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posted by Fnord666 on Monday February 19 2018, @08:15AM   Printer-friendly [Skip to comment(s)]
from the don't-stand-in-the-way-of-profits dept.

Electronics recycler Eric Lundgren was convicted of conspiracy and copyright infringement for his efforts regarding refurbishing old PCs. His sentence would have been 15 months in prison and a $50,000 fine except that he was granted an emergency stay of the sentence by a federal appeals court. Now his appeal is pending before the 11th Circuit though it has not yet been scheduled.

[...] McGloin also testified that Microsoft charges computer refurbishers about $25 for a new license and copy of the software but didn't differentiate that from what was done by Lundgren, who was not making a new copy of the software and intended his restore discs only for computers that were already licensed.

[...] Lundgren called his own expert witness, Glenn Weadock, an author of numerous software books who testified for the government in a major antitrust case against Microsoft that was resolved in 2001. Weadock was asked, "In your opinion, without a code, either product key or COA [Certificate of Authenticity], what is the value of these reinstallation discs?"

"Zero or near zero," Weadock said.

He should have listened to the experts like Ken Starks of Reglue. However, no mention was made by The Washington Post article about whether he or the court was aware that he could have improved the situation all the way around by simply upgrading the refurbished PCs to GNU/Linux instead of using a system that is always showing new ways to cause problems. The local LUG could well host an evening event with him as guest of honor to show how to improve the users' situation while staying out of jail.

Source : Eric Lundgren, 'e-waste' recycling innovator, faces prison for trying to extend life span of PCs


Original Submission

Related Stories

Follow-up Interview with E-Waste Recycler Eric Lundgren 45 comments

[Editor's note: We generally try to provide balanced coverage of a story. This interview is "straight from the horse's mouth" and is, therefore, going to contain the biases of the interviewee. Nonetheless, we thought the story interesting enough that we wanted to put it out to the community to discuss. --martyb]

Roy Schestowitz over at Techrights has an informal, follow-up interview with e-waste recycler Eric Lundgren about his ordeal with Microsoft. Lundgren spent time incarcerated as a result of his efforts to re-use old Wintel computers and keep them out of the landfill. He is now finally out of prison.

"The judge didn't understand the difference between a "Restore CD" and a "License"," he complained, "and Microsoft convinced the judge that the "Restore CD" was of equal value and functionality to a new MSFT OS w. new license! I was honestly dumbfounded.. I kept waiting for someone to get it in court .. Instead – The judge threw out all of my expert witness' testimony and only kept Microsoft's testimony.."

[...] Lundgren was sort of tricked if not blackmailed. It was the old trick of plea 'bargain' that was leveraged against him. "They threatened me with 47 Years in Prison," he told us. "So my only choice was to plea-bargain.. I told them I would ONLY plead guilty to "Restore CD Without License" but then Microsoft convinced the judge to value a Restore CD at the SAME VALUE as a Full Microsoft OS w. License!"

Earlier on SN:
Microsoft's Full Response to the Lundgren Counterfeiting Conviction (2018)
California Man Loses Appeal in Copyright Infringement Case (2018)
'E-Waste' Recycling Innovator Faces Prison for Trying to Extend Life Span of PCs (2018)


Original Submission

Microsoft's Full Response to the Lundgren Counterfeiting Conviction 50 comments

Microsoft's corporate vice president of communication Frank X. Shaw has given the company's take on the conviction of Eric Lundgren for allegedly ordering unauthorized copies of Windows:

In the last few days there have been several stories about the sentencing of Eric Lundgren in a case that began in 2012, and we have received a number of questions about this case and our role in it. Although the case was not one that we brought, the questions raised recently have caused us to carefully review the publicly available court documents. All of the information we are sharing in this blog is drawn from those documents. We are sharing this information now and responding publicly because we believe both Microsoft's role in the case and the facts themselves are being misrepresented.

California Man Loses Appeal in Copyright Infringement Case 30 comments

Engadget reports that Eric Lundgren, who ordered unauthorized copies of Microsoft Windows, has lost in appeals court. He had received a 15-month prison sentence and $50,000 fine.

From Engadget:

Lundgren realized that people were simply discarding old computers and buying new ones, rather than trying to restore Windows. He decided to begin manufacturing restore CDs that could be sold to computer repair shops for a quarter each.

[...] However, things began to go downhill after US Customs got ahold of a shipment of these disks in 2012. They charged Lundgren with conspiracy to traffic in counterfeit goods, as well as criminal copyright infringement. The premise here was that Lundgren was providing users with a copy of the Windows operating system on these restore disks, but that was untrue. The users needed to have a previously purchased license, or the restore disks wouldn't work.

[...] While Lundgren argued that these disks had zero value, Microsoft claimed (through a letter and an expert witness) that these were "counterfeit operating systems" and that they had the potential to hurt Microsoft's sales. The pricing was set at $25 a piece, which was what Microsoft claimed it charged repair shops for these disks. The catch here is that this is the price for a fully licensed operating system, not Lundgren's version.

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  • (Score: 3, Insightful) by drussell on Monday February 19 2018, @08:31AM (9 children)

    by drussell (2678) on Monday February 19 2018, @08:31AM (#640025) Journal

    ...he could have improved the situation all the way around by simply upgrading the refurbished PCs to GNU/Linux^H^H^H^H^H^H^H^H^H^H FreeBSD instead...

