a carefully-planned case in front of an appeals court with the ability to rule a law is unconstitutional. As a famous example, Rosa Parks' refusal to give up her bus seat sparked a popular media event, but the discriminatory law itself was actually overturned by the case stemming from the arrest and fining of Aurelia Browder.

Re: Legal system is broken

[Reverend Green]

Pardon me brother, can you spare a couple hundred million dollars? I need to get a law changed!

Re:Legal system is broken

[Sarten-X]

Which in a case like this would have been exactly the right thing to do!

Why exactly would it be right in this case?

Microsoft produced a work eligible for copyright. They sell copies of that work. Lundgren made his own copies, distributed them, and benefitted from that distribution of someone else's work. Please tell me why, in very specific terms, it would be just to allow this act?

Jury nullification cannot be used to execute or imprison someone who by law might not have been punished.

Jury nullification can be used to allow offenses to go unpunished. It has been used in the past to allow racist murderers to go unpunished, leaving the victims' families with no recourse for justice. Here you suggest that it should be used to allow the looting of someone's contracted and paid-for labor. It is a power, and like any other power, it can be used for evil just as easily as it can for good.

Re:Legal system is broken

[war4peace]

What does this have to do with anything?
Yes, when a judge does something right people will cheer. and when a judge does something wrong people will boo. It's not even the same judge FFS!

Re:Legal system is broken

[Rick Schumann]

This is a prime example of the 'Golden Rule': Those who have the gold make the rules. Microsoft, being the asshole corporation they are, has probably an entire building full of high-priced lawyers, and they will pile on anybody they feel like and bury them. This Eric Lundgren probably doesn't even have a fraction of the liquid assets that Microsoft has and was just plain destroyed via attrition. The reason why, by the way: it went against their long-term objective to force everyone to use Windows 10, and become part of the Microsoft bot-net. Microsoft needs to be taken down and chopped up again. Hell, for that matter, big corporations in general, especially here in the U.S., need to be taken down and chopped up. There used to be such a concept as 'capitalism in the public interest', but I don't see that happening today. I think it's about time it started happening.

Re:Legal system is broken

[hawk]

Yes, ans also . . .

The *very nature* of jury nullification is that it is the impromptu action of the jury members when their consciences are shocked; it is not something that can be argued to them.

Also, while normally discussed for petit juries (trial), it not only also applies to grand juries, but that aspect is actually enshrined in the US Bill of Rights: the right to indictment by grand jury for felony is *because* the colonial grand juries refused to indict patriots for acts of which they were clearly guilty under the law.

hawk, esq.

Re: Legal system is broken

[ArmoredDragon]

It's actually more about the seriousness of the crime, not necessarily that it was a crime. I'm general, so long as the jail sentence is 6 months or less, and/or a fine is $1,000 or less. This applies universally, but some states grant jury trials for less than that.

https://www.nolo.com/legal-enc...

Re:Legal system is broken

[Uberbah]

Because no one is actually looking at this with all the facts, we all just jump on a bandwagon when we read between the lines.

Nope! Just not being willfully blind to the draconian punishment being handed down here. A reasonable fine and a suspended sentence (to be wiped after probation is completed) would be more than sufficient. And if it wasn't and the guy went back to selling restore disks...just unsuspend the sentence and then send him to jail. Instead of fucking him over the rest of his life with a federal felony conviction.

Re:Legal system is broken

[es330td]

I have been on the jury side of nullification. Once while on a Grand Jury a case involving bodily injury was brought wherein the facts very clearly indicated evidence sufficient to go to trial and was strong enough that a prosecutor would have an easy time getting a conviction. A common sense examination of the facts, however, indicated that he was not responsible for the crime. I can't discuss the specifics but the scenario was similar to that in the NFL where a player gets hit but the ref only sees and calls a foul on the retaliation punch. We chose to No Bill the indictment. We specifically talked in deliberation about whether we were in bounds to do this but at the end of the day we decided that this was best for the situation.

I think it is also important to note that the most the jury can do is determine to not act in one specific instance. A jury cannot increase charges or bring charges against an individual. The worst thing the "mob rule" jury can do is decide the outcome of one case.

Re:Legal system is broken

[sycodon]

This. is, in fact, a usurpation of Presidential powers.

Re:Legal system is broken

[dgatwood]

What part of the Constitution do you think DACA violates? Congress makes the laws. The President controls their execution. Absent the executive branch actually breaking a law that explicitly requires them to do something, they are under no obligation to enforce laws 100% of the time.

More to the point, prosecutorial authority (and thus, prosecutorial discretion) is the only power that lies exclusively with the executive branch. It is the executive branch's sole responsibility to determine who should or should not be prosecuted for violation of the law. Thus, this is arguably the President's *primary* job, with vetoing legislation being secondary, because leading the executive and setting policies that are followed by groups within the executive is the only task that isn't shared in any way with any other branch of government. (Leadership of the military is shared by Congress's ability to declare war, and overruling bad legislation is shared with the judiciary.)

You literally cannot take away the President's authority to create policies like DACA without eliminating the executive branch or stripping it of its power, which would require a complete rewrite of the Constitution. Creating executive branch policies like DACA is precisely what the founding fathers intended for the executive branch to do.

Re:Legal system is broken

[BlueStrat]

Jury nullification can be used to allow offenses to go unpunished. It has been used in the past to allow racist murderers to go unpunished, leaving the victims' families with no recourse for justice.

It has also been used in the past to prevent racist prosecutors/DAs/courts/judges from wrongly convicting people based on race. It has been used to prevent ACLU civil rights activists in the Deep South in the '60s from being wrongly convicted & imprisoned as well as wrongly used as you've stated. It cuts both ways. Being that the vast majority of people (and thus potential jurors) in the US are basically good and fair-minded, jury nullification serves to do far more good than bad on balance.

Personally I think it would be a great idea to post flyers all around the local area near court buildings explaining jury nullification to educate the public and potential jurors.

Strat

Re:Legal system is broken

[Kielistic]

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.

Re:Legal system is broken

[mcmonkey]

They sell copies of that work.

Wrong. Try again.

The license use of that work. They don't sell copies of that work.

Re:Legal system is broken

[kaatochacha]

I really don't understand this ruling.
President one: I demand everyone gets (X). Presidential fiat!
President two: I now say nobody gets (X). Presidential fiat!
Judge: President two, you can't do that.

????

Re:Legal system is broken

[Anonymous Coward]

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.

Re:Legal system is broken

[drinkypoo]

I, for one, can't trust that someone promoting nullification can actually respect the law or its application.

That's because you're completely backwards. The exact opposite is true. It's the judges you can't trust. They lie to juries right at the beginning of trials. They say "if the facts are such and such, you must find the defendant guilty". But that's a lie. They have the right to return any verdict they want, and cannot be punished for it. When the judge begins the proceedings with a lie to the people who are supposed to decide guilt, you know that the whole system is corrupt.

Re:Legal system is broken

[Impy the Impiuos Imp]

Judges don't have the authority to "usurps the executive powers of the President regarding immigration" but only the legality of how that power is used (hence balance of powers).

Not completely true in the immigration case. In some of the rulings the judge piled on an additional reason that the President's reasoning, on the face of it, was not good enough in the judge's eyes. Not that it was uncostitutional in some way, but that the stated surface reason taken at face value was insufficient.

This definitely is the judicial branch substituting it's weighing for the elected branches', said weighing directly assigned to them by the people by way of the constitution.

Re:Legal system is broken

[Marful]

Last time I was a Juror, the judge threatened contempt of court to anyone who engaged in Jury nullification, or shared the knowledge with others. He didn't outright use the words "jury nullification", but it was basically what he was instructing the jury about.

Re:Legal system is broken

[Marful]

Jury Nullification, like the 2nd Amendment, is implemented such that all power remains in the hands of the people.

Re:Legal system is broken

[sycodon]

You literally cannot take away the President's authority to rescind policies like DACA without eliminating the executive branch or stripping it of its power, which would require a complete rewrite of the Constitution.

Funny how that fits either situation.

Re:Legal system is broken

[Marful]

Didn't Nintendo lose this case with the guy offering roms of their out-of-print games?

IIRC, the court ruled that you can't claim copyright on a product you don't intend to sell. The whole point of copyright is so you can make available to the public the product while retaining rights to control the distribution.

Nintendo subsequently started making bundled Game-Boy cartridges with 100 games on one cartridge so they could retain control of the IP.

Re:Legal system is broken

[epine]

That's because 99.9% of jury members aren't aware of jury nullification and the true power they wield.

Way to tell half the story.

Jury nullification:

In most modern Western legal systems, however, judges often instruct juries to act only as "finders of facts", whose role it is to determine the veracity of the evidence presented, the weight accorded to the evidence, to apply that evidence to the law as explained by the judge, and to reach a verdict; but not to question the law or decide what it says.

Similarly, juries are routinely cautioned by courts and some attorneys not to allow sympathy for a party or other affected persons to compromise the fair and dispassionate evaluation of evidence.

These instructions are criticized by advocates of jury nullification.

Now let's parse this automatic "true power" of your checklist-item clue stick to the second level:

Jury nullification is the source of much debate.
:
Some maintain that it is an important safeguard of last resort against wrongful imprisonment and government tyranny.
:
Others view it as a violation of the right to a jury trial, which undermines the law.
:
Some view it as a violation of the oath sworn by jurors.
:
In the United States, some view the requirement that jurors take an oath to be unlawful in itself, while still others view the oath's reference to "deliverance" to require nullification of unjust law: "will well and truly try and a true deliverance make between the United States and the defendant at the bar, and a true verdict render according to the evidence, so help [me] God".
:
Some fear that nullification could be used to permit violence against socially unpopular factions.
:
They point to the danger that a jury may choose to convict a defendant who has not broken the letter of the law.
:
However, judges retain the rights both to decide sentences and to disregard juries' guilty verdicts, acting as a check against malicious juries.

