LF: How Microsoft Convinced Clueless Judges To Send A Man To Jail For Copying Software It Gives Out For Free

Title: How Microsoft Convinced Clueless Judges To Send A Man To Jail For Copying Software It Gives Out For Free
Source: TechDirt
URL Source: https://www.techdirt.com/articles/2 ... ftware-it-gives-out-free.shtml
Published: Apr 27, 2018
Author: Mike Masnick
Post Date: 2018-04-27 09:42:43 by Deckard
Keywords: None
Views: 2900
Comments: 28

from the fucking-microsoft dept

This story should make you very, very angry. Last month we had the basic story of how Microsoft had helped to get a computer recycler sentenced to 15 months in jail for "counterfeiting" software that it gives away for free, and which is useless unless you have an official paid-for license from Microsoft. Let me repeat that: Microsoft helped put someone in jail for criminal infringement over software that anyone can get for free (here, go get it), and which won't function unless you've paid Microsoft their due.

At issue are Windows recovery discs. Way back when, these were the discs that usually shipped with new computers in case you needed to reinstall Windows. You still needed your license to make them work, of course. Then people realized it was wasteful to ship all that -- combined with enough broadband to make it easy enough to download and burn the files, and Microsoft then just made it easy to do that. But, that's still complex enough, and Eric Lundgren had a solution. Lundgren is not some fly-by-night pirate. He's spent years doing amazing things, recycling computers and helping them last longer. And he had an idea. It might be helpful to manufacture a bunch of these recovery discs and offer them to repair shops to help people who were unable to download the recovery discs themselves. He was being helpful.

But Microsoft insisted that he was not just infringing on their copyrights civilly, but criminally. When we left things last month, we were waiting for the 11th Circuit Appeals Court to consider Lundgren's appeal -- and astoundingly this week the judges, demonstrating near total ignorance of technology and the actual legal issues -- rejected his appeal which means Lundgren is going to jail for over a year for trying to do some good in the world, helping people get the exact same thing that Microsoft is offering for free, and which no one could use unless they'd already paid Microsoft its tax.

Lundgren was arrested as part of a government sting when the customs officials spotted the thousands of discs he'd manufactured and just assumed they were pirated. Here's where Microsoft should have stepped in and said "this is all a mistake" and noted that Lundgren was actually doing a good thing and exactly what Microsoft should be encouraging. Instead, Microsoft sided with the US government and continues to do so to this day.

But beyond being pissed off at Microsoft, we should be pissed off at clueless judges: 11th Circuit Judges William Pryor, Beverly Martin and Lanier Anderson (average age: 66) rejected Lundgren's appeal in 8 short pages of wrongness. It is depressing that vindictive, idiotic Microsoft combined with technically clueless judges can lead to a result that puts a good man in jail for doing nothing wrong. But that's where we're at.

The key issue in the appeal was over the actual "value" of the discs that Lundgren made. He argued, reasonably, that the value is zero. Again, Microsoft gives these away for free. Prosecutors, idiotically, initially argued they were worth the full price of Windows itself ($300). Eventually, the lower court went with a $25 fee after a government "expert" said each disc was worth that much:

To arrive at this amount, the PSR relied on evidence put forward by the government that “Microsoft had a certified computer refurbisher program that made genuine authorized reinstallation discs available to computer refurbishers for about $25,” and multiplying that amount by the 28,000 discs produced.

But that's wrong. Microsoft sells discs with a license for $25 to repair shops. Again, the discs that Lundgren was offering had no license. You had to supply your own. But the judges (and the prosecutors) can't seem to grasp this simple fact.

The district court did not err in concluding the “infringement amount” in this case was $700,000. First, the district court did not clearly err in concluding that the discs Lundgren created were, or appeared to a reasonably informed purchaser to be, substantially equivalent to legitimate discs containing Microsoft OS software.... That conclusion was supported by the sentencing hearing testimony, in which the government’s expert witness testified that the software on the disks created by Lundgren performed in a manner largely indistinguishable from the genuine versions created by Microsoft. While experts on both sides may have identified differences in functionality in the discs, the district court did not clearly err in finding them substantially equivalent.
Second, the district court reasonably concluded that the proper value of the infringed item was $25 per disc. The government’s expert testified that the lowest amount Microsoft charges buyers in the relevant market—the small registered computer refurbisher market—was $25 per disc. Although the defense expert testified that discs containing the relevant Microsoft OS software had little or no value when unaccompanied by a product key or license, the district court explicitly stated that it did not find that testimony to be credible. We afford deference to a district court’s credibility determinations, and here, no evidence suggests that the district court erred in concluding that the defense expert’s valuation was not worthy of credence.