    FTFY

    • (Score: 4, Interesting) by canopic jug on Monday February 19 2018, @09:09AM (1 child)

      by canopic jug (3949) Subscriber Badge on Monday February 19 2018, @09:09AM (#640032) Journal

      I remembered TrueOS [trueos.org] only a few seconds after I sent in the post. Sorry, there's no way to edit submissions even if they are still in the queue waiting for approval.

      His interest is in the physical artifacts not software and even if it were raw FreeBSD would be a bad idea all the way around,. So would Debian or Devuan unless he was willing to prepare a customization script or package. However, a polished FreeBSD distro like TrueOS would be great for beginners. I'm not sure how well old machines would handle it though. Have a conciliatory instead. [lunduke.com]

      --
      Money is not free speech. Elections should not be auctions.
      • (Score: 2) by captain normal on Monday February 19 2018, @05:42PM

        by captain normal (2205) on Monday February 19 2018, @05:42PM (#640165)

        I do not like auto-play GIFs, or any kind of auto-loading scripts. So good on FreeBSD for that.

    • (Score: 0) by Anonymous Coward on Monday February 19 2018, @01:58PM

      by Anonymous Coward on Monday February 19 2018, @01:58PM (#640084)

      To really improve the situation he ought to have used HURD.

    • (Score: 2) by srobert on Monday February 19 2018, @04:22PM (3 children)

      by srobert (4803) on Monday February 19 2018, @04:22PM (#640131)

      FreeBSD is a superior OS to any Linux I've worked with. (I did a lot of distrohopping.) However, sometimes the hardware isn't supported. I'm just waiting for a FreeBSD driver for the wifi card in my laptop. Meanwhile, Void Linux is not too bad.

      • (Score: 0) by Anonymous Coward on Monday February 19 2018, @05:55PM

        by Anonymous Coward on Monday February 19 2018, @05:55PM (#640167)

        I'm in the same boat. I far prefer the BSD's over linux, but hardware support isn't as good as linux. If modern laptops had more USB ports I would just keep a USB wifi adapter in there, but shit has too be skinnier and skinnier...

      • (Score: 2) by jimtheowl on Tuesday February 20 2018, @02:00AM (1 child)

        by jimtheowl (5929) on Tuesday February 20 2018, @02:00AM (#640397)
        This is a common issue for laptop. Sometimes the drivers for Wi-Fi are available for Linux only as binary blobs, so without technical specs, there is no point waiting.

        The best way around it is to open up the laptop, pull out the Wi-Fi card and put one that is supported. It is relatively cheap, easy and well worth it.
        • (Score: 2) by urza9814 on Tuesday February 20 2018, @01:43PM

          by urza9814 (3954) on Tuesday February 20 2018, @01:43PM (#640624) Journal

          Eh, last time I tried FreeBSD it was pretty much unusable due to missing wifi and graphics drivers. At the time both were due to be included in the next release -- which came out a few months back -- but by that point I already had a reasonably effective Arch install up and running...been meaning to give it another shot, although I've recently added Void to my list too.

          If you've got five year old hardware, continuing to wait probably won't help much. But if you just bought the thing, there's a decent chance that support will come in time.

    • (Score: 5, Touché) by crafoo on Monday February 19 2018, @05:12PM

      by crafoo (6639) on Monday February 19 2018, @05:12PM (#640152)

      You misspelled OpenBSD

    • (Score: 2) by letssee on Monday February 19 2018, @06:49PM

      by letssee (2537) on Monday February 19 2018, @06:49PM (#640190)

      FreeBSD is *very* nice. But the hardware support is a lot more finicky than ubuntu or even debian or mint. Also there is *loads* more documentation for noobs on Ubuntu online.

      The local thrift stores here puts Ubuntu on every computer they get. They sell them mainly to poor people who need something to browse the web. With ubuntu it's possible for most people to do just that, though it's pushing it. With FreeBSD there's not a snowflake's chance in hell they can troubleshoot the thing themselves.

  • (Score: 2) by hemocyanin on Monday February 19 2018, @09:28AM (4 children)

    by hemocyanin (186) on Monday February 19 2018, @09:28AM (#640035) Journal

    But it’s here that Lundgren ran into trouble. After compiling some 28,000 restore discs — the same discs that used to come included with a purchased PC, at least before manufacturers started doing away with optical drives — Lundgren attempted to ship them to his partner, for use in restoring non-functioning devices.

    From: https://thenextweb.com/insider/2018/02/16/e-waste-recycler-gets-15-month-prison-sentence-for-creating-worthless-backup-discs/ [thenextweb.com] (because I won't remove the WAPO from my /etc/hosts -- mot......ing bastard fishwrap that it is).

    So I don't understand why he sent 28k cds to a partner -- wouldn't one for each version be sufficient?

    • (Score: 2) by kazzie on Monday February 19 2018, @10:18AM

      by kazzie (5309) Subscriber Badge on Monday February 19 2018, @10:18AM (#640041)

      Well, you know how unreliable the postal service is...

    • (Score: 3, Informative) by MostCynical on Monday February 19 2018, @10:21AM (2 children)

      by MostCynical (2589) on Monday February 19 2018, @10:21AM (#640043) Journal

      Each disc would be sold to an end user.

      The burning and printing was done in China, likely for a fraction of what the blank discs alone would cost in the US.
      Or the cost of someone sitting ther, burning one at time.