As a juror, you'd need your own fricking lawyer sitting beside you in the jury box just to halfway comprehend the true legal muddle you're operating within.

Re:Legal system is broken

[Solandri]

It probably wouldn't have been fine though, he was still distributing copies of software without the copyright owner's permission.

I don't think that was the issue at all. Is it copyright infringement to distribute software which the copyright holder is already distributing for free? If someone is giving away their ebook for free, are you prohibited from making a copy to give to your friend? I'd have to say no, otherwise I'm in a heap of trouble for all the copies of Office I've installed on systems I've built for customers. I downloaded the Office installer once and put a copy on my server, and used that copy (along with the install key the customer bought) to install it for them - essentially giving them a copy from my copy.

I think the issue here was he was charging for the discs. I charge for the service of prepping the computer and installing/updating the software. I don't charge for the copy of Office I've pre-downloaded.

Re:Legal system is broken

[Straif]

The problem with DACA wasn't that Obama choose to not remove illegal alien children from the US it's that it granted them special privileges.

If he had just issued an E.O. saying "don't deport minors" then absent a new piece of legislation by Congress everything would have been legal. Of course Trump could then rescind that order and again, everything would be legal; there would be nowhere in the process for the judiciary to step in. Instead he created the DACA program which went above and beyond simply not deporting them.

The not deporting potion is just selective enforcement which every President and every D.A. in the US routinely do. Granting special rights however, such as access to certain government benefits or special work permits, goes beyond choosing to not deport and into the realm of legislation.

Re:Legal system is broken

[omnichad]

Probably not a US ruling/case. Way too many Mickey Mouse laws and way too many films that are unavailable. Go find me a copy of Song of the South.

Re:Legal system is broken

[Applehu Akbar]

Because Microsoft had no business sticking it to a developer who took the trouble to preserve Windows licensing in implementing a restore program. Punishment would have been justified if he had been cavalier about Windows IP, but he explicitly did not do that, using a tool that MS gave away for free, so you spare us the inapplicable bleat about “looting someone’s contracted and paid-for labor.”

Re: Legal system is broken

[c6gunner]

Well, not to put too fine a point on it, basically:
Obama's administration filled out the paperwork and submitted it in triplicate.
Trump's administration just used blank paper with the words "Immagrints Bad" on it.

I think you're confusing "fine point" and "dull troll". No part of your comment comes even close to reflecting the reason, purpose, or methods at play. It's as if you were watching a baseball game and said "so, basically, the guy with the ball is trying to hit the guy with the bat, because he hates the Dutch".

Re:Legal system is broken

[meta-monkey]

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.

Re: Legal system is broken

[c6gunner]

Man, that gay marriage lobby must have had a lot of money.

Re:Legal system is broken

[slinches]

Advocating for change of the law is good, but it doesn't help the poor guy whose life is destroyed by "proper" application of an existing unjust law. That's where things like prosecutorial discretion and jury nullification come in.

Re: Legal system is broken

[c6gunner]

Convince your representative to change a law that was bought paid for by corporations? What kind of fantasy land do you live in?

Which corporations paid for copyright law, and when did this happen? Be specific.

Re: Legal system is broken

[c6gunner]

If someone is giving away their ebook for free, are you prohibited from making a copy to give to your friend?

No, but you also can't burn that e-book to a disc and then sell it to a customer. Which is more analogous to what he was actually doing.

Re:Legal system is broken

[qeveren]

There's a legal doctrine called 'reliance' behind this sort of ruling. Basically where someone promises something in exchange for you doing a thing, and then when you do the thing they go "psyche!" and retract their offer (or otherwise penalize you for doing the thing).

Re: Legal system is broken

[Anonymous Coward]

Disney. Every time Mickey Mouse comes up for public domain.

Re:Legal system is broken

[tsstahl]

Mod up! Oh, to be without points.

Re:Legal system is broken

[kaatochacha]

I would agree with this, except we have been told for years that we don't "own" the software, we're just renting it via license. So the discs he's selling still need to be tied to a license. you can't sell something you don't own, after all.

Re: Legal system is broken

[bondsbw]

This seems to be a slippery slope. He was charging for his service of creating the disc, part of which was used to cover the cost of purchasing blank media.

According to the article he was planning to charge 25 cents. That aligns closely with the cost per blank disc.

Re:Legal system is broken

[Darinbob]

The courts are necessary when there is a dispute. The courts never come out of nowhere to make a decision and "usurp power" or "legislate from the bench". Courts only make a decision when they have been asked to resolve a legal dispute. In the vast majority of cases, the dispute is valid and there are indeed two valid arguments to be made that need to be resolved. The executive office is not the one that decide between disputes, especially when the dispute is involve the executive as one of the parties.

Making that decision is hard and involves many factors, such as conflicting laws, laws conflicting with the constitution, vaguely written laws and/or constitution, prior precedent, and so forth. Certainly a lot of people disagree and will claim loudly that "the intent was obvious!" but have they fully read all the arguments or just basing their ideas on what their media bubble tells them to think?

For me, the argument of figuring out what the original intent of the legislators was is irrelevant. Legislators intentionally make laws vague on purpose, rather than spelling out in detail what their intent was. It is much easier to get laws passed if you don't go into specifics and leave a lot of wiggle room for implementation. Legislators are always free to go back and provide additional clarity should they ever get their act together.

Re:Legal system is broken

[Darinbob]

If the president has almost unchecked powers with national security issues, then they presidents could call every issue a national security issue and become a dictator!

It was clear from the president's actions and statements that national security was partially a smokescreen. Since the president could not just ban all muslims, in order to preserve his campaign promises he cherry picked a few countries that he felt we could piss off safely, while leaving alone other primarily muslim countries that we have strong economic ties to, and then calling it "national security".

Re:Legal system is broken

[brantondaveperson]

Your argument doesn't make sense, unless you are willing to hold jurors to account for their verdicts.

A juror is the individual tasked with listening to the evidence, and making the final decision, thus the final decision rests with them. Jury nullification isn't a special case of justice, it's the whole, entire process. If a juror cannot be held to account for their decision, which is a principal that I assume you support, then "jury nullification" is an inevitable consequence of that principal.

Re:Legal system is broken

[dgatwood]

I agree. I may not agree with Trump doing it, but IMO, he definitely has the right to do so. Of course, any judge also has the right to stay such an order by issuing a preliminary injunction, if such an order would cause undue hardship, until such time as the order can be reviewed for constitutionality, but in the end, it seems obvious that he has the right to do so (though the argument that the teardown is being done in a way that is arbitrary and capricious is not entirely without merit, in which case it might be necessary to tear things down in a different way, such as a gradual tear-down over time).

Realistically, I view the legal challenge (and the government's decision to not request permission to stop accepting applications in the interim) as little more than a way to delay implementation in the courts long enough to get Congress to actually pass the law that they should have passed a decade ago, while keeping the burner turned on under Congress's backsides. I'm not entirely convinced that Trump wants DACA to go away, given the way they've handled this, though it's hard to say for sure. There's certainly reason to suspect that this may all be a ploy to force Congress's hand on an issue that they keep punting down the road.

Re:Legal system is broken

[Darinbob]

Jury nullification isn't just deciding that a particular can be ignored, it's rather refuting the entire validity of the legal system. It's not something to be taken lightly.

Re:Legal system is broken

[david_thornley]

Jury nullification is also a way to make sure that the government doesn't justly punish people. Currently, it's often used to let police get away with murder.

Re:Legal system is broken

[david_thornley]

If Snowden had only released classified information about what the TLAs were doing in the US, I'd have a much more favorable opinion of him. The NSA is supposed to spy on other countries. It's expected, and everybody knows it happens. Revealing how we do it is exactly the sort of thing that laws on classified materials were intended to stop.

Re:Legal system is broken

[Sarten-X]

Yeah...... I used to assist* with organizing protests. We literally had a playbook for how to do civil disobedience. For the legal route (which was actually much more rarely a planned event), we'd try to make sure that the resulting cases couldn't be thrown out for other reasons before getting to the issue in question. For PR-focused events, we'd lean the other way, trying to arrange as many mitigating circumstances as possible and get as much media attention as possible, but minimizing the actual legal impact.

In at least one event, we actually even staged an arrest for the cameras. The actual law broken was something trivial like jaywalking, but the officer on duty was a good friend, and made a nice big show of his (perfectly valid and legal) arrest, shouting loudly and completely ignoring the news cameras who will always turn to capture something like that. That case went through the court, a small fine was paid, and the evil jaywalker paid their debt to society... and conveniently had given a few interviews to the news crew earlier that day, which naturally made their way to the TV screen that night.

* For what it's worth, I assisted minimally, and didn't get particularly involved. I was the sound guy for some of the pre- and post-protest discussions and meetings, so I heard the planning and the stories, but can't really claim much expertise beyond what I've said here.

Re:Legal system is broken

[ras]

Jury nullification is, by necessity, a complete undermining of the legal and judicial process.

Or, it's 12 randomly picked men and women not agreeing with the case made by the prosecution. Or to put it another way: it's lovely piece of jargon an incompetent prosecutor can use to shift blame away from them.

