Personal computing discussed

Moderators: Captain Ned, emkubed

 
Welch
Grand Gerbil Poohbah
Topic Author
Posts: 3578
Joined: Thu Nov 04, 2004 5:45 pm
Location: Alaska
Contact:

Microsoft 1 - Hardened E-Criminal 0

Wed Apr 25, 2018 1:48 pm

Hardened Criminal off the streets! Great job Microsoft, you are an inspiration to us all.

https://www.pcgamer.com/electronic-wast ... mment-jump
"I think there is a world market for maybe five computers."
Thomas Watson, chairman of IBM, 1943

1600x | Strix B350-F | CM 240 Lite | 16GB 3200 | MSI 7850 | 850 EVO | Corsair 400R | Seasonic X 850 | Corsair M95 / K90 | Sennheiser PC37x
 
TheRazorsEdge
Gerbil First Class
Posts: 169
Joined: Tue Apr 03, 2007 1:10 pm

Re: Microsoft 1 - Hardened E-Criminal 0

Wed Apr 25, 2018 2:06 pm

Meh, whatever. If you want to run a business, don't break the law. If you want to charge for copies of software/books/AV, get permission from the copyright holder.

Microsoft has a program for refurbishers. Lundgren chose not to go along with it and sell his alternative--without permission.

And I seriously doubt they referred his case to a prosecutor without warning him first. I strongly suspect he got a C&D and ignored it. I don't think he deserves prison time, but I have no sympathy.
 
ludi
Darth Gerbil
Posts: 7948
Joined: Fri Jun 21, 2002 10:47 pm
Location: Sunny Colorado front range

Re: Microsoft 1 - Hardened E-Criminal 0

Wed Apr 25, 2018 3:45 pm

Seems this guy was actually copying the Dell restore discs and distributing the copies -- 28,000 of them. If he had been merely rescuing discarded Dell restore discs and redistributing those, it's possible nothing would have ever happened.
Abacus Model 2.5 | Quad-Row FX with 256 Cherry Red Slider Beads | Applewood Frame | Water Cooling by Brita Filtration
 
cphite
Gerbil Elite
Posts: 964
Joined: Thu Apr 29, 2010 9:28 am

Re: Microsoft 1 - Hardened E-Criminal 0

Wed Apr 25, 2018 3:55 pm

TheRazorsEdge wrote:
Meh, whatever. If you want to run a business, don't break the law. If you want to charge for copies of software/books/AV, get permission from the copyright holder.

Microsoft has a program for refurbishers. Lundgren chose not to go along with it and sell his alternative--without permission.

And I seriously doubt they referred his case to a prosecutor without warning him first. I strongly suspect he got a C&D and ignored it. I don't think he deserves prison time, but I have no sympathy.


Exactly.

It's cool that he was trying to help people, but it's also common knowledge that you cannot simply sell someone else's products as your own - even if it's available for free.

Also, it's important to note that Microsoft didn't initiate charges against this guy - US Customs charged him. That's how frikkin' obvious it was that what he was doing was illegal... Some random US Customs inspector noticed what he was shipping and realized you can't do that...

Microsoft testified against him; and while that may seem like a prick thing to do on their end, the reality is they were never going to go into a courtroom and state as public record that they're okay with someone selling their products on the side. Even if Microsoft had declined to testify, US Customs had him - it was a slam dunk. He sold them the disks in a sting operation.

That thing you see in movies where someone commits a crime and the wronged party says they're not going to press charges, and then everybody laughs and has a beer... that isn't how real life works in these types of cases. The wronged party can decide not to provide evidence or testimony - but it's the agency that decides whether or not to file charges. Some dude at US Customs just guaranteed himself a promotion, and could give two squats what Microsoft wants.

I feel bad for the guy - his heart was in the right place. Unfortunately his head was somewhere else entirely.
 
just brew it!
Gold subscriber
Administrator
Posts: 51356
Joined: Tue Aug 20, 2002 10:51 pm
Location: Somewhere, having a beer

Re: Microsoft 1 - Hardened E-Criminal 0

Wed Apr 25, 2018 4:19 pm

Yes, the guy clearly broke the law. But IMO the severity of the punishment is out of line, given that the restore image was freely downloadable anyway, and required a valid COA/key to activate.
Nostalgia isn't what it used to be.
 
ludi
Darth Gerbil
Posts: 7948
Joined: Fri Jun 21, 2002 10:47 pm
Location: Sunny Colorado front range

Re: Microsoft 1 - Hardened E-Criminal 0

Wed Apr 25, 2018 4:40 pm

It's harsh, but that's usually what happens when you argue your innocence on a bogus legal theory. 28,000 disks (assuming that number was correct) sounds like a commercial pressing, and given the broker and pricing strategy, he was obviously attempting to set up multiple business relationships.