      --
      “I've learned from experience that asking politely never works unless you have the upper hand.” Daisuke Aramaki, GIS:SAC
      • (Score: 5, Informative) by Anonymous Coward on Monday February 19 2018, @11:11AM (1 child)

        by Anonymous Coward on Monday February 19 2018, @11:11AM (#640051)

        Each disc would be sold to an end user.

        This.

        When you buy a new PC, it usually comes with a restore CD. Or used to, anyway. Of course with a refurbished PC, those CD's have been lost long ago, so the refurbisher went out and had a stack of new restore CDs made to sell with the refurbished PCs.

        Apparently, Microsoft managed to convince a judge that once you lose the original restore CD, you should buy a new Windows license, rather than downloading the restore CD image from Dell and re-using the license key from the sticker on the computer.

        (The article specifically says that computers with no license sticker would be used for parts, rather than getting a new OS image).

        • (Score: 5, Insightful) by MostCynical on Monday February 19 2018, @11:19AM

          by MostCynical (2589) on Monday February 19 2018, @11:19AM (#640052) Journal

          Microsoft don't like that "sold" bit, unless it is them doing the selling.

          --
          “I've learned from experience that asking politely never works unless you have the upper hand.” Daisuke Aramaki, GIS:SAC
  • (Score: 5, Insightful) by c0lo on Monday February 19 2018, @11:27AM

    by c0lo (156) Subscriber Badge on Monday February 19 2018, @11:27AM (#640054) Journal

    ... especially good deeds that puts a brake on extortion.

    Environment and cost of living be damn'd, you paisanos need to consume and the profit must flow upwards: that's the American way [washingtonpost.com]

    --
    https://www.youtube.com/watch?v=aoFiw2jMy-0
  • (Score: 4, Insightful) by bradley13 on Monday February 19 2018, @11:32AM (10 children)

    by bradley13 (3053) Subscriber Badge on Monday February 19 2018, @11:32AM (#640056) Homepage Journal

    It seems to me that there are two issues here:

    - He was redistributing someone else's property. The fact that Microsoft makes the disk image available as a download does not (IANAL) necessarily give him the right to make and distribute his own copies. This is where the monetary value comes into play, for determining potential punishment. MS claims such a disk is worth $25. He claims it is worth $0. The truth is likely somewhere between those two figures.

    - The really stupid move: He put Microsoft and Dell Logos on the disks. You cannot go around using other people's trademarks without their permission. This was stupid.

    In a just world, the guy deserves a suspended sentence, which should be a simple fine. Basically: a slap on the wrist, don't be stupid again. In the US court system, well, justice seems to rarely be the goal...

    --
    Everyone is somebody else's weirdo.
    • (Score: 5, Insightful) by jdavidb on Monday February 19 2018, @02:20PM (6 children)

      by jdavidb (5690) on Monday February 19 2018, @02:20PM (#640091) Homepage Journal

      He was redistributing someone else's property

      From a moral standpoint, he was distributing data, not property. Nobody has ever been able to prove that data is property without resorting to begging the question or argument from authority.

      --
      ⓋⒶ☮✝🕊 Secession is the right of all sentient beings
      • (Score: 2) by Wootery on Tuesday February 20 2018, @12:46PM

        by Wootery (2341) on Tuesday February 20 2018, @12:46PM (#640604)

        Nobody has ever been able to prove that data is property without resorting to begging the question or argument from authority.

        Doesn't the same objection apply to all property?

        It's a societal construct, not something that can be proved from first principles. So what? The same is true of our laws on murder, but that doesn't render them somehow invalid.

      • (Score: 2) by theluggage on Tuesday February 20 2018, @07:43PM (4 children)

        by theluggage (1797) on Tuesday February 20 2018, @07:43PM (#640795)

        Nobody has ever been able to prove that data is property

        ...it doesn't need to be proven: copyright law forbids copying and distributing certain types of data (i.e. creative works) without the author's permission. End of. The question of whether data is property is irrelevant (although certain vested interests have been pushing the 'copyright infringement is theft' line to support their inflated claims of the damage it causes). For better or worse, this guy breached Microsoft's copyright - 28,000 times. Deal with it. AFAIK he pled guilty to that anyway so its really not at issue.

        The issue here is not that the copyright was breached, but whether MS's claim of the value of the resulting disks - which affects the severity of the penalty - was fair - and it looks like that is the focus of the appeal.

        If it helps, imagine he'd taken the advice about using Linux, had made 28,000 copies of the install image for [your-favourite-distro] for resale, but hadn't included an offer to supply source code as required by the GPL. Unfortunately, the legal principle that would let the Linux authors force him to apologise nicely and release the source is the same one that lets Microsoft send him to jail. Its just that in the Linux case it would be harder to argue that he'd done $700,000 worth of damage and push the case into criminal justice territory.

        • (Score: 2) by jdavidb on Tuesday February 20 2018, @10:34PM (3 children)

          by jdavidb (5690) on Tuesday February 20 2018, @10:34PM (#640903) Homepage Journal

          it doesn't need to be proven: copyright law forbids copying and distributing certain types of data (i.e. creative works) without the author's permission. End of

          Okay, so you've chosen the argument from authority approach.

          --
          ⓋⒶ☮✝🕊 Secession is the right of all sentient beings
          • (Score: 2) by theluggage on Wednesday February 21 2018, @10:07AM (2 children)

            by theluggage (1797) on Wednesday February 21 2018, @10:07AM (#641099)

            Yes, because when you are talking about *the law*, argument from authority wins. You need to read the small print before grabbing a “fallacy” from Logic4dummies.org - they’re not trump cards and the fallacy is usually to think that the appeal to authority/consequences/tradition counts against reproducible experimental evidence.

