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
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.
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...