Worse, it doesn't sound like he disputed any of the key facts, he merely argued he had no liability for doing what black-letter law says he was not allowed to do. Prosecutors love it when you do that.

Kind of a dumb hill to die on.
Abacus Model 2.5 | Quad-Row FX with 256 Cherry Red Slider Beads | Applewood Frame | Water Cooling by Brita Filtration
 
derFunkenstein
Gerbil God
Posts: 24434
Joined: Fri Feb 21, 2003 9:13 pm
Location: Comin' to you directly from the Mothership

Re: Microsoft 1 - Hardened E-Criminal 0

Wed Apr 25, 2018 5:58 pm

ludi wrote:
Kind of a dumb hill to die on.

This, pretty much. I mean, I see both sides but it shouldn't have ever gotten to this point.
I do not understand what I do. For what I want to do I do not do, but what I hate I do.
 
CScottG
Graphmaster Gerbil
Posts: 1115
Joined: Fri Dec 01, 2006 9:53 pm

Re: Microsoft 1 - Hardened E-Criminal 0

Wed Apr 25, 2018 6:20 pm

He must have had an absolute moron for a lawyer.. -even for his appeal.

The argument should have been one of selling a service (burning the contents to disc) and recouping costs for the physical disc (note that he was only charging 25 cents each).

He was "selling" them to refurbish shops so that they wouldn't have to do it themselves - who in turn are providing a service for their customers so that they (the customers) don't have to do that. A series of agents acting on behalf of the principal - the customer who has a licensed copy.

(..this negates the argument of lost value on the part of Microsoft - and their $25 a disc argument is laughable. Just because you can sell it for $25 doesn't mean its worth that, particularly when you can download it for free.. it just means that there are people out their that really don't care about that expense or don't know of the alternative. Again, really, really, poor arguments by the lawyers and perhaps an idiot of a judge - though again, it's the defenses job to make the judge understand.)
 
Glorious
Gold subscriber
Gerbilus Supremus
Posts: 11029
Joined: Tue Aug 27, 2002 6:35 pm

Re: Microsoft 1 - Hardened E-Criminal 0

Wed Apr 25, 2018 6:54 pm

CScottG wrote:
He must have had an absolute moron for a lawyer.. -even for his appeal.


Right.

And you, not having even gone to law school, have a totally foolproof plan in which if he said different words, the court would be compelled to free him?

Like, I'm not saying that lawyers are always right, or that you can't talk about the law without passing the bar, but when you simply say that everyone else is stupid in a FEDERAL CRIMINAL case involving multiple judges and lawyers, because they didn't just use different words, I can't even...

CScottG wrote:
The argument should have been one of selling a service (burning the contents to disc) and recouping costs for the physical disc (note that he was only charging 25 cents each).


Doesn't work, he sent them a physical product he produced.

Factually he actually did that. It wasn't in dispute.

CScottG wrote:
He was "selling" them to refurbish shops so that they wouldn't have to do it themselves - who in turn are providing a service for their customers so that they (the customers) don't have to do that. A series of agents acting on behalf of the principal - the customer who has a licensed copy.


He sold them. There's no sense in quoting it, because he literally did that. He sold them a disk.

This wasn't in dispute. It doesn't matter if the customers could do themselves, because they didn't. He did.

I mean, that's just reality.

I'm not trying to say the ultimate outcome was morally right or even necessarily legally correct, but this make-believe word-play is just ridiculous. If anyone can just call what they did something else entirely, the law ceases to have meaning.

Oh, I didn't murder you, no, I just "ABRACADBRA'd" you. So, no, you can't convict me of murder. I wasn't a dummy like everyone else and said that, no, I strictly only ever said "ABRACADBRA" so I'm legally immune and the court can't consider what I did independently of what I say I did.

CScottG wrote:
(..this negates the argument of lost value on the part of Microsoft - and their $25 a disc argument is laughable. Just because you can sell it for $25 doesn't mean its worth that, particularly when you can download it for free.. it just means that there are people out their that really don't care about that expense or don't know of the alternative. Again, really, really, poor arguments by the lawyers and perhaps an idiot of a judge - though again, it's the defenses job to make the judge understand.)


You can't even READ THE ARTICLE and yet you're calling everyone stupid.