            We’re not talking about the laws of physics or mathematics here: the experimental test is to see what happens in court, and court after court has upheld the enforceability of copyright - which (despite industry propaganda that conflates it with property) is about *the right to copy*. In this case, the issue of the appeal is the real level of financial damage to the copyright holders and the consequential severity of the penalty.

            The earlier posters defence of the ruling (that this case was about theft of property) was, indeed false - but you’re using it as a straw man against the ruling itself.

            • (Score: 2) by jdavidb on Wednesday February 21 2018, @06:11PM (1 child)

              by jdavidb (5690) on Wednesday February 21 2018, @06:11PM (#641288) Homepage Journal

              but you’re using it as a straw man against the ruling itself.

              I'm not arguing for or against the ruling. I'm talking about the question of whether or not data is property.

              --
              ⓋⒶ☮✝🕊 Secession is the right of all sentient beings
              • (Score: 2) by theluggage on Wednesday February 21 2018, @11:04PM

                by theluggage (1797) on Wednesday February 21 2018, @11:04PM (#641487)

                I'm not arguing for or against the ruling. I'm talking about the question of whether or not data is property.

                ...and in that respect I kinda agree with you, but you're on a sticky wicket because the term "intellectual property" - like it or not - is widely used as a blanket term for copyrights, patents and trademarks. The English language is defined by usage (and abusage) so all someone needs is a few quotes from published works of "intellectual property" being used to refer to copyright and you've been sucked into an irresolvable debate over what people mean by words.

                The point is that calling data "property" doesn't change the fact that copying and distributing data is still regulated by copyright law... and as long as you're arguing about law, appeals to authority (the law), tradition (precedent) and consequences ('chilling effects' etc.) are all relevant.

    • (Score: 5, Insightful) by Anonymous Coward on Monday February 19 2018, @02:54PM

      by Anonymous Coward on Monday February 19 2018, @02:54PM (#640103)

      > In a just world, the guy deserves a suspended sentence, which should be a simple fine.

      In a just world, Microsoft would've sent him the restore disks for free (or cost of the medium). They already got their money when the original owner paid for the license. That's the entire point of selling "licenses" instead of selling "physical copies" that you can use as you wish.

      If they sold a "physical copy", then I can lend my Windows disk to a friend so that he can install it as well (see: books, cars, hammers).

      If they sold a "license", they're obligated to replace lost/damaged disks for the cost of a blank DVD (~c25).

    • (Score: 3, Funny) by srobert on Monday February 19 2018, @04:33PM

      by srobert (4803) on Monday February 19 2018, @04:33PM (#640134)

      "In a just world, the guy deserves a suspended sentence, ..."

      At the risk of being accused of being an SJW, I'll point out that the social status of the victim is pertinent to the sentencing. The guy who stole my car didn't get 15 months, but then I'm not an international billion dollar corporation.

    • (Score: 2) by fido_dogstoyevsky on Monday February 19 2018, @11:11PM

      by fido_dogstoyevsky (131) <axehandleNO@SPAMgmail.com> on Monday February 19 2018, @11:11PM (#640323)

      ...In the US court system, well, justice seems to rarely be the goal...

      And is too often the gaol [grammarist.com]

      --
      It's NOT a conspiracy... it's a plot.
  • (Score: 1, Informative) by Anonymous Coward on Monday February 19 2018, @12:51PM (4 children)

    by Anonymous Coward on Monday February 19 2018, @12:51PM (#640061)
    He was free to extend the life of PC's as much as he wanted, but is arrested for selling copies of recovery DVD's with the Microsoft Logo on it. Impersonating Microsoft got him jailed. Simple click-bait article copied from other media.
    • (Score: 2) by c0lo on Monday February 19 2018, @01:07PM (3 children)

      by c0lo (156) Subscriber Badge on Monday February 19 2018, @01:07PM (#640064) Journal

      O'Really? You reckon if they haven't carried that logo, Microsoft would not ask for $25/DVD?
      Must be nice in that parallel universe of yours, why did you leave it for this shitty one?

      --
      https://www.youtube.com/watch?v=aoFiw2jMy-0
      • (Score: 1, Touché) by Anonymous Coward on Monday February 19 2018, @01:42PM (2 children)

        by Anonymous Coward on Monday February 19 2018, @01:42PM (#640075)

        I know, it was silly of me to read the actual compliant filed by Microsoft, and then attempt to educate you. Won't make that mistake again.

        • (Score: 4, Touché) by c0lo on Monday February 19 2018, @01:51PM (1 child)

          by c0lo (156) Subscriber Badge on Monday February 19 2018, @01:51PM (#640079) Journal

          Thanks, appreciated.

          --
          https://www.youtube.com/watch?v=aoFiw2jMy-0
          • (Score: 2) by Wootery on Tuesday February 20 2018, @12:59PM

            by Wootery (2341) on Tuesday February 20 2018, @12:59PM (#640608)

            You just got told by an AC. Now I've seen everything.

