15 ms·

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

391 points by dnewms 8y ago

abtinf 8y ago
This is a travesty. It reminds me of Aaron Swartz.
- JumpCrisscross 8y ago
  > It reminds me of Aaron Swartz Aaron Swartz wilfully broke the law. This man didn’t. Not a good comparison.
  - vorg 8y ago
    Everyone fights the GAMAF sponsored subversion of the ICT industry in their own way, depending on their personality. Although some people go around the law without breaking it, others wilfully break it (Snowden), others go around it but inadvertently break it (Lundgren), others wilfully break it but can't handle the subsequent miscarriage of justice (Swartz), yet others make money from doing things that shouldn't be illegal (Dotcom). Fight the corrupt IP machine in your way.
    - MoBattah 8y ago
      GAMAF? What's that?
      - vorg 8y ago
        Because I spelt it GAMAF instead of GAFAM, people like you wouldn't be enlightened by googling it. I would tend to add evil Oracle to that list of the filthy five, and call them GAMAFO.
        MoBattah 8y ago
        Google, Apple, Facebook, Amazon, Microsoft. Got it. I'm sorry, were you implying that I'm stupid? Not picking up on the implication.
        vorg 8y ago
        That should read "people who don't know what GAFAM means" instead of "people like you".
wpdev_63 8y ago
This has to be fake news...
dingaling 8y ago
I'm in two minds over this. First, it's ridiculous that someone is being jailed for 15 months for trying to make it easier to keep using older PCs and reducing waste. On the other hand that's the risk one takes when dabbling in the world of proprietary software. Where discouraging people from upgrading is seen as a threat to revenue and is attacked accordingly. Had he printed 34,000 Linux disks we'd never have had this case and sentence, but then perhaps no one would have used those old PCs. It seems that someone has to lose.
- ada1981 8y ago
  Does the license prevent people from downloading and distributing it explicitly? Curious what is going on there. I wonder if one could sell a USB configured to simply connect to the internet and download the software automatically.
  - gowld 8y ago
    The discs exist because they work on broken computers. A USB downloader would be useless for the tech-unsavvy customers of the CD
    - AckSyn 8y ago
      If the USB drive booted to an internet based restore method, this would work the same as the CD but instead of the CD "pirating" windows (it wasn't), it would grab the iso from MS or dell directly (possible).
  - PeterisP 8y ago
    If the licence doesn't explicitly permit downloading and redistributing copies, then that's illegal. The default position of copyright law is that it's forbidden with some exceptions (depending on jurisdiction) for personal use and such. I can download Ubuntu, burn it to CDs and sell or give them to others because GPL explicitly permits me to do this. However, downloading the comment you just made, filling a CD with copies of it, and selling or giving it to others would violate your copyright to it.
ada1981 8y ago
No paywall: https://outline.com/zcZGaN 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
- ada1981 8y ago
  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?
vuln 8y ago
Gizmodo[1] added this -- "Unfortunately, in what seems to have been a huge mistake, the disks had “labels nearly identical to the discs provided by Dell for its computers and had the Windows and Dell logos,” the Times wrote. As a result, Lundgren pleaded guilty to two of 21 charges, conspiracy and copyright infringement. He told the paper, “If I had just written ‘Eric’s Restore Disc’ on there, it would have been fine.” [1]https://gizmodo.com/e-waste-innovator-will-go-to-jail-for-selling-windows-r-1825518742 https://gizmodo.com/e-waste-innovator-will-go-to-jail-for-se...
- zelon88 8y ago
  You're absolutely right. This guy obviously deserves to spent the next 15 years in jail because his startup practically gave away disks with someone else's logo on it that even the original copyright owner doesn't charge money for.
  - craftyguy 8y ago
    .. can't tell if sarcastic or serious..
    - drharby 8y ago
      Its sarcasm
      - craftyguy 8y ago
        Well, you cannot always assume so on the internets.
  - murph-almighty 8y ago
    15 months
  - deleted 8y ago
    [deleted]
  - NuSkooler 8y ago
unethical_ban 8y ago
This is one of the most unabashedly sinister first-world articles I've read in a while. Microsoft's argument hinges on two damages: Either, they didn't get to charge a convenience fee to customers, or they were losing revenue by people unexpectedly extending the life of their computers. Foolish judges and evil lawyers putting a decent person away for 13 months.
- gambiting 8y ago
  >> The judge said he disregarded Weadock’s testimony. “I don’t think anybody in that courtroom understood what a restore disk was,” Lundgren said. There's the problem.
  - DoctorOetker 8y ago
    I think Lundgrens analysis is closer to the truth: “I got in the way of their agenda,” Lundgren said, “this profit model that’s way more profitable than I could ever be.” On average judges defend the nation, money must flow up. The nation's tax income on Microsofts exploitation are bigger (or so thinks the judge) than the tax income on Lundger's (preventive) recycling business. Your taxes represent your bullying/fleecing strength. When one tithe collector gets in an argument with another tithe collector, the goverment tends to agree with the tithe collector that brings the biggest tithes... The population needs to be fleeced. The natural order of things and so on. So it is!
    - whatshisface 8y ago
      Judges do not actually think about maximizing federal tax revenues when making their decisions. There might be something else that is going on to result in that, but judges have absolutely no incentives in that direction.
- cptskippy 8y ago
  No, this is an unabashedly sinister misinformation campaign by someone who didn't read the article or understand what this guy was doing. He wasn't distributing restore disks with refurbished PCs. He manufactured 28000 Restore Disks containing Microsoft Windows and was selling them. He justified his actions by saying they were only to be used on licensed machines. That's like me selling a backup copy of your Book and "you're only allowed to read this if you bought the book legitimately."
sevensor 8y ago
Sounds like this guy made a really bad decision in putting the Windows and Dell logos on the disks, and then selling them (albeit for $0.25, which would seem to just barely cover the cost of production.) But that bad decision pales in comparison to the court's decision to value at $25 what Microsoft was giving away for free. If anything, he was saving them a significant amount of bandwidth.
- treis 8y ago
  Microsoft wasn't giving them away for free though. According to the article, they get $25 for each disk from computer manufacturers.
  - monocasa 8y ago
    The .iso was available for free off of their website.
    - mbreese 8y ago
      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.)
      - dahauns 8y ago
        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.
        mbreese 8y ago
        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.
deleted 8y ago
[deleted]
radiorental 8y ago
This is just shameful prosecution of law for the sake of law and not whether it's appropriate. Even the judge recognizes the greater good that was at play and the non-malicious intent. It boggles my mind that some DA put the effort in to this case.
nerdponx 8y ago
I want to know what harm he has done or what danger he poses to society that warrants a 15 month prison sentence. I feel like this is what pardons are for.
- balls187 8y ago
  The law is rarely used to protect society. The law is being abused to punish an individual for messing with a corporate agenda.
- vorg 8y ago
  > what danger he poses to society that warrants a 15 month prison sentence We're seeing the reason for the U.S.'s >1% of adult population incarceration rate. The solution isn't occasional pardons but massive reform of the 51 criminal judicial systems in the U.S.
- MoBattah 8y ago
  Pardons? Psh! No US President cares for an e-recycler doing good for the world. They care for investment bankers who line their pockets (see: Marc Rich).
JumpCrisscross 8y ago
“One of his projects was to manufacture thousands of ‘restore disks,’ usually supplied by computer-makers as a way for users to restore Windows to a hard drive if it crashes or must be wiped. The disks can be used only on a computer that already has a license for the Windows operating system, and the license transfers with the computer for its full life span. But computer owners often lose or throw out the disks, and though the operating system can be downloaded free on a licensed computer, Lundgren realized that many people didn’t feel competent to do that, and were simply throwing out their computers and buying new ones. Lundgren had 28,000 of the disks made and shipped to a broker in Florida. Their plan was to sell the disks to computer refurbishing shops for about 25 cents apiece, so the refurbishers could provide the disks to used-computer buyers and wouldn’t have to take the time to create the disks themselves. ... Eventually, the Florida broker, Robert Wolff, called Lundgren and offered to buy the disks himself as part of a government sting, Lundgren said. Wolff sent Lundgren $3,400, and the conspiracy was cemented. Both were indicted on a charge of conspiracy to traffic in counterfeit goods and criminal copyright infringement.” This should not result in jail time. Is Florida really so free of violent crime and other more serious offenses that this case is a priority for federal prosecutors?
