Earlier quoted context omitted.
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 t…
They did not provide it “Libra”, and there is absolutely no precedent for assuming everything online is public domain. This is also a completely different argument than “fair use”.
> Saying this is copyright infringement is like charging a router manufacturer or ISP with infringement
That’s obviously different, or you would not make the analogy. ISPs transmit, they do not copy. There’s also an exemption in the DMCA for ISPs.
Why not actually look at the four factors of fair use:
The purpose and character of your use
the nature of the copyrighted work
the amount and substantiality of the portion taken
the effect of the use upon the potential market.
That’s three factors that couldn’t be more unfavorable to their actions. Since MS does offer replacement restore disks for 25$, there’s also clearly some impact on the market.
Stop arguing from the result you want backwards. Lobby for different copyright laws, but don’t go around insulting the last reputable institution in the country, i. e. the courts, with your willful and frankly far too obvious misinterpretations.