canopic jug writes:
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.
[...] 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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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).
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.