6 ms·

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 a

by cwyers 9y 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 9y 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 9y 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.
  - Houshalter 9y ago
    He wasn't charged with trademark infringement, so its irrelevant. If he had removed the logos entirely they still would have sent him to jail. And that's the precedent they've set to anyone who might want to try this in the future.
    - carussell 9y ago
      Do you actually know this, or like most commenters here, was your introduction to this case the Washington Post that everyone else read?
  - GalacticDomin8r 9y ago
    >if you don't crime, you don't get punished for crime If only...
    - cwyers 9y ago
      Fair enough.
- dkarl 9y 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. I felt kind of bad about him going to prison until I read this, but that is some classic reasoning. When somebody is capable of justifying their criminality by just imagining away the main thing that makes it criminal, you need prison to tell them, yes, really, you can't do that. "If it had just been a mule deer instead of an endangered species...." "If I had just made the trades with my money instead of my clients' money...." We use prison for a lot of purposes that it sucks at, but teaching people that they can't just yadda-yadda a crime away seems like a good use for it.
  - yardie 9y ago
    There are a lot of options between $0 fines and 18 months.
ikeboy 9y ago
From the appeal: >Lundgren objected to the PSR infringement amount. He argued that the Sentencing Guidelines required the court to use an infringement amount of about $4 per disk, which was the price for which Lundgren and Wolff were selling their copies. That's a different number than the article claims.
HIPisTheAnswer 9y ago
How are the disks counterfeit? As far as I understand they are functioning exactly like the 'official' disks. Etching the brand on them makes them more easily recognizable, as to what purpose they serve. There is no technical difference between the 'original' disk and the ones this person manufactured, so there is no possible intent to fool anyone. Nobody 'owns' a name or a logo. Intellectual property is impossible. Sending someone who hasn't stolen anything nor damaged anyone else's person or property, that is a crime.
- LyndsySimon 9y ago
  > Nobody 'owns' a name or a logo. Intellectual property is impossible. I'm an ancap, so I completely agree with you from a moral perspective... but c'mon. We all know that's not how the law works.
  - nordsieck 9y ago
    > moral perspective Really? Do you think that fraud is wrong?
- cptskippy 9y ago
  They're counterfeit because they weren't official. The test of counterfeit is whether or not a person might mistake the item in question as legitimate.
- twblalock 9y ago
  > Intellectual property is impossible. It's obvious that intellectual property is a social and legal construct, because the things considered property are intangible, but all other forms of property are also social and legal constructs. Property is not merely possession -- it is the recognition by society and by the law that you have a right to possess things, and that those rights include preventing people from taking the things you possess. If you look at the history of property rights in land, which are among the oldest and most fundamental property rights, you'll see how incredibly complicated they became, and how much they have changed over time, and how much of what we think is "just the way things are" is relatively new and does not exist for the reasons we think it does. The legacy of feudal land tenure in modern legal systems is a good example.
jasonkostempski 9y ago
"reselling the PC like this with the counterfeit restore media likely voids that Windows license agreement." Violating a software license agreement should not result in jail time, ever.
- deleted 9y ago
  [deleted]
- tartrate 9y ago
  He was not violating a software license agreement.
mehrdadn 9y ago
I don't know what ticks other people off but the problem I have with this is not with the sentencing, but the fact that Microsoft decided it had nothing better to do than go after a guy who was actually trying to do some good by promoting recycling. It's not like we have an oversupply of that in this world.
- krob 9y ago
  Their objective and fiduciary responsibility is to their shareholders.
  - Clubber 9y ago
    If that were true, do you think they actually made any money off this process?
  - mehrdadn 9y ago
    I didn't claim otherwise.
yardie 9y ago
> restore media likely voids that Windows license agreement. I've bought plenty of Microsoft media in my lifetime. They will tell you the only thing that matters is the COA. If the COA came with the computer the license is still valid. He wasn't selling discs with counterfit COAs on them he was selling recycled restore disks to go with computers that already had a valid COA. So unless there is something else in the ruling, I don't know child porn on the restore discs, the author has this story exactly right.
- mehrdadn 9y ago
  > I've bought plenty of Microsoft media in my lifetime. They will tell you the only thing that matters is the COA. If the COA came with the computer the license is still valid. License != Trademark
  - mcguire 9y ago
    He wasn't charged with trademark infringement.
    - extra88 9y ago
      The marks could be relevant to the counterfeiting charge though.
mcguire 9y ago
I don't know. It doesn't seem like he was charged with trademark infringement. Further, the key point of this decision seems to be the value of each disk: Several hundreds of dollers, for a new retail licensed copy of Windows; $25, the price MS apparently charges for a restore disk and a OS license; or the price of a blank disk, plus the time it takes to download from MS and burn it.
gcb0 9y ago
he claims it was simply the online, freely downloadable image. the fact he sold to resellers make it even less shady. he sold a service to the resellers? or saved users time/bandwidth/trouble of burning image on botable cd? any way you try to spin this will still go against comon sense the whatever spirit of the laws that are not "license to sue anything under the sun, because IP"