- pc86 8y ago
  Not speaking about this case specifically, but the existence of other more serious and/or violent crimes does not negate the impact of small crimes. You can't just say "yeah well there's a lot of unsolved murders so what about those?" as some sort of indictment against police officers enforcing laws.
  - ballenf 8y ago
    It's one thing if they could have proven the case without this fabricated sting. Setting that up just to put the nails in the coffin of someone trying to do good seems pretty evil to me. Why the hell didn't the prosecutors just ring up the guy and say, "Hey, Microsoft is pretty pissed about these disks. If you don't [destroy them / remove their logo] we'll have to prosecute you." They have exactly that kind of discretion.
Hasz 8y ago
From the article "“These sales of counterfeit operating systems,” Microsoft lawyer Bonnie MacNaughton wrote to the judge, “displaced Microsoft’s potential sales of genuine operating systems.” But Lundgren’s disks had no licenses and were intended for computers that already had licenses." and even worse, "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. The judge said he disregarded Weadock’s testimony." Weadock was an expert witness (for the government no less) in a Microsoft antitrust case. When asked what the value of the restore disk was, he responded with zero, or near zero. The prosecutors were initially looking for $299 a disk -- the value of a full license. This is the most egregious case of a judge ruling on something he or she does not understand I've seen in a while. This is an item Microsoft gives away for free to anyone with an internet connection, all this guy was trying to do was sell them for $0.25 to cover the cost of a disk and make it easier for people to fix their broken computers (allegedly).
- pweissbrod 8y ago
  I dont quite understand the basic legal details behind this. Say I buy a computer with windows pre-installed that means the OS license cost is bundled in to the price of the machine. Say I have a computer without windows, or maybe an older cheaper version of windows. Is it correct that these restore disks arent a utility to get a free new copy of windows? Just trying to understand
  - gambiting 8y ago
    >>Say I have a computer without windows, or maybe an older cheaper version of windows. Is it correct that these restore disks arent a utility to get a free new copy of windows That is correct. You still need a licence key to install Windows using those disks. Without the key the disk is worthless. They aren't and never were a way for people to get "free" copies of windows.
    - snuxoll 8y ago
      Unfortunately this is an area where copyright law is not up to date with regards to installation media for software with built-in DRM regimes. The value of Windows installation media is the cost of the disk it is burned to + the time it takes to burn unless there's an associated license (or a crack bundled that would let you bypass activation, which got laughably easy post-Windows 8 because of the new SLIC activation scheme). Unfortunately, copyright law doesn't care - the copies were made, and the copies were distributed, unless the license explicitly allowed such copying Lundgren was in the wrong in the eyes of the law. Ironically, the same thing applies to the Windows 8/10 installation media you can download directly from the Microsoft website - though you can get it for absolutely free the license still prohibits distribution.
JoeAltmaier 8y ago
Doesn't a restore disk contain binaries from the operating system? So he's distributing somebody else's work, with their logo on it. However well-intentioned, its pretty dodgy. No matter what Microsoft does with those binaries, they weren't his to resell?
- gowld 8y ago
  What's the harm? 0. I get no commercial value from having the same OS twice on my machine.
  - JoeAltmaier 8y ago
    E.g. harm to the brand when goofy guys start selling stuff with Microsoft brand and old restore data screws up machine As he said (naively) maybe he shouldn't have put somebody else's logo on the disk. Duh.
aresant 8y ago
it is sad and amusing that at least three comments on this thread point out that the wapo article is substantially incomplete. From the original LaTimes article: "In 2013, federal authorities intercepted shipments of 28,000 restore discs that Lundgren had manufactured in China and sent to his sales partner in Florida. The discs had labels nearly identical to the discs provided by Dell for its computers and had the Windows and Dell logos." Oh. Well that changes things substantially - copyright infringement on discs created in China in bulk looks a bit fishy and more malicious than the wapo points out. What if the discs were rooted? What if their intent was to charge the other recyclers $10 a pop vs the $25 msft charged for the same thing? I bet all those things were discussed in the courtroom and I'd love to see a really good source to understand this case vs watching the media try to wind up the pitchfork brigade as usual.
- staticautomatic 8y ago
  You could always request a copy of the trial transcript from the court.
- gowld 8y ago
  > What if the discs were rooted? They weren't. What if he murdered someone? He didn't. > What if their intent was to charge the other recyclers $10 a pop vs the $25 msft charged for the same thing? So? It's not a crime for Amazon to charge lower shipping than Newegg.
  - pc86 8y ago
    It is a crime to resell a company's IP without their permission, though.
- oldcynic 8y ago
  > What if their intent was to charge the other recyclers $10 a pop vs the $25 msft charged for the same thing? Not what was happening at all. MS charge Dell et al $25 for a copy of Windows Home OEM, complete with certificate of authenticity sticker and new licence number. "a Microsoft letter to Hurley and a Microsoft expert witness had reduced the value of the disks to $25 apiece, stating that was what Microsoft charged refurbishers for such disks. But both the letter and the expert were pricing a disk that came with a Microsoft license" He was re-creating a restore disk that only works when associated with the already existing, and still valid, licence.
reimertz 8y ago
As a CEO, you can have a business model that is ethically and morally wrong without getting into jail. As a CEO, you can ignore obvious security flaws leading to 100 million social security numbers getting leaked without getting into jail. As a CEO, you can sexually harass your employees without getting into jail. Try and save the world by repurpose old computers, causing one of the biggest companies in the world to maybe lose 0.0000001% of their revenue and you're fucked. Shame on you, Microsoft.
- deleted 8y ago
  [deleted]
- jiveturkey 8y ago
  he didn’t actually cause anyone to lose revenue. microsoft isn’t pressing charges against him in this case. (to my best understanding)
  - reimertz 8y ago
    They might argue that repurposing old computers and licenses attached to said computer might have an (minimal) effect on Microsofts revenue since that might lead to potential sells not happening. That is the only reason I can see why they would pursue a case like this. But I cannot phantom how they cannot see how this will backfire quite badly, making them look both greedy and environmentally disconnected.
    - DoctorOetker 8y ago
      whats next? "Diet coach Daisy, sent to jail as McDonalds loses customers" "CPU designer Claire, sent to jail as its optimized caching algorithm lowers demand for RAM sales" "Louis Pasteur, unearthed from the grave, incarcerated as milk sales fall due to longer shelf-life"
      - AnIdiotOnTheNet 8y ago
        Wouldn't be surprising really. If you base your society on worshiping greed, don't be surprised when it ends up being run by the greedy.
HenryBemis 8y ago
One of the phrases I keep from this article is: “I don’t think anybody in that courtroom understood what a restore disk was”. I remember listening to Steve Gibson (GRC), on SecurityNow podcast, saying that this is the exact reason why he is not willing to testify to a Court of Law any more. Having testified in court for some cases as "specialist" it is (almost always) needed to find metaphors and analogies on anything-technology. Some judges and lawyers are educated but twisting the meaning of something (misinterpreting the truth) is often the case.
- deleted 8y ago
  [deleted]
joeevans1000 8y ago