It could be worse. If could be our politicians dreamt up a law so vile even the best prosecutor couldn't sell it to a jury. They scream "Jury nullification" from their pulpits to attack their own citizens for not being sheep.

In either case, it's not a complete undermining of the legal and judicial process as you put it. It's one of those many checks and balances others have mentioned here. It can't undermine the process because it's a very deliberate part on it. When it happens, it doing the job it's supposed to - keeping the law within the bounds normal men and women find reasonable, regardless of what their betters think.

Re:Legal system is broken

[Rick Schumann]

Gee whiz looks like I ticked off a paid Microsoft astroturfer/shill and he had mod points.

Re:Legal system is broken

[h4ck7h3p14n37]

I've never made it all the way through juror selection, but I have heard that courts now try to get people to waive their right to nullification by getting them to swear under oath not to do it.

I have no idea how that would ever be enforced. Can't you just tell the jury foreman you vote not-guilty and then refuse to explain how you reached that decision?

Re: Legal system is broken

[Jesus H Rolle]

Personally I think it would be a great idea to post flyers all around the local area near court buildings explaining jury nullification to educate the public and potential jurors.

Saw this in SL,UT: posters posted on every pole explaining it.

Re:Legal system is broken

[aquacrayfish]

Conversely, it could have been used in this case to prevent an innocent man from going to jail. Maybe the next 1000 guilty men should go free to balance this? I forget how that saying goes sometimes.

Re:Legal system is broken

[greylion3]

Microsoft produced a work eligible for copyright. They sell copies of that work.

No, Microsoft sells a $25 license to use that work. The work is free to download.
The $25 license is a *new* OEM license key, meant to be used with a pc that did not previously have a license key. For example, a pc that was put together from parts from other pc's of the same exact series and model.

Lundgren made his own copies, distributed them, and benefitted from that distribution of someone else's work.

Lundgren made copies of a freely downloadable copy of a Dell Restore Disc, as a convenience to customers, to sell with old/refurbished computers, that already *had* an OEM license key.

Please tell me why, in very specific terms, it would be just to allow this act?

Microsoft relies on consumers to buy a new pc with a newer version of windows when their old pc becomes unworkable, for example when a harddrive crashes, requiring a new harddrive in that pc, and then restoring the operating system with a Restore Disc, or if the file system corrupts beyond repair (or if said harddrive has a restore image which becomes corrupt), requiring again, restoring the operating system with a Restore Disc.
By the time this happens, the Restore Disc will often have gone missing, and/or the user/customer might have forgotten/lost the information that a Restore Disc even exists, or can be downloaded for free.

From my perspective, Lundgren was endangering sales of new licenses of newer operating systems, as well as sales of $25 licenses to go with old/refurbished pc's (as refurbishers will often go that route), by making it very convenient for users/customers to keep using old pc's with older versions of operating systems, in a way that was freely available, but seldom used, probably due to non-awareness.

Lundgren may have been infringing copyright in a minor way, but it certainly doesn't look as if he was doing it in a for-profit way. He had set a $0.50 price target for each disc. He was even very specific as to why he got in trouble: he put an official Microsoft and Dell logo on each disc, and that's against the terms of use for (the copy of) that Restore Disc.
Source: https://news.softpedia.com/new...

Re:Legal system is broken

[Kielistic]

But it was available. The broken part is that these companies want to give it away to anyone that asks then later say "no don't use it like that".

Copyright is a deal struck between the public and the government to promote creative works. With the unending complaints of piracy from major content producers it is clear the public at large does not agree with the current implementation of the deal.

Re:Legal system is broken

[sabt-pestnu]

> Wrong. Try again.

> The license use of that work. They don't sell copies of that work.

... and they license use of that work for free, so the damages issue is unaffected by your quibble.

Re:Legal system is broken

[Kielistic]

If I gave you my copper pipes I wouldn't be able to sue you for selling them to meth heads. But I am not giving them to you now am I?

Re: Legal system is broken

[BlueStrat]

Personally I think it would be a great idea to post flyers all around the local area near court buildings explaining jury nullification to educate the public and potential jurors.

Saw this in SL,UT: posters posted on every pole explaining it.

Well, Bravo! to the Magic Underwear folks! (I keed, I keed!)

Strat

It sounds like a fix was in

[AlanObject]

I just don't see how this ruling could stand the way it is described here.

If the software market value is zero, how did the original judge get to $700,000 damages? That calculation or at least argument would have to be shown. Does anyone know what it was?

Re:It sounds like a fix was in

[gweihir]

I think he asked a "handling fee" or the like for those disks. Still an insane verdict completely out of touch with reality. But what else can you expect from members of the legal profession?

Re:It sounds like a fix was in

[squiggleslash]

If the software market value is 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.

Re:It sounds like a fix was in

[Anonymous Coward]

I just don't see how this ruling could stand the way it is described here.

If the software market value is zero, how did the original judge get to $700,000 damages? That calculation or at least argument would have to be shown. Does anyone know what it was?

$25 per disc x 28,000 discs

Re: It sounds like a fix was in

[Anonymous Coward]

But the disk content was free to download.

Re:It sounds like a fix was in

[Miser]

.... 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.

Re:It sounds like a fix was in

[DaFallus]

I just don't see how this ruling could stand the way it is described here.

If the software market value is zero, how did the original judge get to $700,000 damages? That calculation or at least argument would have to be shown. Does anyone know what it was?

$25 per disc x 28,000 discs

Yes, but the real question is how they determined a value of $25 per disc when the contents of said disc are available online for free.

Re:It sounds like a fix was in

[JaredOfEuropa]

The fact that the guy didn't charge anything for the disks doesn't make the market value zero, nor does the fact that Microsoft doesn't charge for a download of the disk image. Apparently Microsoft charges refurbishers $25 for a physical copy of the restore disk. And quite possibly there is a clause on the download page for the disk that states that end users can van a copy for free, but distributors are not allowed to burn a copy and sell it along with a refurbished computer.

Even so, the sentence seems ridiculously harsh given the fact that the guy acted in good faith and didn't actually sell a single disk except in a sting operation.

Re:It sounds like a fix was in

[JaredOfEuropa]

My guess is that the ISO is provided free of charge to end users holding a license, but not not to refurbishers for redistribution along with used PCs. Apparently MS sells physical disks to refurbishers for $25 a pop

Re: It sounds like a fix was in

[Anonymous Coward]

Microsoft was charging 25 for a physical disk. He undercut them with their own software.

Re:It sounds like a fix was in

[Anonymous Coward]

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...

Re: It sounds like a fix was in

[MiniMike]

Ok, but what percentage of people who buy a refurbished pc then continue on to buy one of these $25 disks from Microsoft? I would guess the percentage is fairly low. It would seem appropriate to reduce the "damages" to reflect this number.

Re:It sounds like a fix was in

[Killall -9 Bash]

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.

Re:It sounds like a fix was in

[JackieBrown]

This ruling states I'm a criminal in violation of copyright law for including the original Windows restore discs that came with the machine

That's not what the ruling stated. And are you changing a handling fee for those discs?

Re:It sounds like a fix was in

[Megol]

The blurb is a lie.
He sold the software. That is defined as software piracy - a copyright violation.

So if you want to complain about the general state of copyright laws - do that.
If you want to propose mob rule above laws - do that.
If you want this specific case be handled differently in copyright law - do that.

But don't lie and paint someone that knowingly, willingly pirated software for financial gain as a hero.

Re: It sounds like a fix was in

[Anonymous Coward]

So Microsoft charges $25 for something they should send for free to their end users?

These are bits used to restore the software to its original state after Windows trashes itself. How can they charge for it? They should be charged with a rico act violation or something.

Re:It sounds like a fix was in

[omnichad]

They sell licenses at that rate to businesses in their refurbisher program (or maybe closer to $30). I don't know whether that includes the physical disk or not, but they would be eligible to download for their own use. Just not profit from a disc replication service.

Re:It sounds like a fix was in

[omnichad]

The refurbisher licenses are for former enterprise licensed PCs, upgrading from Vista, and for replaced motherboards. First sale doctrine still applies to the OEM license otherwise (legally speaking).

Re:It sounds like a fix was in

[omnichad]

Burnt DVDs or original pressed DVDs makes no difference, both are distributing a copyrighted work.

One of those is protected by the first sale doctrine in the US and can always be resold.

Re:It sounds like a fix was in

[runar.orested]

I don't know for sure, so I'm just asking. Did he sold the disks alone? 1) If he sold them separathe of the computers, yes, he did commit piracy. 2) If he reinstalled the computers with the downloadble ISOs and merely adjunted a physical copy on disk, it should not be, whenever he burned them on one by one, or used a mass duplication service. 3) If he fiddled with the disks to make them one of those multi-brand install disks that are running around internet, the crime sould not be piracy, but counterfeiting. There are refurbishing licenses if he wanted to do that legally. 4) If the merely distributed official OEM images, then he did nothing bad, and I'm pretty sure a tech service would you demand less than 25$ to do that for you, ignorant luser. After all, following that judge reasoning, I should be able to sue Microsoft because my old laptop did only include an image restoring disk, and no setup disk when I bought it. Since Microsoft sued as the affected, it does mean that they are recognicing themselves as the responsable of said disks and licenses instead of the PCs manufacturers. So, if an old XP did not include them, should not Microsoft pay me back the 25$ for the disk they cheated me of? And I want the money or a physical item, no digital downloads that can dissapear in a few years, thank you.

