Microsoft Defends Putting A Computer Recycler In Jail With Misleading Statement

from the that's-not-what-happened dept

Last week, we wrote a post on the appeals court ruling upholding the 15 month prison sentence for Eric Lundgren. Lundgren gave an interesting interview with the Verge explaining his position on all of this, while Microsoft -- feeling the heat from multiple stories criticizing its role in the prosecution -- put out a somewhat scathing blog post from VP Frank Shaw insisting everyone has this wrong, and presenting an argument that Lundgren was a low down dirty pirate who is pulling the wool over everyone's eyes.

It does appear that Lundgren is overstating things in the interview he gives, especially this part:

It wasn’t a money-making venture. I didn’t make any money doing it. I actually lost money doing it. The goal was to get these [to] refurbishers so they could put them in the boxes and then consumers down the road could repair the problem.

From the details in the case, it clearly was intended to be a money-making venture. Indeed, that's what Microsoft focuses on heavily in its version of the story. It highlights email evidence in the case of Lundgren emailing with his partner/co-defendant in the case where, multiple times, he talks about how they're in business together to make money (and getting frustrated when they weren't actually making money). Here's one example:

Microsoft (and some of its... rather vocal supporters...) argue that this is all proof that Lundgren is full of shit and just a common criminal pirate. But, again, this is confusing things. In our original post, we talked about the difference between the copyright, the software, the license, and the disc. And the distinctions matter a lot. A few years ago, we noted that copyright system supporters have spent decades blurring the lines between "the copyright" and "the content." This plays out in all sorts of funny ways, including whether or not selling a piece of content is considered a sale or a license. As we've pointed out in the past, copyright proponents use a sort of Schrodinger's Download setup, whereby they call it a sale or a license (and deny it's the other) depending on which benefits them more.

In this case, the situation is fairly similar. The fact that Lundgren was hoping to profit from selling convenience to refurbishing/repair shops does not, automatically, mean he broke the law. But many people seem to think that the profit motive alone proves the copyright infringement. But... used book stores are for-profit entities selling copyright-protected materials all the time (without a license from copyright holder), and no one is locking them up as criminals. That's not to say that Lundgren did the same thing as a used bookstore dealer, but merely to point out that the profit-motive alone does not prove infringement.

Here, again, part of the issue is in how stupid copyright makes everything. Lundgren was looking to make money by "competing" against Microsoft, but was doing so by providing a convenient and cheaper solution for recovery discs. But not by infringing on the copyright, but by providing a more convenient way to get the recovery discs (which still required a valid license from Microsoft). So, again, we hit up against the differences between the license, the copyright, the software, and the disc. Microsoft, like many copyright system supporters, wants to blur all four of those issues together, insist they're the same thing, and point to the profit motive and cry "pirate!"

But taking a step back and separating out the components suggests how silly this is. If Lundgren is profiting off of the convenience, but the discs are worthless without a license, then what copyright-related harm has he really done? He may have harmed Microsoft in other ways, but are those harms ones that are protected by copyright, or are they ones that society encourages in the form of competition and innovation? Microsoft claims it's the former, while Lundgren supporters argue its the latter (Lundgren now pretending he never intended to profit muddies the waters for his own argument).

Part of this, of course, is the nature of copyright. It is a monopoly. It makes those who rely on it allergic to any form of competition. So here, where you have competition in the form of convenience, but which does not lead to a "pirated" use of the software, but just a "counterfeit" physical disc that still requires a valid license, there are legitimate questions about why this type of competition is criminal?

In the end, Microsoft and its supporters insist that Lundgren's profit motive ends all discussion. He was making money off of Microsoft software -- case closed. But that's not how copyright policy is designed to work. It is, however, how Microsoft and others such as the RIAA and MPAA, have pushed everyone to believe that copyright is supposed to work. They want you to believe that the copyright and the underlying content are one and the same, and you do anything whatsoever with the underlying content is infringing -- and doing anything with the underlying content that makes money, must automatically be criminal.

It's a sad statement on the state of copyright law that people -- including multiple judges -- seem to accept that interpretation.

Filed Under: competition, convenience, copyright, counterfeits, eric lundgren, frank shaw, profits, recovery disks, recycling
Companies: microsoft

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

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?

