16:22, February 28 114 0 abajournal.com

2018-02-28 16:22:06
Computer refurbisher appeals for freedom after trying to prolong lives of PCs

Eric Lundgren, an electronics recycling advocate and computer refurbisher from California, faces more than a year in prison for creating tens of thousands of Windows reinstallation discs.

After pleading guilty to counts of criminal copyright infringement and trafficking counterfeit goods, Lundgren thought he would avoid incarceration because the discs had no market value.

“I thought it was freeware,” Lundgren tells the Washington Post.

In fact, Senior U.S. District Judge Daniel T.K. Hurley ruled that the discs were worth $700,000, and sentenced Lundgren to 15 months in prison—far less than the 36 to 47 months called for by federal sentencing guidelines—and a $50,000 fine.

Lundgren, though, remains free due to an emergency stay by the Atlanta-based 11th U.S. Circuit Court of Appeals, where his case is now pending.

What landed Lundgren in legal trouble was the creation and planned sale of 28,000 “restore discs,” which are used to reboot the Windows operating system on computers that already had an authenticated Windows system but had a hard drive wiped clean or a hardware failure.

Microsoft sells a new license for Windows to refurbishers for about $25. With the restore disc, a new license isn’t needed.

Lundgren believed that providing restore discs, which come with a new computer but are not otherwise easily obtainable, would allow people to extend the lives of their machines.

“I started learning what planned obsolescence was and I realized companies make laptops that only lasted as long as the insurance would last,” he tells the Post. “It infuriated me. That’s not what a healthy society should have.”

Prosecutors, Microsoft and computer company Dell, however, did not see a recycling program—they see copyright infringement.

The Department of Justice brought a 21-count indictment against Lundgren and business partner Robert Wolff of Florida. Microsoft sought $420,000 in restitution.

In a phone interview, Kyle Wiens, co-founder of iFixit, a wiki-style website that allows people to create repair manuals for almost any product, and a friend of Lundgren’s, says “using copyright as a weapon to keep people from fixing things is definitely a trend.”

He sees Lundgren’s case, and many other legal issues regarding the right to repair one’s technology, as a conflict between personal property law, which he says is flexible, and copyright law, which is not.

“Those worlds are colliding in a big way right now,” he says.

For Lundgren, part of his argument on appeal rests on the prosecutor and the judge not understanding technology correctly and conflating a Windows license with the restore disc.

“The value’s in the [software] license,” he tells the Post.

When asked about technology literacy among judges and lawyers, David Colarusso, director of the Legal Innovation and Technology Lab at Suffolk University Law School, says in an email that judges, prosecutors, and society as a whole are struggling with two issues.

First, it is hard to know how technology works, and second, it is not certain if a technical understanding of how something works is sufficient if the law is unclear, Colarusso says.

This is because, Colarusso surmises, technology is creating fact patterns that that do not fit existing laws. However, using forensic science as an example, he says “when the operation of a technology is poorly understood by judges and prosecutors, I can’t imagine it working out well.”

He says courts would benefit from independent research services that could fill in knowledge gaps as cases engage with new technology. Similarly, Colarusso says he would like to hear of prosecutors calling local universities to build a better understanding of science and technology.

“Not only is this important for understanding the facts of a case but for making sure we understand the methods used to establish such ‘facts,’” he says.

A date for oral arguments in Lundgren’s case has not been set.