Re: It sounds like a fix was in

[Uberbah]

It wasn't free, it was gratis, it costs time, bandwidth, server and client storage, depreciation and an empty disk and is intended to help end-users.

So what you're saying is, this guy saved Microsoft money by using an image for $X computers instead of having each end purchaser download their own copy?

Re: It sounds like a fix was in

[kenh]

At 25Â/disc, he would collect $7,000 selling copies of other people's software.

What he really wanted was to make his E-Waste computers more valuable by more easily allowing his customers to run Windows on them.

Re: It sounds like a fix was in

[kenh]

Hisdisc was effectively similar to the disc that might have shipped with a given computer, it was not a copy of the disc as shipped with the computer. For example, he likely ensured the image had updates and any applicable service pack applied before ordering 28K discs.

Also, he intended to offer the discs to all comers, no proof you owned the proper computer that came with the COA appropriate for the version of Windows on his disc,

Re: It sounds like a fix was in

[kenh]

This ruling states I'm a criminal in violation of copyright law for including the original Windows restore discs that came with the machine.

No, it doesn't.

You included original discs with the computer, this case involves someone that hired a third-party to press 28,000 copies of the windows install disc, then he planned to sell them for 25Â/ea with no requirement that you have the corresponding computer the software shipped with.

The only way this ruling could apply to you would be if you took your original disc and sold it to someone other than the person you sold the computer to.

Re: It sounds like a fix was in

[kenh]

Because you lost/failed to create the re-install media your device shipped with - you are asking for a replacement part that needs to be created, pressed, warehouseed and shipped - why should MS do all that for free?

Re: It sounds like a fix was in

[kenh]

If my old computer is fucked because Microsoft Windows ate itself how am I supposed to download and burn a disk to repair it? Oh, right. With my other Microsoft Windows computer I bought just to restore the first Microsoft computer I bought. Makes sense, uh huh. In Redmond, maybe.

What did you do with the recovery disc?

Why didn't you burn recovery discs if not included?

Why didn't you back up your computer?

That you failed to do any of the above is not Microsoft's fault, they don't owe you another recovery disc.

Re: It sounds like a fix was in

[SinGunner]

Assuming he's not an idiot and downloaded ONE copy, rather than downloading a new copy for each CD, the bandwidth and storage costs are virtually zero. Not sure how you got modded insightful.

Re: It sounds like a fix was in

[JackieBrown]

I kind of feel it was the charging that made what he was doing alarming to MS. Not that the other stuff isn't illegal but charging definitely would put him higher on the radar.

Re: It sounds like a fix was in

[slinches]

Microsoft lets you download a restore disk for free. Why can't you hire someone to download the image and copy it to a disk for you? Or one small step further, buy one from someone who has already made the copy ahead of time?

Re: It sounds like a fix was in

[guruevi]

The software is NOT free-as-in-beer. That's the thing, they are giving the disks to end-users as a courtesy, resellers need to pay at least for OEM licenses. Even if you sell the computer hardware, the software license typically doesn't come with it unless you do an explicit transfer in writing and even then, the license can only transfer between end users.

Again, if you don't like the license don't use it, or don't understand the license, talk to a lawyer.

Re:It sounds like a fix was in

[david_thornley]

Ever built your own PC and wanted to legally install MS Windows on it? That costs money. For OEM licenses, the Windows cost is bundled with the computer, but it isn't free. I paid an extra $100 to get Windows 10 Pro rather than Windows 10 Home. The software market value is significant.

Re: It sounds like a fix was in

[david_thornley]

No, he was putting copies on computers without paying Microsoft for each one, like Dell does. Dell has a license agreement with Microsoft, and this guy didn't.

Re: It sounds like a fix was in

[kenh]

The question was about MS charging $25 to send an end user a recovery disc - that is what I was responding to...

Re:It sounds like a fix was in

[greylion3]

Apparently MS sells physical disks to refurbishers for $25 a pop

If you look into it, I'm sure refurbishers buy the discs from the OEM (Dell, Lenovo, etc.)

Surprised by decision

[VikingNation]

That decision is surprising. Is there more to this story that is not presented in this Slashdot article?

Re:Surprised by decision

[SuiteSisterMary]

He downloaded and sold somebody else's work. I'm not sure what more you'd need to know.

There was a previous Slashdot article on this guy, I think it was in the last few months, that has a lot more detail and discussion.

So great, go police!

[phantomfive]

I'm glad the government is wasting money on this instead of tracking down the thief that stole my car.

Re:So great, go police!

[Anonymous Coward]

The government has determined that your stolen car is not worth $700,000.

Re:So great, go police!

[organgtool]

The person that stole your car only deprived you of transportation but this motherfucker was COPYING BITS!

Re:So great, go police!

[meta-monkey]

Just download a new car.

Re: So great, go police!

[phantomfive]

I wouldn't download a car. I wouldn't copy a floppy. Wait In confused.

Let this be a lesson...

[supremebob]

If you're going to make OS restore disks for old computers, make sure that they use open source software!

If this guy was making Ubuntu or CentOS based restore DVD's, he wouldn't be going to prison right now. Sure, he would have got more tech support calls from people who were confused by the new UI, but that's nothing compared through the hell he's going through.

Oh, and I hope that this story gets national attention. Microsoft deserves a good PR hit for going after this guy.

Re:Let this be a lesson...

[MitchDev]

What OS? If it isn't supported by M$ anymore, it should be made public domain anyway

Re:Let this be a lesson...

[JackieBrown]

Lord no. Then we would have even more outdated and unsecured computers out there.

Open source software is the correct answer here

Re:Let this be a lesson...

[liquid_schwartz]

That it not how it works. When the copyright expires, it becomes public domain.

Thanks to a bought and sold congress and Mickey Mouse that expiration date is infinity minus one.

Re:Let this be a lesson...

[david_thornley]

The software in question was less than 28 years old, so even by the reasonable copyright laws of my youth this would be infringement.

Re:Let this be a lesson...

[david_thornley]

Actually, yes. From the FSF's point of view, not only are you distributing their software (which they want), but you're making money for doing a good deed. The points of the licenses are very different.

Re:Let this be a lesson...

[strikethree]

Thanks to a bought and sold congress and Mickey Mouse that expiration date is infinity minus one.

No. Lawrence Lessig tried that argument in front of the Supreme Court and it did not fly. It is only like 170 years or so. Only. *sigh*

Good

[Anonymous Coward]

He should go to jail for foisting windows on 28,000 people. Can't someone think of the children?

A big win!

[gweihir]

Well, repairing computers is obviously stealing from manufacturers of new ones and re-using valid Windows licenses is obviously stealing from MS! This person got what he deserved for his unpatriotic, almost treasonous actions. True Americans throw things away when they get old or break! This person was trying to sabotage capitalism and the rich getting richer. We cannot have that. So I am 100% behind this ruling, except that the sentence is wayyyy to lenient. Maybe we can find some terrorism charge in there as well? Maybe something like "inciting people to not buy new computers" or the like? After all, this _is_ threatening the stabiliy of society, just like terrorism.

Re:A big win!

[supremebob]

Somebody should send a Tweet to Bill Gates, and ask him how this ruling "helps" his cause for providing technology for low income people and developing countries. Seems like it would do quite the opposite.

Re:A big win!

[MitchDev]

It only matters to Bill if he can claim it as a tax-write for "charitable" donations...

Re:A big win!

[Nidi62]

Somebody should send a Tweet to Bill Gates, and ask him how this ruling "helps" his cause for providing technology for low income people and developing countries. Seems like it would do quite the opposite.

Where do you think most "recycled" e-waste goes? By extending the life of older computers he is actively preventing poor people in developing countries from getting technology. And even worse, because of this guy, there are kids somewhere in Asia that won't eat tonight because they were unable to sit there in toxic smoke burning off valuable materials from the components of these computers! Why does he hate poor people?

Re:A big win!

[Rick Schumann]

If the "stability of society" means asshole corporations like Miscreant-o-soft running roughshod over people who did nothing wrong, then we must all be dead and this is Hell. Time to get the guillotine out of storage and drive it up to Redmond.

How is this newsworthy?

[newdsfornerds]

Who gives a flying crap about Microsoft's stinking licenses?

Re:How is this newsworthy?

[guruevi]

Anyone promoting Microsoft products in business should go to jail imho.

Re:How is this newsworthy?

[PPH]

So what he was doing was downloading something freely available and selling it copied to a disk. Not 'stealing' Windows (or any component of it) since a valid Windows license would still be needed by the end user. Essentially, he was charging for the service of burning a copy of the restore utility to a CD.

Sadly, he might have mislead people into thinking it was a Microsoft CD. It was a Microsoft restore utility, just not on their media.

Re:How is this newsworthy?

[Mr0bvious]

Well you can see where that got this guy can't you.

Re:How is this newsworthy?

[david_thornley]

Depends. Distributing XP or 7 should be a civil offense only, but any distribution of 8 or 10 should be a criminal act.

Microsoft needs to publicly petition the judge

[SocietyoftheFist]

They know they weren't being hurt. They need to make a public plea and help a further appeal.

Actual laws matter

[martyros]

“I thought it was freeware,” Lundgren told the Times. “... The value’s in the license. They didn’t understand that.”

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.

Re:Actual laws matter

[Insanity Defense]

Microsoft is part of a group that wants GPL users to go easy on violators and work with them to stop the violation without recourse to courts or financial settlements. Obviously Microsoft doesn't think that philosophy applies to violating their proprietary licenses. Exactly as I expected.