Filed Under: 11th circuit, copyright, criminal, e-waste, eric lundgren, licenses, recovery discs, recycling, software
Companies: microsoft

Microsoft Helps Get A Computer Recycler Sentenced To 15 Months In Prison For Offering Unapproved Recovery Disks

from the thanks-for-making-the-world-a-better-place-you-thief dept

To ensure no good deed goes unpunished, Microsoft is trying to get a computer recycler tossed in prison because he almost provided Windows recovery disks to users who needed them. Eric Lundgren, who's made heroic efforts to prevent dangerous computer parts from filling landfills, is facing a 15-month sentence and a $50,000 fine for manufacturing 28,000 recovery disks. His sentence is based on two charges: conspiracy and copyright infringement.

Tom Jackman has the whole story at the Washington Post and it's half-tragedy, half-farce. Lundgren runs a company that prevents tens of millions of pounds of harmful chemicals and metals from ending up in landfills. In return for doing more than his part to save the planet, he'll gets a chance to spend a year in jail and hand Microsoft $50,000 in compensation for sales it never "lost" from recovery discs he never got a chance to distribute. (h/t Techdirt reader Tom Sparks)

Lundgren said he thought electronics companies wanted the reuse of computers to be difficult so that consumers would buy new ones. “I started learning what planned obsolescence was,” he said, “and I realized companies make laptops that only lasted as long as the insurance would last. It infuriated me. That’s not what a healthy society should have.”

He thought that producing and selling restore discs to computer refurbishers — saving them the hassle of downloading the software and burning new discs — would encourage more users to restore their computers instead of discarding them. In his view, the new owners were entitled to the software, and this just made it easier.

The government, and Microsoft, did not see it that way. Federal prosecutors in Florida obtained a 21-count indictment against Lundgren and his business partner, and Microsoft filed a letter seeking $420,000 in restitution for lost sales. Lundgren claims that the assistant U.S. attorney on the case told him, “Microsoft wants your head on a platter and I’m going to give it to them.”

Fortunately, Lundgren has judges in a couple of courts on his side, at least for the time being. US District Judge Daniel T.K. Hurley pointed out to the prosecution that Lundgren hadn't sold any of the recovery discs he had produced. Because of that, he departed downward from federal sentencing guidelines, giving Lundgren less than half of the 36-to-47 months called for.

Judge Hurley appears to feel locking Lundgren up for a few years would be a net loss for society, if not the environment.

“This case is especially difficult,” Hurley told Lundgren at his sentencing last May, “because of who you are today and in terms of who you have become.” The judge received evidence of Lundgren’s recycling company, IT Asset Partners, his projects to clean up e-waste in Ghana and China and a 2016 initiative in which Lundgren’s company repaired and donated more than 14,000 cellphones and $100,000 to “Cellphones for Soldiers” to benefit U.S. soldiers deployed overseas.

The other court on his side -- at least for the moment -- is the 11th Circuit Court of Appeals. Lundgren appealed his sentence and the court agreed to hear the case. This keeps Lundgren out of jail until the appeal is ruled on. It's unclear where the court's sympathies lie, but it is encouraging it didn't dismiss it immediately. Lundgren plans to argue he didn't violate Microsoft's software license or cause it any lost sales. The government will obviously stick to its "head on a platter" argument, presenting Microsoft's absurd "lost sales" theory as actual fact, rather than the ridiculousness it is -- especially when Microsoft spent most of the last couple of years giving away Windows 10 to everyone, including people who didn't want it.

Someone dedicates his life to keeping landfills free of harmful material and the government wants to send him to prison. And it's all based on Microsoft's assertion it would have sold as many recovery disks as Lundgren created if only Lundgren hadn't created them. Ignored is the fact they never were distributed. Also ignored is the dubiousness of "lost sales" assertions, which are always 100% conjecture and always presented as a simplistic equation: "1 Piracy = 1 Lost Sale." But in this case, no sales were lost because no sales were replaced with bootleg boot disks.

