If Microsoft caught him violating their copyright, and it bothered Microsoft, Microsoft should have sued in civil court. That is the purpose of civil court- to penalize wrongdoing by companies. Happens all the time.
But Microsoft was never going to recover anything in civil court.
So Microsoft lied to the US government about the value of what was being "stolen", and got the US government to foot the bill of prosecuting the case.
This is called a civil-criminal hybrid case. It should be civilly prosecuted, but the US government gets in cahoots with a corporation and the pair conspire to make it a criminal prosecution, which allows the corporation to de facto imprison any person it helps to convict.
Microsoft was able to avoid the lion's share of the legal fees, and won't be responsible for any fees when and if the case is successfully appealed. You will, as a taxpayer, footing the DOJ's bill.
Any restitution Mr. Lundgren pays will be far higher a return than Microsoft could have gained in a civil case. As for the investigating body within the government, it gets enriched through forfeiture. Everybody wins, except the small guy and the taxpayer.
Mr. Lundgren might have been in a stronger position if he had not pled guilty to two of the counts. Whether to sign away your integrity for a potentially lighter sentence is a decision no one should have to make.
Source for that?
Microsoft is clearly denying this, so who is right?:
> "Microsoft did not bring this case: U.S. Customs referred the case to federal prosecutors after intercepting shipments of counterfeit software imported from China by Mr. Lundgren."
and
> "Customs authorities referred the case to federal prosecutors. The United States Attorney’s Office in Miami pressed charges and Mr. Lundgren pleaded guilty. Microsoft was called as an expert witness toward the end of the legal proceedings. "
From: https://blogs.microsoft.com/on-the-issues/2018/04/27/the-fac...
There are about three or four lies on there, which anybody familiar with the computer recycling business can confirm.
Microsoft had no potential sales of genuine operating systems through this conduct because any license these discs would have been useful for was affixed to the computer and not included with the counterfeit discs. Hence, the loss and restitution amount were falsely stated.
As to the fanciful notion that Microsoft was somehow called in at the 11th hour, with zero involvement in the case prior to that moment, one would only need to talk to any attorney versed in criminal law to disabuse themselves of it.
Prosecutors don't bring cases they aren't relatively certain they can win- that's why they have a 93+% win rate. That means contacting the "victim" from the get-go to make sure they're willing to cooperate and testify.
The standard used to determine damages for counterfeit goods (which is what we're dealing with, not copyright infringement or trademark violation but counterfeit goods, no different than if he setup a production like to produce Prada bags and told people they were Prada bags) is NOT exact equivalence. It is substantial similarity. And the court, not Microsoft, looked at Lundgrens claim that he spent tens of thousands of dollars producing worthless CDs that he then expected to make a profit selling and saw that it was a nonsensical lie. The only other number the court had was the $25 one from Microsoft. Read the appellate courts ruling. It's not a difficult read. It's very clear.
https://www.youtube.com/watch?v=S7hnVYMoctM
Microsoft did claim they were worth $20, according to Gov. Exhibit 17. Most of your argument is thus false.
District and appellate judges don't always make the right decisions, but that's what rehearings and the Supreme Court are for.
That's kind of a confused notion of the purpose of the distinction between civil and criminal court.s
Part of a very troubling trend.
And who's it done for? Large corporations. Not the "little guy".
Rent seekers, consolidating their monopolies.
> I can look in to the missing boxes - Usually in my history - Customs just ships them to you 3 weeks later.
> If they call you - play stupid and just tell them that you ordered from an asset management overseas.
> Tell him that the product was guaranteed to be real and that you paid a very high price for it. Act upset as to why you had not received your product yet.
Obviously cherry-picked by the prosecutors; but there's a lot more, and it makes him look much worse than the press coverage does.
https://blogs.microsoft.com/uploads/prod/sites/5/2018/04/2LU...
ETA: And why do the media keep repeating the $0.25/disk? There's a PO where he sold some for $3 or $4 each. Less than the stupid $25, but not charity.
