[tialaramex]

That's only for personal use. Microsoft literally sells the exact product this was pretending to be for $25 ($20 for the crappy Home version, which they told the court was the appropriate comparison, the court disagreed and picked $25).

My local supermarket sometimes has little pieces of cheese on cocktail sticks to sample. Those are free too. If you eat six, and then run out of the supermarket, you're a dick, but they won't try to prosecute you for theft.

But if you say "Aha, cheese is free", reach over the counter and steal a whole wheel, expect to get prosecuted and don't expect a magistrate to buy your story about how clearly since individual pieces of cheese were given away therefore "cheese is free".

[lolc]

Maybe I'm mistaken but I thought the $25 copies of Windows sold by Microsoft included a licence?

Also equating unlicenced copies to theft of physical goods rarely helps to understand the case.

[Someone1234]

The $25 includes a new license. Microsoft claims that the original OEM license is invalidated by recycling and that they should be paid twice (and claim their $25 discount licenses are a benevolent gift).

[tripletao]

Do you have a reference for this? Best I could find is:

https://www.msregrefurb.com/RRPSite/Information/LicensingGui...

I think it says the OEM license remains valid after recycling as long as the recovery media accompany the computer (or are obtained from the OEM), but doesn't otherwise? So by that argument, he really does need the new license? I'd read the contract if I knew which one applied (since that's what actually matters, and not Microsoft's possibly self-serving summary...).

If that's accurate, then it's a pretty weird policy. I guess the license survives if you don't lose the media because they're afraid that anything else would seem completely unreasonable, but they're hoping most people will lose the media? And using the recovery media that they themselves provide (as a download) is supposed to be noncompliant?

[syshum]

Recovery Media has not been shipped with new systems in almost a decade now. At best there is a Recovery partition that consumer can use to create Recovery Disk themselves before the system fails. Obtaining Recovery Media from places like Dell and Lenovo is a Pain in the ass unless you are the original purchaser of the system of an official retailer and you only want 1 Copy of the Media.

The problem is most systems of value sent to a recylers are from off lease buys and corporate refreshes, Most IT shops I know of do not bother getting, storing or collecting Restore disks because we are VL (Volume Licensed) and do not use the OEM image at all even though we pay for it. The first thing that is done on a corp device of any company that has more than 10 or 15 systems is to wipe the entire factory disk and install our own customize version of windows. We also tend to toss any Documentation, CD's and other items that were to come with the system in the trash

So Recylers get thousands of systems annually that are perfectly serviceable, fully licensed with windows but they can not use that license because there is no restore CD and they have no way to obtain one. Thus MS does them a "favor" buy selling them a new license for $25 instead of just providing a way for them to restore the system

[tripletao]

> So Recylers get thousands of systems annually that are perfectly serviceable, fully licensed with windows but they can not use that license because there is no restore CD and they have no way to obtain one. Thus MS does them a "favor" buy selling them a new license for $25 instead of just providing a way for them to restore the system

Then why don't the recyclers just get one restore CD and make copies? They could save almost $25/system....

[WorldMaker]

It's not that weird, software uses physical totems for all sorts of policy decisions. Look at the weird complicated nature of discs in videogame consoles this decade, for instance, (and which PCs did for a couple decades before). The game software is often running entirely from a hard disk, but if you bought the game as a physical disc (Blu-Ray), the console still wants the disc in the drive for a proof of continued ownership. (All to appease the pawn shop habits of many videogame players.)

It's all just variations on Two-Factor Authentication. Proper two factor is using a hardware device you own to be a physical totem as a factor to access an account.

Here Microsoft is saying that a proper license of the software for a given machine is both the license code (something you know) and a physical disc (something you have) as a simple two-factor equation.

Microsoft giving the benefit of the doubt to the average user that perhaps they might lose a disc for boring reasons like "It's in a box somewhere in the attic, I just don't know which one" or "I tossed it in the garbage not realizing it was valuable" or "My dog thought it was a Frisbee" (and these days even and especially "I didn't realize I needed that partition when I repaved my idiot OEM's install"), offers the rough equivalent to the SMS two-factor password recovery on their website (by interacting directly with them, and presumably only them, to download an "emergency" copy). Just like SMS recovery, it's not a great 2FA replacement, and is likely to have false positives from bad actors, but it is better than nothing.