Got that? No one seems to care that an expert pointed out that Lundgren's discs, sans license, are effectively worthless. They dismiss that as not credible. Again, here was a situation where Microsoft should have said something. And it didn't. It helped the prosecutors. And this week it issued this completely bullshit statement to the Washington Post:

Microsoft actively supports efforts to address e-waste and has worked with responsible e-recyclers to recycle more than 11 million kilograms of e-waste since 2006. Unlike most e-recyclers, Mr. Lundgren sought out counterfeit software which he disguised as legitimate and sold to other refurbishers. This counterfeit software exposes people who purchase recycled PCs to malware and other forms of cybercrime, which puts their security at risk and ultimately hurts the market for recycled products.

Look, that statement is pure hogwash. The software is not counterfeit. It's legit. It's the same thing that anyone can download from Microsoft for free. It didn't expose anyone to malware or cybercrime, and Microsoft knows that.

So much of this comes down to a fundamental misunderstanding, driven by copyright maximalists of all stripes, including Microsoft. And it's the idea that all of the following are equivalent: a copyright, a piece of software, a license, and "intellectual property." Many people like to use all of those things indistinguishably. But they are different. The issue here is the difference between the software and the license. And Microsoft, prosecutors and the judges either do not understand this or just don't care.

The best explanation of all of this comes from Devin Coldewey over at TechCrunch who dives deep into just how fucked up this situation is. Read Coldewey's whole piece because it breaks down just how insane this ruling is piece by piece, but here's one key part:

The “infringing” item is a disc. The “infringed” item is a license. The ones confusing the two aren’t purchasers but the judges in this case, with Microsoft’s help.
“[Defendants] cannot claim that Microsoft suffered minimal pecuniary injury,” wrote the judges in the ruling affirming the previous court’s sentencing. “Microsoft lost the sale of its software as a direct consequence of the defendants’ actions.”
Microsoft does not sell discs. It sells licenses.
Lundgren did not sell licenses. He sold discs.
These are two different things with different values and different circumstances.
I don’t know how I can make this any more clear. Right now a man is going to prison for 15 months because these judges didn’t understand basic concepts of the modern software ecosystem. Fifteen months! In prison!

Coldewey also hits Microsoft hard over all of this:

Microsoft cannot claim that it was merely a victim or bystander here. It has worked with the FBI and prosecutors the whole time pursuing criminal charges for which the defendant could face years in prison. And as you can see, those charges are wildly overstated and produced a sentence far more serious than Lundgren’s actual crime warranted.
The company could at any point have changed its testimony to reflect the facts of the matter. It could have corrected the judges that the infringing and infringed items are strictly speaking completely different things, a fact it knows and understands, since it sells one for hundreds and gives the other away. It could have cautioned the prosecution that copyright law in this case produces a punishment completely out of proportion with the crime, or pursued a civil case on separate lines.
This case has been ongoing for years and Microsoft has supported it from start to finish

There are lots of reasons to hate on Microsoft, but this one is one of the most sickening examples I've seen. Anyone at Microsoft who had anything to do with this should be ashamed.

But, of course, this is the world that companies like Microsoft (and the various Hollywood entities) have pushed for for years. They blur the lines between "license" and "content" and "copyright" and then use it as far as they can push it. And who cares if someone who is actually doing good in the world has his life destroyed?

I know this for a fact that upon downloading any software, only you hold have the rights to the software and nobody else. If you choose to offer this software to a third party, well then you have been put on legal notice. In this case, the person who downloaded the recovery disc should not have offered any of that software to a third party at all. That's where he screwed up. He could have kept the recovery software himself but to share it with somebody else becomes a totally different matter.