Referring to Microsoft Windows as "free software" is just wrong. Microsoft Windows is not Free Software. Even if you leave out the caps intending to refer to price only, the title is wrong. Windows is not for free. You can only get unlicensed copies for free. Which is what the article is about.
"His actual crime, which he pleaded guilty to, was counterfeiting the packaging to make the discs pass for Dell-branded ones."
He misled his customers in order to make money.
This isnt really different than selling knock off gucci handbags. Sure they probably work & look the same, but it does damage to the legitimate brand.
"Furthermore: People weren’t buying software, let alone “counterfeit software.” The discs in question are at best “unauthorized” copies of software provided for free by Microsoft, not really a term that carries a lot of legal or even rhetorical weight."
I can even... just... What does that even mean? What does 'buying the software' mean vs 'buying the licence'? This author clearly has no idea about copyright law at all, and has constructed a complete alternative narrative in his head, which he is then using to attack a straw man.
A 'licence' is a contract between two parties, in which one party (usually) agrees to pay a certain amount of money (the 'licence fee') and where the other party then lets the one paying the fee make a copy of some work to use it. A copyright holder, and he/she alone, has the right to make copies or authorize others to make copies of a work. So 'unauthorized copies' are the very definition of copyright infringement. What does the author mean 'not really a term that carries a lot of legal weight'? This whole artificial 'Microsoft makes it available for free online and you're not really buying that, you're buying the licence' is complete jibber jabber - sure you can download it, but the terms put very clear restrictions on who can download it, why and what can be done with it after.
And yes there's all sorts of confounding factors - how much did the guy charge, and this is a criminal case and not a civil one, and there is the Dell branding thing, and there is intent, on and on. But my point is: this author shouldn't write about things he clearly has absolutely no clue about.
In this case, Microsoft provided that authorisation to its license holders by making available a web tool where they could create their own installation media for the software they were licensed to use.
So the software was indeed "free" for licensed users - the very same people who were receiving the disks - in the sense they were not required to pay for it. It might be a license violation to download and burn the disks on their behalf, but that's a civil matter.
The crucial element for proving criminal copyright infringement was a personal gain figure that was manufactured by the Microsoft expert witness.
The lie is in the first sentence: "...15 months in prison for selling discs that let people reinstall Windows on licensed machines.
(emphasis mine)
The prosecution successfully argued the machines these discs were meant to be sold with did not have valid Windows licenses (and that these discs were part of an effort to avoid purchasing them).
You will want to find another article on this case to read about it since this dances fast to avoid addressing it.
We have a crime, a guilty plea, and sentencing. And a careful review in the appeal. Hard to see what's wrong here.
The problem with that is that Microsoft cannot have it both ways, either the license is tied to the physical hardware (in which case recyclers don't need to pay $25) or it isn't (in which case people should be able to resell them on eBay).
If you sell all three together on eBay, that's entirely fine, and it doesn't need a relicense fee. It's when you start to lose one of those three that Microsoft asks you pay a relicensing fee.
Of course, it would be easy to pass off refurbished machines as having valid licenses if you had the Certificate of Authenticity and a disc that looks like a genuine Dell recovery disc for Windows Whatever with holograms and all that jazz.
Whether that’s right and good is another question entirely. Personally, I’d like to see strong consumer protection laws so that software license couldn’t violate common notions of ownership in cases where negotiation of terms isn’t possible, but that’s an idea for a better future, not really relevant to this case.
Of course, if you don’t have a DVD burner (remember, this was a while back — these days you’d use a USB drive), you’d have to get one from a friend who has one, a licensed refurbisher, or your manufacturer (for instance, Dell or Lenovo) for a fee.
Why did Lundgren buy a genuine Dell recovery disc if the software was available for free online? There would be no need to buy a genuine Dell recovery disc to serve as the master disc for his cloned discs.
Of course, I do know the answer as I am not naïve: the Dell recovery disc is not the same as the Microsoft.com ISO download you can procure. The Dell disc contains an installation of Windows + some Dell extra content that you would expect to have in a Dell disc. And if he was to download the ISO from Microsoft and burn it onto a DVD, it would produce a checksum that wouldn't be identical to the Dell recovery disc, revealing it as a counterfeit.
https://blogs.microsoft.com/on-the-issues/2018/04/27/the-fac...
