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.