This probably has more to do with Microsoft protecting its patent portfolio and the enforcibility of its user agreement terms. It does set legal precedent and that precedent is: Microsoft and Microsoft alone controls all access to its licensed products. And they pounded that nail into this guy's coffin. It may be that he will spend time in prison just to strengthen Microsoft's legal strategy and give them a strong court precedent to threaten people with.

I recall ~12 years back that Microsoft was issuing its service updates for WinXP. But some people didn't want to download them from Microsoft. So someone set up their own big Windows Update website that worked just as well as Microsoft's. Microsoft was not amused at all and within a few years they got it shut down.

Of course, it does suck. But just because the guy was doing this to "save the planet" and to help people re-use old computers doesn't mean that it is automatically legal.

Of course, having just typed that, I still hate Microsoft about as much as ever. But this action is consistent with their behavior over many years. It isn't anything new.

Slavery was legal, and fortunately at that time, there were people who wanted to "save the planet".

The key problem is that modern capitalism is reaching its limits. As a result the owning class is searching for the rent - to extract the wealth from rent on property (including intellectual one).

That is why the patents were extended retroactively into the remote past. That is why Monsanto tries to destroy traditional plants and to "own" entire food supply of the Earth. Etc, etc ...

All this when the property and rent is getting concentrated in the hands of a shrinking group of people. It won't last.

It is becoming more urgent for them as AI advances will make the present organization of production of goods and services obsolete. They will cling to their titles, logos, shields and patents like old landed aristocracy. They might be ready to set planet on fire to keep things as there were before.

But the courts do not have to give them the win. They CHOOSE to. And that's where the blame lies - not in Microsoft's trying, but in the Courts' deciding to validate their overreach.

And the courts have little choice actually. This area of law is pretty established.

These were primarily Dell restore disks. They were licensed to Dell to include bundled with machines and Microsoft got paid only about $10 a copy for the Home version of Windows. Dell was responsible for making the disks and supplying them as backup disks for new Dell Windows machines. For a long time, they included them for free. Then they started charging $5 then $10 for a copy. Then they moved to a system where you could burn your own DVD-R or CD-R if you wanted to.

But Microsoft only licensed Dell to do it or, downstream in the legal sense, for Dell to allow users to burn their own copy but only for personal use. And nothing else at all.

Microsoft is in the clear legally, from any angle. I'd say it isn't worth the hit they are taking in this case but I do understand why they are doing it. And if I were them, I would probably do the same thing.

A big corporation sometimes has to protect its legal interests in court against infringers (even "good guys") because if they don't, they'll find they can't enforce anything in those contracts. And you know it makes a big difference. Look at that old Jello trademark case. Or, as we have to say now, Jell-o™. Lost their original trademark due to failing to enforce their original trademark in a timely fashion, thereby allowing Jello to become a generic product name and not a legally protected trademark.

Microsoft has legal reasons why it is doing this and taking the hit in public opinion of them. And if you were their lawyer, you'd probably advise them to do the exact same thing.

The courts always have a choice. They can always distinguish on the facts, distinguish on the law, appeal to equity. Judges are only as bound as they decide to be.

We see this all. the. time. on political and celebrity cases. Judges have immense power to shape the law, to modify it, to interpret it, reinterpret it, decide what facts to emphasize and what facts to believe.

Judges rule America. Their decisions, currently, are considered final and unanswerable. They are politicians, but they are protected in the public mind from being viewed that way, mostly out of public ignorance of what they really are and the vast power of discretion they exercise.

These judges CHOSE to do as they did. Perhaps they did so out of simple inertia. Probably, given their age, they don't CARE about tech issues all that much, and were uninterested in creating controversy by taking a stand.

Those same judges, though, could take law that's been "settled" since the founding and throw out a President's immigration orders on new "constitutional grounds" - and then rely on the reflexive respect of Americans for the judiciary to carry their decision forward.

Consider the whole threat of contempt of Congress. It drives along political hearings. Back in the Terri Schiavo case, Congress SUBPOENAED the local Florida magistrate judge who ordered her life support cut off. The judge DISMISSED Congress' subpoena with a curt 'judges do not answer to political demands' and defied Congress. And Congress? Folded, went into recess, and did nothing to enforce their subpoena. A local magistrate in Florida told the US Republican-controlled Congress that it had no POWER to demand that he do anything, and Congress folded on the request without a hearing. (WHY? Because Congress didn't give a fuck about Terri Schiavo and were just posturing. Watch how Congress doesn't fold if somebody they subpoena about something they DO care about defies them.

