[skate22]

Title is missleading:

"His actual crime, which he pleaded guilty to, was counterfeiting the packaging to make the discs pass for Dell-branded ones."

He misled his customers in order to make money.

This isnt really different than selling knock off gucci handbags. Sure they probably work & look the same, but it does damage to the legitimate brand.

[letsgetphysITal]

You misunderstand. He was convicted of copyright infringement for selling unlicensed copies of Windows. He didn't do this, as copies of Windows aren't sold; they're licensed. As the article states, he didn't sell licenses. He sold recovery media which is available for free from the Microsoft website, and from OEM suppliers.

He did admit to trademark infringement by reusing the protected Dell artwork on the disks, but he wasn't convicted of that. If he was, it would have been a slap on the wrist and a fine. This was unjust and totally unreasonable.

[skate22]

Did he have the rights to distribute the recovery media?

Im guessing the terms and conditions on the official downloads include language preventing an individual from cracking the copy. I doubt he included that language with his distribution.

[simion314]

The guy is guilty for that, the problem is the way damages were calculated and that they guy ended in prison instead of paying the damages.

[emodendroket]

To reuse the OP's example, I don't think someone running an enterprise devoted to selling counterfeit handbags would be subject only to civil liability.

[tripletao]

Why is this getting downvoted? Under present American law, it's factually true. That doesn't make the valuation used for sentencing here correct, but counterfeit commercial goods in the USA really can be a criminal matter.

http://www.wafb.com/story/35675651/man-arrested-for-reported...

[simion314]

From what I understand by reading and listening an interview with this guy, the issue is the damages were inflated so he can then be put in prison. IMO this case feels similar with cases where music/movie industry hyper-inflates the damages caused by someone that shared a file, because the companies have infinite budgets they can get away wit it.

[emodendroket]

That might be so, but it seems many here (and other places online) don't think he did anything wrong. The idea that this enterprise was purely an altruistic drive to reduce electronic waste sits poorly with e-mails showing him going out of his way to produce more convincing counterfeit labels.

[simion314]

I think the first article that appeared here did miss the detail about the labeling of the disks, I missed that detail first time too.

[ilogik]

My understanding was that he was changing $.75 (essentially the cost of the DVDs)?

[simion314]

0.25 I think and MS convinced the judge that the value MS lost was 25$/disk because the judge missed the point that the guy was not selling any license.

[kgwgk]

According to his own appeal, he was selling them for $4 (he argued that was the right price, instead of $25, that should be used to calculate the infringement amount).

[kelnos]

Counterfeit handbags damage the brand either by being made of poor quality materials, or by just being sold cheaply, which undercuts the brand's ability to charge a premium. (Not making a value judgment of these practices; just it is what it is.)

Neither of those things is the case here. The discs are near-identical in quality to the discs Dell would have furnished, and (as far as I can tell), Dell essentially gives the discs away for free, only charging more or less for the effort needed to manufacture and ship them. Either way, Dell is certainly not profiting in any meaningful way from these discs, and getting a disc from someone else certainly wouldn't harm Dell's brand. They provide this service as a convenience to the customer, and likely it's actually a cost center.

Should he have used Dell's labeling and packaging? No, of course not. That was incredibly stupid. I don't think he did it with any nefarious reason to deceive; likely he just figured that a technically-unsophisticated customer would trust the discs more with the brand name matching the computer (even though a hypothetical disc with his own logo and packaging would be just as safe). A poor decision legally-speaking, definitely, but I don't see how throwing him in jail could ever be anything but an extreme overreaction to the facts at hand.

[tialaramex]

Jail for organised offences like this actually has relatively good evidence.

For most crimes we know the penalties don't really act as a deterrent, because people committing them aren't taking any sort of calculated risk - the smackhead burgling a house isn't going "Man, given the sentencing guidelines in this state I should prefer to go for fewer, high end houses" or "Really car theft has a better risk-reward ratio", so sentences for these crimes basically just take criminals off the streets, they're a form of revenge for the victim, and maybe there's a small chance the criminal is reformed if the prison institution is set up to encourage that.

But for crimes like industrial-scale counterfeiting (at one point Lundgren promises his Chinese counterfeiting team will do a better job of copying the next batch of CDs, this isn't one guy with a photocopier and a CD burner, he's hired a factory to make the copies) the actors are really weighing it up so there actually is a deterrent factor. Longer sentences for these crimes actually deter crime.

The court says (and the appeal affirms) if you counterfeit a $1000 handbag, that's $1000 in terms of the guidelines. It doesn't matter that your counterfeit was only sold to end consumers for $500, or that the raw materials cost $80, or that your profits at the back end were only $18 per bag, the sentencing is focused on the price of the thing you knocked off. Official CDs for refurbing XP Pro PCs are... drum roll... $25. The court said "$25 per infringement" and now this counterfeiter has to go to jail for a few months. Works for me.

Don't worry, I'm sure Lundgren will use his fame to launch a "legitimate" electronic waste recycling outfit when he's out, he can do some great interviews about how he's really changed now, and then the tech press can report with "astonishment" in 2-3 years when the waste he's getting paid to have "professionally recycled to the highest standards" is found dumped in a toxic creek in Alabama or whatever.

[skate22]

Imagine the following scenario:

One of his discs is corrupted and causes serious issues for the customer. That customer is so put off from the experience that they vow to never buy dell again.

For dell to take that risk is fair. For this individual to take that risk for dell is not fair.

Dell also likely does more QA on what they ship than the one individual.

Also, people trust in the brand name in part because of what the brand name has at stake to lose.

Lying to the technically unsophosticated as you put it should be no small offense.

[emodendroket]

It's not legal to sell counterfeit handbags if they're really good counterfeits.