The 25 cents a piece is just some PR bullshit Lundgren is trying to spin in order to come out as the good guy here as he poses in pictures wearing a fedora while he sleeps on a bed made out of counterfeit Dell recovery discs.
https://blogs.microsoft.com/on-the-issues/2018/04/27/the-fac...
> Evidence submitted to the court shows that one transaction alone generated $28,000 in revenue for Mr. Lundgren and his co-defendant from the sale of 8,000 counterfeit software discs.
That's quite a bit more than 25 cents per disc.
Should Microsoft charge $25 for a disc and license to run windows on a refurbished, maybe not. But, I have a hard time believing that anyone could attempt to build a legitimate business based like the one described in this case and not expect some kind of legal repercussions.
> Sentencing guidelines for Mr. Lundgren were calculated at 37 to 46 months, according to federal sentencing rules, and the judge in this case issued a below-guidelines sentence of 15 months
I'm not sure how I feel about the prison sentence. I understand that to many people this feels like punishing someone that was trying to make the world a better place, but I can also see how this falls under the piracy / copyright infringement umbrella.
> Mr. Lundgren was even warned by a customs seizure notice that his conduct was illegal and given the opportunity to stop before he was prosecuted.
If this is true I have a hard time feeling bad for the guy. He should have consulted a lawyer at that point. At the least he was aware of the possible consequences.
He was sentenced for software piracy or thereabouts, but he literally can't do that because windows is not a physical disk, but a license. He did not sell licenses. The discs, as was stated as such by expert witnesses, were worthless. The contents were freely downloaded from Microsoft itself.
Of course, there might be a clause on the website that you can't burn those images and sell them. But those can't be tied to a monetary value because the images were distributed for free.
He can violate the copyright of the recovery software present in the CD.
https://www.youtube.com/watch?v=S7hnVYMoctM&feature=youtu.be...
Pretty weird--like, if this guy is going away on forged evidence, then isn't that a bigger story than the questionable valuation? But the alternative is that he's more or less a compulsive liar. You can judge his credibility for yourself in the interview; but at least to me, this is not a guy who should be testifying in his own defense. If anyone has the trial transcripts / motions / etc. that deal with this, then I'd love to see.
Also: Microsoft seems to claim that the original license disappears when the original media (CD, or restore partition) are lost. I don't know enough about the applicable law, and I haven't read the license, so I don't know if this is true. If this is true, then anyone using his CD (or anyone downloading the image straight from Microsoft, for that matter) is breaking the license. There is no technical measure to enforce this, though. I presume this is the basis for Microsoft's claim that the CD was worth $25.
Citation from MS Legal (or exec Level) making this claim, I have never heard that in my 20+ years in IT
OEM License, legally, is tied to the Mainboard of the system (and some components of the MainBoard), that is the HardwareID MS uses to activate and record the activation.
the OEM SLIC is embedded in the BIOS/UEFI of major systems since Vista days, and I believe it was mandated for all OEM since Windows 8
There are virtually no systems today that ship with a physical restore media, and consumers are advised to make one themselves
So I would love to see someone from MS legal making this claim (which has no legal foundation)
The easy way to not have any issues with customs of course, would be to send disks without decoration as "blank CDs". Ockham's razor suggests this approach is the one you'd take if you meant to ship people a helpful installation CD at cost price.
Instead, he pays a lot of attention to whether they can pass for the real thing to customers, and then notes that for some product lines them looking like the real thing is forcing him to pay extra to send them airmail because customs check anything that looks like shipped software CDs with the licence holder...
Sorry, but allowing the Free Software movement to insist they are the sole proprietors of the definition of "free" is wrong. About as wrong as the people who are trying to co-opt the word "racism".
If something can be had for $0, it is free. Even with a capital F. That there exists other definition of free does not prevent people from legitimately using this definition.
My local supermarket sometimes has little pieces of cheese on cocktail sticks to sample. Those are free too. If you eat six, and then run out of the supermarket, you're a dick, but they won't try to prosecute you for theft.