Re:Actual laws matter

[Anonymous Coward]

There is everything wrong with this ruling. Imprisonment for a non violent offense? Worst case should be a fine or return the money made.

Prison is for dangerous or violent felons, or repeat offenders who cannot reform themselves. Not for somebody who ignorantly violates a license agreement.

Re:Actual laws matter

[Sarten-X]

I don't have mod points, so all I can do is agree.

The law (and the court) doesn't care about what society wants or doesn't want. It only cares about what's legal, and the law here is pretty clearly set against Lundgren. He copied other peoples' work without their permission, caused them harm (in the loss of a market for their work), and personally gained (even just fame) from it. Those aren't all necessary factors, but together they make a pretty damning case.

These are indeed the same considerations that give other licenses like the GPL its own legal power, held up by the legal framework of the past few thousand years. If Microsoft copies GPL software* without complying fully with the GPL, they are causing harm and their own gain without permission, and are just as open to a lawsuit as this "innovator".

* Note that with the Windows Subsystem for Linux coming into use, GPL violations become much more likely for anyone building a custom system using WSL and integrating open-source components. Be careful, and check your licenses, folks!

Re:Actual laws matter

[JackieBrown]

No. He is explaining one of the aspects of copyright law. He did not discuss values of licenses versus copies.

Re:Actual laws matter

[liquid_schwartz]

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.

The cost of keeping a person who is no threat to anyone in jail is certainly a loss and no, citizens who bear that cost do not benefit from it. Probation would have been appropriate, the fine was out of balance. Allowing the separation of legal system from a justice system is most definitely part of the problem. Bad law is bad law, even when applied consistently. People like you who stand by bad law and defend bad decisions that defy common sense are part of the problem.

Re:Actual laws matter

[wisnoskij]

Yes, but like the article points out value matters.
Microsoft has a long history proving that the market value of these bits are zero. yes, absolutely, he stole, but he stole a something we know is worth $0 dollars.

From there, do you not have to either pursue a fraud charge, or admit that the guy was just providing a service?

Re:Actual laws matter

[alexgieg]

held up by the legal framework of the past few thousand years

Hundreds. There were a few earlier precedents, but the earliest laws resembling modern copyright come from the 17th century. See Wikipedia's History of copyright law.

Re:Actual laws matter

[Sarten-X]

Copyright laws refer to licensing, which in turn stems from contract law, which comes from common-law agreements, which have been enforceable since Babylon. Yes, copyright's a fairly new concept, but it's based on far older ideas.

Re:Actual laws matter

[SlaveToTheGrind]

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.

This could not be more wrong.

1. Microsoft didn't prosecute him -- the federal government did.
2. According to the original WaPo article, Microsoft actually intervened to help Lundgren by explaining to the court that the value of the restore discs was only $25, not the $299 the prosecutors had originally alleged:

Initially, federal prosecutors valued the disks at $299 each, the cost of a brand-new Windows operating system, and Lundgren’s indictment claimed he had cost Microsoft $8.3 million in lost sales. By the time of sentencing, a Microsoft letter to Hurley and a Microsoft expert witness had reduced the value of the disks to $25 apiece, stating that was what Microsoft charged refurbishers for such disks.

Re: Actual laws matter

[kenh]

His fine was less than $2/disc, is that really so unreasonable?

His plan was to use the 28,000 illegal discs to increase the value of his inventory - including the disc with the computer likely increased the resale value of his computers by well more than $2/each.

Re: Actual laws matter

[kenh]

Ignorantly violates copyright law 28,000 times.

At some point the sheer number of disc involved kicks this case out of the 'slap on the wrist' category.

So is it your contention that so-called 'white collar' criminals, whose crimes are non-violent, should never go to jail?

Re:Actual laws matter

[alexgieg]

Copyright laws refer to licensing, which in turn stems from contract law

No. When it comes to contract law, intellectual property worked like this: person A with money contracts person B with skill to make a book/song/art/whatever; B makes it and delivers it to A; it's now A's to do with it as he pleases. A then contracts C to copy it, and gives/sells/whatever the copy to D. The copy is now D's to do with as he pleases. Wash, rinse, repeat.

Now, it's evident that in the past B could put as an additional restriction in his contract with A that A wouldn't make copies and wouldn't allow others to make copies. Insofar as both A and B signed that contract, then yes, it'd be enforceable by B upon A. But it was a contract between B and A only. If C entered A's house, made a copy, then passed it forward, B might have cause to sue A for not protecting B's creation. And A would have cause to ask for C to be imprisoned. But the copy out in the wild? No claim over it by anyone, at all. And whoever wanted to copy it further could, as they had no contract with anyone, much less B, about it.

Copyright law subverts that traditional system by inventing a "right to copy" that was actually an enforced restriction on the original, unlimited natural right to make copies every able-bodied human being always had. That was the fairly recent novelty it introduced.

Re:Actual laws matter

[ImprovOmega]

That's not a problem with the ruling ,that's a problem with the law. I agree that the law needs to be changed, but that's not up to the judge to decide and say "hey, this law sucks, I won't convict people under it", because then the rule of law goes out the window entirely.

Re:Actual laws matter

[Sarten-X]

That's almost completely separate from what I'm talking about.

Yes, copyright is a new concept. It's a recent idea that thought is valued like physical labor, mostly stemming from the printing press and other duplication mechanisms removing the traditionally inseparable connection between the creation of a concept and the production of a physical format.

Along with the creation of copyright, though, we quickly came up with the notion of applying licensing to copyright. Licensing had been around before in the form of trade marks and brands, mostly controlled by the state to show that the right palms had been greased for commerce to move. With copyright, licensing is the big exception: nobody can make a copy, except a licensee.

The laws and norms around licensing trace their history back to binding contracts, completely separately from copyright, and that's the part that is older. Having licenses as a general permission system was mostly tied to trade, where sea captains and caravan drivers would be hired to do business as agents of their sponsoring companies... but only so long as their license allowed.

Now, this idea of agency dates back to at least the Romans and the delegation that was necessary for their widespread empire, but it was all backed by a still-older legal power in a binding contract. The notion that you could sign an agreement and face legal consequences for breaking it is really the foundation there, and it comes with all of the thorny issues related to such things:

• Who can enter a contract?
• Can an agent cause someone else to be bound by a contract?
• What formalities are required to make a contract?
• Who has to know about the contract for it to be valid?
• What are the consequences for breaking the agreement?
• Who enforces those consequences?

Those questions are not new to copyright, or really even new to civilization. In fact, some of the oldest writing samples we've ever found have been contracts, promising to fulfill various trade agreements between vendors, or warning of consequences for offenses. They certainly don't look like modern contracts, but they met the standards of the day.

What is new in contracts is how widespread they've become. Nearly every commercial activity today is governed by a contract of some kind, whether in the form of usage agreements, employment terms, or even less-obvious things like bills of sale or marriages. This is a more modern development from just around the last century, mostly due to having more free labor, and establishing a legal system in England that allowed anyone (not just nobles or wealthy businessmen) to use the courts to resolve disputes.

With so much of modern law revolving around contracts, it's absurd to attempt to consider just "copyright" as itself, without also understanding the context of licensing, especially since the sentence you originally quoted was in reference to the GPL. Without copyright, the GPL would still be a legally-valid agreement for anyone who chose to abide by it, but there would be no reason one would have to agree to it.

Re:Actual laws matter

[david_thornley]

The point of GPLs is to encourage other people to contribute their changes. If the violator stops the violation, then the violator is doing what the GPL wants. The point of the proprietary license is to make money off copies. If a violator stops the violation, then the violator isn't doing what the license was intended for without paying money.

Post mortem

[liquid_schwartz]

When the post mortem on the US is written a big factor, certainly in the top 5, will be foolish judicial decisions. Some are big, like legal bribery via McDonnell v. United States and saying that cash is free speech, some are small like this one. But too many bad decisions and bad precedents are being made.

Re:Dangerous Precedent?

[guruevi]

Depends on the Linux distribution. If it's RHEL, probably, if it's Debian, probably not. The license has a lot to do with it. You can't download Oracle or Red Hat Linux without a proper license. They may give away licenses to home users and non-profits but for-profit businesses are expected to pay. Another one of those is TeamViewer, plenty of people use it, but in a business setting you're supposed to pay for it and yes, they do go after companies using the free version.

Silly argument since he was selling them

[raymorris]

He produced a bunch of disks to sell.
Then argued in court that they had no value.

I dislike Microsoft as much as anyone, but the defendant in this case contradicts himself.

Microsoft's argument is that only they have the right to sell Windows disks, he did not.

Re:Silly argument since he was selling them

[Anonymous Coward]

So, now software is bought AND licensed?

Bought a copy o the software? Sorry, you don't have a license.

Licensed the software? Sorry, you haven't bought a copy.

Re:Silly argument since he was selling them

[EndlessNameless]

This guy never had a license.

He was burning copies of the software and selling discs to people who had licenses. He wasn't authorized to distribute the software, and he was making money doing so. Those are the requirements for criminal copyright infringement.

If you wanna play with other people's code, you have to follow their rules. Sorry, but that's how proprietary software works in the US. You opt into that system when you decide to buy or sell it.

Personally, I think it's stupid to send him to prison when he was honestly trying to offer a service to others. Maybe he's not allowed to offer that service, but he wasn't trying to hurt anyone either. I believe a minimal fine is reasonable---just enough to say "you're not supposed to do that". The prison sentence is especially pointless when a threat of repeat fines would deter him---he's a businessman, after all.

