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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.

> (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.

I 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/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.

The COA only applies to the original recovery media, or to new media supplied by MS?

Dang. I should be treating those as more precious.

I 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.

I 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.

I 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.

>>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.

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.

but how is the ISP allowed to distribute?

>The value of Windows installation media is the cost of the disk it is burned to + the time it takes to burn

That's the cost, not the value. If value = cost, no one will ever make a profit.

In this case cost does actually equal value. There's zero inherent value to these discs without a license, so if you already have a license the value of the disc is the time it takes to burn it plus the cost of the disc. If you don't already have a license, the disc is worthless because it won't work without it.

No. It used to be that you got a “restore disk” with your new computer. I’ve had a few dells that had this, Apple used to as well. Now if anything, there is a rescue partition or a utility that knows how to download an rescue image. Without a valid license key you shouldn’t be able to use the restore disk. A lot of people who got these just threw them away. This guy was trying to help them reset their computer to a good state. In this case Microsoft would prefer you buy a new license, but these people already have one (usually on a sticker on the computer somewhere).

Microsoft provides free downloads of Windows 8/10 installation media on their website, saying they'd "prefer you buy a new license" is a little disingenuous. What they don't want is people distributing installation media outside their authorized channels, counterfeiting is a huge problem for their Windows/Office business and they have a huge motivation to combat it.

Was this counterfeiting? Most certainly not in spirit, nobody was trying to say "here's a free/discounted copy of Windows" - there were no cracks on the media and you still needed a license to get Windows to activate, but the cold hard truth is the license agreement prohibits copying/redistribution of the installation media.

Lesson of the day: copyright law is stuck in the 1800's in many ways, so don't test your luck and ask Congress to fix it if you think it's broken.

I think the fact that Microsoft pursued this suit makes it clear that they would "prefer you to buy a new license". The statement doesn't seem disingenuous to me.

The underlying issue isn't copyright law, as it's a means to an end and has always made this kind of abuse possible. This is retailers using government to crack down on secondary markets (markets that deal in used goods, subleasing, reselling tickets, etc); copyright law happens to be a means to that end. You see the same actions with landlords going after airbnb, of course they use a different body of law.

Microsoft offering the Windows ISO for download is a recent addition.

If you had to restore a PC 10 years ago, your only options were to obtain a restore disk from the PC manufacturer, use a restore partition on the HDD (assuming it was intact) or buy Windows.

In the past, I had to get restore disk images on BitTorrent to fix friends computers.

They are not a utility to get a free new copy of windows. However, that notwithstanding, copyright law grants Microsoft the exclusive right to arbitrarily restrict how these disks are created.

It's just like you can offer some content on your website for free to anyone, but sue anyone who redistributes it for copyright infringement.

I don't recall agreeing to a license when downloading restore images?

Presumably customers not receiving a restore image can now reclaim $299 from Microsoft as that is judged the value of the disc that was not included with their license purchase. Or indeed send back the install disc for at least a 50% refund.

Just think how much money MS would make buying back install discs for $150. /s (yes, that's right, at least -$150 per disc).

Crazy. That judge needs firing, or the person who put them in charge of this case does.

I’m sorry, but you shouldn’t be hating on judges when your understanding of law is so spotty.

Windows is subject to copyright. There doesn’t need to be a license for you to agree to—that would be a contract.

Copyright gives the creator the final say on creating copies of their work. Just because someone gives it away for free-as-in-beer does not grant you a license to create and sell copies. Try recording and selling music from the radio if you dont believe me.

While there are exemptions to the rules like fair use, none of them applied here. If you’re unhappy with the judge, take it up with Congress. Because there is absolutely nothing wrong in the court’s application of current law.

You dismiss fair use but the use here sits well with the four factors IMO.

They freely (libre and gratis) provide the files for download, the additional terms are laid out in contract. There's lots of precedent for assumed consent on web provided content.

