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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

#251

Post by mcguire »

treis wrote: post #213
cornholio wrote: post #126

Earlier quoted context omitted.

> (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.

The COA only applies to the original recovery media, or to new media supplied by MS?

Dang. I should be treating those as more precious.

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

#252

Post by freeone3000 »

pbhjpbhj wrote: post #84
PeterisP wrote: post #63

Earlier quoted context omitted.

They are not a utility to get a free new copy of windows. However, that notwithstanding, copyright law grants Microsoft the exclusive right to arbitrarily restrict how these disks are created. It's just like you can offer some content on your website for free to anyone, but sue anyone who redistributes it for copyright infringement.

I don't recall agreeing to a license when downloading restore images? Presumably customers not receiving a restore image can now reclaim $299 from Microsoft as that is judged the value of the disc that was not included with their license purchase. Or indeed send back the install disc for at least a 50% refund. Just think how much money MS would make buying back install discs for $150. /s (yes, that's right, at least…

The license would ALLOW you to redistribute. The default is that you are not.

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

#253

Post by ikeboy »

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…

From the appeal:

>Lundgren objected to the PSR infringement amount. He argued that the Sentencing Guidelines required the court to use an infringement amount of about $4 per disk, which was the price for which Lundgren and Wolff were selling their copies.

That's a different number than the article claims.

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

#254

Post by mbreese »

dahauns wrote: post #149
mbreese wrote: post #54

Earlier quoted context omitted.

Off of their website. It might be free, but Microsoft is still the only party who can legally distribute it (or OEMs that have been granted that right from Microsoft). Just because it’s free doesn’t mean the owner doesn’t have rights. (This is also the basis of the GPL.)

I agree with you in principle, but the copyright infringement itself was not even up for debate in this case - he pleaded guilty on that. It's about the damages.

I agree that the damages seem excessive. But that’s almost an impossible thing to figure out. On one hand, it’s free to download. On the other - there maybe some value to Microsoft to know who is using that recovery tool. There probably is some lost license revenue too. But how do you calculate that?

I hope that aspect get appealed and a more reasonable punishment is found.

From my reading though, it didn’t seem like he did plead guilty to the copyright infringement of the data, only the logos. I don’t know what all of the counts were, but he only plead to a subset of them. And going in, his press interviews seemed to suggest that he didn’t quite get what the problem was.

But again, the punishment seems really harsh.

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

#255

Post by extra88 »

mcguire wrote: post #250
mehrdadn wrote: post #244

Earlier quoted context omitted.

> I've bought plenty of Microsoft media in my lifetime. They will tell you the only thing that matters is the COA. If the COA came with the computer the license is still valid. License != Trademark

He wasn't charged with trademark infringement.

The marks could be relevant to the counterfeiting charge though.

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

#256

Post by drtillberg »

mbreese wrote: post #54
monocasa wrote: post #19

Earlier quoted context omitted.

The .iso was available for free off of their website.

Off of their website. It might be free, but Microsoft is still the only party who can legally distribute it (or OEMs that have been granted that right from Microsoft). Just because it’s free doesn’t mean the owner doesn’t have rights. (This is also the basis of the GPL.)

That is the way copyright works in general, except it isn't the way the Internet works. When I download from Microsoft, I actually am getting a secondhand copy from my ISP, who got it maybe from Microsoft, or maybe some other party in the chain between me and Microsoft.

In addition, if we are talking about general content of the Microsoft website, search engines routinely index store and cache the contents, and offer to serve it to third parties, without any intervention from Microsoft.

So no, if you post it on a website society recognizes that you are offering to allow a host of intermediaries copy and serve the content to intended end-users. Maybe this guy isn't all that sympathetic, maybe it's a little confusing because we are talking about CDs and binaries, but when you sit down and think about it this decision makes no sense.

What a colossal waste of resources.