This is ridiculous. This should be a civil case at most. We are entering into a dangerous era for our own selves when we allow this sort of punishment for software issues. Additionally, this guy recycles 41 million pounds of e-waste a year. He should be celebrated. As a result of that, I can only imagine his larger clients may have to drop the use of the services of his company. Apparently, we don't care, and many comments online are philosophic in tone. Even if the strategy were misguided, this outcome is absurd. That Microsoft would so vigorously pursue this guy has rekindled my dislike for the company. They almost seemed to be on a turnaround path with developers with a cool editor and a new approach. This shows that they and their products are to be avoided at all cost as before. All I can say is that, as developers, we need to work to not embrace Microsoft as they try to restore their relationship with us. And if you work there, well, what can I say... you should speak up about this or leave for more fair waters.
- ksk 8y ago
  You are free to hate Microsoft of course, but your point didn't make much sense to me. Nobody except Microsoft is allowed to distribute Windows because thats their right under copyright law. Its the same law that prohibits people from distributing GPL'd binaries without providing the source. The owner/creator has certain rights.
everyone 8y ago
So, the price MS paid to have him jailed was less than the cost they would incur if people used those discs to restore their machines instead of buying new ones.
- everyone 8y ago
  I suppose they also get a bonus chilling effect on anyone else trying to refurb a windows machine.
- adventured 8y ago
  Microsoft didn't pursue having him jailed. They sought financial compensation. The government prosecutors pursued the jail term to bolster their own resumes as they always do.
sailfast 8y ago
It's really frustrating when reporters don't link to decisions so we can see the logic behind the rulings. Found what I believe is the opinion in case you're interested: https://www.courtlistener.com/pdf/2018/04/11/united_states_v._clifford_eric_lundgren.pdf https://www.courtlistener.com/pdf/2018/04/11/united_states_v... Here's the original request for appeal: https://regmedia.co.uk/2018/02/20/lundgrenappeal.pdf https://regmedia.co.uk/2018/02/20/lundgrenappeal.pdf
- larkeith 8y ago
  Was about to go searching for this, thank you for the link!
- jaclaz 8y ago
  Thanks for the link to the decision. It seems to me like the key point is: >In particular, the court noted that it did not find it reasonable to believe that Lundgren and his codefendant had spent at least around $80,000 to create discs that had no value. Since the idea that they had "no value" was not accepted and since the CD's had actually the MS and Dell logo's the Law shifts the value (and thus the sentencing) from the value of the "infringing" good to the value of the "infringed" one. All in all, it seems to me more like a case of "counterfeit Gucci bags" than a purely unauthorized software redistribution related one ... EDIT: the last sentence above was meant as: All in all, it seems to me that the Courts treated it more like a case of "counterfeit Gucci bags" than a purely unauthorized software redistribution related one ...
  - lukeschlather 8y ago
    It's more like they were real Gucci bags, but the Gucci label had worn off and he's getting prison time for restoring the label.
JumpCrisscross 8y ago
Why isn’t he appealing? Where is the ACLU?
- datalus 8y ago
  He just lost the appeal...
  - joeevans1000 8y ago
    I'm appealing to all talented college engineers and others to avoid applying to work Microsoft at all costs. They pursued this guy and are the reason this actually got so far. Your work would be literally furthering this sort of absurd outcome.
    - jeffdubin 8y ago
      And I'm appealing to all talented college engineers and others to _work_ Microsoft at all costs - and change their culture to prevent this kind of situation from happening again.
      - jeffdubin 8y ago
        Well.. maybe not at all costs...
      - monocasa 8y ago
        Since when do engineers have a say in what legal does?
deleted 8y ago
[deleted]
DoctorOetker 8y ago
what makes it legal for an ISP (on behalf of an end-user) to request a microsoft server for the recovery disc download and then send this stream of bits to the end-user, but then illegal for Lundgren (also on behalf of an end-user) to request a microsoft server for the recovery disc download and then send a disc of those bts to the end-user? Is it because Lundgren is no ISP, or is it because the disc is considered a medium of exchange?
- mbreese 8y ago
  Nothing grants the ISP rights to request the data. Anyone can ask Microsoft for the data. However, only Microsoft can decide whether or not to grant the request and actually send the data. By making physical copies, Lundgren took Microsoft out of that equation. Now it was him and not Microsoft deciding who could get that data. So, unless Microsoft has granted you a license to distribute, then it doesn’t matter how much it costs... it isn’t legal. (Especially if you slap Microsoft and Dell logos on the disks.) The copyright holder gets to determine how their data is distributed and what strings to put on that agreement. This is good. This is also what gives the GPL teeth...
  - DoctorOetker 8y ago
    obviously when a user goes to download the recovery disk from Microsoft, this does not happen directly: his requests are received by his ISP and then the last non-microsoft device asks the first microsoft device for the file. From then on the ISP starts receiving a stream of bits. And the ISP then distributes them on to the original user. Cables and optical fibres are also physical media. Furthermore the ISP will also have distributed all the requisite SSL handshakes, such that the stream from the perspective of the user can be effectively seen as branded with the Microsoft logo (optionally displayed with a secure lock symbol depending on the browser)... Now if we all realize that ISP's are allowed to shamelessly distribute the recovery disk branded as authentic M$ warez, the judge might have been made to understand that it was not obvious for Lundgren that he would be forcefully fleeced.
- cptskippy 8y ago
  Microsoft doesn't provide recovery/restore discs for download. Microsoft provides installation images that require and prompt for a valid product key and license to use the software (except Windows 10). Most OEM Restore/Recovery media do not prompt the user for a product key. They either have key/license hidden on a recovery partition on the machine, stored in the firmware, or hardcoded on the disc. It's unclear how his disc worked but what is clear is that he was not a licensed software distributor and did not have the rights to distribute Microsoft's media. If someone gives away 100 free books, that doesn't give you permission to make copies of their book and sell them with the caveat that only people who received one of the free 100 books could buy them. How is this different?
desireco42 8y ago
Is there anything we can do? Can he appeal? EFF? This can't be the end. I guess pressuring MS to drop the charges is too late. We can't have good man in jail over this.
- 24gttghh 8y ago
  I really hope he appeals this.
  - jrochkind1 8y ago
    Friend, the very headline, and HN post title, is "E-waste recycler Eric Lundgren loses appeal…". He did appeal it. He lost.
    - 24gttghh 8y ago
      Technically it could be appealed to the SCOTUS but that is unlikely :(
    - desireco42 8y ago
      There must be something we can do.
emh68 8y ago
Can’t blame this on Microsoft. Legal department probably said “these disks look visually similar to Dell disks, therefore we must press charges or everyone will start stamping out lookalike CDs and they’ll be able to get away with it by pointing to us not pressing charges here”. Blame the legal system, not Microsoft. All companies are under such obligations to not dilute their IP.
- larkeith 8y ago
  Could Microsoft not have pursued a cease-and-desist, rather than penalties of $299 (original prosecution) and jail time, if this had truly been their intent?
  - emh68 8y ago
    I don’t know, I’m not a lawyer.
  - danso 8y ago
    Microsoft sought restitution of ~$400K but was denied it by the judge: https://www.washingtonpost.com/news/true-crime/wp/2018/02/15/eric-lundgren-e-waste-recycling-innovator-faces-prison-for-trying-to-extend-lifespan-of-pcs/ https://www.washingtonpost.com/news/true-crime/wp/2018/02/15...
jrochkind1 8y ago
oh my god.
lucio 8y ago
Reading the court documents, the conclusion is that the guy is shady and the journalist and the newspaper are borderline lying. The correct headline is: "E-waste recycler loses appeal on 28,000 counterfeit windows installation disks, must serve prison term" >The sentencing judge determined that the appropriate infringement value was the value of the infringed discs to small registered refurbishers: $25. The court found credible the government expert’s testimony that he was able to use the infringing discs to install functioning Microsoft software So there were 28,000 discs with Microsoft and Dell logos which can be used to to install functioning Microsoft software That's a different picture than the one painted by the article. >In particular, the court noted that it did not find it reasonable to believe that Lundgren and his codefendant had spent at least around $80,000 to create discs that had no value. Using the $25 infringement amount, Lundgren’s guideline range was 37 to 46 months imprisonment. The court sentenced Lundgren to 15-months imprisonment https://www.courtlistener.com/pdf/2018/04/11/united_states_v._clifford_eric_lundgren.pdf https://www.courtlistener.com/pdf/2018/04/11/united_states_v... Did the journalist read the court papers?