Re:Silly argument since he was selling them

[Anonymous Coward]

This guy never had a license.

He was burning copies of the software and selling discs to people who had licenses. He wasn't authorized to distribute the software, and he was making money doing so. Those are the requirements for criminal copyright infringement.

If you wanna play with other people's code, you have to follow their rules. Sorry, but that's how proprietary software works in the US. You opt into that system when you decide to buy or sell it.

Personally, I think it's stupid to send him to prison when he was honestly trying to offer a service to others. Maybe he's not allowed to offer that service, but he wasn't trying to hurt anyone either. I believe a minimal fine is reasonable---just enough to say "you're not supposed to do that". The prison sentence is especially pointless when a threat of repeat fines would deter him---he's a businessman, after all.

I agree he broke the law. I disagree with the law that makes copyright infringement a criminal offense rather than a civil offense with a fine.

Re:Silly argument since he was selling them

[ThePyro]

TBF he probably didn't make any money. He ultimately sold the CDs for about $0.12 each to a single buyer (who was cooperating with the government as part of a sting operation). After producing and shipping the disks from overseas, I honestly wouldn't be surprised if he lost money on the deal.

Re: Silly argument since he was selling them

[kenh]

It has always been this way - there are many examples of software that is licensed, not sold, and software that once bought is licensed.

Re:Silly argument since he was selling them

[david_thornley]

Copyright infringement is normally a civil offense. If you start a large-scale commercial infringing business, it becomes criminal. I don't see a problem with that.

Microsoft preferred that he instead executed 25000

[Anonymous Coward]

Downloads? He was saving them terabytes on their akamai bill.

New motto

[SigmundFloyd]

Stay out of jail: Use free software!

I think I figured this out

[MobyDisk]

Like everyone else here, I'm wracking my brain trying to figure out what the crime was and why the court upheld it. The clue is in these two points:

...in what seems to have been a huge mistake, the disks 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.”

Yeah, he "accidentally" *wink wink, nudge nudge* labeled them just like full-blown licensed copies of Windows. The reality is that It seems like he was trying to pawn these off as actual Windows installs.

Technically, it was the customer's responsibility to understand the EULA and only use this disk on a computer that already has a valid license. But he had no intention of letting people know that. It didn't come with literature explaining that they needed their original license key to install it. He labeled them to look like Dell Windows CDs, and people would think "Score! I got an actual licensed copy of Windows for only 25 cents!"

This is kinda gray in my opinion - is the customer who installs it without a license the one in violation of copyright, or is it the one who makes the CD? In practice, there's no way to go after the person installing it. Instead, they chose to go after the distributor.

The punishment seems too harsh, since he made no profit and this probably ruins his entire life. No normal person will every be able to pay-off that kind of a fine. But I recommend against betting your fortune and freedom on a gray area hole in the law.

Anyone have a link to the court ruling? It should contain the reasoning.

Re:I think I figured this out

[Anonymous Coward]

Dell Windows CDs (or DVDs) don't contain a license. I don't have one of his disks so I'm unsure if he is relying on the SLIC table and a manufacturer certificate like the OEMs do, or if he's hoping that the installer will accept the COA sticker. Either case would be acceptable. I'm guessing he used the dell oem label to make them easily identifiable, but what's strange is that would have been trademark infringement (although he could certainly argue that the restore disk he made was a replacement to the disk that should have been originally included, not an alternative).

This bait and switch method of copyright enforcement needs to be addressed. If MS is really claiming that the restore disks have a value, they can't also limit the installers use through outside means like a product key and/or activation. Why should users accept paying the state to handle microsoft's enforcement if microsoft is just going to selectively decide who gets to use genuine disks anyway?

Re:I think I figured this out

[MobyDisk]

Agreed. They are using copyright to control the means of distribution, which I don't think was the original intent. We've gone too far, so far that even loading the data from disk to memory is considered a "copy" for the purpose of copyright.

Re:I think I figured this out

[david_thornley]

In the US, if you have a legal copy of software, you can make all necessary copies to run it. I agree that copyright is meant to work on a human scale, and making copies that aren't themselves perceived shouldn't be copying.

Let this be a lesson

[PPH]

Never sell or distribute Microsoft products. Send your refurbished PCs out with Ubuntu disks instead.

So $25 refund of thecost of a new pc

[Anonymous Coward]

for just returning the unused cd of their productand then whatever they value the software as at retail?

Be careful about equating acquisition cost..

[Junta]

So there is an uproar that this guy is penalized for providing copies of software that could be gotten elsewhere for free. It's free, so how could there be a problem?

So let's extend this line of thought. How would any open source license ever be enforceable with that mindset? It's free to get a copy of GPL project, how could the copyright holder have any basis to sue a company for taking that and doing as they please?

As a matter of law, this seems sound. As a matter of good business, it may not be the best course to bring suit against this guy, and it may be good to have a license that explicitly allows for this sort of thing. Now if someone did have an argument that there were some permissive licensing that should have allowed him to do it, then ok, but let's not pretend copyright requires the holder to charge for the product.

Re:Be careful about equating acquisition cost..

[Junta]

I take back what I said about this being sound. The 'damaged' party should be in the position of suing/not suing and the government shouldn't be doing criminal case for something like this. It seems because he imported the discs, it became a customs issue.

Re:Be careful about equating acquisition cost..

[EndlessNameless]

It's free, so how could there be a problem?

Copyright controls the right to make copies, so the lack of permission is the problem.

Most FOSS projects give everyone permission to download and distribute their code/binaries, but proprietary shops don't. And there's no rule that forces them to grant permission just because the product is free or no longer available for sale. (Maybe there should be, but that's not how it works right now.)

E.g., Disney routinely cycles through their movie catalog, so some titles are out of print for years at a time. If you want a copy when they're not selling it, that's too bad. You can wait or buy a used copy, but you cannot make a new copy.

The 'damaged' party should be in the position of suing/not suing and the government shouldn't be doing criminal case for something like this.

You are fundamentally wrong here. Bear in mind that I am not a lawyer, so look into it yourself if you feel I'm mistaken.

Only the government can prosecute crimes. Damaged party suing = civil case. Government prosecution = criminal case. Maybe Microsoft could have just sued the guy in civil court, but he did violate criminal law so it is not just a civil issue.

Microsoft's civil case will be easier if the government prosecutes first. They no longer need to establish the fact that he violated their copyright---they can point to the guilty verdict. Now they only need to argue what is reasonable compensation for their damages. I've seen a former employer of mine do the same thing, so this isn't particularly clever on their part. It costs time and money to get witnesses and evidence together for a civil suit, and the criminal trial has a higher burden of proof anyway. Plus, the government pays for most of the criminal investigation. From a business perspective, it's almost a no-brainer to let the government go first if they're willing to prosecute.

Maybe you believe his actions shouldn't be considered a crime. If that's the case, then you'll need to encourage the amendment or repeal of the relevant criminal law. Clearly, the courts believe he committed a crime, as his 15-month sentence was just upheld.

Re:Be careful about equating acquisition cost..

[Junta]

My point was that the 'how could there be a problem?' is the sentiment thrown around here, and that's a bad sentiment if you simultaneously care about the ability to enforce open source licenses.

On the being wrong, I suppose I meant it doesn't seem *right* that this is the way the law can work here. I've no doubt it is legal, but it seems wrong to me that this sort of behavior is a criminal rather than a civil matter. Of course that's a pretty subjective call...

Re:Be careful about equating acquisition cost..

[david_thornley]

Large-scale commercial copyright infringement is a criminal offense, which I think is reasonable. Last I looked, infringing by uploading to the Net for public access is also criminal, which I find far less reasonable.

In case you forgot

[TimMD909]

Let this be a reminder that Microsoft is still evil, after all these years. They only look less evil compared to what Google, Apple, and Facebook have been doing.

TL;DR: Use Linux

[PGaries]

If I understand correctly, this guy was selling Microsoft software that he wasn't authorized to distribute and because that made it less likely someone would buy a new Windows license (or machine with Windows installed), Microsoft argued that their monetary loss for each disk amounted to the value of a new Microsoft license: $299.

The judge reduced that value to $25 per disc, though I'm not sure where that number came from. A quickly Google search indicates that one can buy an Windows 10 OEM license (what you'd get with a new computer) for the similar price of $27.99.

Eric Lundgren, the guy charged, argued that the nature of the software illegally distributed should give him immunity from charges of copyright infringement.

All I can say is:

1. Don't distribute software you don't own without permission.
2. Don't add logos without permission to items you're distributing.
3. If you're a user, use Linux.
4. If you're a refurbisher, use Linux.

Posted from Linux Mint 18.

PS If you have a Windows 10 license key, you can install Linux over Windows 10, download a Window 10 disk image from Microsoft's website for free, and use the key to run Windows 10 via Virtual Box on Linux.

Re:YEAH!

[Killall -9 Bash]

What? You want me to drink TAP water??? No thanks. Instead I'll pay $2 a bottle for fluoride flavored water. Mmmmmm. Fluoride.

He could have completely avoided this...

[InfiniteBlaze]

if he had just created a restore partition on each of the hard drives. The issue is in providing separate physical media. Had the systems been sold "intact", meaning wiped of all personal information but with HDD partitions in place, there would have been no copyright infringement. He had a great plan but poor execution; he left himself open, and now he will have to pay the price...sad but true.

Re:Dangerous Precedent?

