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Look, I'm not saying that this is right or not, but this article does a horrible job of arguing its point, and it's completely lacking any understanding of the law. "Furthermore: People weren’t buying software, let alone “counterfeit software.” The discs in question are at best “unauthorized” copies of software provided for free by Microsoft, not really a term that carries a lot of legal or even rhetorical weight." I can even... just... What does that even mean? What does 'buying the software' mean vs 'buying the licence'? This author clearly has no idea about copyright law at all, and has constructed a complete alternative narrative in his head, which he is then using to attack a straw man. A 'licence' is a contract between two parties, in which one party (usually) agrees to pay a certain amount of money (the 'licence fee') and where the other party then lets the one paying the fee make a copy of some work to use it. A copyright holder, and he/she alone, has the right to make copies or authorize others to make copies of a work. So 'unauthorized copies' are the very definition of copyright infringement. What does the author mean 'not really a term that carries a lot of legal weight'? This whole artificial 'Microsoft makes it available for free online and you're not really buying that, you're buying the licence' is complete jibber jabber - sure you can download it, but the terms put very clear restrictions on who can download it, why and what can be done with it after. And yes there's all sorts of confounding factors - how much did the guy charge, and this is a criminal case and not a civil one, and there is the Dell branding thing, and there is intent, on and on. But my point is: this author shouldn't write about things he clearly has absolutely no clue about. |
In this case, Microsoft provided that authorisation to its license holders by making available a web tool where they could create their own installation media for the software they were licensed to use.
So the software was indeed "free" for licensed users - the very same people who were receiving the disks - in the sense they were not required to pay for it. It might be a license violation to download and burn the disks on their behalf, but that's a civil matter.
The crucial element for proving criminal copyright infringement was a personal gain figure that was manufactured by the Microsoft expert witness.