Instead Of A Medal, 15 Months In Prison

All those icky old cellphones, slow computers, nasty laptops, have to end up somewhere. You don’t mind the planned obsolescence of buying a new one every couple years, even if it means you piss away a good deal of money, because you get the newest, shiniest iToy available, the old one, with its heavy metals and not-even-remotely biodegradable contents gets dumped somewhere. Mostly, where other people live.

Eric Lundgren wanted to do something to end this massive waste, and the harm it did to the environment. Just because it was out of your sight, replaced by something new and shiny, didn’t mean it wasn’t a problem. And Lundgren was the guy who was willing to do something about it.

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.

So they decided to give him a medal for being so environmentally sensitive, not to mention thrifty?

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.”

Not to suggest that the government over-extended itself to soothe the feelings of the poor “survivor” of Lundgren’s outrage, but Microsoft had to “send a message” to anyone so arrogant as to believe they could push their way into their software that dire consequences would follow.

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.

As Tim Cushing points out, among the many ironies of the prosecution is that Microsoft gave away the software with a free download to create recovery disks. Lundgren just did it for people. He may not have had Microsoft’s blessing, but he didn’t cost them a dime. Except under federal loss calculations.

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.

In the minds of federal prosecutors, the theoretical value of something given away for free takes on a level of vindictiveness that only a “victim” could love. The judge was not persuaded that Lundgren was the bane of Microsoft’s existence.

Senior U.S. District Judge Daniel T.K. Hurley observed that none of the discs Lundgren made were actually sold and declined to order him to pay restitution. Hurley imposed a 15-month sentence that was less than half of that called for by federal sentencing guidelines, which indicated 36 to 47 months.

In court, the judge made it clear that this was a tough case.

“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.

In a remarkable move, the 11th Circuit granted an emergency stay, keeping Lundgren out of prison pending appeal.

In a rare move though, a federal appeals court has granted an emergency stay of the sentence, giving  Lundgren another chance to make his argument that the whole thing was a misunderstanding. Lundgren does not deny that he made the discs, or hoped to sell them. But he says this was no profit-making scheme. By his account, he just wanted to make it easier to extend the usefulness of secondhand computers — keeping more of them out of the trash.

Was Lundgren wrong to take Microsoft’s recovery disk and try to sell it, both to fund his operations and prolong the life of people’s computers? Of course. It wasn’t his to sell, even if Microsoft was giving it away for free. But his motives were laudatory, his goals pure, even if his conduct was technically against the law.

More importantly, was it worth it for Microsoft, who enjoyed the years when we swapped out icky old computers for shiny new ones every two years, each with their newest version of Vista, to push the government to put Lundgren in prison? Would a nice letter of apology not have been sufficient to make the point?

There is a concept in the law, de minimis non curat lex, the law doesn’t bother with trifles. And the “harm” Lundgren did to Microsoft aspired to reach trifle level. At the same time, Microsoft is as responsible as hardware manufacturers for the detritus of the millions of CRTs, 10 megabyte drives and 286 processors that leach their goo into the earth. Rather than demand the prosecution of Lundgren, Bill Gates should have built the guy a statue. He can afford it with all the money he made off operating systems that let any moron use the internets.

17 thoughts on “Instead Of A Medal, 15 Months In Prison

  1. B. McLeod

    What’s ironic is the way Microsoft aggressively pushes its newest operating systems, it is a losing battle to not accept their shit. I haven’t been able to keep them from giving it to me. It is another factor that helps push hardware into obsolescence, as Microsoft will eventually force an operating system on me that requires a new device.

    1. SHG Post author

      Younger users don’t remember when each new OS demanded more RAM, and a new box, every two years or they slowed to a crawl and made computer use a nightmare. I fought Windows 95, holding firm with my belief that DOS kept the morons off the web. Microsoft won. And people want to know why there are so many mean people on the internets.

  2. Wrongway

    Why do I get the feeling that a company with assets of more that a trillion $$$, just got it’s feelings hurts..
    “Trillion $$$ Company” : Neener Neener … & I’ll still be Prom Queen …

  3. wilbur

    I give up. Which one in the picture is Lundgren?

    A bit more seriously, how far down the guidelines could Hurley have gone and avoided reversal?

  4. PseudonymousKid

    Dear Papa,

    I’m feeling especially deviant today. I think I might make a repair disk for a friend and sell it to him for costs only. Why be a state criminal when I can spend time with the feds?

    Except you left out a detail. Lundgren slapped logos on the disks that weren’t his. That means even as the Defense nearly concedes that the discs at least had some nominal convenience value for the end user who could otherwise obtain the same disc upon request. Dell is entitled to sell Dell recovery disks and not anyone else. Lundgren might have saved himself some trouble by labeling them differently.