Microsoft originally claimed something in the hundreds for each disk. The court accepted ~25 dollars because that was Microsoft could demonstrate it actually charges people like the defendent. This alone had provided for a massive difference in sentencing (Federal sentencing has very complicated formal guidelines for months of time per dollar amount involved).

And it wasn't "a judge", this is about the appeal, which is a minimum of three judges. His lawyer wanted even more, the defendent was denied an en banc hearing (which generally means every single appeals judge in the circuit).

But sure, you knowing ABSOLUTELY NOTHING ABOUT ANY OF THIS have got it all figured out. Everyone else is an idiot.
 
Glorious
Gold subscriber
Gerbilus Supremus
Posts: 11029
Joined: Tue Aug 27, 2002 6:35 pm

Re: Microsoft 1 - Hardened E-Criminal 0

Wed Apr 25, 2018 7:20 pm

Like I can't even communicate how delusional you are---if you are FEDERALLY charged CRIMINALLY the best civil litigator in the UNIVERSE will say, unequivocally, that you need to get a criminal lawyer, preferably several.

Because, if you go to trial, you have an over 90% chance of being convicted. That's why there is a saying "Don't make a federal case out of it"--The Feds don't mess around. You literally have a better chance playing Russian Roulette with FIVE chambers filled with bullets instead of one.

Which is why, of course, more 95% of these cases don't even go to jury in the first place, virtually entirely because of deals in which the defendant pleads guilty.

Those criminal lawyers every good random lawyer would demand you get? Yeah, primarily they just negotiate plea deals or work-down the sentence in other ways. That's basically what they do, because arguing variations on SovCit themes is just going to annoy the judges and screw you over in sentencing.

But, sure, if only he smirked and said "Service." Scot-free, he'd be. :roll:
 
DrCR
Gerbil Team Leader
Posts: 242
Joined: Tue May 10, 2005 7:18 am

Re: Microsoft 1 - Hardened E-Criminal 0

Wed Apr 25, 2018 8:02 pm

Easy, Glorious. Let's not go down the same path as that Cloudflare thread. I'm not speaking to the validity of your post; I'm saying perhaps you don't have to go this far to make your point.
 
Welch
Grand Gerbil Poohbah
Topic Author
Posts: 3578
Joined: Thu Nov 04, 2004 5:45 pm
Location: Alaska
Contact:

Re: Microsoft 1 - Hardened E-Criminal 0

Wed Apr 25, 2018 8:14 pm

just brew it! wrote:
Yes, the guy clearly broke the law. But IMO the severity of the punishment is out of line, given that the restore image was freely downloadable anyway, and required a valid COA/key to activate.


Pretty much my feeling on it. I was just blown away that federal funds were spent to track the guy down and push for this sort of sentencing. It's one of those "Gotcha" type of crappy situations. I figured because the low charge (0.25), that he was essentially charging for the media/time... I wonder if that argument was made in court. I'm curious if they did give him warning, if they did then this ruling is a bit different in my mind. It just seems stupidly excessive. It feels like more and more that policing agencies are doing more and more useless crap instead of making an actual difference.

I guess what would be the difference if customers wanted me to make them media because they lost it? I'd charge them for my time, and for the thumb drive/CD I was selling them. Granted it would cost a hell of a lot more than $0.25! Would I suddenly be a criminal...? It's just crazy to me. What a waste energy.

CScottG wrote:
He must have had an absolute moron for a lawyer.. -even for his appeal.

The argument should have been one of selling a service (burning the contents to disc) and recouping costs for the physical disc (note that he was only charging 25 cents each).

He was "selling" them to refurbish shops so that they wouldn't have to do it themselves - who in turn are providing a service for their customers so that they (the customers) don't have to do that. A series of agents acting on behalf of the principal - the customer who has a licensed copy.

(..this negates the argument of lost value on the part of Microsoft - and their $25 a disc argument is laughable. Just because you can sell it for $25 doesn't mean its worth that, particularly when you can download it for free.. it just means that there are people out their that really don't care about that expense or don't know of the alternative. Again, really, really, poor arguments by the lawyers and perhaps an idiot of a judge - though again, it's the defenses job to make the judge understand.)


Yuuuup. That was the first angle I was thinking about.

DrCR wrote:
Easy, Glorious. Let's not go down the same path as that Cloudflare thread. I'm not speaking to the validity of your post; I'm saying perhaps you don't have to go this far to make your point.