by cwyers 9y ago

freehunter 9y 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 9y 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.
- Houshalter 9y ago
  He wasn't charged with trademark infringement, so its irrelevant. If he had removed the logos entirely they still would have sent him to jail. And that's the precedent they've set to anyone who might want to try this in the future.
  - carussell 9y ago
    Do you actually know this, or like most commenters here, was your introduction to this case the Washington Post that everyone else read?
- GalacticDomin8r 9y ago
  >if you don't crime, you don't get punished for crime If only...
  - cwyers 9y ago
    Fair enough.
dkarl 9y 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. I felt kind of bad about him going to prison until I read this, but that is some classic reasoning. When somebody is capable of justifying their criminality by just imagining away the main thing that makes it criminal, you need prison to tell them, yes, really, you can't do that. "If it had just been a mule deer instead of an endangered species...." "If I had just made the trades with my money instead of my clients' money...." We use prison for a lot of purposes that it sucks at, but teaching people that they can't just yadda-yadda a crime away seems like a good use for it.
- yardie 9y ago
  There are a lot of options between $0 fines and 18 months.

ikeboy 9y ago

From the appeal: >Lundgren objected to the PSR infringement amount. He argued that the Sentencing Guidelines required the court to use an infringement amount of about $4 per disk, which was the price for which Lundgren and Wolff were selling their copies. That's a different number than the article claims.

HIPisTheAnswer 9y ago

How are the disks counterfeit? As far as I understand they are functioning exactly like the 'official' disks. Etching the brand on them makes them more easily recognizable, as to what purpose they serve. There is no technical difference between the 'original' disk and the ones this person manufactured, so there is no possible intent to fool anyone. Nobody 'owns' a name or a logo. Intellectual property is impossible. Sending someone who hasn't stolen anything nor damaged anyone else's person or property, that is a crime.

LyndsySimon 9y ago
> Nobody 'owns' a name or a logo. Intellectual property is impossible. I'm an ancap, so I completely agree with you from a moral perspective... but c'mon. We all know that's not how the law works.
- nordsieck 9y ago
  > moral perspective Really? Do you think that fraud is wrong?
cptskippy 9y ago
They're counterfeit because they weren't official. The test of counterfeit is whether or not a person might mistake the item in question as legitimate.
twblalock 9y ago
> Intellectual property is impossible. It's obvious that intellectual property is a social and legal construct, because the things considered property are intangible, but all other forms of property are also social and legal constructs. Property is not merely possession -- it is the recognition by society and by the law that you have a right to possess things, and that those rights include preventing people from taking the things you possess. If you look at the history of property rights in land, which are among the oldest and most fundamental property rights, you'll see how incredibly complicated they became, and how much they have changed over time, and how much of what we think is "just the way things are" is relatively new and does not exist for the reasons we think it does. The legacy of feudal land tenure in modern legal systems is a good example.

jasonkostempski 9y ago

"reselling the PC like this with the counterfeit restore media likely voids that Windows license agreement." Violating a software license agreement should not result in jail time, ever.

deleted 9y ago
[deleted]
tartrate 9y ago
He was not violating a software license agreement.

mehrdadn 9y ago

I don't know what ticks other people off but the problem I have with this is not with the sentencing, but the fact that Microsoft decided it had nothing better to do than go after a guy who was actually trying to do some good by promoting recycling. It's not like we have an oversupply of that in this world.

krob 9y ago
Their objective and fiduciary responsibility is to their shareholders.
- Clubber 9y ago
  If that were true, do you think they actually made any money off this process?
- mehrdadn 9y ago
  I didn't claim otherwise.

yardie 9y ago

> restore media likely voids that Windows license agreement. I've bought plenty of Microsoft media in my lifetime. They will tell you the only thing that matters is the COA. If the COA came with the computer the license is still valid. He wasn't selling discs with counterfit COAs on them he was selling recycled restore disks to go with computers that already had a valid COA. So unless there is something else in the ruling, I don't know child porn on the restore discs, the author has this story exactly right.

mehrdadn 9y ago
> I've bought plenty of Microsoft media in my lifetime. They will tell you the only thing that matters is the COA. If the COA came with the computer the license is still valid. License != Trademark
- mcguire 9y ago
  He wasn't charged with trademark infringement.
  - extra88 9y ago
    The marks could be relevant to the counterfeiting charge though.

mcguire 9y ago

I don't know. It doesn't seem like he was charged with trademark infringement. Further, the key point of this decision seems to be the value of each disk: Several hundreds of dollers, for a new retail licensed copy of Windows; $25, the price MS apparently charges for a restore disk and a OS license; or the price of a blank disk, plus the time it takes to download from MS and burn it.

gcb0 9y ago

he claims it was simply the online, freely downloadable image. the fact he sold to resellers make it even less shady. he sold a service to the resellers? or saved users time/bandwidth/trouble of burning image on botable cd? any way you try to spin this will still go against comon sense the whatever spirit of the laws that are not "license to sue anything under the sun, because IP"