  • (Score: 5, Insightful) by EvilSS on Monday February 19 2018, @01:07PM (22 children)

    by EvilSS (1456) Subscriber Badge on Monday February 19 2018, @01:07PM (#640065)
    This wasn't some white knight riding in to save the environment. This is a guy who saw an opportunity to make money. From TFA:

    He thought that producing and selling restore discs to computer refurbishers — saving them the hassle of downloading the software and burning new discs...

    And honestly he should have known how this would play out. You can't go around copying and selling copyrighted works in the US, like it or not.

    • (Score: 2) by SpockLogic on Monday February 19 2018, @01:50PM (3 children)

      by SpockLogic (2762) on Monday February 19 2018, @01:50PM (#640078)

      M$ thinking is that buying an OS is so yesterday and in the future they want you suckers (most of present company excepted) to rent the OS and pay and pay and pay ...

      Extending the life of an old PC marginally inhibits their income stream, can't have that.

      --
      Overreacting is one thing, sticking your head up your ass hoping the problem goes away is another - edIII
      • (Score: 3, Informative) by EvilSS on Monday February 19 2018, @01:56PM (2 children)

        by EvilSS (1456) Subscriber Badge on Monday February 19 2018, @01:56PM (#640082)
        Except that the end user or even the refurbisher could legally download and use the recovery CDs that Lundgren was going to sell them. The crime here wasn't using the recovery media to reinstall an OS, it was making copies and selling them to refurbishers. Just like I can't make and sell copies of music CDs to resellers who have empty cases for the CDs but not the CD themselves.
        • (Score: 0) by Anonymous Coward on Monday February 19 2018, @05:41PM (1 child)

          by Anonymous Coward on Monday February 19 2018, @05:41PM (#640164)

          Except you need a computer with an internet connection and burner to download and make your own restore disk. This is Microsoft trying to block the path to resurrecting an old PC.

          • (Score: 2) by EvilSS on Monday February 19 2018, @06:21PM

            by EvilSS (1456) Subscriber Badge on Monday February 19 2018, @06:21PM (#640179)
            You don’t think the referb companies have a pc with internet? While it is in their possession it’s theirs and they are allowed to retrieve and install the restore image.
    • (Score: 5, Informative) by MadTinfoilHatter on Monday February 19 2018, @02:07PM (17 children)

      by MadTinfoilHatter (4635) on Monday February 19 2018, @02:07PM (#640085)

      Not so fast. If you read the whole fine article, the crux of the matter seems to lie here:

      He said McGloin “testified that a free restore CD was worth the same price as a new Windows operating system with a license. … This was false and inaccurate testimony provided by Microsoft in an attempt to set a precedent that will scare away future recyclers and refurbishers from reusing computers without first paying Microsoft again for another license.

      It's not like these disks he was selling are in any way difficult to come by. They're also pretty useless without a license. Further from TFA:

      Glenn Weadock, an author of numerous software books who testified for the government in a major antitrust case against Microsoft that was resolved in 2001. Weadock was asked, “In your opinion, without a code, either product key or COA [Certificate of Authenticity], what is the value of these reinstallation discs?”

      “Zero or near zero,” Weadock said.

      Why would anybody pay for one? Lundgren’s lawyer asked.

      “There is a convenience factor associated with them,” Weadock said.

      The only value of the disks are indeed that they make computer refurbishing more convenient, so I wouldn't be too hasty in dismissing this guy's pure intentions, just because Microsoft doesn't like him. In fact they seem to have nailed him on a really BS technicality:

      The discs had labels nearly identical to the discs provided by Dell for its computers and had the Windows and Dell logos. “If I had just written ‘Eric’s Restore Disc’ on there, it would have been fine,” Lundgren said.

      This is not a case of some evil pirate making millions on other people's hard work. This is the usual case of Microsoft being the right cunts that they are, and ruining a man's life because of a technicality, and because they don't like people being able to (easily) refurbish computers.

      • (Score: 3, Insightful) by theluggage on Monday February 19 2018, @02:46PM (11 children)

        by theluggage (1797) on Monday February 19 2018, @02:46PM (#640100)

        In fact they seem to have nailed him on a really BS technicality:
        The discs had labels nearly identical to the discs provided by Dell for its computers and had the Windows and Dell logos. “If I had just written ‘Eric’s Restore Disc’ on there, it would have been fine,” Lundgren said.

        So, the "BS technicality" was that he infringed copyright (by reproducing the contents of the discs) and violated trademark law and tried to pass off his discs as genuine (by copying the labels complete with Dell/Microsoft trademarks) - oh, and he did this on an industrial scale (28,000 discs) with the intent of reselling the discs.

        Now, I agree that sending someone to prison for such a no-humans-were-hurt-in-the-making "crime" is obscene... but the fine (<$2/disc) is probably more proportionate for what was a blatant copyright/trademark violation. If you don't like Dell/MS's price for replacement discs use Linux/BSD.

        As for the "discs were freely available and unusable without a license" - sticking something on the web for free doesn't give everybody the unfettered right to make and distribute copies to others (nobody may care about a few copies for your mates, but 30k copies is taking the piss).

        Always remember that Creative Commons, GPL etc. rely on the exact same copyright law - to enforce the "copyleft" license terms on recipients - that grasping capitalists use to charge $25 for a replacement disc. If this guy had taken others' advice and shipped the systems with Linux, but eg. hadn't provided a link to the source you'd all want legal recourse - but the only thing making those licenses applicable (including any 'mere aggregation' exemptions) is that nothing else gives him the right to make and distribute copies without the authors' consent even if he found it for free on the interwebs.