Yeah, lets try to keep it civil. I didn't put this in the R&D so that more people could talk about the topic since it isn't quite in that realm, although it may still be controversial. Maybe I was blind to this before, but I don't recall you being so riled up about so many things in all of the years we have been posting on here. Going to go with a military school acronym I used to have to live by. QTIP... Quit Taking It Personal. Your post can have all of the validity in the world, but the moment it gets snarky, people will choose to ignore it.
"I think there is a world market for maybe five computers."
Thomas Watson, chairman of IBM, 1943

1600x | Strix B350-F | CM 240 Lite | 16GB 3200 | MSI 7850 | 850 EVO | Corsair 400R | Seasonic X 850 | Corsair M95 / K90 | Sennheiser PC37x
 
Glorious
Gold subscriber
Gerbilus Supremus
Posts: 11029
Joined: Tue Aug 27, 2002 6:35 pm

Re: Microsoft 1 - Hardened E-Criminal 0

Wed Apr 25, 2018 8:42 pm

Calling professional lawyers "absolute morons" and multiple federal judges "idiots" because of utterly inept fairy-tale arguments is offensively ridiculous.

I personally think that what happened to Mr. Lundgren is unnecessary and unjust, but if he followed this inanity the only possible result would be a longer sentence.

That's reality. Not religion, not politics.

Did I "go to far?" Who knows, but I really can't stand people who don't have the first idea what they are talking about calling EVERYONE ELSE WHO DOES "idiots" and "absolute morons" because of this "ONE SIMPLE TRICK..." magical mumbo-jumbo.
 
NovusBogus
Silver subscriber
Graphmaster Gerbil
Posts: 1277
Joined: Sun Jan 06, 2013 12:37 am

Re: Microsoft 1 - Hardened E-Criminal 0

Wed Apr 25, 2018 9:58 pm

If some random person calling some lawyers morons gets you all hot and triggered, you probably don't want to know the Royal House of Bogus's official family-wide position on American jurisprudence. Just sayin' :lol:

On topic, this case reads like a dumbass idealist getting totally pwned for what should have been an obvious mistake: don't mess with someone whose legal notoriety is a defining point of Internet subculture.
 
CScottG
Graphmaster Gerbil
Posts: 1115
Joined: Fri Dec 01, 2006 9:53 pm

Re: Microsoft 1 - Hardened E-Criminal 0

Wed Apr 25, 2018 10:49 pm

Glorious wrote:
..Who knows, but I really can't stand people who don't have the first idea what they are talking about calling EVERYONE ELSE WHO DOES "idiots" and "absolute morons" because of this "ONE SIMPLE TRICK..." magical mumbo-jumbo.



..and I really can't stand a person that behaves like a complete pedantic ass whenever I post, disagreeing or not.


(..and no, I certinaly don't call everyone else morons. Based on what was provided in that link AND its link, the trial judge for ruling on a $25 dollar value from MS was a moron. The trial lawyer for presumably not making an agency argument, and certinaly not making a persuasive one, is a moron. It is however based on the scant info. from a weak news source and not from case itself. If that makes me a moron for commenting on it here in a forum largely unrelated to legal matters.. eh.) :P

-as for not having the "first idea"? (..I'll let you ponder that one.) :wink:
 
CScottG
Graphmaster Gerbil
Posts: 1115
Joined: Fri Dec 01, 2006 9:53 pm

Re: Microsoft 1 - Hardened E-Criminal 0

Wed Apr 25, 2018 11:05 pm

NovusBogus wrote:
If some random person calling some lawyers morons gets you all hot and triggered..


Ah, but I'm the one making the comment. :wink:

-and really, he doesn't seem to understand that this is all just "shoot'n the shi... ...t": conversation in a place that isn't about proving anything.
 
The Egg
Gold subscriber
Minister of Gerbil Affairs
Posts: 2339
Joined: Sun Apr 06, 2008 4:46 pm

Re: Microsoft 1 - Hardened E-Criminal 0

Wed Apr 25, 2018 11:54 pm

The world is filled with absolute morons and idiots, so it stands to reason that attorneys and judges (being drawn of the same pool) are not exempt.

If changing the entire basis of your legal defense doesn’t mean anything “because they’re just different words”, then what’s the point of having a defense lawyer? Or even a trial?
 
uni-mitation
Silver subscriber
Gerbil Team Leader
Posts: 260
Joined: Mon Feb 04, 2013 1:28 am

Re: Microsoft 1 - Hardened E-Criminal 0

Thu Apr 26, 2018 3:26 am

I have taken the time to read and do a bit of cursory research on this case. I will try to boil down the issue in this case, and refine better the article.