But if you say "Aha, cheese is free", reach over the counter and steal a whole wheel, expect to get prosecuted and don't expect a magistrate to buy your story about how clearly since individual pieces of cheese were given away therefore "cheese is free".
Free has many meanings. Look up the dictionary [1]. In the context of the situation / article, it is free. As in $0. As in costs nothing. Context matters, and the FSF / open source context does not apply here.
This ridiculous insistence on the "one true pure" meaning and rigid interpretation of words is a like cancer of stupid infecting humanity.
He did admit to trademark infringement by reusing the protected Dell artwork on the disks, but he wasn't convicted of that. If he was, it would have been a slap on the wrist and a fine. This was unjust and totally unreasonable.
Im guessing the terms and conditions on the official downloads include language preventing an individual from cracking the copy. I doubt he included that language with his distribution.
Neither of those things is the case here. The discs are near-identical in quality to the discs Dell would have furnished, and (as far as I can tell), Dell essentially gives the discs away for free, only charging more or less for the effort needed to manufacture and ship them. Either way, Dell is certainly not profiting in any meaningful way from these discs, and getting a disc from someone else certainly wouldn't harm Dell's brand. They provide this service as a convenience to the customer, and likely it's actually a cost center.
Should he have used Dell's labeling and packaging? No, of course not. That was incredibly stupid. I don't think he did it with any nefarious reason to deceive; likely he just figured that a technically-unsophisticated customer would trust the discs more with the brand name matching the computer (even though a hypothetical disc with his own logo and packaging would be just as safe). A poor decision legally-speaking, definitely, but I don't see how throwing him in jail could ever be anything but an extreme overreaction to the facts at hand.
For most crimes we know the penalties don't really act as a deterrent, because people committing them aren't taking any sort of calculated risk - the smackhead burgling a house isn't going "Man, given the sentencing guidelines in this state I should prefer to go for fewer, high end houses" or "Really car theft has a better risk-reward ratio", so sentences for these crimes basically just take criminals off the streets, they're a form of revenge for the victim, and maybe there's a small chance the criminal is reformed if the prison institution is set up to encourage that.
But for crimes like industrial-scale counterfeiting (at one point Lundgren promises his Chinese counterfeiting team will do a better job of copying the next batch of CDs, this isn't one guy with a photocopier and a CD burner, he's hired a factory to make the copies) the actors are really weighing it up so there actually is a deterrent factor. Longer sentences for these crimes actually deter crime.
The court says (and the appeal affirms) if you counterfeit a $1000 handbag, that's $1000 in terms of the guidelines. It doesn't matter that your counterfeit was only sold to end consumers for $500, or that the raw materials cost $80, or that your profits at the back end were only $18 per bag, the sentencing is focused on the price of the thing you knocked off. Official CDs for refurbing XP Pro PCs are... drum roll... $25. The court said "$25 per infringement" and now this counterfeiter has to go to jail for a few months. Works for me.
Don't worry, I'm sure Lundgren will use his fame to launch a "legitimate" electronic waste recycling outfit when he's out, he can do some great interviews about how he's really changed now, and then the tech press can report with "astonishment" in 2-3 years when the waste he's getting paid to have "professionally recycled to the highest standards" is found dumped in a toxic creek in Alabama or whatever.
One of his discs is corrupted and causes serious issues for the customer. That customer is so put off from the experience that they vow to never buy dell again.
For dell to take that risk is fair. For this individual to take that risk for dell is not fair.
Dell also likely does more QA on what they ship than the one individual.
Also, people trust in the brand name in part because of what the brand name has at stake to lose.
Lying to the technically unsophosticated as you put it should be no small offense.
These disks are only useful to people who already own a Windows license.
The OEM license attached to the hardware is still necessary to use the medium (which AFAIK is tied to the hardware, not the user), so I do not personally see any monetary loss for Microsoft. The only way Microsoft (or Dell, etc) lost money is because they charge an absurd price of money for something that is basically a DVD coaster without any license. They only have themselves to blame.