And "sales" must be a legal term of art. Microsoft allows anyone to download a recovery disk for free. But in court, these are suddenly worth money because infringement. To ensure someone gets tossed in jail for breaking the chain of planned obsolescence, Microsoft (and prosecutors) want the court to believe the existence of recovery disks that do nothing unless a person already has a licensed copy of Windows has somehow made the company $700,000 poorer. Given the limitations of burned recovery disks, it's impossible to see where infringement even comes into play. And yet here we are, watching prosecutorial discretion morph into putting someone's head on a platter over recovery disks any one of us could download hundreds of times from Microsoft's website without a single murmur about "lost sales" from the tech giant.

Filed Under: copyright, eric lundgren, licensing, recovery discs, recycling
Companies: microsoft

DailyDirt: Reusing Plastic Instead Of Throwing It All Away...

from the urls-we-dig-up dept

Disposable packaging adds up to a lot of trash. Sure, some of it gets recycled, but there's a significant amount that doesn't -- and ends up polluting the environment in mind-boggling ways. In the not-so-distant future, we might have more plastic in the ocean by weight than fish. But it doesn't have to be that way.

• Making comfortable running shoes from plastic recycled from old fishing nets retrieved from the coast of Africa isn't the easiest way to recycle, but it might be one of the more fashionable ways. Adidas is only making 50 pairs of shoes made with this kind of recycled plastic, so it's nowhere near a sustainable manufacturing process. However, using more recycled plastics in fashionable items could catch on -- if it can be done economically. [url]
• Do you have any idea what all those plastic recycling numbers mean? A bunch of common plastics that make up everyday containers can also be useful prototyping materials, so check out this brief guide to prototyping materials for which plastics might be suitable for DIY projects. [url]
• Plastic garbage floating on water might be gathered up more easily with a "tractor beam" of small artificial surface waves. It would probably be a bit difficult to overcome the natural waves in the oceans to clean up garbage, but this is analogous to how trash in ocean gyres came about in the first place. [url]

After you've finished checking out those links, take a look at our Daily Deals for cool gadgets and other awesome stuff.

Filed Under: cleanup, garbage, ocean gyre, plastics, pollution, recycling, tractor beam, waste
Companies: adidas

DailyDirt: Nature Recycles All The Time, So Should We...

from the urls-we-dig-up dept

Plastics are everywhere. It's hard to imagine all the modern conveniences that exist because of the existence of plastic and polymers, and it would be difficult to continue living a modern lifestyle without plastics. Maybe we're starting to try not to use plastic bags to carry groceries home in some places, but the bad environmental reputation of plastic might have some solutions. Plastics could be made to be easier to recycle. Also, we could replace some of the more problematic plastics with more environmentally-friendly materials.

• Biodegrading polyethylene terephthalate (PET) plastic bottles might be more feasible now that Japanese researchers have discovered bacteria (Ideonella sakainesis) that can grow on this common commercial polymer. Maybe this isn't much better than melting down the plastic and recycling it into new bottles, or maybe our ecosystem will adapt to consuming all of our waste. Thanks, Mother Nature! [url]
• If fungus can be grown quickly enough, perhaps it'll make sense to replace some plastic products with fungus? We've seen a few other examples of fungus as a building material before, and the possibilities are expanding with fungus-based materials that can be stiff, rubbery or flexible like leather. [url]
• Some commercial plastics, like thermoset polymers, aren't easy to recycle. It's the reason why old tires get stacked up and burned. Making more recyclable thermoset plastics could have significant environmental benefits, allowing tons and tons of our disposable products to find new uses instead of a place in a landfill. [url]

After you've finished checking out those links, take a look at our Daily Deals for cool gadgets and other awesome stuff.

Filed Under: fungus, ideonella sakainesis, materials, mold, plastics, polymers, recycling, thermoset plastics

DailyDirt: There's A Great Future In Plastics

from the urls-we-dig-up dept

Plastics are incredibly useful materials. Unfortunately, being extremely durable also means plastics are annoyingly persistent in the environment as pollution. Less than 10% of plastic gets recycled, so the rest either ends up in landfills -- or floats into waterways to the ocean. We'll probably figure out some way to make use of landfill materials someday, but it'll be much harder to clean up the oceans if we continue at the rate we're going.