1- Please refer to the 11th U.S. Circuit of Appeals' unpublished April 11, 2018 opinion affirming District's court sentencing. Please read it again and again. Let it marinate in your head. Sleep on it.

http://media.ca11.uscourts.gov/opinions ... 712466.pdf

2- Please refer to also USSG sec. 2B5.3(b)(1)

https://www.ussc.gov/sites/default/file ... LMFull.pdf

It would do you some good to read Congress's stated legislative intent of promulgating this act, and the Federal Sentencing Commission's work. Give it a good read. 600+ pages! Marinate to perfection!

3- Different evidence standards are used in sentencing than in trial. The same goes for bond hearings! Please read this article if you are too lazy to find out:

http://federalevidence.com/blog/2011/de ... sentencing

4- The appeal in this case was about the sentencing ruling of the District Court (trial court at federal level). Defendant Lundgreen pled guilty and the case didn't go to trial.

5- Generally speaking when it comes to findings of facts instead of law, Appeal courts will generally give wide deference and latitude to the trial court's factual findings. Please note that at sentencing the judge is both the trier of fact & law. The judge in this case has to determine & use the correct sentencing guideline & make the factual determinations of whether certain action mitigate or exacerbate the offense (e.g. robbing a bank with an armed weapon vs. unarmed). Appeals courts will be very reticent to overturn factual findings except for flagrant abuse of discretion.

6- In specificity, the trial court chose to not give much weight to Appellant/Defendant's expert witness testimony of the true value of the restore disc without a license in favor of the Government's expert witness testimony at sentencing. Just because you may agree with Defendant's expert witness testimony does not give rise to very low bar that is set by this "abuse of discretion" standard. Meanwhile the trial court gives a reasonable finding of why it found such factual finding more credible, then it is fine.

7- It is very easy to opine that Defendant Lundgreen' attorneys were idiots or he didn't get a proper defense or criticize it. If so, please cite to me using legal analysis & sources as to why you think counsel's strategy amounted to legal malpractice. Please cite case law. Otherwise It is an assumption that he was properly represented.

8- If you disagree with the sentencing, join the club. It doesn't make him a moron, but simply someone that is not so versed in technology. We need more nerds in our judiciary to make better calls so that someone with a harebrained idea is not sentenced for 15 months for essentially doing something to a computer illiterate is unable to do! I would obviously have laughed out the Government's expert testimony out of the courtroom, but we are the small minority of enthusiasts and our expertise in these things and expectations can't square with that of someone like a judge unless he/she has a background in computer stuff. Looking at this judge's educational background, no wonder he got hoodwinked by them!

https://en.wikipedia.org/wiki/Daniel_T._K._Hurley

9- Vote for nerds in office that are passionate about the pursuit of truth with empirical tools like science even if you disagree with some of their policy views. They are more likely to support and appoint other nerds!

uni-mitation
 
Glorious
Gold subscriber
Gerbilus Supremus
Posts: 11029
Joined: Tue Aug 27, 2002 6:35 pm

Re: Microsoft 1 - Hardened E-Criminal 0

Thu Apr 26, 2018 7:59 am

CScottG wrote:
..and I really can't stand a person that behaves like a complete pedantic ass whenever I post, disagreeing or not.


Because you post outrageous nonsense like this all the time.

You will, at the drop of the hat, make scurrilous allegations of the most extreme kind on the basis of absolutely nothing.

CScottG wrote:
(..and no, I certinaly don't call everyone else morons. Based on what was provided in that link AND its link, the trial judge for ruling on a $25 dollar value from MS was a moron. The trial lawyer for presumably not making an agency argument, and certinaly not making a persuasive one, is a moron. It is however based on the scant info. from a weak news source and not from case itself. If that makes me a moron for commenting on it here in a forum largely unrelated to legal matters.. eh.)


Yes, everyone involved is a moron. You just said it again.

You are the sole unrecognized genius that would just absolutely devastate the court-room if only you got the chance. :roll:

CScottG wrote:
-and really, he doesn't seem to understand that this is all just "shoot'n the shi... ...t": conversation in a place that isn't about proving anything.


You don't seem to understand that you shouldn't just make stuff up.

Especially not if the only purpose was to disparage other people in order to falsely claim that you are smarter than them.

No thanks, take that garbage elsewhere.

The Egg wrote:
If changing the entire basis of your legal defense doesn’t mean anything “because they’re just different words”, then what’s the point of having a defense lawyer? Or even a trial?


