from the that's-not-what-happened dept
Last week, we wrote a post on the appeals court ruling upholding the 15 month prison sentence for Eric Lundgren. Lundgren gave an interesting interview with the Verge explaining his position on all of this, while Microsoft — feeling the heat from multiple stories criticizing its role in the prosecution — put out a somewhat scathing blog post from VP Frank Shaw insisting everyone has this wrong, and presenting an argument that Lundgren was a low down dirty pirate who is pulling the wool over everyone’s eyes.
It does appear that Lundgren is overstating things in the interview he gives, especially this part:
It wasn?t a money-making venture. I didn?t make any money doing it. I actually lost money doing it. The goal was to get these [to] refurbishers so they could put them in the boxes and then consumers down the road could repair the problem.
From the details in the case, it clearly was intended to be a money-making venture. Indeed, that’s what Microsoft focuses on heavily in its version of the story. It highlights email evidence in the case of Lundgren emailing with his partner/co-defendant in the case where, multiple times, he talks about how they’re in business together to make money (and getting frustrated when they weren’t actually making money). Here’s one example:
Microsoft (and some of its… rather vocal supporters…) argue that this is all proof that Lundgren is full of shit and just a common criminal pirate. But, again, this is confusing things. In our original post, we talked about the difference between the copyright, the software, the license, and the disc. And the distinctions matter a lot. A few years ago, we noted that copyright system supporters have spent decades blurring the lines between “the copyright” and “the content.” This plays out in all sorts of funny ways, including whether or not selling a piece of content is considered a sale or a license. As we’ve pointed out in the past, copyright proponents use a sort of Schrodinger’s Download setup, whereby they call it a sale or a license (and deny it’s the other) depending on which benefits them more.
In this case, the situation is fairly similar. The fact that Lundgren was hoping to profit from selling convenience to refurbishing/repair shops does not, automatically, mean he broke the law. But many people seem to think that the profit motive alone proves the copyright infringement. But… used book stores are for-profit entities selling copyright-protected materials all the time (without a license from copyright holder), and no one is locking them up as criminals. That’s not to say that Lundgren did the same thing as a used bookstore dealer, but merely to point out that the profit-motive alone does not prove infringement.
Here, again, part of the issue is in how stupid copyright makes everything. Lundgren was looking to make money by “competing” against Microsoft, but was doing so by providing a convenient and cheaper solution for recovery discs. But not by infringing on the copyright, but by providing a more convenient way to get the recovery discs (which still required a valid license from Microsoft). So, again, we hit up against the differences between the license, the copyright, the software, and the disc. Microsoft, like many copyright system supporters, wants to blur all four of those issues together, insist they’re the same thing, and point to the profit motive and cry “pirate!”
But taking a step back and separating out the components suggests how silly this is. If Lundgren is profiting off of the convenience, but the discs are worthless without a license, then what copyright-related harm has he really done? He may have harmed Microsoft in other ways, but are those harms ones that are protected by copyright, or are they ones that society encourages in the form of competition and innovation? Microsoft claims it’s the former, while Lundgren supporters argue its the latter (Lundgren now pretending he never intended to profit muddies the waters for his own argument).
Part of this, of course, is the nature of copyright. It is a monopoly. It makes those who rely on it allergic to any form of competition. So here, where you have competition in the form of convenience, but which does not lead to a “pirated” use of the software, but just a “counterfeit” physical disc that still requires a valid license, there are legitimate questions about why this type of competition is criminal?
In the end, Microsoft and its supporters insist that Lundgren’s profit motive ends all discussion. He was making money off of Microsoft software — case closed. But that’s not how copyright policy is designed to work. It is, however, how Microsoft and others such as the RIAA and MPAA, have pushed everyone to believe that copyright is supposed to work. They want you to believe that the copyright and the underlying content are one and the same, and you do anything whatsoever with the underlying content is infringing — and doing anything with the underlying content that makes money, must automatically be criminal.
It’s a sad statement on the state of copyright law that people — including multiple judges — seem to accept that interpretation.