- JumpCrisscross 8y ago
  > there were 28,000 discs with Microsoft and Dell logos which can be used to to install functioning Microsoft software I thought those discs could only “install functioning Microsoft software” if provided with a valid license key, a key Lundgren didn’t provide nor purport to provide. The “$25 infringement amount” seems like a bad comparison since those disks include a license key. Lundgren’s did not.
  - criddell 8y ago
    Even without the key, the software is still copyrighted material.
- pas 8y ago
  It seems, according to others' comments, that the "functioning MSFT software" is the Windows preinstall environment, that means people can start installing re-windows, but it still asks for a license. That said, I don't see what was the operation. How he created the disks, who are the customers, are there receipts, etc?
analognoise 8y ago
I was really angry about this, until I read that the disks had Microsoft and Dell logos.
- whatshisface 8y ago
  MS and Dell logos are also used to indicate compatibility. That's probably what was meant by their use here. (If you have any disks at your house, see how many have a Windows/Apple logo on them.)
  - analognoise 8y ago
    I think he lifted the design of a genuine Dell restore disc . It was seized by customs.
justherefortart 8y ago
Fuck you US Government is more like it. Oh, and the assholes that vote these idiots into office over and over again. I don't care if it's Pelosi/Boxer or Inhofe/Cruz, they all are pieces of shit.
- garmaine 8y ago
  You think the other name on the ballot would have been any different?
  - eof 8y ago
    You think there were only two names on the ballot?
- anm89 8y ago
  I will never understand the people who dump blame on the CEOs without moving on to why the government doesn't hold them accountable. The CEO's job is to create value for shareholders. The government's job is to create laws that benefit society and enforce them. Fine, a lot of CEOs suck but it's basically their job to suck to the degree allowed by the law. Why don't we work on changing the laws instead of endless complaining about the CEOs.
- downandout 8y ago
  Actually, voters have no say in who gets to make these prosecutorial decisions, and that’s a huge problem. Unless a prosecutor files a case against someone, there is no case, no matter what they’ve done. Assistant US Attorneys (AUSAs) are the ones making the decisions as to whether or not to file, and they are just lawyers hired through normal recruiting channels. Branch US Attorney offices are little fiefdoms - technically they answer to the head US Attorney in their federal district, but in practice they have little contact with him or her and do as they please unless they really mess something up. Because people are people, and many of them view the position of AUSA as a stepping stone to $800/hr jobs at white collar criminal defense firms or prestigious political appointments, they tend to file cases with which they can make a name for themselves. One way for them to do that is “creative prosecution” - charging people for conduct that isn’t clearly in violation of a given statute, and then trying to shoehorn the case into a conviction or guilty plea. There is no moral hazard for them in doing this - if they lose, nobody cares, and if they win, they get credit for their genius - so they will do it again and again until it works. That’s what happened here - they managed to shoehorn a conviction in a highly questionable case, and the AUSAs behind it will ultimately leverage this into a better job and a better life. I’m not sure that voting for individual AUSAs is the answer, but something needs to be done to reign these people in. They currently have free reign to burn lives to the ground for their own gain.
naoru 8y ago
Controversial opinion: mr. Lundgren could tamper with disc content and ship any kind of malware with the OS to intercept sensible data. I'd never trust that kind of 'OEM' CD.
- RIMR 8y ago
  Your opinion is completely invalid though, because Mr. Lundgren did not tamper with the disc contents to ship any malware of any kind. You could go on a killing spree this afternoon - should we go ahead and lock you up now?
- riffic 8y ago
  This isn't controversial at all - a basic tenet of computer security is to to install your bits from trusted media. If the install media is a burned cd of a supposed windows ISO, it's not as trustworthy as the $25 replacement media shipped out by the original vendor.
_Codemonkeyism 8y ago
Main point: "The judge said he disregarded Weadock’s testimony. 'I don’t think anybody in that courtroom understood what a restore disk was,' Lundgren said."
- kosievdmerwe 8y ago
  The judge's counter point[1]: > In particular, the court noted that it did not find it reasonable to believe that Lundgren and his codefendant had spent at least around $80,000 to create discs that had no value. They intended to get profit by creating counterfeit media. Trademarks are one of the most important intellectual property laws, without them you cannot rely on a company's reputation to inform you what to buy or even whether they followed safety regulations for more physical kinds of property. Since why would a counterfeiter waste money on safety: their reputation isn't getting damaged. If you allow counterfeit media like this guy tried to do, you can't rely on the fact that the media doesn't have malware on it. Cause while I don't think Lundgren added malware, if you allow counterfeit discs, someone else eventually would. [1] https://www.courtlistener.com/pdf/2018/04/11/united_states_v._clifford_eric_lundgren.pdf https://www.courtlistener.com/pdf/2018/04/11/united_states_v...
blhack 8y ago
This is horrifying, and sounds like something out of a story warning about government overreach. 1 YEAR and three months in federal prison? That's not a short amount of time for something that this guy had a reasonable expectation wasn't illegal.
meesterdude 8y ago
> despite the software being freely available online and only compatible with valid Windows licenses I don't see why someone needs to go to jail for 15-months over this - especially given his reasonings. If you thought microsoft had turned a new page - think again. Different tactics, same morals.
adventured 8y ago
> Randall Newman, Lundgren’s lawyer on the appeal, said there was no basis to seek a rehearing from the full 11th Circuit. Lundgren said an appeal to the Supreme Court would be a costly long shot. The tech community should band together and fund Lundgren taking this to the Supreme Court. It's worth trying to stop this precedent.
cwyers 8y ago
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 computer refurbishers who would then include them with PCs they were selling._ In other words, people were buying PCs with these counterfeit restore discs passed off as actual Dell/Microsoft product. Yes, the media only works with a valid Windows license on the machine already, but reselling the PC like this with the counterfeit restore media likely voids that Windows license agreement. Lundgren is far less innocent than the Washington Post article implies.
- freehunter 8y ago
  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 Dell and Windows logo on it, he probably would have skirted any real repercussions.
  - cwyers 8y ago
    > 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 the disks to computer refurbishing shops for about 25 cents apiece, so the refurbishers could provide the disks to used-computer buyers and wouldn’t have to take the time to create the disks themselves. These discs were INTENDED to be provided to third parties who didn't know who actually made them. This goes beyond trademark infringement, I think.
mute_x 8y ago
this is so sad to see, +1 on the fu Microsoft
entwife 8y ago
The used laptop shop near my house will install Windows 10, but not any flavor of Linux. I wonder whether this will change their business.
b1daly 8y ago
Aside from the legal technicalities and motivations of the parties in this case, the goal of prolonging the usable life of computers is incredibly laudable. The continuing process by which otherwise functional hardware is made into trash simply because the market incentives don’t motivate the manufacturers to prioritize this is (borderline) tragic. The way updates of operating systems require ever more powerful hardware drives me crazy. If prolonging the use of hardware was an explicit goal of the companies that make the operating systems, not only could a huge amount of waste be kept out of landfills, we could have devices whose performance increases over time.