• By 2050, we could have more plastic by weight in the ocean than fish. Perhaps more disturbing is the estimate that nearly all of the world's seabirds have already consumed some plastic. Apparently, about a third of all plastic escapes from proper disposal and containment and ends up in the ocean (or in the mouth of a seabird). [url]
• Every so often, there's some optimistic kid who thinks there's a tech solution for cleaning up the ocean's garbage. However, it's probably better to tackle the root causes and stop polluting -- rather than trying to track down literally billions of pounds of plastic floating all over the ocean. [url]
• Recycling is great -- especially if recycling plastic can be done in an economically reasonable manner that actually helps people. Recycled plastic could be turned into low-cost building materials, and about 2 tons of waste plastic could be turned into low-income housing in Mexico in about a week for a few hundred bucks. [url]
• A mealworm, the larvae form of the darkling beetle, can actually digest a diet of Styrofoam and other forms of polystyrene. Waxworms, the larvae of Indian mealmoths, can digest polyethylene, too. So maybe there could be a way to engineer some critters to decompose our plastic pollution problem, and hopefully no one will get the bright idea of trying to genetically modify these things to eat everything in their path.... [url]

After you've finished checking out those links, take a look at our Daily Deals for cool gadgets and other awesome stuff.

Filed Under: biodegradable plastic, cleanup, garbage, landfill, materials, mealworm, ocean gyre, plastics, pollution, recycling, styrofoam, waxworm

DailyDirt: Strange But Sustainable Food

from the urls-we-dig-up dept

The world actually produces enough food to feed everyone, but there's a lot of food waste and inefficient distribution in the supply chain. Obviously, it'd be nice to end world hunger, but we haven't figured out how to do that just yet. Various solutions involve changing some of the things we eat the most -- eg. eating less meat and more plants. Here are a few more wacky ideas for altering the human diet.

• The human body simply can't digest cellulose from corn husks and wood chips, but some researchers are looking into breaking down those materials into an edible starch. Perhaps this doesn't sound too appetizing, but it's an interesting development that could recycle certain kinds of organic waste into more useful products. [url]
• People generate a lot of plastic trash -- trash that could be digested by edible fungi. There are a few problems with trying to get rid of plastic waste with fungus, though. A small mushroom farm takes a few months to fully digest a relatively small amount of plastic, and the resulting edible fungi isn't exactly delicious (or approved safe for human consumption yet). [url]
• Forget about fungi and turning cellulose into starch, how about eating some breadfruit from one of nature's highest-yielding trees? A single breadfruit tree can produce 450 pounds of fruit per season, but not too many people eat this nutritious -- but really bland -- fruit. [url]

If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.

Filed Under: breadfruit, cellulose, diet, edible, food, food waste, fungi, mushrooms, organic waste, plastics, recycling, starch

DailyDirt: Valuable Metals Abound

from the urls-we-dig-up dept

Things that we use every day, like cell phones, computers, and other consumer electronics, actually contain a wide variety of valuable metals, such as europium, dysprosium, neodymium, terbium, and yttrium. When these electronics reach the end of their useful life, these metals are often lost to landfills if they're not properly recycled. Rather than let these useful materials go to waste, the U.S. Department of Energy is now working to recover rare earth elements from used consumer products, using methods employed in nuclear fuel reprocessing. Here are some other examples of ways to get at valuable metals.

• Researchers at Murdoch University have developed a faster and cheaper microfluidics approach to recover precious metals like platinum and palladium from spent automotive catalyst. The new technique could also be used for the purification of rare earth elements.  [url]
• British company Metalysis is hoping to isolate useful metals like tantalum, titanium, neodymium, tungsten, and vanadium from their oxides via electrolysis in molten salt at 1,000 degrees Celsius. The electrolysis is done directly on the powdered oxide, which acts as the cathode and is gradually transformed from the oxide to the metal. [url]
• Companies like Planetary Resources and Deep Space Industries have ambitious plans to mine asteroids for useful metals (and water). Planetary Resources plans to build a couple of low-cost robotic prospecting spacecraft that can survey, intercept, and process asteroids, and then deliver the resources directly to where they're needed. DSI has similar plans, but it's also developing a 3D printer ("Microgravity Foundry") that will be able to create high-quality metal components in orbit. [url]

If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.

Filed Under: asteroid mining, electrolysis, metals, mining, recycling
Companies: deep space industries, metalysis, planetary resources