A Chinese hacker named Hong Lei was arrested by Chinese authorities on August 20, 2008 after Microsoft complained about his distribution of a pirated version of Microsoft Windows XP called “Tomato Garden” edition. The “Tomato Garden” Windows removes the registration requirement and adds enhancements, such as a Vista look and feel. Lei had been developing “Tomato Garden” since 2003. Some reports say he had distributed over ten million copies of “Tomato Garden” Windows to the Chinese and Japanese markets via a web site at Tomatolei.com .
Lei’s arrest generated a lot of controversy in the online community. Some say he could face up to seven years in prison. But experts claim that Microsoft did not even have a civil case against Lei, much less a criminal one. First, Microsoft’s claims are out of statute of limitations. Lei started distributing “Tomato Garden” in 2003. Now it’s 2008, some five years later. A copyright claim must be filed within three years of the alleged infringement. Microsoft slept on its rights, and is no longer protected by the copyright law. Second, according to a recent federal court decision in a software piracy case against Symantec, Lei’s actions were perfectly legal. In that case, Symantec bought one copy of certain software, but distributed millions of copies around the world. The copied software even displayed a message: “one user license, not distributable”. But U.S. federal judge Martin J. Jenkins threw out the copyright suit. The judge reasoned: the copyright owner could not prove that Symantec saw the “one user” message; even if it could prove that Symantec saw the message, it could not prove that Symantec agreed to the “one user” restriction. Lei’s situation was just like Symantec’s. He based his “Tomato Garden” Windows on licensed copies of Microsoft Windows. Therefore, he had valid licenses to start with. To prove infringement, Microsoft must prove that he exceeded the scope of license. Lei’s method of creating the Tomato Garden Windows was automated, and did not require him to read any of Microsoft’s licensing terms. Even if he did, Microsoft could not show he understood or agreed to those terms. On the contrary, the fact he made Tomato Garden proved that he did not agree to Microsoft’s terms. This forecloses any copyright claim against him. NETBULA, LLC v. SYMANTEC CORPORATION, 516 F. Supp.2d 1137, 1152 (N.D.Cal. 2007) (citing Specht v. Netscape Communications Corp., 150 F.Supp.2d 585, 596 (S.D.N.Y. 2001), aff'd, 306 F.3d 17 (2d Cir. 2002) ("The case law on software licensing has not eroded the importance of assent")).
Some readers comment since American copyright law is more developed, if Lei was innocent under American law, he must be innocent under Chinese law. Many of Lei’s supporters call for his immediate release.
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