What he did sell was a way for refurbishers to avoid buying a refurbishing license from Microsoft if they had a computer with a Certificate of Authenticity but no recovery disc. If you do not supply the recovery disc with a refurbished machine, you do not have a valid Windows license according to Microsoft. And if you do not have a valid Windows license for the refurbished machine, Microsoft expects you to buy one for 25 United States dollars, which is the value for each counterfeit disc in this case.
I don't know if I would call it 'trying to make profit' when you make CDs in China, ship them to US and sell the CDs for 25 cent a piece.
According to himself he made no money off of this both because no one wanted to buy the CDs and the price didn't really allow for profit.
If you read the original court docs, Microsoft also claim the Dell disks normally supplied only to Dell customers allow Windows to be used without activating, and that an active secondary market exists for the real thing because of that.
Not much of a defense if you ask me
I'm not finding this via Google searches... What incantation should I use?
Which parts of the exhibit are you referring to?
[edit: I did find this, which is from the defense. The defense doesn't claim that Microsoft stated that the value of each restore disk was $25.
"The Government provided no proof of the price at which the Microsoft software was sold in any market without a license or product key. Indeed, the Court had no proof that Windows software was ever sold in any market at any price without a license or product key. Thus, the Court had no basis to determine the retail value of the infringed item, i.e., the Microsoft software without a license or product key. With no proof of the retail value of the infringed item, the Court was left to assume that the Windows software without a license and product key had the exact same retail value as an installation disc with Windows software, a license, and a product key sold to refurbishers. In concluding that the infringement value of the software was $25 - the price charged to refurbishers for an installation disc with copy of the Windows software together with a license and a product key – the Court apparently did so." https://resource-recycling.com/e-scrap/wp-content/uploads/si... ]
There are about three or four lies on there, which anybody familiar with the computer recycling business can confirm.
For those of us who aren't familiar with the computer recycling business (myself included) could you confirm them?
The rest of your comment is speculation.
Doesn't mean it's necessarily true, for obvious reasons. And one can only hope the court looked through all that as thoroughly as possible.
They are in the EU. The US takes a much more pro-business stance.
1. For the majority of the population, I will not be misunderstood. Only confusing for a certain crowd (FSF advocates). But that's a hole they dug themselves into, so my sympathies are wanting.
2. Let's be frank: Your statement applies more to people who use it the way you prefer, as opposed to my usage. If it weren't the case, then I wouldn't encounter so many people all over the Internet going out of their way to point out pseudo-clarifications.
Don't get me wrong - I'm an advocate of what you call free software, and am even a fan of the GPL. That doesn't mean I'll buy everything they push.
I wasn't protesting the general case, just this instance. If the title hadn't been misleading to me, I wouldn't have cared. I don't generally care about licensing issues around Microsoft Windows. Though this one is an interesting case.
They never did when I used such discs back in the days, and why would DELL be allowed to distribute software making such a thing possible? Of course you could argue that he has manipulated the program on the disc but as far as I know that has not been proven and he is claiming he did not.
They answer your question on the Dell disks, which basically boils down to the convenience of customers unable to reactivate properly for whatever reason, who merely get nag screens. May only have applied to some Dell customer groups and some Windows versions and I'm not about to dig out my old Dell XP reinstallation disk to find out! Presumably they trust that [certain groups of] Dell customers are not buying new computers with bundled Windows versions with the intention of reusing the software on unlicensed older machines, and make enough from selling the OEM licence not to care about the low level of piracy they anticipated as a result.
https://blogs.microsoft.com/uploads/prod/sites/5/2018/04/FIN...
Obviously someone in this whole mess is lying or grossly misinformed, the problem is figuring out who.
He said he had IT-experts testify in court that the emails had been tampered with, I assume one could look into that in some kind of public record over the case?
To be honest, whilst I wouldn't necessarily trust his partner trying to save his own skin, I'm even less convinced by someone that mentions a sale price of $3 for a Windows 7 and $4 for XP (odd pricing, but maybe reflects how convincing the counterfeit disks were or even how usable the software is without a license key...) in their defence in court, then tells the media he intended to give them away at $0.25 cost price.
