US v. Lundgren (11th Circuit 2018)
A pending case against recycler Eric Lundgren has now moved to the 11th Circuit Court of Appeals. Lundgren pled guilty to criminal copyright infringement and was sentenced to 15 months incarceration. The basics are that he manufactured over 28,000 discs containing Dell/Microsoft Restore Discs and shipped them from China to the U.S. Lundgren argued that the discs should be seen as publicly available since they don’t work without an access code and his actual plan involved using legitimate access codes that he had obtained from purchasers. Microsoft apparently pushed the Miami FBI to pursue Lundgren for counterfeiting and last year he pled guilty to both Criminal Copyright Infringement and Conspiracy to Traffic in Counterfeit Goods.
- 17 U.S.C. § 506(a)(1)(A) (“Any person who willfully infringes a copyright shall be punished … if the infringement was committed (A) for purposes of commercial advantage or private financial gain”).
- 18 U.S.C. § 2320(a)(1) (“Whoever intentionally— (1) traffics in goods or services and knowingly uses a counterfeit mark on or in connection with such goods or services”).
The conspiracy to traffic in counterfeit goods is, I imagine, what really drove the charges — the problem with the discs was not only that they were Microsoft Restore discs, but that he had printed on them the Dell and Microsoft logos. Of course, one trick with Conspiracy is that it is a future-crime – an agreement to commit a crime at some time in the future.
Because he pled guilty, Lundgren is not appealing his conviction, but rather is focusing on the 15-month prison sentence. Basically, the sentence fits with the sentencing guidelines for the $700,000 in harm that the judge found ($25 per disc). Lundgren argues on appeal that this calculation is incredibly off-the-mark since the discs were (at the time) given away for free by the companies.
Mark Rifkin and Randall Newman of Wolf Haldenstein (NY) are lead attorneys on the case.