There's a difference between actual legal strategy and claiming that the court doesn't have jurisdiction because it's under a fringed flag.

The former involves things like statutory interpretation, not some random guy on the forums saying that everyone is a moron and that because "it was a service" 18 U.S.C. § 2319(a) and 17 U.S.C. § 506 don't apply.

I mean, not that he actually cited the statutes, or has any idea whatsoever what they are.

No, only "Absolute Morons" and "idiots" are familiar with those. People who are completely ignorant of them have got it all figured out. :roll:

---

A person who represents himself has a fool for client. A person who make-believes that he could better represent someone else doesn't even have a client, but he sure is a fool.
 
Glorious
Gold subscriber
Gerbilus Supremus
Posts: 11029
Joined: Tue Aug 27, 2002 6:35 pm

Re: Microsoft 1 - Hardened E-Criminal 0

Thu Apr 26, 2018 8:53 am

uni-mitation wrote:
Generally speaking when it comes to findings of facts instead of law, Appeal courts will generally give wide deference and latitude to the trial court's factual findings.


Right, and as you said, he plead guilty.

The Feds will have a "Statement of Facts", already filed to the court. They will *MAKE* the defendent read them, discuss them, and then formally agree that the statement was accurate and that he did not contest those facts.

This is *BASIC* criminal procedure, so the Defendent formally admitted the following:

http://media.ca11.uscourts.gov/opinions ... 712466.pdf

11th circuit wrote:
"Lundgren arranged for the disc to be copied by a Chinese manufacturer. The copied discs had labels on them that falsely said the discs contained authorized copies of copyrighted software."


Leaving everything else aside, what right does Lundgren have to make commercially-produced pressed disks that present themselves as being from Microsoft?

How is such a thing not a counterfeit good? Microsoft factually sells the real thing for 25 dollars a pop. They proved it.

This is why Lundgren plead guilty.

The angle wasn't that he didn't do this, or that if he called it a "service" he'd walk, no, the angle was to attack Microsoft's original ~300 USD valuation to get his sentence reduced by a factor of 3, to dispute the valuation entirely (as in, it should really be zero) because he wasn't including a license but Microsoft was.

And, you know what?

uni-mitation wrote:
We need more nerds in our judiciary to make better calls so that someone with a harebrained idea is not sentenced for 15 months for essentially doing something to a computer illiterate is unable to do! I would obviously have laughed out the Government's expert testimony out of the courtroom, but we are the small minority of enthusiasts and our expertise in these things and expectations can't square with that of someone like a judge unless he/she has a background in computer stuff.


I'm a "nerd" or whatever, and I disagree with you.

I mean, I don't think Lundgren should be imprisoned over this as a matter of "what's right", but no, not "laughed out of court".

Look, I understand that Lundgren insists that without a pre-existing license (something that's microsoft's 25 disk comes with and his doesn't) the comparison isn't the same, but, um, let me quote some "nerds" from these very forums in just the last few months:

viewtopic.php?f=30&t=120645&start=150#p1377013

MOSFET wrote:
CScottG wrote:
You just have to put up with a fairly innocuous activation prompt if you don't want to pay.

To my surprise, this recently disappeared from the desktop of unactivated systems. I have a couple of Blue Iris systems that run 24/7 and haven't been activated ever, and they just sit there and run (exactly what they are designed for), now with no bottom-right text.


....that sounds EXACTLY like what the Government witness you mock said!

11th Circuit wrote:
The government’s expert also testified that even if a user did not have a legitimate license, a reinstallation disc could allow a user to access Microsoft operating system software with near-full functionality.


Yes, the court found him credible. Because, as the NERDS HERE HAVE SAID, he *IS* credible.

No, they didn't find Lundgren's counter-witness credible, and here's why:

Lundgren wrote:
In particular, the court noted that it did not find it reasonable to believe that Lundgren and his codefendant had spent at least around $80,000 to create discs that had no value.


Yes, it is not credible to claim that you spent 80k in a strictly commercial enterprise to create something that had no value.

Kind of a problem.
 
cphite
Gerbil Elite
Posts: 964
Joined: Thu Apr 29, 2010 9:28 am

Re: Microsoft 1 - Hardened E-Criminal 0

Thu Apr 26, 2018 3:53 pm

Glorious wrote:
CScottG wrote:
..and I really can't stand a person that behaves like a complete pedantic ass whenever I post, disagreeing or not.


Because you post outrageous nonsense like this all the time.

You will, at the drop of the hat, make scurrilous allegations of the most extreme kind on the basis of absolutely nothing.