391 points by dnewms 8y ago

abtinf 8y ago

This is a travesty. It reminds me of Aaron Swartz.

JumpCrisscross 8y ago
> It reminds me of Aaron Swartz Aaron Swartz wilfully broke the law. This man didn’t. Not a good comparison.
- vorg 8y ago
  Everyone fights the GAMAF sponsored subversion of the ICT industry in their own way, depending on their personality. Although some people go around the law without breaking it, others wilfully break it (Snowden), others go around it but inadvertently break it (Lundgren), others wilfully break it but can't handle the subsequent miscarriage of justice (Swartz), yet others make money from doing things that shouldn't be illegal (Dotcom). Fight the corrupt IP machine in your way.
  - MoBattah 8y ago
    GAMAF? What's that?
    - vorg 8y ago
      Because I spelt it GAMAF instead of GAFAM, people like you wouldn't be enlightened by googling it. I would tend to add evil Oracle to that list of the filthy five, and call them GAMAFO.
      - MoBattah 8y ago
        Google, Apple, Facebook, Amazon, Microsoft. Got it. I'm sorry, were you implying that I'm stupid? Not picking up on the implication.
        vorg 8y ago
        That should read "people who don't know what GAFAM means" instead of "people like you".

wpdev_63 8y ago

This has to be fake news...

dingaling 8y ago

I'm in two minds over this. First, it's ridiculous that someone is being jailed for 15 months for trying to make it easier to keep using older PCs and reducing waste. On the other hand that's the risk one takes when dabbling in the world of proprietary software. Where discouraging people from upgrading is seen as a threat to revenue and is attacked accordingly. Had he printed 34,000 Linux disks we'd never have had this case and sentence, but then perhaps no one would have used those old PCs. It seems that someone has to lose.

ada1981 8y ago
Does the license prevent people from downloading and distributing it explicitly? Curious what is going on there. I wonder if one could sell a USB configured to simply connect to the internet and download the software automatically.
- gowld 8y ago
  The discs exist because they work on broken computers. A USB downloader would be useless for the tech-unsavvy customers of the CD
  - AckSyn 8y ago
    If the USB drive booted to an internet based restore method, this would work the same as the CD but instead of the CD "pirating" windows (it wasn't), it would grab the iso from MS or dell directly (possible).
- PeterisP 8y ago
  If the licence doesn't explicitly permit downloading and redistributing copies, then that's illegal. The default position of copyright law is that it's forbidden with some exceptions (depending on jurisdiction) for personal use and such. I can download Ubuntu, burn it to CDs and sell or give them to others because GPL explicitly permits me to do this. However, downloading the comment you just made, filling a CD with copies of it, and selling or giving it to others would violate your copyright to it.

ada1981 8y ago

No paywall: https://outline.com/zcZGaN 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

ada1981 8y ago
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?

vuln 8y ago

Gizmodo[1] added this -- "Unfortunately, in what seems to have been a huge mistake, the disks had “labels nearly identical to the discs provided by Dell for its computers and had the Windows and Dell logos,” the Times wrote. As a result, Lundgren pleaded guilty to two of 21 charges, conspiracy and copyright infringement. He told the paper, “If I had just written ‘Eric’s Restore Disc’ on there, it would have been fine.” [1]https://gizmodo.com/e-waste-innovator-will-go-to-jail-for-selling-windows-r-1825518742 https://gizmodo.com/e-waste-innovator-will-go-to-jail-for-se...

zelon88 8y ago
You're absolutely right. This guy obviously deserves to spent the next 15 years in jail because his startup practically gave away disks with someone else's logo on it that even the original copyright owner doesn't charge money for.
- craftyguy 8y ago
  .. can't tell if sarcastic or serious..
  - drharby 8y ago
    Its sarcasm
    - craftyguy 8y ago
      Well, you cannot always assume so on the internets.
- murph-almighty 8y ago
  15 months
- deleted 8y ago
  [deleted]
- NuSkooler 8y ago

unethical_ban 8y ago

This is one of the most unabashedly sinister first-world articles I've read in a while. Microsoft's argument hinges on two damages: Either, they didn't get to charge a convenience fee to customers, or they were losing revenue by people unexpectedly extending the life of their computers. Foolish judges and evil lawyers putting a decent person away for 13 months.

gambiting 8y ago
>> The judge said he disregarded Weadock’s testimony. “I don’t think anybody in that courtroom understood what a restore disk was,” Lundgren said. There's the problem.
- DoctorOetker 8y ago
  I think Lundgrens analysis is closer to the truth: “I got in the way of their agenda,” Lundgren said, “this profit model that’s way more profitable than I could ever be.” On average judges defend the nation, money must flow up. The nation's tax income on Microsofts exploitation are bigger (or so thinks the judge) than the tax income on Lundger's (preventive) recycling business. Your taxes represent your bullying/fleecing strength. When one tithe collector gets in an argument with another tithe collector, the goverment tends to agree with the tithe collector that brings the biggest tithes... The population needs to be fleeced. The natural order of things and so on. So it is!
  - whatshisface 8y ago
    Judges do not actually think about maximizing federal tax revenues when making their decisions. There might be something else that is going on to result in that, but judges have absolutely no incentives in that direction.
cptskippy 8y ago
No, this is an unabashedly sinister misinformation campaign by someone who didn't read the article or understand what this guy was doing. He wasn't distributing restore disks with refurbished PCs. He manufactured 28000 Restore Disks containing Microsoft Windows and was selling them. He justified his actions by saying they were only to be used on licensed machines. That's like me selling a backup copy of your Book and "you're only allowed to read this if you bought the book legitimately."

sevensor 8y ago

Sounds like this guy made a really bad decision in putting the Windows and Dell logos on the disks, and then selling them (albeit for $0.25, which would seem to just barely cover the cost of production.) But that bad decision pales in comparison to the court's decision to value at $25 what Microsoft was giving away for free. If anything, he was saving them a significant amount of bandwidth.

treis 8y ago
Microsoft wasn't giving them away for free though. According to the article, they get $25 for each disk from computer manufacturers.
- monocasa 8y ago
  The .iso was available for free off of their website.
  - mbreese 8y ago
    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.)
    - dahauns 8y ago
      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.
      - mbreese 8y ago
        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.

deleted 8y ago

[deleted]

radiorental 8y ago

This is just shameful prosecution of law for the sake of law and not whether it's appropriate. Even the judge recognizes the greater good that was at play and the non-malicious intent. It boggles my mind that some DA put the effort in to this case.

nerdponx 8y ago

I want to know what harm he has done or what danger he poses to society that warrants a 15 month prison sentence. I feel like this is what pardons are for.

balls187 8y ago
The law is rarely used to protect society. The law is being abused to punish an individual for messing with a corporate agenda.
vorg 8y ago
> what danger he poses to society that warrants a 15 month prison sentence We're seeing the reason for the U.S.'s >1% of adult population incarceration rate. The solution isn't occasional pardons but massive reform of the 51 criminal judicial systems in the U.S.
MoBattah 8y ago
Pardons? Psh! No US President cares for an e-recycler doing good for the world. They care for investment bankers who line their pockets (see: Marc Rich).