They weren't selling the content they were selling facilitation of access to it. The discs provide a convenient means for people who are already licensed users of the content. Saying this is copyright infringement is like charging a router manufacturer or ISP with infringement.

In any case, this increases the value of MS Windows for those users, so actual damages are negative.

Given no end user ever acquired the media via this means the puniary damages are extraordinarily harsh. Add to that the rejection of expert witness, and the choice to assume provision of install media - that can't be used without a license - amounts to the full costs of a software product and I fail to understand how you can possibly consider this to be an even handed application of the USC.

> They freely (libre and gratis) provide the files for download, the additional terms are laid out in contract. There's lots of precedent for assumed consent on web provided content.

They did not provide it “Libra”, and there is absolutely no precedent for assuming everything online is public domain. This is also a completely different argument than “fair use”.

> Saying this is copyright infringement is like charging a router manufacturer or ISP with infringement

That’s obviously different, or you would not make the analogy. ISPs transmit, they do not copy. There’s also an exemption in the DMCA for ISPs.

Why not actually look at the four factors of fair use:

    The purpose and character of your use
    the nature of the copyrighted work
    the amount and substantiality of the portion taken
    the effect of the use upon the potential market.

They did not transform the work in question, the work was one of the most extensive IP works ever, they copied it wholesale.

That’s three factors that couldn’t be more unfavorable to their actions. Since MS does offer replacement restore disks for 25$, there’s also clearly some impact on the market.

Stop arguing from the result you want backwards. Lobby for different copyright laws, but don’t go around insulting the last reputable institution in the country, i. e. the courts, with your willful and frankly far too obvious misinterpretations.

https://www.microsoft.com/en-us/software-download/windows10I...

Right below "more download options" is this text: *Your use of the media creation tools on this site is governed by the Microsoft Terms of Use for this website.

In the linked Microsoft Terms of Use there's this: "Notice Specific to Software Available on this Website" [...] WITHOUT LIMITING THE FOREGOING, COPYING OR REPRODUCTION OF THE SOFTWARE TO ANY OTHER SERVER OR LOCATION FOR FURTHER REPRODUCTION OR REDISTRIBUTION IS EXPRESSLY PROHIBITED, UNLESS SUCH REPRODUCTION OR REDISTRIBUTION IS EXPRESSLY PERMITTED BY THE LICENSE AGREEMENT ACCOMPANYING SUCH SOFTWARE.

I'm sure they say lots of things in tiny footnotes, that would have to be discounted surely without positive consent; there's not even a clickthru.

There's definitely a hole in that quote "to any other server or location" means you can duplicate from the initial download location, surely. It wouldn't pass an analysis based on intent, but I don't think contract law in USA cares about intent except in cases of obvious error.

Thanks for the note anyhow, never noticed the link there, pretty sure I picked up ISO links on a different page in the past, maybe on Technet.

He violated license but violation should priced at zero and punishment should be appropriate for that value.

The license would ALLOW you to redistribute. The default is that you are not.

A restore disk IME returns the computer to initial state, usually saving personal data if requested. One still has to enter the license information, just like if you downloaded a free MS Windows install image - the image is free, it doesn't come with a license.

I've given people access to a pre-written disc with such a download on, which they then enter their license details for. Presumably the judge would consider me guilty of copyright infringement if I were in USA.

My understanding is that these disks are pretty much just a utility. If they do have a copy of a minimal OS, it is locked by a authorization key that is not provided. You must provide your own key, and the Windows license is tied to an individual machine and fully transferable for the life of the machine.

Reusing licenses is a different problem, and one that also plagues full install disks.

Correct. If you were to build a computer from scratch and try to use one of these disks, it would not work. You would either need a standalone license key, or a computer with an OEM license attached to the motherboard.

The only way to turn that disk into an actual counterfeit OS would be to crack the activation or use a keygen.

Yes, that's correct. As far as I understood, these restore disks were used to repair a broken windows installation. The restore disk can be downloaded for free on the internet, but if you don't have a windows license already, the disk is of no use to you.