So it makes sense that Microsoft would have problems with disintermediating that exchange, because A) they can't track it, and B) as it scales, it increases the likelihood of bad actors abusing it. Even if this particular recycler wasn't collecting and reselling the proper copies of recovery discs alongside the counterfeits, the next one might.

Returning to the 2FA analogy, there are somewhat equivalents to the "Forgot Password" flow for a system to remember its old License Code, both in the system itself and on the recovery disc in some cases, not to mention that there is also the Microsoft licensing hotline where you can ask/beg/social engineer a human representative to restore your license.

So concerns that selling machines without the original recovery disc is possibly someone selling both the original recovery disc and the machine to different buyers to "split the licenses in half" is a quite valid concern, whether or not that was the actual intent here.

(...and the actual intent here is so entirely muddied by the trademark infringement and effort put into the counterfeiting, it's hard not to wonder if there was a fire beneath all the smoke.)

[hennsen]

Wouldn’t the appropriate comparison be collecting the free cheese test pieces in a bag and selling them outside at a cheese booth?

[lolc]

Not even that. The appropriate comparison would be copying the marketing pamphlet verbatim and bringing your own cheese to the booth.

Microsoft is arguing that the cheese could have been poisoned. And that people were buying less cheese because of his efforts.

[tialaramex]

The government, whose prosecutors brought this case - aren't arguing that the cheese "could have been poisoned" except in the sense that we have no idea what counterfeiters might or might not get wrong in the process of knocking off a product and we _don't want to find out_ which is why counterfeiting is a criminal offence.

Their argument is that Lundgren's product, a CD that says it's a Windows restore CD from Dell, but is actually a counterfeit produced by Lundgren in China, is (duh) a counterfeit of the Windows restore CD, which sure enough Microsoft sells for (depending on which version exactly) $25.

If you sell your cheese, saying this is a Buxton Blue, (a protected designation) but it isn't, that's counterfeiting. You have counterfeit cheese. Saying "Oh, well I saw them giving cheese away in a supermarket once, so it's free, so there shouldn't be a penalty" doesn't wash. Are you giving it away as a promotion in a supermarket? No. You're selling it, saying it's Buxton Blue. So the right question is, "How much does Buxton Blue sell for?" and the equivalent here is exactly the question Microsoft was asked, "How much do you charge for these CDs?" to which the answer is $25.

Lundgren is a counterfeiter. It's sad how many people are buying what is literally a sob story from a convicted criminal as though it's a neutral third party discussing the case.

[lolc]

As far as I understand the accused trafficked forgeries of Dell recovery CD. These CD do not include a Windows License and Microsoft does not sell such CD either. The article is lamenting that very misunderstanding was made by the court.

Now you're saying the court got it right and the accused was actually selling Windows licenses. Who is right?

[tialaramex]

So, think this through. Why is there a market for thousands of these CDs? You have 140 perfectly good (but say four years old) PCs you paid £80 each for them from the people replacing them. You will clean them up, reformat, sell them for £200 each. It won't make you rich but it's a living and feels good. But, your buyers expect Windows. The people who sold them to you had Windows licenses, but they wiped the disk because of course they did. Microsoft offers a solution for £18. But a bloke you met at the place that sells spare parts for LaserJet printers says he can get the genuine OEM recovery CDs for half that and those would work. Bargain.

Lundgren couldn't sell Windows licenses any more than he could sell the Mona Lisa. He didn't have either. But he absolutely could sell a counterfeit product you can use "instead" of buying the license.

The argument that since the counterfeits are in fact worthless then the dollar amount for purposes of assessing severity is zero makes no sense. Of course the counterfeits are worthless. They're counterfeits. The law is pretty clear that the correct question is how much would the real thing be worth. It's not the court making that up, it's right in those sentencing guidelines.

[lolc]

You keep claiming that he sold licenses, albeit counterfeit ones. The way I understand it is he sold copies of recovery CD. Those could be used to restore a copy of Windows with a license from another source.

Maybe the license was on a sticker on the computer, maybe it was on a broken old medium. Maybe the people got a license key from another broken computer? What do we know? Why should the court care?

From what I read (just this one article) he never claimed to provide a Windows license. If you have more information please kindly share.