JumpCrisscross 8y ago

“One of his projects was to manufacture thousands of ‘restore disks,’ usually supplied by computer-makers as a way for users to restore Windows to a hard drive if it crashes or must be wiped. The disks can be used only on a computer that already has a license for the Windows operating system, and the license transfers with the computer for its full life span. But computer owners often lose or throw out the disks, and though the operating system can be downloaded free on a licensed computer, Lundgren realized that many people didn’t feel competent to do that, and were simply throwing out their computers and buying new ones. Lundgren had 28,000 of the disks made and shipped to a broker in Florida. Their plan was to sell the disks to computer refurbishing shops for about 25 cents apiece, so the refurbishers could provide the disks to used-computer buyers and wouldn’t have to take the time to create the disks themselves. ... Eventually, the Florida broker, Robert Wolff, called Lundgren and offered to buy the disks himself as part of a government sting, Lundgren said. Wolff sent Lundgren $3,400, and the conspiracy was cemented. Both were indicted on a charge of conspiracy to traffic in counterfeit goods and criminal copyright infringement.” This should not result in jail time. Is Florida really so free of violent crime and other more serious offenses that this case is a priority for federal prosecutors?

pc86 8y ago
Not speaking about this case specifically, but the existence of other more serious and/or violent crimes does not negate the impact of small crimes. You can't just say "yeah well there's a lot of unsolved murders so what about those?" as some sort of indictment against police officers enforcing laws.
- ballenf 8y ago
  It's one thing if they could have proven the case without this fabricated sting. Setting that up just to put the nails in the coffin of someone trying to do good seems pretty evil to me. Why the hell didn't the prosecutors just ring up the guy and say, "Hey, Microsoft is pretty pissed about these disks. If you don't [destroy them / remove their logo] we'll have to prosecute you." They have exactly that kind of discretion.

Hasz 8y ago

From the article "“These sales of counterfeit operating systems,” Microsoft lawyer Bonnie MacNaughton wrote to the judge, “displaced Microsoft’s potential sales of genuine operating systems.” But Lundgren’s disks had no licenses and were intended for computers that already had licenses." and even worse, "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. The judge said he disregarded Weadock’s testimony." Weadock was an expert witness (for the government no less) in a Microsoft antitrust case. When asked what the value of the restore disk was, he responded with zero, or near zero. The prosecutors were initially looking for $299 a disk -- the value of a full license. This is the most egregious case of a judge ruling on something he or she does not understand I've seen in a while. This is an item Microsoft gives away for free to anyone with an internet connection, all this guy was trying to do was sell them for $0.25 to cover the cost of a disk and make it easier for people to fix their broken computers (allegedly).

pweissbrod 8y ago
I dont quite understand the basic legal details behind this. Say I buy a computer with windows pre-installed that means the OS license cost is bundled in to the price of the machine. Say I have a computer without windows, or maybe an older cheaper version of windows. Is it correct that these restore disks arent a utility to get a free new copy of windows? Just trying to understand
- gambiting 8y ago
  >>Say I have a computer without windows, or maybe an older cheaper version of windows. Is it correct that these restore disks arent a utility to get a free new copy of windows That is correct. You still need a licence key to install Windows using those disks. Without the key the disk is worthless. They aren't and never were a way for people to get "free" copies of windows.
  - snuxoll 8y ago
    Unfortunately this is an area where copyright law is not up to date with regards to installation media for software with built-in DRM regimes. The value of Windows installation media is the cost of the disk it is burned to + the time it takes to burn unless there's an associated license (or a crack bundled that would let you bypass activation, which got laughably easy post-Windows 8 because of the new SLIC activation scheme). Unfortunately, copyright law doesn't care - the copies were made, and the copies were distributed, unless the license explicitly allowed such copying Lundgren was in the wrong in the eyes of the law. Ironically, the same thing applies to the Windows 8/10 installation media you can download directly from the Microsoft website - though you can get it for absolutely free the license still prohibits distribution.

JoeAltmaier 8y ago

Doesn't a restore disk contain binaries from the operating system? So he's distributing somebody else's work, with their logo on it. However well-intentioned, its pretty dodgy. No matter what Microsoft does with those binaries, they weren't his to resell?

gowld 8y ago
What's the harm? 0. I get no commercial value from having the same OS twice on my machine.
- JoeAltmaier 8y ago
  E.g. harm to the brand when goofy guys start selling stuff with Microsoft brand and old restore data screws up machine As he said (naively) maybe he shouldn't have put somebody else's logo on the disk. Duh.

aresant 8y ago

it is sad and amusing that at least three comments on this thread point out that the wapo article is substantially incomplete. From the original LaTimes article: "In 2013, federal authorities intercepted shipments of 28,000 restore discs that Lundgren had manufactured in China and sent to his sales partner in Florida. The discs had labels nearly identical to the discs provided by Dell for its computers and had the Windows and Dell logos." Oh. Well that changes things substantially - copyright infringement on discs created in China in bulk looks a bit fishy and more malicious than the wapo points out. What if the discs were rooted? What if their intent was to charge the other recyclers $10 a pop vs the $25 msft charged for the same thing? I bet all those things were discussed in the courtroom and I'd love to see a really good source to understand this case vs watching the media try to wind up the pitchfork brigade as usual.

staticautomatic 8y ago
You could always request a copy of the trial transcript from the court.
gowld 8y ago
> What if the discs were rooted? They weren't. What if he murdered someone? He didn't. > What if their intent was to charge the other recyclers $10 a pop vs the $25 msft charged for the same thing? So? It's not a crime for Amazon to charge lower shipping than Newegg.
- pc86 8y ago
  It is a crime to resell a company's IP without their permission, though.
oldcynic 8y ago
> What if their intent was to charge the other recyclers $10 a pop vs the $25 msft charged for the same thing? Not what was happening at all. MS charge Dell et al $25 for a copy of Windows Home OEM, complete with certificate of authenticity sticker and new licence number. "a Microsoft letter to Hurley and a Microsoft expert witness had reduced the value of the disks to $25 apiece, stating that was what Microsoft charged refurbishers for such disks. But both the letter and the expert were pricing a disk that came with a Microsoft license" He was re-creating a restore disk that only works when associated with the already existing, and still valid, licence.

reimertz 8y ago

As a CEO, you can have a business model that is ethically and morally wrong without getting into jail. As a CEO, you can ignore obvious security flaws leading to 100 million social security numbers getting leaked without getting into jail. As a CEO, you can sexually harass your employees without getting into jail. Try and save the world by repurpose old computers, causing one of the biggest companies in the world to maybe lose 0.0000001% of their revenue and you're fucked. Shame on you, Microsoft.

deleted 8y ago
[deleted]
jiveturkey 8y ago
he didn’t actually cause anyone to lose revenue. microsoft isn’t pressing charges against him in this case. (to my best understanding)
- reimertz 8y ago
  They might argue that repurposing old computers and licenses attached to said computer might have an (minimal) effect on Microsofts revenue since that might lead to potential sells not happening. That is the only reason I can see why they would pursue a case like this. But I cannot phantom how they cannot see how this will backfire quite badly, making them look both greedy and environmentally disconnected.
  - DoctorOetker 8y ago
    whats next? "Diet coach Daisy, sent to jail as McDonalds loses customers" "CPU designer Claire, sent to jail as its optimized caching algorithm lowers demand for RAM sales" "Louis Pasteur, unearthed from the grave, incarcerated as milk sales fall due to longer shelf-life"
    - AnIdiotOnTheNet 8y ago
      Wouldn't be surprising really. If you base your society on worshiping greed, don't be surprised when it ends up being run by the greedy.