        • (Score: 5, Insightful) by sjames on Monday February 19 2018, @03:59PM (10 children)

          by sjames (2882) on Monday February 19 2018, @03:59PM (#640122) Journal

          Even the grasping capitalists weren't charging. The image was free to download and burn a copy for personal use. That means it would also be legal for him to download and burn a copy for someone else in exchange for money if they asked him to do so in advance (simple legal principle, it is legal to hire someone to do something you are legally allowed to do yourself). So the big difference here is that he anticipated people being willing to pay him to download and burn a copy of the restore disk, so he did it in advance. For some stupid reason, his optimization of the process is claimed to be worthy of prison time.

          The Copyleft equivalent would be the people who downloaded and mass produced Linux install images on CDROM back in the day and sold them. A practice that was applauded by most of the Free Software community. I probably still have one of those old CD sets with several different Linux distros on them.

          He probably shouldn't have put the MS or Dell logos on them, but note that he was convicted for COPYRIGHT infringement, not TRADEMARK.

          • (Score: 3, Informative) by theluggage on Monday February 19 2018, @04:46PM (3 children)

            by theluggage (1797) on Monday February 19 2018, @04:46PM (#640142)

            The Copyleft equivalent would be the people who downloaded and mass produced Linux install images on CDROM back in the day and sold them.

            No, because that - even charging money - was explicitly permitted by the GPL license that the Linux authors had attached to their work. The real equivalent would be the people who downloaded and mass produced Linux install images on CDROM and sold them without supplying, or offering to supply a copy of the complete source code thus failing to comply with the terms of the GPL and violating the authors' copyright because only compliance the GPL gives you the right to make and distribute copies. That's why those distros often came on a stack of CD-ROMs of which 90% of users only ever used the first one with the installation image - the rest were the source code. If they didn't, you had the right to demand a copy of the source from the distributer.

            Just because something available for free off the internet doesn't mean you have any right to make and distribute further copies - full stop. MS and co. are no more obliged to let you re-distribute Windows install images at all than Linus and co. are obliged to let you distribute Linux without offering source code. Sauce for the goose is sauce for the gander.

            I don't think we disagree that the custodial sentence was ridiculous, though.

            • (Score: 2) by sjames on Monday February 19 2018, @05:27PM (2 children)

              by sjames (2882) on Monday February 19 2018, @05:27PM (#640160) Journal

              You apparently failed to read the part where it is legal to download and burn a copy for hire. The download was offered for free. He met that requitrement by paying nothing. Just like the Linux CDs met their requirement by also including the CD with source. What he did was nothing more or less than optimizing the process of being hired, downloading the image, burning it, and then exchanging the burned disk for a payment for his time and materials.

              If he had cracked the licence check, he would have been in violation of copyright, but he didn't. The resulting disks were no more or less usable than MS and Dell intended and MS and Dell received exactly the compensation for the download and burn that they expected.

              • (Score: 2) by theluggage on Monday February 19 2018, @06:57PM (1 child)

                by theluggage (1797) on Monday February 19 2018, @06:57PM (#640196)

                You apparently failed to read the part where it is legal to download and burn a copy for hire.

                You apparently failed to read the part where he burned 28,000 copies. 28,000 people didn't hire him to download and burn a copy on their behalf. They certainly didn't aske[d] him to do so in advance (your words).

                The download was offered for free. He met that requitrement by paying nothing.

                Your words again: The image was free to download and burn a copy for personal use. - downloading it for a third party who has hired you for money is not personal use and violated the terms on which you say he was entitled to download the image.

                If you download something from the internet - free or otherwise - you have absolutely no right to make copies of it without a license from the copyright holder and if the copyright holder offers such a license they can impose whatever conditions they like short of "unconscionable" terms like slavery or the liver of your first born son. Take it or leave it. Oh, there may be "fair use" and "right of first sale" principles but I guarantee those don't include making and reselling thousands of copies of the complete image.

                Once more with feeling: however you obtain a copy of something you have no right to copy and distribute it further without a license from the copyright holder - end of. Civilised people will turn a blind eye if you download some device drivers for your friends, but not 28,000 copies of Windows offered for sale.

                Worse, if there were any merit to your twisted logic, it would also completely undermine the GPL, Creative Commons etc. licenses: The GPL certainly allows me to download a copy and do as I will with it for my personal use - so by your reasoning 30,000 people could implicitly hire me to download and customise Linux on their behalf without me being bound by the GPL... I don't think so - the GPL has repeatedly stood up in court against bigger legal geniuses than you.

                Not that I'm crying into my beer for Microsoft's traumatic experiences in this case, of course.

                • (Score: 2) by sjames on Monday February 19 2018, @08:00PM

                  by sjames (2882) on Monday February 19 2018, @08:00PM (#640237) Journal

                  If you hire me, I am acting with your agency. It remains your personal use even if you hire me to do it for you. For the same reason, employers are responsible for the torts of their employees when they are acting within their employment. That's why if a UPS truck bends your bumper, UPS is on the hook for it.

                  He simply anticipated that 28,000 would at some point hire him to burn a copy, so he worked ahead and saved some time and effort. The end result was no different for Dell and MS.

                  Interestingly, it *IS* perfectly legal for 30,000 people to hire you to apply a patch to their GPL software. You are under no obligation to give anyone but your clients the source code. Of course, under the GPL, you also may not in any way forbid them from further sharing the patch that you apply. That last part is why Bruce Perens believes GRsecurity is on shaky grounds.