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

#257

Post by gcb0 »

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…

he claims it was simply the online, freely downloadable image.

the fact he sold to resellers make it even less shady. he sold a service to the resellers? or saved users time/bandwidth/trouble of burning image on botable cd?

any way you try to spin this will still go against comon sense the whatever spirit of the laws that are not "license to sue anything under the sun, because IP"

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

#258

Post by pbhjpbhj »

shaki-dora wrote: post #138
pbhjpbhj wrote: post #84

Earlier quoted context omitted.

I don't recall agreeing to a license when downloading restore images? Presumably customers not receiving a restore image can now reclaim $299 from Microsoft as that is judged the value of the disc that was not included with their license purchase. Or indeed send back the install disc for at least a 50% refund. Just think how much money MS would make buying back install discs for $150. /s (yes, that's right, at least…

I’m sorry, but you shouldn’t be hating on judges when your understanding of law is so spotty. Windows is subject to copyright. There doesn’t need to be a license for you to agree to—that would be a contract. Copyright gives the creator the final say on creating copies of their work. Just because someone gives it away for free-as-in-beer does not grant you a license to create and sell copies. Try recording and selling…

You dismiss fair use but the use here sits well with the four factors IMO.

They freely (libre and gratis) provide the files for download, the additional terms are laid out in contract. There's lots of precedent for assumed consent on web provided content.

They weren't selling the content they were selling facilitation of access to it. The discs provide a convenient means for people who are already licensed users of the content. Saying this is copyright infringement is like charging a router manufacturer or ISP with infringement.

In any case, this increases the value of MS Windows for those users, so actual damages are negative.

Given no end user ever acquired the media via this means the puniary damages are extraordinarily harsh. Add to that the rejection of expert witness, and the choice to assume provision of install media - that can't be used without a license - amounts to the full costs of a software product and I fail to understand how you can possibly consider this to be an even handed application of the USC.

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

#259

Post by pbhjpbhj »

snuxoll wrote: post #99
pbhjpbhj wrote: post #84

Earlier quoted context omitted.

I don't recall agreeing to a license when downloading restore images? Presumably customers not receiving a restore image can now reclaim $299 from Microsoft as that is judged the value of the disc that was not included with their license purchase. Or indeed send back the install disc for at least a 50% refund. Just think how much money MS would make buying back install discs for $150. /s (yes, that's right, at least…

https://www.microsoft.com/en-us/software-download/windows10I... Right below "more download options" is this text: *Your use of the media creation tools on this site is governed by the Microsoft Terms of Use for this website. In the linked Microsoft Terms of Use there's this: "Notice Specific to Software Available on this Website" [...] WITHOUT LIMITING THE FOREGOING, COPYING OR REPRODUCTION OF THE SOFTWARE TO ANY OTH…

I'm sure they say lots of things in tiny footnotes, that would have to be discounted surely without positive consent; there's not even a clickthru.

There's definitely a hole in that quote "to any other server or location" means you can duplicate from the initial download location, surely. It wouldn't pass an analysis based on intent, but I don't think contract law in USA cares about intent except in cases of obvious error.

Thanks for the note anyhow, never noticed the link there, pretty sure I picked up ISO links on a different page in the past, maybe on Technet.

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

#260

Post by scotty79 »

snuxoll wrote: post #99
pbhjpbhj wrote: post #84

Earlier quoted context omitted.

I don't recall agreeing to a license when downloading restore images? Presumably customers not receiving a restore image can now reclaim $299 from Microsoft as that is judged the value of the disc that was not included with their license purchase. Or indeed send back the install disc for at least a 50% refund. Just think how much money MS would make buying back install discs for $150. /s (yes, that's right, at least…

https://www.microsoft.com/en-us/software-download/windows10I... Right below "more download options" is this text: *Your use of the media creation tools on this site is governed by the Microsoft Terms of Use for this website. In the linked Microsoft Terms of Use there's this: "Notice Specific to Software Available on this Website" [...] WITHOUT LIMITING THE FOREGOING, COPYING OR REPRODUCTION OF THE SOFTWARE TO ANY OTH…

He violated license but violation should priced at zero and punishment should be appropriate for that value.
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