My point is the judicial politicians have enormous power, and they are only limited by their lack of interest in the subject matter, the limit of their imagination, and the different opinions of stronger judges above them. That's it.

That's why corrupt town planning boards can evict private residents from their homes to hand the homes over to private companies who have given campaign contributions and other economic blandishments to the local government. Because 5 judges say so.

That's why a woman can killer her baby at will, in utero, because judges say so.

It's the police either are, or are not, held accountable for the same crimes, on a case by case basis: the whims of the judges.

They always JUSTIFY their decisions on some fact, some law, but that merely demonstrates that judges are the masters of PRETEXT. They're not bound, but they always TALK as though they are, as though their opinions are the inevitable, natural and irresistible requirement of the law.

You should hold your breath, waiting for the final triumph of Linux over Windows.

It seems to me that that goal is farther than ever from reality. Consumers just don't like Linux. Paste all the themes and features you want on it and they still don't want it.

I'd prefer if you could get the Windows people to switch (to anything but Windows). But they are creatures of habit, as we all are.

Microsoft won this case on the merits. And just because the judges weren't a bunch of techies doesn't mean they were wrong.

I dislike this verdict but not any more than I disliked the verdict in the case of the 80yo guy who grew orchids and spent a year in prison because he grew some orchids forbidden for import in the States.

Most often, the law is just the law and judges should follow the plain wording of those laws and not seek more "just" outcomes.

Ah, this guy owns a 100-employee company. But he has to pirate Dell/Microsoft disks? He's not the tree-hugging lib he's been portrayed to be? Pshaw.

Amazing how a few facts change everything, despite some deliberately slanted screed from Deckard's usual clickbait sources.

And this is true when purchasing any Windows machine software. You are supposed to be handed over the product license key to the software in order to continue operating the software. However, many computer IT companies do not furnish these to their customers upon supplying them with refurbished machines. Why do I get the feeling that there is more than just Lundgren (one party) involved?

I don't expect Windows to go the way of the Dodo bird. This is about market share. And nowadays, it's getting to the point where OS's can support software from other platforms. At least Linux can run Windows programs. Certainly MS doesn't want to support Linux applications. The Linux version of Skype doesn't even run well on Linux, and perhaps that's by design as MS owns skype.

I don't know how true that is. I think it's more true that we are creatures of habit, as you said. Certainly Windows is much more virus prone that consumers don't like.

Long story short, aortic valve replacement and five way bypass. I may get approved to drive again in June.

Neither the Trial court, nor the Appellate court, were deciding guilt or innocence.

The Trial court decided on a sentence. The Appellate court ruled on defendant's appeal of the severity of the sentence.

The turning point will be when either anti-monopoly laws start to be enforced again or monopolies win and drag down the whole system into abyss of chaos, revolution and war.

Guilty pleas are proof of nothing. They are the result of prosecutorial blackmail. Nothing more, nothing less.

Yeah, and the court skips the trial phase and proceeds directly to the sentencing phase.

Of course, our entire legal system is unjust, depraved, quite evil and should be replaced.

It will require a civil war or a foreign invasion that destroys the government completely to replace its legal system (which needs to be destroyed), and neither of those things seems to be in the cards (though I would estimate that civil war is more likely than foreign conquest; and I would expect either a government victory in a civil war, or a victory for the side that most loves the Anglo-Saxon justice system (for sentimental reasons), and either way, real reform won't happen.

Ultimately, the only real hope there is for reform in this land is space alien invasion or the second coming of Christ.

And since space aliens don't exist at all, we're left to hope for the end of the world for legal reform.

It's easier to just emigrate to a place with better laws. Unfortunately the freest places generally have crappy health care, and an American emigre really can't get work in the local economy, so only Americans who have accumulated some wealth can manage it.

And almost the only Americans with enough accumulated wealth to manage it are old and need health care. And that's here, so they stay.

from the fucking-microsoft dept