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E-waste recycler loses appeal on computer restore disks, must serve prison term

washingtonpost.com

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Re: E-waste recycler loses appeal on computer restore disks, must serve prison term

#211

Post by dkarl »

freehunter wrote: post #187
cwyers wrote: post #171

Everybody is reading this wrong, which isn't a huge surprise because the Post seems to have nobody on hand who understands the facts of the case and relied on an interview with Lundgren heavily. He was not providing people with restore media they could use to fix their own machines. He was taking the restore media, burning it onto discs _with official Microsoft and Dell logos on them_ and then _selling them to comput…

I think it needs rephrasing. There's a lot that can be argued when you phrase it as "counterfeit restore discs", but it's open-and-shut trademark infringement. I know that's not what Microsoft was arguing, but in reality that's closer to what the judge ended up going with when you account for the reduced "cost" per disc. Like he said in his defense, if he had labeled it "Eric's Restore Disc" instead of putting the De…

Like he said in his defense, if he had labeled it "Eric's Restore Disc" instead of putting the Dell and Windows logo on it, he probably would have skirted any real repercussions.

I felt kind of bad about him going to prison until I read this, but that is some classic reasoning. When somebody is capable of justifying their criminality by just imagining away the main thing that makes it criminal, you need prison to tell them, yes, really, you can't do that.

"If it had just been a mule deer instead of an endangered species...."

"If I had just made the trades with my money instead of my clients' money...."

We use prison for a lot of purposes that it sucks at, but teaching people that they can't just yadda-yadda a crime away seems like a good use for it.

Re: E-waste recycler loses appeal on computer restore disks, must serve prison term

#212

Post by ada1981 »

ada1981 wrote: post #4

No paywall: https://outline.com/zcZGaN It’s unfortunate when people get punished because other people don’t understand how technology works. “Senator, we don’t sell data!” - Plato

I guess Zuck downvoted me for misquoting him.

He still owes me $100 from 2004, can I get that back in 2004 FB Stock $100 equivlant?

Re: E-waste recycler loses appeal on computer restore disks, must serve prison term

#213

Post by treis »

cornholio wrote: post #126
scott00 wrote: post #97

Earlier quoted context omitted.

There's two stages of the legal process that are important to understand here: what was the illegal act, and what is the sentence for that illegal act. The illegal act was a copyright violation: he made and distributed copies of copyrighted material without the consent of the copyright owner. I would be inclined to argue that his use was fair use, but based on what I know about copyright law, that argument is probabl…

> (2) OEM Windows disks that Microsoft sells for $25. These come with a license (unlike the defendant's disks) but do come with a physical disk. I'm confused, what exactly are these, where can a private individual buy one? A Windows license key with (no media) is priced around $120, while an OEM license with no support is in the $50-$90 area, depending on the business relationship with Microsoft. If individuals were…

I posted this on another thread, but this is the crucial point:

>The original Microsoft (COA) attached to the PC does not allow you to reload Microsoft Windows software when no original recovery media is present.

https://blogs.msdn.microsoft.com/mssmallbiz/2011/10/05/looki...

So the $25 doesn't come with a license. It gives you the physical media to comply with the license that came with the computer.

Re: E-waste recycler loses appeal on computer restore disks, must serve prison term

#214

Post by DanBC »

balls187 wrote: post #153
DanBC wrote: post #111

Earlier quoted context omitted.

Most copyright jursidictions make a difference for non-commercial copyrigth infringement and commercial copyright infringement. Most of them put commercial copyright infringement in the criminal offence category.

The law violation is akin to being ticketed for jaywalking across an empty road. The court ignored expert witness testimony that the disks were useless without a valid license and came up with a ludicrous amount. The defendants belief was that many customers weren't knowledgeable enough to download restore images from the internet. He was selling them to used computer shops so they could provide them to their custome…

That he's not very good at turning a profit doesn't take away from the fact that he engaged in copyrigth violation as part of business, which tips it into a criminal offence.

I agree that the US system is fucked up when it imprisons people who haven't committed violent crime.

Re: E-waste recycler loses appeal on computer restore disks, must serve prison term

#215

Post by shaki-dora »

msravi wrote: post #179
jonathankoren wrote: post #155

Earlier quoted context omitted.

But your example also isn’t what happened. A more accurate Big Mac example would be McDonald’s is giving away Big Macs, so you go and get a free Big Mac, and then give that Big Mac to your friend. At that point McDonald’s cries that you’re giving away counterfeit Big Macs.

An even more accurate Big Mac example would be McDonald’s is giving away Big Macs in locked boxes placed at every street corner, but you need to pay for the keys to the box. So you let people know that the keys that they paid for earlier are still valid and can still be used, and you show them how. McDonald's cries foul because they just expected people to buy new keys.

How about this analogy: McDonald’s sells counterfeit Windows CDs. Microsoft’s licensing scheme has nothing to do with copyright law. McDonald’s rightfully loses in court.

The end.

Re: E-waste recycler loses appeal on computer restore disks, must serve prison term

#216

Post by pritambaral »

cptskippy wrote: post #199
pritambaral wrote: post #191

Earlier quoted context omitted.

