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

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

[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

[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

[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

[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

[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

[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

[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

[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

[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.

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!

[organgtool]

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

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.

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: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.

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

[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

[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: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: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

[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.

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: 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.