          • (Score: 2) by EvilSS on Monday February 19 2018, @06:18PM (5 children)

            by EvilSS (1456) Subscriber Badge on Monday February 19 2018, @06:18PM (#640177)
            Just because something is free to download for personal use does not allow you to package and resell it. Going to need some case law to support your assertion on this.
            • (Score: 2) by sjames on Monday February 19 2018, @08:11PM (4 children)

              by sjames (2882) on Monday February 19 2018, @08:11PM (#640244) Journal

              I did provide reasoning. The appeals court seems to believe that line of reasoning is at least plausible enough to stay his sentence while it grinds through the courts.

              • (Score: 3, Insightful) by theluggage on Tuesday February 20 2018, @09:37AM (3 children)

                by theluggage (1797) on Tuesday February 20 2018, @09:37AM (#640562)

                TFA is unclear about the grounds for appeal but it looks like it’s based on MSs claim for lost sales that resulted in the excessive sentence. He had no right to bulk copy the discs - he’s already plead guilty for that - whether that really leaves MS out of pocket by $25*28000 (That MS would like refurbishes to pay for replacement *licenses*) pushing the offence into jail terr.itory - is another matter entirely, and I do hope he prevails on that.

                • (Score: 3, Interesting) by sjames on Tuesday February 20 2018, @04:10PM (2 children)

                  by sjames (2882) on Tuesday February 20 2018, @04:10PM (#640699) Journal

                  MS has always wanted to eat it's cake and have it too wrt licensing. They were happy enough to enforce "the Microsoft tax" on practically every new PC from that era and to tie the licence to a particular machine, particular media, AND a particular person. Basically, any excuse to hold their hand out for more money. They only reluctantly accept that the law doesn't grant them quite that much leeway.

                  This dates back to Gates' early days when he complained bitterly when he pre-sold a basic interpreter for the Altair and after missing his delivery date by over a year, some hobbyists grabbed a copy as-is, fixed the remaining bugs in a day or two, and distributed it to everyone who had pre-paid. Interestingly, since he used an emulator on a Harvard mainframe while he was enrolled there, the copyright (if any) would have actually belonged to the university anyway. This do as we say, not as we do attitude prevails at MS top this day.

                  • (Score: 2) by theluggage on Tuesday February 20 2018, @07:16PM (1 child)

                    by theluggage (1797) on Tuesday February 20 2018, @07:16PM (#640779)

                    You seem to be confusing the law with morality. Trouble is, morality is subjective and the law is expected to be provable and enforceable (whether it is or not is another matter) as well as covering the "what if everybody else did that?" angle.

                    Back in those days, I'm not sure it had even been established that computer code was covered by copyright. That's pretty much settled now. You may also have been required to register copyright in the US back then to be protected (the US only adopted the Berne Convention standards including automatic copyright relatively recently).

                    However, by modern standards, those hobbyists would have no right to take the law into their own hands and distribute the fixed code, however much you might cheer for them. The University would only have a claim if Gates had entered into a contract to give them copyright on anything he produced on their equipment (...which is quite possible, but not in evidence). Given the number of books etc. written by academics using University resources, that would be a dangerous thread to pull on. NB: do you think your university or college should own everything you wrote/produced while you were studying there? (these days its quite possible that you did sign a document saying that).

                    • (Score: 2) by sjames on Tuesday February 20 2018, @11:59PM

                      by sjames (2882) on Tuesday February 20 2018, @11:59PM (#640940) Journal

                      I'm not at all confused. My last posting was questioning MS in general, though there is legal question if you can tie a licence to person, machine, and installation disk all at the same time.

                      At the time of the hobbiest incident, the ability to copyright software at all was very much questioned. But just in case it was, Harvard (like most universities) claimed ownership of anything created using it's resources. Either way, Bill wouldn't have won that one in court. Even today, there would be a few interesting questions for the courts since the hobbyists paid for a licence and might otherwise allege that Gate's taking their money and then not delivering was a case of fraud.

      • (Score: 2) by meustrus on Monday February 19 2018, @03:13PM

        by meustrus (4961) on Monday February 19 2018, @03:13PM (#640109)

        Regardless, can we agree that the summary was lacking significant details? I sure as hell couldn't make any sense of what happened without parent's and grandparent's comments. Which are still inadequate, so I guess it's time to RTFA...

        --
        If there isn't at least one reference or primary source, it's not +1 Informative. Maybe the underused +1 Interesting?
      • (Score: 3, Informative) by EvilSS on Monday February 19 2018, @03:46PM (2 children)

        by EvilSS (1456) Subscriber Badge on Monday February 19 2018, @03:46PM (#640120)
        Cool, but nothing you posted changes the fact that he manufactured tens of thousands of the CDs with some else's copyrighted content on them and attempted to sell them. That is illegal under US law, like it or not. The fact is he tried to setup a nice little side business doing this. He could have just sent out instructions for the resellers on how to legally and freely obtain the same ISO images themselves, but he didn't do that. You would assume someone refurbishing and reselling old computer equipment would be competent enough to be able to do that if given instructions and links to the various ISOs from the mfg websites, yes? Instead he thought "hey, this is a niche, untapped market and I could make a few bucks!" and he got his ball caught in the wringer over it.