HenryBemis 8y ago

One of the phrases I keep from this article is: “I don’t think anybody in that courtroom understood what a restore disk was”. I remember listening to Steve Gibson (GRC), on SecurityNow podcast, saying that this is the exact reason why he is not willing to testify to a Court of Law any more. Having testified in court for some cases as "specialist" it is (almost always) needed to find metaphors and analogies on anything-technology. Some judges and lawyers are educated but twisting the meaning of something (misinterpreting the truth) is often the case.

deleted 8y ago
[deleted]

joeevans1000 8y ago

This is ridiculous. This should be a civil case at most. We are entering into a dangerous era for our own selves when we allow this sort of punishment for software issues. Additionally, this guy recycles 41 million pounds of e-waste a year. He should be celebrated. As a result of that, I can only imagine his larger clients may have to drop the use of the services of his company. Apparently, we don't care, and many comments online are philosophic in tone. Even if the strategy were misguided, this outcome is absurd. That Microsoft would so vigorously pursue this guy has rekindled my dislike for the company. They almost seemed to be on a turnaround path with developers with a cool editor and a new approach. This shows that they and their products are to be avoided at all cost as before. All I can say is that, as developers, we need to work to not embrace Microsoft as they try to restore their relationship with us. And if you work there, well, what can I say... you should speak up about this or leave for more fair waters.

ksk 8y ago
You are free to hate Microsoft of course, but your point didn't make much sense to me. Nobody except Microsoft is allowed to distribute Windows because thats their right under copyright law. Its the same law that prohibits people from distributing GPL'd binaries without providing the source. The owner/creator has certain rights.

everyone 8y ago

So, the price MS paid to have him jailed was less than the cost they would incur if people used those discs to restore their machines instead of buying new ones.

everyone 8y ago
I suppose they also get a bonus chilling effect on anyone else trying to refurb a windows machine.
adventured 8y ago
Microsoft didn't pursue having him jailed. They sought financial compensation. The government prosecutors pursued the jail term to bolster their own resumes as they always do.

sailfast 8y ago

It's really frustrating when reporters don't link to decisions so we can see the logic behind the rulings. Found what I believe is the opinion in case you're interested: https://www.courtlistener.com/pdf/2018/04/11/united_states_v._clifford_eric_lundgren.pdf https://www.courtlistener.com/pdf/2018/04/11/united_states_v... Here's the original request for appeal: https://regmedia.co.uk/2018/02/20/lundgrenappeal.pdf https://regmedia.co.uk/2018/02/20/lundgrenappeal.pdf

larkeith 8y ago
Was about to go searching for this, thank you for the link!
jaclaz 8y ago
Thanks for the link to the decision. It seems to me like the key point is: >In particular, the court noted that it did not find it reasonable to believe that Lundgren and his codefendant had spent at least around $80,000 to create discs that had no value. Since the idea that they had "no value" was not accepted and since the CD's had actually the MS and Dell logo's the Law shifts the value (and thus the sentencing) from the value of the "infringing" good to the value of the "infringed" one. All in all, it seems to me more like a case of "counterfeit Gucci bags" than a purely unauthorized software redistribution related one ... EDIT: the last sentence above was meant as: All in all, it seems to me that the Courts treated it more like a case of "counterfeit Gucci bags" than a purely unauthorized software redistribution related one ...
- lukeschlather 8y ago
  It's more like they were real Gucci bags, but the Gucci label had worn off and he's getting prison time for restoring the label.

JumpCrisscross 8y ago

Why isn’t he appealing? Where is the ACLU?

datalus 8y ago
He just lost the appeal...
- joeevans1000 8y ago
  I'm appealing to all talented college engineers and others to avoid applying to work Microsoft at all costs. They pursued this guy and are the reason this actually got so far. Your work would be literally furthering this sort of absurd outcome.
  - jeffdubin 8y ago
    And I'm appealing to all talented college engineers and others to _work_ Microsoft at all costs - and change their culture to prevent this kind of situation from happening again.
    - jeffdubin 8y ago
      Well.. maybe not at all costs...
    - monocasa 8y ago
      Since when do engineers have a say in what legal does?

deleted 8y ago

[deleted]

DoctorOetker 8y ago

what makes it legal for an ISP (on behalf of an end-user) to request a microsoft server for the recovery disc download and then send this stream of bits to the end-user, but then illegal for Lundgren (also on behalf of an end-user) to request a microsoft server for the recovery disc download and then send a disc of those bts to the end-user? Is it because Lundgren is no ISP, or is it because the disc is considered a medium of exchange?

mbreese 8y ago
Nothing grants the ISP rights to request the data. Anyone can ask Microsoft for the data. However, only Microsoft can decide whether or not to grant the request and actually send the data. By making physical copies, Lundgren took Microsoft out of that equation. Now it was him and not Microsoft deciding who could get that data. So, unless Microsoft has granted you a license to distribute, then it doesn’t matter how much it costs... it isn’t legal. (Especially if you slap Microsoft and Dell logos on the disks.) The copyright holder gets to determine how their data is distributed and what strings to put on that agreement. This is good. This is also what gives the GPL teeth...
- DoctorOetker 8y ago
  obviously when a user goes to download the recovery disk from Microsoft, this does not happen directly: his requests are received by his ISP and then the last non-microsoft device asks the first microsoft device for the file. From then on the ISP starts receiving a stream of bits. And the ISP then distributes them on to the original user. Cables and optical fibres are also physical media. Furthermore the ISP will also have distributed all the requisite SSL handshakes, such that the stream from the perspective of the user can be effectively seen as branded with the Microsoft logo (optionally displayed with a secure lock symbol depending on the browser)... Now if we all realize that ISP's are allowed to shamelessly distribute the recovery disk branded as authentic M$ warez, the judge might have been made to understand that it was not obvious for Lundgren that he would be forcefully fleeced.
cptskippy 8y ago
Microsoft doesn't provide recovery/restore discs for download. Microsoft provides installation images that require and prompt for a valid product key and license to use the software (except Windows 10). Most OEM Restore/Recovery media do not prompt the user for a product key. They either have key/license hidden on a recovery partition on the machine, stored in the firmware, or hardcoded on the disc. It's unclear how his disc worked but what is clear is that he was not a licensed software distributor and did not have the rights to distribute Microsoft's media. If someone gives away 100 free books, that doesn't give you permission to make copies of their book and sell them with the caveat that only people who received one of the free 100 books could buy them. How is this different?

desireco42 8y ago

Is there anything we can do? Can he appeal? EFF? This can't be the end. I guess pressuring MS to drop the charges is too late. We can't have good man in jail over this.

24gttghh 8y ago
I really hope he appeals this.
- jrochkind1 8y ago
  Friend, the very headline, and HN post title, is "E-waste recycler Eric Lundgren loses appeal…". He did appeal it. He lost.
  - 24gttghh 8y ago
    Technically it could be appealed to the SCOTUS but that is unlikely :(
  - desireco42 8y ago
    There must be something we can do.

emh68 8y ago

Can’t blame this on Microsoft. Legal department probably said “these disks look visually similar to Dell disks, therefore we must press charges or everyone will start stamping out lookalike CDs and they’ll be able to get away with it by pointing to us not pressing charges here”. Blame the legal system, not Microsoft. All companies are under such obligations to not dilute their IP.

larkeith 8y ago
Could Microsoft not have pursued a cease-and-desist, rather than penalties of $299 (original prosecution) and jail time, if this had truly been their intent?
- emh68 8y ago
  I don’t know, I’m not a lawyer.
- danso 8y ago
  Microsoft sought restitution of ~$400K but was denied it by the judge: https://www.washingtonpost.com/news/true-crime/wp/2018/02/15/eric-lundgren-e-waste-recycling-innovator-faces-prison-for-trying-to-extend-lifespan-of-pcs/ https://www.washingtonpost.com/news/true-crime/wp/2018/02/15...

jrochkind1 8y ago

oh my god.

lucio 8y ago

Reading the court documents, the conclusion is that the guy is shady and the journalist and the newspaper are borderline lying. The correct headline is: "E-waste recycler loses appeal on 28,000 counterfeit windows installation disks, must serve prison term" >The sentencing judge determined that the appropriate infringement value was the value of the infringed discs to small registered refurbishers: $25. The court found credible the government expert’s testimony that he was able to use the infringing discs to install functioning Microsoft software So there were 28,000 discs with Microsoft and Dell logos which can be used to to install functioning Microsoft software That's a different picture than the one painted by the article. >In particular, the court noted that it did not find it reasonable to believe that Lundgren and his codefendant had spent at least around $80,000 to create discs that had no value. Using the $25 infringement amount, Lundgren’s guideline range was 37 to 46 months imprisonment. The court sentenced Lundgren to 15-months imprisonment https://www.courtlistener.com/pdf/2018/04/11/united_states_v._clifford_eric_lundgren.pdf https://www.courtlistener.com/pdf/2018/04/11/united_states_v... Did the journalist read the court papers?