> The point is, he doesn't have permission to distribute the software. This is not the point of contention. He pled guilty to this. The point of contention is the amount of damages Microsoft argued and the court agreed on. Microsoft argued these disks were worth the full-price of a Microsoft-sold disk+license, but these disks did not contain the license. It's like being sued by Amazon for thousands of dollars (instea…

Going back and reading the original WP article sheds some light on the whole case. https://www.washingtonpost.com/news/true-crime/wp/2018/04/24... He wasn't actually convicted of distributing software illegally and the arguments for the cost of the licenses is moot. That being said, initially Federal Prosecutors tried to say the discs were valued at $299 a piece but Microsoft intervened and said that they sold refurb…

> He wasn't actually convicted of distributing software illegally

> He was convicted of counterfeiting and copyright infringement

"Copyright infringement" here implies "distributing software illegally". Licenses are not "works" and thus cannot be copyrighted. Trademarks cannot be copyrighted and trademark infringement is not copyright infringement.

> and the arguments for the cost of the licenses is moot

Copyright infringement by itself doesn't carry the sentence he was given. In copyright infringement cases, damages are calculated based on cost, loss-of-revenue etc. to the copyright holder.

From the very article you reference: "Hurley decided Lundgren’s 28,000 restore disks had a value of $700,000, and that dollar amount qualified Lundgren for a 15-month term and a $50,000 fine." (emphasis mine).

The entire point is that his disks had "zero or near zero" value to the copyright holder since they did not contain any licenses, and thus his sentence is unfair.

----

> So why didn't he?

Is that sufficient legal basis for the sentence?

Re: E-waste recycler loses appeal on computer restore disks, must serve prison term

#217

Post by dragonline »

cptskippy wrote: post #205
thedragonline wrote: post #201

Earlier quoted context omitted.

Just curious - do you think this is a reasonable, proportional punishment?

Not at all. In this case he hadn't sold anything. They should have approached him and explained why he couldn't do what he was doing. Then gave him a remediation option, like destroying the discs, and dropping the matter. I'm also not convinced something like this didn't happened. All of his exposing about Microsoft double dipping and the whole system being designed to scam people out of money makes me suspicious of…

>Then gave him a remediation option, like destroying the discs, and dropping the matter.

This strikes me as the far more reasonable outcome that didn't happen.

>I'm curious if that statement was based on what he ultimately got convicted of or something else?

Who knows. As a practical matter, I do see a chilling effect coming out of this judgement for those reselling Windows boxes - either don't do it or make damn sure you have your legal ducks in a row.

(edit:formatting)

Re: E-waste recycler loses appeal on computer restore disks, must serve prison term

#218

Post by HIPisTheAnswer »

cwyers wrote: post #171

Everybody is reading this wrong, which isn't a huge surprise because the Post seems to have nobody on hand who understands the facts of the case and relied on an interview with Lundgren heavily. He was not providing people with restore media they could use to fix their own machines. He was taking the restore media, burning it onto discs _with official Microsoft and Dell logos on them_ and then _selling them to comput…

How are the disks counterfeit? As far as I understand they are functioning exactly like the 'official' disks. Etching the brand on them makes them more easily recognizable, as to what purpose they serve. There is no technical difference between the 'original' disk and the ones this person manufactured, so there is no possible intent to fool anyone. Nobody 'owns' a name or a logo. Intellectual property is impossible. Sending someone who hasn't stolen anything nor damaged anyone else's person or property, that is a crime.

Re: E-waste recycler loses appeal on computer restore disks, must serve prison term

#219

Post by klez »

cornholio wrote: post #126
scott00 wrote: post #97

Earlier quoted context omitted.

There's two stages of the legal process that are important to understand here: what was the illegal act, and what is the sentence for that illegal act. The illegal act was a copyright violation: he made and distributed copies of copyrighted material without the consent of the copyright owner. I would be inclined to argue that his use was fair use, but based on what I know about copyright law, that argument is probabl…

> (2) OEM Windows disks that Microsoft sells for $25. These come with a license (unlike the defendant's disks) but do come with a physical disk. I'm confused, what exactly are these, where can a private individual buy one? A Windows license key with (no media) is priced around $120, while an OEM license with no support is in the $50-$90 area, depending on the business relationship with Microsoft. If individuals were…

I tried that thing were you refuse Microsoft's license on a new PC once (I don't think it's still doable). I followed the procedure on the manufacturer's website and sent them the license sticker that was attached to the computer. The refund for Windows Vista Home Basic was 15€ (retail value of a disk was between 45€ and 75€, I can't remember). So I guess that's the kind of pricing we're talking about here.

Re: E-waste recycler loses appeal on computer restore disks, must serve prison term

#220

Post by GalacticDomin8r »

cwyers wrote: post #192
freehunter wrote: post #187

Earlier quoted context omitted.

I think it needs rephrasing. There's a lot that can be argued when you phrase it as "counterfeit restore discs", but it's open-and-shut trademark infringement. I know that's not what Microsoft was arguing, but in reality that's closer to what the judge ended up going with when you account for the reduced "cost" per disc. Like he said in his defense, if he had labeled it "Eric's Restore Disc" instead of putting the De…

> Like he said in his defense, if he had labeled it "Eric's Restore Disc" instead of putting the Dell and Windows logo on it, he probably would have skirted any real repercussions. How is that a defense?!? Yes, it's true that if you don't crime, you don't get punished for crime, but... he crimed. And, from the article: > Lundgren had 28,000 of the disks made and shipped to a broker in Florida. Their plan was to sell…

>if you don't crime, you don't get punished for crime

If only...

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