[Sarten-X]

Yes, the courts have determined that open-source software is still valuable.

As for the key codes, they're still usable with legally-produced media, like the small stack of old Windows disks I have on a bookshelf, or anything Microsoft (or its licensees) might still produce and sell.

Here's the case doc

[Anonymous Coward]

http://media.ca11.uscourts.gov/opinions/unpub/files/201712466.pdf

No, Justice matters.

[Anonymous Coward]

Laws are to facilitate justice, not there for their own sake. Once a state loses sight of that fact, it turns to authoritarianism, in this case quite clearly corptocracy.

Distributing freely available (but not free licensed) software should be a misdemeanor at best, not a felony, and that market value is riaa math.

Consider the fallout where you're turning a good chunk of the young teenage and adult population into felons as they are distributing while downloading 'more valuable' torrents.

Microsoft bald money motive here, wanting people to get rid of their computers faster so they buy another is quite on display here. Someone ought to shame Bill Gates for that while his net worth increases on this poor man's back.

Ze law is ze law is ze law is not a road we want to go down on.

Re: No, Justice matters.

[kenh]

Distributing freely available (but not free licensed) software should be a misdemeanor at best, not a felony, and that market value is riaa math.

When he ordered 28,000 illegal copies from a disc duplicator that that didn't require proof he had the right to order 28,000 discs with MS licensed software on it with the windows name on it he lost the ability to have his crime classified as a misdemeanor.

Catch a guy in a store front handing self-burned discs on demand to customers that request it, sure clearly a misdemeanor.

It would take a couple station wagons to transport 28,000 discs - that's a big number.

Re:YEAH!

[thunderclees]

*NEW floride flavored bottled water, NOW with crunchy plastic bits!*

Who watches the watchers?

[JustNiz]

What do you do when the judge is obviously corrupt? Clearly Microsoft got to him first.

Re:Who watches the watchers?

[david_thornley]

If the judge is corrupt, you appeal. In this case, the judge was enforcing the law as written. Judges don't go around with weapons delivering instant criminal justice, outside the movies and comic books. They sit in courtrooms and interpret the law as handed down to them. It appears that you don't like the law. In that case, you can attempt to get it changed. Your efforts won't make much difference by themselves, but if enough people complain something might get done.

That's a better argument (but COPY right)

[raymorris]

What you said may be a better argument than "what I was selling can't be sold, it has no value". Obviously it has some value, he has thousands of copies made to sell.

Your argument is essentially "because Microsoft sold a license to use an existing copy, they can no longer control companies making and selling copies", right?

Of course it's called COPY right. From the beginning Microsoft has the sole right to make and sell copies. More questionable, perhaps, is to what extent Microsoft has the right to issue licenses. The license may have no value, because in general you can do what you want with stuff you buy. While Microsoft has the sole right to make and Al copies, it's less clear that they have any right to control what happens with those copies after the sale, to issue licenses of any kind.

Re:OEM License non-transferable

[Killall -9 Bash]

That shit doesn't hold up in court. It's the legal bluff MS uses to force used PC shops to pay up.

OEM licenses are tied to the hardware. Are transferred when hardware is sold.
Retail licenses are tied to purchaser. Can be transferred from old PC to new PC.

Anything else is FUD spread by MS to scare PC refurbishers into buying licenses they legally don't need to.

Summary of the case

[Zontar_Thing_From_Ve]

While there are some interesting posts about various legal topics here, perhaps a summary of what actually happened would be helpful.

Lundgren restore discs were labeled in a way to make them look almost identical to similar restore discs sent out by Dell. Apparently they had Microsoft's Windows logo on them.

He was charging 25 cents each for the discs. This means that in effect he was making money from selling the discs.

Customs intercepted the shipment of his discs, possibly through a random inspection. Microsoft got upset because they deliberately want it to be very difficult to get old, but still legal version of Windows working this way because they want people to just give up a buy a new copy, which makes money for Microsoft.

He pleaded guilty to 2 of 21 charges he faced, which is the main reason he's going to jail. He pleaded guilty. And he may have had some questionable legal representation because some of the arguments he makes against the final verdict are really items that his attorney should have brought up in court, but apparently did not.

Re:Summary of the case

[DigiShaman]

Would his sentence not be reduce under good behavior? It's my limited understanding that it can be reduce while in jail with the remainder on probation.

Re:Summary of the case

[Vitriol Angst]

Microsoft got upset because they deliberately want it to be very difficult to get old, but still legal version of Windows working this way because they want people to just give up a buy a new copy, which makes money for Microsoft.

I think you got the reason right there. Charging $.25 for a printed CD is not a profit, he's providing these at a loss. "Pleasing guilty" is not an admission of ACTUAL GUILT, in the real world it means; "I don't have the money to pay for defending myself and they threaten much harsher penalties if I fight it." The fact that fighting for your innocence can get you more jail time than being guilty shows how broke our legal system is.

Your synopsis is welcome -- but it just shows me what I expect; broken system.

e-waste 'innovator'?

[DirkDaring]

He created e-waste so he's an innovator?

originally claimed the disks were worth $299

[Joe_Dragon]

Microsoft originally claimed the disks were worth $299

Money

[kenh]

Fellow made 28,000 installation disks - that's a lot of disks.

The 'software expert' may testify that the discs, in his opinion, are 'essentially worthless', that doesn't make them worthless, or having no value.

The company that made the 28,000 discs didn't consider them 'essentially worthless', in fact, the disc maker charged the 'E-Waste Innovator' an amount of money to produce the discs.

And why did the 'E-Waste Innovator' create these discs, to increase the value of the computers he sells.

Re:Microsoft

[EndlessNameless]

Why shouldn't Microsoft pursue him to the limits of the law? Sending him to prison sends a message: you pay Microsoft their licensing fees and adhere to the licensing terms, or you go to jail.

Microsoft has a program where refurbishers pay for legit OS licenses/media. Lundgren wasn't breaking new ground, and he wasn't saving the planet. He was just selling an illegal solution for less.

If he didn't ask for money, I'd give him the benefit of the doubt for being an idealist. But he chose to profit from it. I have very little sympathy.

My best guess

[kenh]

This fellow bought 28,000 discs, if made in the US and packaged in anything other than bulk spindles, likely cost 66-75Â/disc, less if done overseas. He spent significant money on these discs, it strains the limits of credulity to believe he did so to hand them out onsie-twosie to folks picking up otherwise waste computers.

If the software was actually freely downloadable, he could have simply attached a sticker to the computer with a Microsoft URL from which to download it from.

Re:My best guess

[Pfhorrest]

Download it with what, the refurbished computer they just bought that has no usable OS installed on it yet?

Prove it

[kenh]

Someone please provide the "Free for download" link to get this software.

Presumably I can download the version of Windows that 'Auto-magically' detects that the computer has a valid license/via and will'just work' with my Dell, HP, Lenovo, etc. desktop - right?

Re:Prove it

[kenh]

So were the 28,000 discs this fellow had pressed Windows 8.1 discs?

BTW, these discs were seized in 2012, right around the time Windows 8 was released to the public, Aug. 1st, 2012, so he was likely sharing Windows 7 or Windows XP recovery discs, not the (now) freely available Windows 8.1 image you linked to.

Thank you for the link, but the real question is what was Microsoft's policy for replacement install discs in 2012, not today.

Re:Prove it

[kenh]

P.S. The link is dead

Re:Prove it

[4pins]

Someone please provide the "Free for download" link to get this software.

Sure!

Windows 7: https://www.microsoft.com/en-us/software-download/windows7

Windows 10: https://www.microsoft.com/en-us/software-download/windows10ISO

Presumably I can download the version of Windows that 'Auto-magically' detects that the computer has a valid license/via and will'just work' with my Dell, HP, Lenovo, etc. desktop - right?

Nope. For Windows 7 you just enter a valid activation key. For Windows 10 you just need to tell it what version you are after (although it currently only provides one valid option) and what language you would like it in. Then you have a choice between using the 32-bit or 64-bit link. It is a great way to get an ISO and install windows in a VM on Linux or Mac. Not that I find that necessary anymore.

What he actually did (Translated to M$):

[dschnur]

Normally, providing a backup of software with a computer is a good thing for customers and a show of good customer service.
In this case, the twisted way Microsoft licenses software made him a "criminal."

Here's how:

M$ licenses software to an OEM with the ability for that company to sub-license the software to end users. To the end user, OEM licenses aren't "from" M$, but from the company that made the computer.

The OEM license requires two parts: The first is the sticker, or firmware key that's on all PC's. The second is the "original media" as provided to the end user. That can be what is on the hard drive from the manufacturer or it can also be backup media. Both are considered part of the license and without both parts, the computer does not have a license.

Installing a generic OEM copy of Windows isn't possible without M$'s explicit permission -- even if the computer has a valid sticker. That's because the generic copy isn't licensed to the company that's distributing it.

For a refurbisher to install Windows 10 on a PC, they need to provide original media, or purchase new licenses from M$ (For about 25.00/each) and install that (with a new sticker) on the PC.

By making his own disks, Eric was essentially pirating software by distributing the wrong version with computers that had valid keys for one that was sub-licensed by other vendors.

  Talk about a tangled web. Bit for bit, it is the same code. Legally, it might as well be Xenix.

  -D

Re:What he actually did (Translated to M$):

[viperidaenz]

Eric was downloading and distributing copyrighted material without a license.
The license granted when you download Windows 10 media from Microsoft explicitly forbids commercial use and is granted only for end users.

Re:YEAH!

