4 ms·
There's two stages of the legal process that are important to understand here: what was the illegal act, and what is the sentence for that illegal act. The ill
by scott00 8y ago
There's two stages of the legal process that are important to understand here: what was the illegal act, and what is the sentence for that illegal act.
The illegal act was a copyright violation: he made and distributed copies of copyrighted material without the consent of the copyright owner. I would be inclined to argue that his use was fair use, but based on what I know about copyright law, that argument is probably a stretch, and he didn't raise it in his defense. He plead guilty to the charges.
As to sentencing, the sentencing guidelines make the value of the illegally distributed goods the primary factor in determining the sentence. There is no objectively correct answer to this question, because no one sells license-less restore disks for any price. The three closest comparisons are
(1) The free restore disk image download offered by Microsoft. This is the same intellectual property, but doesn't come with a physical disk.
(2) OEM Windows disks that Microsoft sells for $25. These come with a license (unlike the defendant's disks) but do come with a physical disk.
(3) The original restore disks that come with a new computer. These match perfectly the intellectual property and the physical form, but they only come bundled as a small part of an expensive package, so it's hard to get a fair price from looking at this.
The defendant argued the free download was the better comparison, the prosecution argued the OEM disks were better. The judge sided with the prosecution, and assigned a value of $25/disk, which resulted in a stiff sentence.
- cornholio 8y ago> (2) OEM Windows disks that Microsoft sells for $25. These come with a license (unlike the defendant's disks) but do come with a physical disk. I'm confused, what exactly are these, where can a private individual buy one? A Windows license key with (no media) is priced around $120, while an OEM license with no support is in the $50-$90 area, depending on the business relationship with Microsoft. If individuals were able to legally get a Windows license by "restoring" it for $25, it would be a riot, nobody would pay the retail price. But if that $25 option is not available to consumers, then it makes the comparison to the free disks even more tenuous, and the fair use issue stronger, especially in light of the electronic waste issue. There is a fundamental social value that is being protected.
- scott00 8y agoI think this is the price Microsoft offers to its largest partners. The defendant wasn't selling direct to consumers, he was selling to used computer dealers, so I think the OEM comparison is decent. To be clear, I think the overall result here is an despicable perversion of justice, and I think US copyright law desperately needs to be reformed to include a more expansive version of fair use. I'm just explaining the way it works under current law.
- patja 8y agoI think these OEM disks are the media that is sold through the system builder channel within Microsoft's OEM licensing model. These are intended for small-scale mom and pop PC builders who are obligated to provide the technical product support: Microsoft product support will not help you if you have one of these licenses. It used to be that anyone could buy these through resellers such as Newegg. I've never seen them for $25 though.
- treis 8y agoI posted this on another thread, but this is the crucial point: >The original Microsoft (COA) attached to the PC does not allow you to reload Microsoft Windows software when no original recovery media is present. https://blogs.msdn.microsoft.com/mssmallbiz/2011/10/05/looking-to-provide-refurbished-pcs-what-you-need-to-know-about-the-microsoft-refurbisher-program/ https://blogs.msdn.microsoft.com/mssmallbiz/2011/10/05/looki... So the $25 doesn't come with a license. It gives you the physical media to comply with the license that came with the computer.
- mcguire 8y agoThe COA only applies to the original recovery media, or to new media supplied by MS? Dang. I should be treating those as more precious.
- klez 8y agoI tried that thing were you refuse Microsoft's license on a new PC once (I don't think it's still doable). I followed the procedure on the manufacturer's website and sent them the license sticker that was attached to the computer. The refund for Windows Vista Home Basic was 15€ (retail value of a disk was between 45€ and 75€, I can't remember). So I guess that's the kind of pricing we're talking about here.