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.
License != Trademark
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.
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.
If only...
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.
Violating a software license agreement should not result in jail time, ever.
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"
>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.
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.
Really? Do you think that fraud is wrong?
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.
Do you program in C++? This is like asking "How is this pointer to X not a pointer to Y? The bytes are the same!" They may be, but that's simply not how the rules work...