I have to ask... do you talk like this in person?

Seriously... "scurrilous allegations of the most extreme kind"... are you by chance wearing a monocle?
 
Ryu Connor
Gold subscriber
Global Moderator
Posts: 4313
Joined: Thu Dec 27, 2001 7:00 pm
Location: Marietta, GA
Contact:

Re: Microsoft 1 - Hardened E-Criminal 0

Thu Apr 26, 2018 4:22 pm

To quote one of my favorite lawyers, Ken White, "Your feelings are not the law."

So many feelings in this thread and very little grasp of the law.
All of my written content here on TR does not represent or reflect the views of my employer or any reasonable human being. All content and actions are my own.
 
Vhalidictes
Gold subscriber
Gerbil Jedi
Posts: 1776
Joined: Fri Jan 07, 2005 2:32 pm
Location: Paragon City, RI

Re: Microsoft 1 - Hardened E-Criminal 0

Thu Apr 26, 2018 4:56 pm

Glorious wrote:
Yes, it is not credible to claim that you spent 80k in a strictly commercial enterprise to create something that had no value.

Kind of a problem.


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.

Ryu Connor wrote:
To quote one of my favorite lawyers, Ken White, "Your feelings are not the law."

So many feelings in this thread and very little grasp of the law.


The law is not the problem here. The problem is that this moron was charged in the first place, which he shouldn't have been. The insane amount of jail time involved is an unrelated legal failing.

Furthermore, in my long IT career legal action from and against Microsoft is shockingly common. It's happened around me (thankfully, not *to* me) four times so far, and in each and every time MS bent over backwards to avoid pointless legal action against their customer. Typically, it's ended up with some sort of settlement. Not even usually for cash (beyond fixing whatever unholy licensing problem came up).


Holy crap, he was charged by Customs itself. Good lord why. Welp, GG government, keep up that good work. Also, this means that you're correct, Ryu.
Last edited by Vhalidictes on Thu Apr 26, 2018 5:14 pm, edited 2 times in total.
 
Ryu Connor
Gold subscriber
Global Moderator
Posts: 4313
Joined: Thu Dec 27, 2001 7:00 pm
Location: Marietta, GA
Contact:

Re: Microsoft 1 - Hardened E-Criminal 0

Thu Apr 26, 2018 5:08 pm

Vhalidictes wrote:
The law is not the problem here. The problem is that this moron was charged in the first place, which he shouldn't have been. The insane amount of jail time involved is an unrelated legal failing.


Image
All of my written content here on TR does not represent or reflect the views of my employer or any reasonable human being. All content and actions are my own.
 
uni-mitation
Silver subscriber
Gerbil Team Leader
Posts: 260
Joined: Mon Feb 04, 2013 1:28 am

Re: Microsoft 1 - Hardened E-Criminal 0

Thu Apr 26, 2018 9:40 pm

Glorious wrote:
uni-mitation wrote:
Generally speaking when it comes to findings of facts instead of law, Appeal courts will generally give wide deference and latitude to the trial court's factual findings.


Right, and as you said, he plead guilty.



I was referring to the factual findings that the judge in this case has to make to hand out the sentence. I also quoted the U.S. Sentencing Guidelines. In the sentencing phase, new testimony is heard, even hearsay is allowed, and statement of impact by victims, etc. In this phase, the defendant has to proffer credible testimony that mitigates the sentence. The government will be doing the opposite.

Glorious wrote:
The Feds will have a "Statement of Facts", already filed to the court. They will *MAKE* the defendent read them, discuss them, and then formally agree that the statement was accurate and that he did not contest those facts.

This is *BASIC* criminal procedure, so the Defendent formally admitted the following:

http://media.ca11.uscourts.gov/opinions ... 712466.pdf



Totally irrelevant and not in dispute that Lundgreen pled guilty. Please read above for I explain the sentencing phase.

Glorious wrote:
Leaving everything else aside, what right does Lundgren have to make commercially-produced pressed disks that present themselves as being from Microsoft?


Argumentative. Totally irrelevant to issue at hand. See above.

Glorious wrote:
How is such a thing not a counterfeit good? Microsoft factually sells the real thing for 25 dollars a pop. They proved it.


Argumentative. The Court made the factual determination that the infringing items were around $25 dollars as what Microsoft would normally charge its refurbishesr and third partner for a similar good. From this dollar amount the Court factored the sentence. Please read Sentencing Guidelines. [bold]The factual dispute in this case was the cost and damage that the defendant's infringing & counterfeit goods caused and the only way to decide that is by the Court making factual findings with testimony. [/bold]

Glorious wrote:
This is why Lundgren plead guilty.