Sometimes you have to look past the fact one party is a recycling entrepreneur and the other party is Microsoft...
https://www.youtube.com/watch?v=S7hnVYMoctM
EDIT: The court documents were linked in another comment, I relink it: https://blogs.microsoft.com/uploads/prod/sites/5/2018/04/FIN...
Hence, the title and article are correct.
https://blogs.microsoft.com/on-the-issues/2018/04/27/the-fac...
https://blogs.microsoft.com/uploads/prod/sites/5/2018/04/2LU...
While I'm here, here are the popular discussions about this story from the last week:
“Microsoft attempts to spin its role in counterfeiting case” - 195 points - 2 days ago - 144 comments. https://news.ycombinator.com/item?id=16946478
“Microsoft Convinces Judges to Jail Man for Copying Software It Gives Out Free” - 71 points - 3 days ago - 22 comments. https://news.ycombinator.com/item?id=16940722
“ ‘E-waste’ activist gets 15 months in prison for selling Windows restore disks” - 86 points - 4 days ago - 11 comments. https://news.ycombinator.com/item?id=16924587
“E-waste recycler loses appeal on computer restore disks, must serve prison term” - 388 points - 5 days ago - 257 comments. https://news.ycombinator.com/item?id=16921634
Microsoft thinks that the OEM license disappears if the original install media (CD or recovery partition) are lost. Your options at that point are to either (a) get a new OEM CD from the manufacturer, in which case the original license becomes valid again, or (b) buy a new license, for $20. I don't know enough about how Windows is licensed to say whether that's legally correct, but it's Microsoft's position.
Assuming that's correct, his customers thought they had a compliant license, because they thought they'd bought (a). They actually didn't, because the CD--even though it was bit-for-bit identical to the authentic one--had the wrong provenance. If his fake OEM CDs didn't exist, and the real OEM CDs weren't available either (which is apparently the case), then the customer's next best option would have been to buy a new license. Microsoft is claiming not that each of his disks was worth $20, but that each disk cost Microsoft $20 in revenue, because everyone who bought his fake OEM disk would have bought a real $20 license instead.
I still think the sentence is disproportionate and stupid, and the convoluted legal situation of Microsoft's own making seems to me like a good reason to depart from the sentencing guidelines (which already seem high to me). I'm not sure the $20 is as wrong as the article makes out.
There is no way for a consumer, buy a new license for $20. Their is program for Register Referbishers that allows a MRR to get a replacement COA, Create Restore Media, etc for $25. (note this is NOT a new license, in order to quality for this the PC has to have a OEM License) and requires a 14 page contract with MS that has all kinds of conditions and requirements on the person
https://www.msregrefurb.com/RRPSite/Templates/RR_ProgramAgre...
>Assuming that's correct,
I believe this to be a false assumption on your part. The License does not magically disappear if the Restore CD was lost, especially given the fact that I am not aware of any system on the market today that actually comes with a physical Restore CD anymore
I think Microsoft is alleging that his CDs are designed for refurbishers who think they're getting the authentic OEM disk.
> I believe this to be a false assumption on your part. The License does not magically disappear if the Restore CD was lost, especially given the fact that I am not aware of any system on the market today that actually comes with a physical Restore CD anymore
I don't know the law well enough to comment, but Microsoft thinks it does:
> A new Windows license is not required for a refurbished PC that has:
> 1. The original Certificate of Authenticity (COA) for a Windows operating system affixed to the PC, and
> 2. The original recovery media or hard-disk based recovery image associated with the PC.
[...]
> A new Windows license is required for a refurbished PC if:
> 1. The refurbisher did not obtain the original recovery media along with the system to be refurbished or
> 2. The PC does not have a hard-disk based recovery image
https://www.msregrefurb.com/RRPSite/Information/LicensingGui...
So is Microsoft misinterpreting its own contracts? Is this in the contract with Microsoft refurbishers, but not Windows licensees in general? Is the contract unenforceable? Something else? This is the point where I need a lawyer...