        This whole altruistic crap is just his spin to make himself look like a victim of the big, mean companies trying to stop his charitable reselling of their OS. I mean if his intentions were so pure, why not GIVE the CDs away?
        • (Score: 2) by c0lo on Monday February 19 2018, @10:10PM (1 child)

          by c0lo (156) Subscriber Badge on Monday February 19 2018, @10:10PM (#640302) Journal

          I mean if his intentions were so pure, why not GIVE the CDs away?

          Yeah, right! S/N must be evil.
          How does the Soylentnews non-for-profit dare to ask for membership fees?

          --
          https://www.youtube.com/watch?v=aoFiw2jMy-0
          • (Score: 2) by EvilSS on Tuesday February 20 2018, @07:42PM

            by EvilSS (1456) Subscriber Badge on Tuesday February 20 2018, @07:42PM (#640794)
            The difference is this guy did it for profit, not just to cover his costs. A 29% profit according to the financial disclosure he provided the courts.
      • (Score: 3, Informative) by EvilSS on Monday February 19 2018, @03:55PM

        by EvilSS (1456) Subscriber Badge on Monday February 19 2018, @03:55PM (#640121)
        Also, before anyone pipes in with "He only sold them for cost!" no he did not:

        In his sentencing memo, Lundgren said that his financial gain had been small: He received only about $45,000 in gross revenue and $13,000 in net profit.

        29% profit margin, not bad for software resale. Again, if this was "for the environment! For the rights of the peoples to windows!" then why make a profit at all?

        This articles seems to have more facts about he case without the hyperbolic hand wringing: https://resource-recycling.com/e-scrap/2017/06/15/ceo-sentenced-prison-counterfeit-software-scheme/ [resource-recycling.com]

  • (Score: 0) by Anonymous Coward on Tuesday February 20 2018, @12:57PM (2 children)

    by Anonymous Coward on Tuesday February 20 2018, @12:57PM (#640606)

    Does anyone know the intricacies of Windows OEM licensing well enough to chime in on this? Even if they are legally in the right, they probably already sold a copy of Windows to the manufacturer when the PC was sold. This guy was providing a valuable service that most likely isn't hurting anyone financially or physically. If I understand this correctly, the buyer of the PC could get the image from the MS web site or manufacturer web site legally at no cost? So they press criminal charges on this guy and get nothing to stop him from making it more convenient to use their product that was already paid for? Legally right or not, Microsoft is acting like a bunch of stupid assholes. If I was an MS shareholder, I would be asking some rather pointed questions at the next meeting or conference call for such a show of bad faith for no benefit.

    • (Score: 2) by EvilSS on Tuesday February 20 2018, @07:46PM

      by EvilSS (1456) Subscriber Badge on Tuesday February 20 2018, @07:46PM (#640799)
      I think the big problem here is two fold: One, he made completely counterfeit disks to look like the originals and two, he ran this as a for-profit scheme. The guy marked the disks up 29% over his costs when he sold them. He also didn't sell them to end users, but one person. I'm pretty sure as details come out on this we will see that he wasn't some do-gooder but a guy out to make a profit doing something he knew was illegal and got busted.
    • (Score: 2) by theluggage on Wednesday February 21 2018, @11:49AM

      by theluggage (1797) on Wednesday February 21 2018, @11:49AM (#641126)

      Does anyone know the intricacies of Windows OEM licensing well enough to chime in on this?

      People still don't get it. The license isn't relevant - you are not entitled to reproduce and distribute a copyrighted work without permission. The fact that the disc was useless to anybody without a license key isn't relevant. The fsct that your target customers probably already have a license keyisn't relevant. The fact that anybody could freely download it isn't relevant - in the absence of a click-through agreement on the website (which would probably restrict re-distribution) the default is you can't copy it. In the past, the 'runtime's for compilers, media players etc. could often be copied and redistributed but only because there was a clause in their licenses that specifically allowed this subject to certain conditions. The guy violated copyright, and compounded it by making 28,000 copies and reproducing the original labels, with the clear intention of re-selling them for (modest) profit. Hell - he violated copyright by copying the labels regardless of whether trademarks were involved.

      If Microsoft want to charge you for a replacement install disc for software that you have already licensed, that is their right, since copyright by definition grants them a monopoly on reproducing that disc... and its not exactly unreasonable when they also offer to the license holder a free download. Charging a whopping markup for spare parts is pretty much standard practice in every industry. Even the GPL allows you to make reasonable charges for supplying source code on physical media.

      The hope in this case is that Microsoft may have grossly overstated their potential losses: they claimed the discs have a value of $25x28,000, but according to TFA the $25 was for a a license for a refurbisher who wants to resell a computer that does not already have a licensed copy of Windows so you would expect a replacement disc that required an existing license to have a far lower value. Seems to me that they'd therefore need to prove that Lundgren was intending to pass his discs off as genuine licensed copies. That doesn't let him off the hook for copyright infringement - but could kill the ridiculous prison sentence and knock it back to a civil offence. I'd say the $50k fine on its own was about right. Only problem there is that he didn't help himself there by making so many copies and reproducing the labels - plus, it's equally suspect to say that the discs were worthless if Lundgren himself was offering them for sale.

      I'm reminded of the notices in some US hotel rooms stating that running out on a hotel bill of over $499 is a felony under State law and that (by a strange coincidence) the standard daily rate is $500 (2-3 times what anybody actually pays). Lawmakers never seem to consider the possibility that their laws will be 'gamed' by both sides...

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