Speculative. You are adding your own interpretation as to why he pled guilty. Maybe you are right, or not. Unless you are an expert witness using your wealth of knowledge in your specific field, speculations are not allowed.

Glorious wrote:
The angle wasn't that he didn't do this, or that if he called it a "service" he'd walk, no, the angle was to attack Microsoft's original ~300 USD valuation to get his sentence reduced by a factor of 3, to dispute the valuation entirely (as in, it should really be zero) because he wasn't including a license but Microsoft was.


Irrelevant.

Glorious wrote:
And, you know what?



I'm a "nerd" or whatever, and I disagree with you.

I mean, I don't think Lundgren should be imprisoned over this as a matter of "what's right", but no, not "laughed out of court".

Look, I understand that Lundgren insists that without a pre-existing license (something that's microsoft's 25 disk comes with and his doesn't) the comparison isn't the same, but, um, let me quote some "nerds" from these very forums in just the last few months:

viewtopic.php?f=30&t=120645&start=150#p1377013



....that sounds EXACTLY like what the Government witness you mock said!



Yes, the court found him credible. Because, as the NERDS HERE HAVE SAID, he *IS* credible.

No, they didn't find Lundgren's counter-witness credible, and here's why:



Yes, it is not credible to claim that you spent 80k in a strictly commercial enterprise to create something that had no value.

Kind of a problem.




I welcome your disagreement on the sentence. 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. It would essential turn the Appellate Court's mission of review of errors of law a moot point for no findings of facts would be able to stand to give proper review.

uni-mitation
 
uni-mitation
Silver subscriber
Gerbil Team Leader
Posts: 260
Joined: Mon Feb 04, 2013 1:28 am

Re: Microsoft 1 - Hardened E-Criminal 0

Thu Apr 26, 2018 9:52 pm

Like the saying goes: hard cases make bad law.

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.

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?

uni-mitation
 
Glorious
Gold subscriber
Gerbilus Supremus
Posts: 11029
Joined: Tue Aug 27, 2002 6:35 pm

Re: Microsoft 1 - Hardened E-Criminal 0

Fri Apr 27, 2018 8:02 am

cphite wrote:
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.

Vhalidictes wrote:
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.

Vhalidictes wrote:
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?

uni-mitation wrote:
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?

uni-mitation wrote:
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.

uni-mitation wrote:
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.

uni-mitation wrote:
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?


Very dumb.

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.
 
just brew it!
Gold subscriber
Administrator
Posts: 51356
Joined: Tue Aug 20, 2002 10:51 pm
Location: Somewhere, having a beer

Re: Microsoft 1 - Hardened E-Criminal 0

Fri Apr 27, 2018 8:18 am

IMO the key takeaway is that it is possible to both agree that a crime was committed, and disagree with the severity of the punishment.
Nostalgia isn't what it used to be.
 
uni-mitation
Silver subscriber
Gerbil Team Leader
Posts: 260
Joined: Mon Feb 04, 2013 1:28 am

Re: Microsoft 1 - Hardened E-Criminal 0

Fri Apr 27, 2018 12:40 pm

just brew it! wrote:
IMO the key takeaway is that it is possible to both agree that a crime was committed, and disagree with the severity of the punishment.


Hear hear! This was a good exchange. I would not learned about this if not for this post. Thanks to the OP!

uni-mitation
 
Welch
Grand Gerbil Poohbah
Topic Author
Posts: 3578
Joined: Thu Nov 04, 2004 5:45 pm
Location: Alaska
Contact:

Re: Microsoft 1 - Hardened E-Criminal 0

Fri Apr 27, 2018 1:08 pm

Thanks for the exchange as well, the one key thing I hadn't seen was that his discs were stamped to represent themselves as official copyrighted Microsoft disks. If nothing else, that would be a sign he was intentionally trying to decieve people of where the discs come from. That sort of changes may opinion a bit. I still feel the length seems a bit much but if he is intentionally printing MS copyright info on media, then he stands as an example to others who would be counterfitting too.
"I think there is a world market for maybe five computers."
Thomas Watson, chairman of IBM, 1943

1600x | Strix B350-F | CM 240 Lite | 16GB 3200 | MSI 7850 | 850 EVO | Corsair 400R | Seasonic X 850 | Corsair M95 / K90 | Sennheiser PC37x

Who is online

Users browsing this forum: No registered users and 5 guests