Also, no, it does not invalidate any other statement as the other statements were not about Microsofts claims about the value of the discs. Even if I was completely and totally wrong on that point, it would not have the slightest relevance to any other claim or point not based on that point. That's just not how argument works. A person can say a wrong thing and then a right thing and the wrong one doesn't invalidate the other.
Lundgren has no intention to continue the appeals process. He claims that his counsel tells him that it wouldn't be fruitful. I personally think he could win an appeal insofar as his sentencing goes, but it would not change his sentencing much at all. He certainly wouldn't be walking free after having engaged in conspiracy and trafficking in counterfeit goods. The sentence he received was already below the recommended guideline the court follows derived from the value of the counterfeited goods.
http://www.wafb.com/story/35675651/man-arrested-for-reported...
But Microsoft wants to profit an additional $25 above and beyond their original license costs for that same system
you believe that giving a person a felony conviction where by they will be denied many rights, barred from renting property, be unable to obtain many jobs, and for the rest of their lives have their economic and social opportunities limited is the proper punishment for "imitation of the official packaging"
I am honestly shocked by a callous reactions people have had to this case on HN, either people do not really understand what it means to go to a Federal prison for over year, have a felony criminal record and how that will for ever impact this persons life... forever.
Or People have a massively inflated value of "official packaging" and the protection of corporate profits/intellectual privilege .
This guy did not murder anyone, this guy did not cost anyone a job, this guy did not harm anyone, even if you are correct that he was attempting to dupe recylcers into believing it was "official packaging" what is the actual harm to the world in that?
Also equating unlicenced copies to theft of physical goods rarely helps to understand the case.
https://www.msregrefurb.com/RRPSite/Information/LicensingGui...
I think it says the OEM license remains valid after recycling as long as the recovery media accompany the computer (or are obtained from the OEM), but doesn't otherwise? So by that argument, he really does need the new license? I'd read the contract if I knew which one applied (since that's what actually matters, and not Microsoft's possibly self-serving summary...).
If that's accurate, then it's a pretty weird policy. I guess the license survives if you don't lose the media because they're afraid that anything else would seem completely unreasonable, but they're hoping most people will lose the media? And using the recovery media that they themselves provide (as a download) is supposed to be noncompliant?
Microsoft is arguing that the cheese could have been poisoned. And that people were buying less cheese because of his efforts.
Their argument is that Lundgren's product, a CD that says it's a Windows restore CD from Dell, but is actually a counterfeit produced by Lundgren in China, is (duh) a counterfeit of the Windows restore CD, which sure enough Microsoft sells for (depending on which version exactly) $25.
If you sell your cheese, saying this is a Buxton Blue, (a protected designation) but it isn't, that's counterfeiting. You have counterfeit cheese. Saying "Oh, well I saw them giving cheese away in a supermarket once, so it's free, so there shouldn't be a penalty" doesn't wash. Are you giving it away as a promotion in a supermarket? No. You're selling it, saying it's Buxton Blue. So the right question is, "How much does Buxton Blue sell for?" and the equivalent here is exactly the question Microsoft was asked, "How much do you charge for these CDs?" to which the answer is $25.
Lundgren is a counterfeiter. It's sad how many people are buying what is literally a sob story from a convicted criminal as though it's a neutral third party discussing the case.
What's the harm? It's simple. It's fraud. He led people to believe they were buying one thing when they were buying another. It's no different than slapping Chiquita labels on different bananas and then turning around and saying "what's the problem, they were good bananas" when you're caught.
It is very different, Chiquita primary business is selling banana's
Dell Business is not selling Dell Restore Discs.. It is selling the computers for which the Restore Discs are for
If you can see the difference in these things well I really do not know where to go from here.
>> But let's not only trot out that defense when we're looking at white-collar criminals who remind us of ourselves and look the other way for others.
You know nothing about my advocacy or when I do or do not "trot out that defense". I am almost universally Anti-Statism, being a Libertarian I talk about and advocate against all manner of government abuse, most of which is more massive (like police murdering people) than this.