    The judge was still wrong. The nominal value is pathetically low, if anything. Microsoft and Dell suck for getting the prosecutor to play their attack dog as much as the prosecutor sucks for playing along.


    1. SHG Post author

      Dell pays Microsoft, and labels its disks Dell because the contract allows them to do so, and it’s good for Dell. If Dell labeled its disks “Lundgren,” some might call it poor marketing strategy. Do you really think Lundgren labeling his disks Microsoft or Dell, or nothing, was a pivotal issue?

      You are apparently feeling very deviant today. Go to your room. And no reading the Victoria’s Secret catalogue, either.

      1. PseudonymousKid

        Violating copyright is what Lundgren pleaded to, making the copyright the pivotal issue. The value then should have been determined based on the difference in value between Dell branded disks and blank recovery disks. The only value the Dell branded disks had opposed to blanks was convenience, otherwise Lundgren would have had no reason to want to sell stacks of Dell branded recovery disks at all.

        Refurbishers could only order Dell branded disks individually. Lundgren was offering Dell branded disks in lots. Minimal damages are more than no damages. Copyright is the issue.

        1. Skink

          I’m sticking my reply here, even if PK is in time out.

          Hurley is no dope. He might have dopes wander in front of him, but he don’t play that way. He’s a real-deal district judge who will follow the law. Yes, SHG, I have reason to know this judge.

          Hurley specifically found, and there was at least tacit agreement by the parties, as to the subject of the infringement:
          “”Remember, now, we are not talking about the disc, the reinstallation disc, that is just a means of installing the software. The item that has been . . . infringed is the Microsoft software.”

          This wasn’t about the discs, but the software. Microsoft gave it away because it could. Lundgren could not. So what? He pled, almost immediately, to infringing the software. He did not plead to anything involving the licenses or keys. Those crimes weren’t even charged. His claim is the value of the thing on which the charge is based–the software the Giant Asshole Computer Company gave away–was near zero. The difference means everything because that value drove the score. That Lundgren stuck a name on the discs is irrelevant, and worse, immaterial. I didn’t rip into the whole file, but I’d venture a guess someone saw this as an obvious truth, unworthy of a great effort.

          The 11th let him out pending appeal in a summary fashion. But it’s plain he would have concluded the sentence before a decision is rendered. The government could have agreed, but it didn’t put up much of a fight. The response to the motion was two pages of “see Hurley’s order.”

          1. PseudonymousKid

            That makes more sense than what I wrongly cobbled together from stupid news articles. Lundgren does admit the infringement is of “a free copy of Windows OS without a license or a product key.” The only real difference in value between that and what Lundgren produced was the convenience of not having to individually request each from an OEM like Dell. Even a lilttle digging would have set me free of my misconception about the label. Thanks, skink, if I ever make it out of time out.

            1. losingtrader

              If you’re looking for work while unsticking the pages of the VS catalog, can you please trademark Giant Asshole Computer Company for me ?

              Just please wash your hands before sending me anything

  5. Scarlet Pimpernel

    Maybe I am just cynical, but before passing judgement, I would like to see the actual testimony. The question asked of the expert about the “value of these reinstallation discs” rather than if the installed Windows would work without a license key seems odd. There is a way to embed a license in the installation process so that “restore disks” could be set up to install Windows using a license key off of a recycled computer in China and bypass the need to posses an actual license key. If that is the case then he was attempting to sell disks designed to get around Microsoft licensing restrictions, not just a basic restore disk. From reading the article, that is what it sounds like to me he was doing which would be little difference than someone selling digital copies of music and only “intending” it for use by people who already own the music cd.

    1. SHG Post author

      If it was the same restore software that could be downloaded for free, then it would still require a key. If not, then everything in the article is wrong. This isn’t to say that you shouldn’t want to see the testimony, but given the limitations involved, one might suspect that Judge Hurley would have whacked the crap out of this guy if the plan was to circumvent Microsoft’s licence.

      Then again, that’s also not what he was charged with, a fairly reliable indicator that you’re searching for a problem that isn’t real, as he would most likely be branded a pirate kingpin had that been his offense. Also, how many old computers running Windows doesn’t already have a licensing key to run a restore disk?

    2. spodula

      In the case of almost all OEM computer manafacturers, the Computer itself is licensed. The ones that arent are the very niche market that is Linux desktops.
      The license key is usually on a sticker somewere on the computer.
      If its not, you have to go and buy yourself a new version of Windows.
      However those stickers are really difficult to remove once they are stuck on. (To prevent you tranfering them)

      I went and downloaded a copy of my Windows restore disks for my last laptop from the manafacturers website, perfectly legally.

  6. Jim Tyre

    … because you get the newest, shiniest iToy ….

    Words matter, Scott. The proper term is iPhetish.
    (Or so I am informed and believe, I do not have an iPhetish.)

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