JumpCrisscross 8y ago
> there were 28,000 discs with Microsoft and Dell logos which can be used to to install functioning Microsoft software I thought those discs could only “install functioning Microsoft software” if provided with a valid license key, a key Lundgren didn’t provide nor purport to provide. The “$25 infringement amount” seems like a bad comparison since those disks include a license key. Lundgren’s did not.
- criddell 8y ago
  Even without the key, the software is still copyrighted material.
pas 8y ago
It seems, according to others' comments, that the "functioning MSFT software" is the Windows preinstall environment, that means people can start installing re-windows, but it still asks for a license. That said, I don't see what was the operation. How he created the disks, who are the customers, are there receipts, etc?

analognoise 8y ago

I was really angry about this, until I read that the disks had Microsoft and Dell logos.

whatshisface 8y ago
MS and Dell logos are also used to indicate compatibility. That's probably what was meant by their use here. (If you have any disks at your house, see how many have a Windows/Apple logo on them.)
- analognoise 8y ago
  I think he lifted the design of a genuine Dell restore disc . It was seized by customs.

justherefortart 8y ago

Fuck you US Government is more like it. Oh, and the assholes that vote these idiots into office over and over again. I don't care if it's Pelosi/Boxer or Inhofe/Cruz, they all are pieces of shit.

garmaine 8y ago
You think the other name on the ballot would have been any different?
- eof 8y ago
  You think there were only two names on the ballot?
anm89 8y ago
I will never understand the people who dump blame on the CEOs without moving on to why the government doesn't hold them accountable. The CEO's job is to create value for shareholders. The government's job is to create laws that benefit society and enforce them. Fine, a lot of CEOs suck but it's basically their job to suck to the degree allowed by the law. Why don't we work on changing the laws instead of endless complaining about the CEOs.
downandout 8y ago
Actually, voters have no say in who gets to make these prosecutorial decisions, and that’s a huge problem. Unless a prosecutor files a case against someone, there is no case, no matter what they’ve done. Assistant US Attorneys (AUSAs) are the ones making the decisions as to whether or not to file, and they are just lawyers hired through normal recruiting channels. Branch US Attorney offices are little fiefdoms - technically they answer to the head US Attorney in their federal district, but in practice they have little contact with him or her and do as they please unless they really mess something up. Because people are people, and many of them view the position of AUSA as a stepping stone to $800/hr jobs at white collar criminal defense firms or prestigious political appointments, they tend to file cases with which they can make a name for themselves. One way for them to do that is “creative prosecution” - charging people for conduct that isn’t clearly in violation of a given statute, and then trying to shoehorn the case into a conviction or guilty plea. There is no moral hazard for them in doing this - if they lose, nobody cares, and if they win, they get credit for their genius - so they will do it again and again until it works. That’s what happened here - they managed to shoehorn a conviction in a highly questionable case, and the AUSAs behind it will ultimately leverage this into a better job and a better life. I’m not sure that voting for individual AUSAs is the answer, but something needs to be done to reign these people in. They currently have free reign to burn lives to the ground for their own gain.

naoru 8y ago

Controversial opinion: mr. Lundgren could tamper with disc content and ship any kind of malware with the OS to intercept sensible data. I'd never trust that kind of 'OEM' CD.

RIMR 8y ago
Your opinion is completely invalid though, because Mr. Lundgren did not tamper with the disc contents to ship any malware of any kind. You could go on a killing spree this afternoon - should we go ahead and lock you up now?
riffic 8y ago
This isn't controversial at all - a basic tenet of computer security is to to install your bits from trusted media. If the install media is a burned cd of a supposed windows ISO, it's not as trustworthy as the $25 replacement media shipped out by the original vendor.

_Codemonkeyism 8y ago

Main point: "The judge said he disregarded Weadock’s testimony. 'I don’t think anybody in that courtroom understood what a restore disk was,' Lundgren said."

kosievdmerwe 8y ago
The judge's counter point[1]: > In particular, the court noted that it did not find it reasonable to believe that Lundgren and his codefendant had spent at least around $80,000 to create discs that had no value. They intended to get profit by creating counterfeit media. Trademarks are one of the most important intellectual property laws, without them you cannot rely on a company's reputation to inform you what to buy or even whether they followed safety regulations for more physical kinds of property. Since why would a counterfeiter waste money on safety: their reputation isn't getting damaged. If you allow counterfeit media like this guy tried to do, you can't rely on the fact that the media doesn't have malware on it. Cause while I don't think Lundgren added malware, if you allow counterfeit discs, someone else eventually would. [1] https://www.courtlistener.com/pdf/2018/04/11/united_states_v._clifford_eric_lundgren.pdf https://www.courtlistener.com/pdf/2018/04/11/united_states_v...

blhack 8y ago

This is horrifying, and sounds like something out of a story warning about government overreach. 1 YEAR and three months in federal prison? That's not a short amount of time for something that this guy had a reasonable expectation wasn't illegal.

meesterdude 8y ago

> despite the software being freely available online and only compatible with valid Windows licenses I don't see why someone needs to go to jail for 15-months over this - especially given his reasonings. If you thought microsoft had turned a new page - think again. Different tactics, same morals.

adventured 8y ago

> Randall Newman, Lundgren’s lawyer on the appeal, said there was no basis to seek a rehearing from the full 11th Circuit. Lundgren said an appeal to the Supreme Court would be a costly long shot. The tech community should band together and fund Lundgren taking this to the Supreme Court. It's worth trying to stop this precedent.

cwyers 8y ago

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 computer refurbishers who would then include them with PCs they were selling._ In other words, people were buying PCs with these counterfeit restore discs passed off as actual Dell/Microsoft product. Yes, the media only works with a valid Windows license on the machine already, but reselling the PC like this with the counterfeit restore media likely voids that Windows license agreement. Lundgren is far less innocent than the Washington Post article implies.

freehunter 8y ago
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 Dell and Windows logo on it, he probably would have skirted any real repercussions.
- cwyers 8y ago
  > 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 the disks to computer refurbishing shops for about 25 cents apiece, so the refurbishers could provide the disks to used-computer buyers and wouldn’t have to take the time to create the disks themselves. These discs were INTENDED to be provided to third parties who didn't know who actually made them. This goes beyond trademark infringement, I think.

mute_x 8y ago

this is so sad to see, +1 on the fu Microsoft

entwife 8y ago

The used laptop shop near my house will install Windows 10, but not any flavor of Linux. I wonder whether this will change their business.

b1daly 8y ago

Aside from the legal technicalities and motivations of the parties in this case, the goal of prolonging the usable life of computers is incredibly laudable. The continuing process by which otherwise functional hardware is made into trash simply because the market incentives don’t motivate the manufacturers to prioritize this is (borderline) tragic. The way updates of operating systems require ever more powerful hardware drives me crazy. If prolonging the use of hardware was an explicit goal of the companies that make the operating systems, not only could a huge amount of waste be kept out of landfills, we could have devices whose performance increases over time.