I have to ask... do you talk like this in person?
In person I talk like a pirate.
ARGH. Scurvy Cur!
Ryu Connor wrote:
So many feelings in this thread and very little grasp of the law.
Yes, and arguing "feelings as law" works even better when some of those feelings are that federal criminal defense lawyers are "absolute morons" and that federal APPEALS judges are "idiots".
You see, once you just say the right words, they're compelled by magic to rule your way. Thus it doesn't matter how much you insult them, they're completely powerless. That federal indictment is just an opportunity, amirite?
This doesn't really apply to Lundgren, because he is an astute individual who assuredly understood what he plead to (and, in this case, the facts weren't really in dispute anyway) BUT, speaking of Ken White, he's made the point that even when it comes to guilty pleas
(i.e. a compliant defendant) the court is more interested that you went through the rigmarole without any fuss than they are about whether or not you REALLY understand everything and whether or not it was EXACTLY like the Statement of Facts says. https://www.popehat.com/2017/05/08/the- ... ilty-plea/
In other words, being "difficult" when you're already "given in" is *STILL* effectively penalized, so what do you think happens to defendants that "want to fight it!!" and start ranting about how the "moon is in the seventh house and Jupiter aligned with Mars"?
I mean, a judge can't tell a jury they can't nullify, and you can't be arrested as someone who leaflets potential jurors about how they're allowed to nullify, but if you go in front of the jury as a lawyer and explicitly (or even implicitly, if it it obvious enough, like discussing sentencing severity) say that they should ignore the law and nullify, you're going to get sanctioned.
That's just reality.
Actually, it isn't a problem here. The disks did, in fact, have no value. Anyone, anyone at all, can download and install Windows 10 from the Microsoft website and image it to an install USB drive (Which everyone has access to) with yet another free tool.
So, yes, he is an idiot. Because his argument was actually correct - he utterly wasted 80K.
As I already stated, those were pressed disks. So, no, as a factual matter, not "anyone" can do it. I can't imagine what the minimum run of a CD pressing costs, but it's got to be a lot.
Not that it matters: People pay for things they could do themselves all the time. That's not really relevant....
What is relevant is the obvious implication: commercial bootlegging of DVDs/Blu-rays would be legal under your definition, because, yes, anyone can download that stuff off of torrents and newsgroups and watch them with free software or burn them etc...
Sure, those are illegal sources, but using Microsoft software without a license isn't legal either. And, just because someone legally got something initially (like, say, a movie screener) that doesn't mean that it becomes legal for them to distribute it to third parties.
Maybe you disagree, but law absolutely doesn't and the reasons aren't incoherent, unreasonable, or less justifiable than yours.
So, yes, in REALITY (where we all SHOULD live), it *IS* a problem and, factually, it *WAS* a problem.
Holy crap, he was charged by Customs itself. Good lord why.
He was importing disks that purported to be legitimate Microsoft products and, since they were commercially produced, it wouldn't be easy for a normal to tell.
Stopping that sort of thing is, in fact, customs doing its real, day-to-day job.
More practically, what if, my dear friend, Mr. Lundgren was a complete scumbag? What if those disks had malware?
Oh, these didn't? Well, HOW IS CUSTOMS SUPPOSED TO KNOW AT THE BORDER?
This is why the Appeals Court was very reticent to overturn this case on the grounds of the factual findings of the sentence. It is a feature of American Jurisprudence that findings by a jury are never to be questioned. In the same vein, if Appeals Courts were very open to the idea of overturning factual findings by a Trial Court, then the findings of trial courts would be severely diminished, and the trust that people would have on them shattered.
The facts aren't in question. Mr. Lundgren did this, and I'm not just saying this because he was corralled into agreeing to a statement of facts that he possibly misunderstood or maybe had some qualms with, no, I'm saying that because the facts really just aren't in dispute.
Lundgren did what he did and for the reasons he did, the question involved is one solely of law: should it be illegal?
Like the saying goes: hard cases make bad law.
It's more like "Bad law makes hard cases" in this situation, but even then, this is a difficult to suss out correctly legislatively.
My position is, irrespective of law or even general policy, that in *this* case probation and fines should be sufficient. Mr. Lundgren shouldn't be doing what he's doing, if only because if everyone did that, we're ultimately that saying that Microsoft is powerless to stop people from potentially distributing malware under their ostensible brand. That's an absolutely bonkers result, but it's unavoidable (and of course, it's a huge concern in existing counterfeiting, just not in what Lundgren did, hence the public outcry over his treatment, not everyone elses).
It's really simple(again, not getting into legal particulars but generally): Either you can't make disks that look like Microsoft disks if you aren't Microsoft, or you can.
I'm going to go with the former. You should too.
To those that disagree with the sentence: there is nothing that we can do. Look it in the bright side: it could have been more if the Court had made the determination of around $300 a pop instead of the $25 a pop. If you disagree with the law, or with the sentencing guideline, then petition and air your grievances to the government. Use your first amendment right. Make yourself heard, specially every two years at those pesky "elections". Or better yet, run for office and join the dark side.
Feel free, but a lot of the opposition is incoherent so you're not really going to get anywhere. I mean, unless you convince the average person that copyrights and counterfeits should be de facto legal, this really isn't ever going to go anywhere. Because until enough people actually agree that anyone can make anything look like something else made it, they can understand the basis of the case of against Mr. Lundgren.
If on the other hand, you disagree with the factual findings then tough luck. This is a feature, and not a bug. I would have personally have gone to the Jury, and tried my luck. Maybe no jury would convict such a man just like they would not convict someone for beating up a traffic camera? Jury nullification anyone?
He did this. He made Microsoft-looking disks and he's not actually Microsoft.
I'm a nerd. Despite how you evidently think all nerds agree, you don't want me on that jury.