[gx5000]

Our tap is wonderful here in Ottawa...
I still only drink water left over from the morning coffee boil and filtered through Brita.

It's only broken if you're not rich

[rsilvergun]

otherwise it's working just fine.

I think the point the GP is making

[rsilvergun]

is we don't want just _anybody_ using it. I mean, imagine of those unwashed masses were to use it. Perish the thought.

This is why lefties like me think we need well rounded educations. They cover stuff like this in detail.

Something I've been wondering about the 2nd

[rsilvergun]

is why the phrase "A Well Regulated Militia..." exists. I'm honestly asking. I can't find any discussions online about it with anywhere near a comprehensive historical treatment of the phrase. Why didn't the founders just write "The right of the people to bear arms shall not be infringed". What I do know is that _everything_ after the preamble has legal weight and is supposed to. Legal documents of the time put the fluff in a preamble and the real stuff after. What I don't know is how that phrase is supposed to be interpreted legally..

Re:Something I've been wondering about the 2nd

[Big Boss]

The full text....

"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

The first phrase is a justification for the second. It should also be noted that the US government has no authority to maintain a standing army, at least, not at the time it was written. There is some debate about that in the present time. So the militia was the army. "regulated" in this context was often used in the period to mean "equipped". A soldier without a weapon is pretty useless, so they wanted to ensure that their pool of soldiers had weapons available.

There is some debate about that interpretation in the present day as well, but looking at the language of the time, that makes the most sense to me. There is also the idea that from a legal perspective, things added later supersede those previous. Thus amendments supersede the original terms. Otherwise, only white male landowners would be allowed to vote, for example. As the latest text that has anything to do with weapons in the document is "shall not be infringed", that is pretty clear. This also creates some issues with things like WMDs, which I think the vast majority would agree should not be held privately, if at all.

The person who stole his car only deprived one guy

[rsilvergun]

of a possession, and that guy wasn't very rich (if he was he wouldn't care about something as small as a stolen car).

The guy hear was depriving a mega corporation of revenue. Perhaps millions (since they could have sold new computers). There is no greater crime.

No national attention whatsoever

[rsilvergun]

mega corps own all the media. I've complained about a right wing, pro corporate bias in media when it comes to economics, but people laugh at me when I do. This is what I'm talking about. Well, this and stuff like this. That last one went viral. Doesn't look like this will. There isn't a funny video for it on youtube.

America is very, very pro property

[rsilvergun]

and we perceive this as an "Intellectual Property" case. It wouldn't be hard to convince a jury of Americans to convict. Especially if they guy's lawyer wasn't very good. He should have plead out like most people do. Unless you're very, very rich you don't go before a jury in this country.

Re:America is very, very pro property

[Rakarra]

I'm totally fine with being "pro-property," but I sure don't like the trend of redefining "copyright" to be property akin to a physical object.

PR win!

[TJHook3r]

Thank goodness this dangerous maniac is behind bars!

re: jury nullification and this case

[King_TJ]

You make some valid points about jury nullification but I can't agree with the claim that Lundgren violated the spirit or intent of the law ... only the letter of the law.

At the end of the day, Microsoft always tries to "have its cake and eat it too" when it comes to Windows licensing. I've worked in I.T. for almost 30 years now, and it's been an underlying theme with Microsoft's products as far as back as I can remember working for a company using them. The "volume licensing" program used to be so complicated, practically nobody could figure out if they were really in compliance or not.

EG. It was standard practice to use imaging software like Ghost to blast workstation images onto your corporate PCs before deployment. Yet that image might have been licensed using a single Windows key code that didn't match the OEM keys that came printed on stickers affixed to the individual machines. Microsoft used to claim that put companies in legal violation and they were required to buy volume licenses for each PC they wanted to image that way. Of course, the logical assumption from the company's POV was that the computer was sold with a Windows license bundled with it, and they were still only running that same "flavor" of Windows after imaging. Since the license key stickers were still on each PC, it proved they legally owned a copy of Windows that shipped with that PC. There was no avenue to do anything ELSE with the copy of Windows they paid for with the PC, either. So this amounted to Microsoft trying to double-dip on sales, via a technicality.

I see this guy's case as pretty similar. Basically, Microsoft tried to prevent him from mass producing copies of their operating system that aren't even possible to install on a computer without an accompanying license key, which he WASN'T including with any of them. And in fact (according to an article about this on Gizmodo's web site), he was eventually only charged with 2 counts out of 21 original ones; the counts related to him using the Microsoft name and logo on his disc labels without permission. That's not even what they originally went after him for. More like, they stacked up as many counts as they could possibly find on him, and only those 2 "side issue" ones stood the legal test.

I remember as far back as the early 1990's, MANY mom and pop computer shops and online service places would run ads in the Yellow Pages and on mailings that had the Windows flag logo in the corner someplace, simply to indicate they serviced and sold those types of products. You might often find the Linux penguin logo right next to one to show they knew Linux too. Microsoft practically never prosecuted for THAT violation (because you know the majority of them didn't contact Microsoft for permission to use it first).

(Ultimately, I'm sure Microsoft couldn't see any value in going after the illegal re-printing of their logo like that, when it was clear that the people doing it were only helping them sell more products -- not less.)

It's in plain english

[viperidaenz]

Personal and Non-Commercial Use Limitation
Unless otherwise specified, the Services are for your personal and non-commercial use. You may not modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer, or sell any information, software, products or services obtained from the Services.

https://www.microsoft.com/en-u...

That's the terms of use for everything downloaded from the Microsoft website. Sounds like pretty cut and dry copyright infringement.

re: no right to copy and distribute

[King_TJ]

Seems pretty questionable to me. "Because Copyright" doesn't provide blanket ability for a company to control what it produces?

At best, this is a case of nitpicking over the "letter of the law" vs. intent and spirit of the law.

Because let's face it .... This level of control over distribution is USUALLY reserved for the scenarios that existed at the time the copyright laws were written, where the work itself wasn't protected from use in some manner like requiring a product key. (If I purchase a copy of Star Wars on VHS tape, I can't go making duplicates and reselling them or I'm violating copyright. I'm literally competing with the movie studio directly for sales of the movie. and my copy is just as easy to pop in a player and view as the original store bought one is.)

Windows is designed so it requires product activation over the Internet. Microsoft's server has to verify the unique key you typed in as part of the setup process, to determine you're ok to actually continue using it. IMO, that makes everything hinge on the product key -- not the installation media.

The fact that Microsoft has web sites anyone can visit where Windows 10's installation media can be downloaded as an ISO image, AND even a free tool to help you build a bootable USB stick version of it helps illustrate this. The install media isn't relevant to determining who properly licensed the software and who didn't.

Annnd

[DMJC]

The valuable lesson here for everyone is quite simply: Fuck proprietary software. Clearly Microsoft won't support even people supporting their platform so why should anyone go to any effort to promote their garbage? If he'd been wiping/installing Linux on the machines and preloading them with blender/libreoffice/gimp/krita/google chrome. There would have been no issue and he could still be in business and stayed out of jail. Instead now he's doing 15 months because he thought he had the freedom to help people. A great case studying in how doing the morally right thing, but "impacting" on a company gets you screwed.

Fact update: He was selling the discs, without sys

[raymorris]

A small but significant fact update: he was selling the discs to refurbishers. He got the idea while refurbishing systems he sold, and thought that other refurbishers might buy discs from him.

Seems like a small difference, but it makes all of this incorrect:
--
Upon (legally) taking ownership of the computer by buying it used, he was in possession of the computer (he didn't, and wasn't) with the license. It was during that time he downloaded the restore discs.

When he goes to sell that computer to someone else (he sold the Windows discs, in bulk, not computers), it is only then he no longer has possession of the computer with the license.
Since the restore disc went with the computer
--

A few (inconvienient) facts

[kenh]

The guy bought 48,000 discs at less than 5 cents/each.

He bought the discs in 2012, around the time of Windows 8 general release.

He intended to sell them to other computer recyclers for about 25 cents/each

He does not personally recycle PCs, so he was not going to include them with PCs with COAs.

He included the logo/likeness of the Dell recovery CDs on each one, so that they looked to the casual observer the same as the official restore CDs.

In case you have a hard time visualizing it, this Washington Post story has a picture of this guy laying on top of 48,000 install discs.

His conviction was for selling 28,000 discs for 15 cents each to a broker in Florida as part of a gov't sting.

Source: E-waste recycler Eric Lundgren loses appeal on computer restore disks, must serve 15-month prison term

Re:A few (inconvienient) facts

[Ol Olsoc]

Thank heavens that they are spending their time on civilization critical crimes like this.

"What you in for Pal?"

"I murderd my children and cooked them? You?"

"Made Windows restore disks."

"Jeezuz Christ - your a fucking animal!"

Then Lundgrun was shanked in the shower the next day. I mean even crooks have some honor.

Re: A few (inconvienient) facts

[kenh]

This was an easy crime that fell into the Gov't lap - the gov't spotted the shipment of 48,000 counterfeit discs, staged a buy for 28,000 of them @ $0.15/ea, and arrested the seller, the 'E-Waste Innovator'.

To paraphrase something President Obama's once said, "Police can multi-task" - investigating counterfeiting doesn't prevent them from going after killers, robbers, etc.

Corrupt Judges

[LinuxLuver]

America is now a sad parody of it used to claim to be.

Ahhhhhh

[Ol Olsoc]

Microsoft truly is a festering carbuncle on the asshole of the Universe. As for it's fans? Good for ya.