Simply because I am also using it here does not mean I only talk about it for " white-collar criminals" nor do those other abuses negate this abuse. If that is your metric then no one should ever complain about the US Government at all since NK is worse... It is bullshit argument
> The fact remains, though, that this guy was engaged in a for-profit criminal enterprise, and his defenders do not seem to even want to acknowledge that.
I dont believe it should be considered a criminal enterprise.
I bet however you largely support the current Copyright and Patent laws, I do not, most of this persons supporters do not either. That is the disconnect I believe. People that support the concept of "intellectual Property" want to throw the book at this guy, people that generally oppose the concept of government created monopolies on ideas aka intellectual privilege do not believe this guy did anything wrong.
The comment you're replying to is argiung that the defendent is guilty of deliberate fraud, which is also correct.
Neither of these affect the truth of the other.
The problem is most systems of value sent to a recylers are from off lease buys and corporate refreshes, Most IT shops I know of do not bother getting, storing or collecting Restore disks because we are VL (Volume Licensed) and do not use the OEM image at all even though we pay for it. The first thing that is done on a corp device of any company that has more than 10 or 15 systems is to wipe the entire factory disk and install our own customize version of windows. We also tend to toss any Documentation, CD's and other items that were to come with the system in the trash
So Recylers get thousands of systems annually that are perfectly serviceable, fully licensed with windows but they can not use that license because there is no restore CD and they have no way to obtain one. Thus MS does them a "favor" buy selling them a new license for $25 instead of just providing a way for them to restore the system
Then why don't the recyclers just get one restore CD and make copies? They could save almost $25/system....
It's all just variations on Two-Factor Authentication. Proper two factor is using a hardware device you own to be a physical totem as a factor to access an account.
Here Microsoft is saying that a proper license of the software for a given machine is both the license code (something you know) and a physical disc (something you have) as a simple two-factor equation.
Microsoft giving the benefit of the doubt to the average user that perhaps they might lose a disc for boring reasons like "It's in a box somewhere in the attic, I just don't know which one" or "I tossed it in the garbage not realizing it was valuable" or "My dog thought it was a Frisbee" (and these days even and especially "I didn't realize I needed that partition when I repaved my idiot OEM's install"), offers the rough equivalent to the SMS two-factor password recovery on their website (by interacting directly with them, and presumably only them, to download an "emergency" copy). Just like SMS recovery, it's not a great 2FA replacement, and is likely to have false positives from bad actors, but it is better than nothing.
So it makes sense that Microsoft would have problems with disintermediating that exchange, because A) they can't track it, and B) as it scales, it increases the likelihood of bad actors abusing it. Even if this particular recycler wasn't collecting and reselling the proper copies of recovery discs alongside the counterfeits, the next one might.
Returning to the 2FA analogy, there are somewhat equivalents to the "Forgot Password" flow for a system to remember its old License Code, both in the system itself and on the recovery disc in some cases, not to mention that there is also the Microsoft licensing hotline where you can ask/beg/social engineer a human representative to restore your license.
So concerns that selling machines without the original recovery disc is possibly someone selling both the original recovery disc and the machine to different buyers to "split the licenses in half" is a quite valid concern, whether or not that was the actual intent here.
(...and the actual intent here is so entirely muddied by the trademark infringement and effort put into the counterfeiting, it's hard not to wonder if there was a fire beneath all the smoke.)
Now you're saying the court got it right and the accused was actually selling Windows licenses. Who is right?
Lundgren couldn't sell Windows licenses any more than he could sell the Mona Lisa. He didn't have either. But he absolutely could sell a counterfeit product you can use "instead" of buying the license.
The argument that since the counterfeits are in fact worthless then the dollar amount for purposes of assessing severity is zero makes no sense. Of course the counterfeits are worthless. They're counterfeits. The law is pretty clear that the correct question is how much would the real thing be worth. It's not the court making that up, it's right in those sentencing guidelines.
Maybe the license was on a sticker on the computer, maybe it was on a broken old medium. Maybe the people got a license key from another broken computer? What do we know? Why should the court care?
From what I read (just this one article) he never claimed to provide a Windows license. If you have more information please kindly share.