Unbundling Windows Declared Legal in Germany

brokeninside writes "Infoworld has an article about Germany's highest court on civil matters declaring that Microsoft can not prevent dealers from unbundling OEM software. This ruling stems from a lower court ruling in 1997 on a lawsuit against a German company for selling an OEM copy of Dos/WfWG sans hardware."

Comments

Maybe that is why...

[www.sorehands.com]

Maybe that is why Microsoft is insisting that companies does not include a seperate Windows CD and just use the "recovery" CD to reinstall the WinBlows Image.

BTW: I always hated the CDs that don't allow you to install the products without wiping the entire system.

Copying?

[11223]

Microsoft had no binding contractual relationship with the dealer in question.

What's to prevent a user from making fair use copies, then? Just make a copy of the CD and install it on two different computers that you own (which is prohibited in the contract). Because you hadn't agreed to the license agreement, does that just fall under fair use of copyrighted material? Can anyone then make unlimited personal use copies of software they "purchased"?

Bundled stuff

[TheTomcat]

I'm sure I'll get flamed for this, but I don't think it's so wrong that you're not allowed to resell OEM Windows. I do think it's evil that they force their OEMs to bundle windows though.

Many products are like this. Retailers aren't allowed to split up their family-size packages of.. say, shampoo(ie 2 bottles shrink wrapped together, and sold as a unit), and sell them individually, why should this be different for software?

Maybe I'm misunderstanding.

Re:Bundled stuff

[technos]

Look at my situation; We lease thousands of Windows PCs, most of which are scrapped after returning from lease. As a consequence, we have been known to have hundreds of OEM CDs lying around. Per the terms of the EULA, we cannot distribute the OEM with another PC, we can't trade it, and we can't return it. Shit, even installing it on the unscrapped OEM machines is questionable, since we really can't transfer the license to the purchaser. (Most of the time we are the second owner of the machine, not the first)

Now how does it make sense??

Re:Ahhhh...

[Black Parrot]

> This means that OEM's who want to continue selling PC's with Microsoft products will have to start charging more for the PC's.

> And this will lead to more expensive PC's for everyone, since OEM's need to offer M$ products in order to be competetive.

No, you ignore the case where OEMs do not want to bundle MS products. They may now have an opportunity to be competitive price-wise by bundling less.

And then there's always the heretical idea of bundling non-MS products. (Assuming any non-MS Windows software companies are still left in the game.)

Some of you guys need to get away from the idea that everything depends on having MS stuff on your system. That, BTW, is what all these court cases are trying to protect. If you want MS stuff that's fine, but don't make me buy it too just so you can get a discount.

Grrr.

--

GPL has nothing to do with this!

[(void*)]

All those people attempting to raise the problem of GPL are just barking up the wrong tree. The GPL's intent is to reverse the imbalance in copyright law, by leveraging it to grant those rights that copyright law takes away by default.

The principle of first sale or in this case, unbundling simply relates to the transfer of ownership or rights. If I sell you my T-shirt, I give up my rights to it. I can't wash it, dry it, wear it, whatever becuase it is no longer my shirt. It is your shirt now and you can do anything you like with it, in the same way that I could have done anything with it when it was mine.

With my MS Office CD, I can copy it for backups, poke at it using a debugger, and so on. The only thing that copyright law prevents me from doing is to copy it and then Sell those copies. But I can transfer my ownership of that CD to someone else, thus giving up my rights to use it.

Same with GPLed software. NO DIFFERENCE. I can simply take that RedHat CD (which only has bionaries) and sell it to my friend cheap. If I keep no further copies around, I am not redistributing it, but transfering it to my friend. So I don't have to give sources. I can just tell the friend - go to ftp.redhat.com for the sources. RedHat's obligation of providing the source is now to my friend, not me. I am clean.

But since the GPL grants me the right to redistribute it, I can also choose to make copies of it to sell away! As long as I obey the conditions that I should give the binaries I must give the source. So if I make changes, if I make copies, then too bad, I am a reseller or distributor and must obey the GPL.

So the question of copyright or copyleft as the GPL attempts to be is is orthogonal to the idea of transfering ownership, regardless of whether it is for profit or not!

IANAL, but I should be!

It means chapper PCs for non-Windows users

[Felinoid]

Your refering to the 1997 rulling and NOT the news story BTW.. Your a tad off topic...

The candy bars are a "bulk liccens" the end user is buying the bulk at a discount for doing so. This anolog to Microsoft selling bulk liccenses something I know people object to but I'm not one of those people.

The OEM deal says the OEM must buy a copy of Windows for EVERY box he sells. The 1997 rulling says he may then sell it alone instead of with the computer.
This means the end user is not FORCED to buy Windows as part of the pacage but may then buy Wndows as a seprate pacage. As it should be. This means the consummer gets to pick his own operating system.

Saying otherwise is anolog to every home built by contractor X must then install appliences from company Y even if the home owner wants appliences Z.

OEM's need to OFFER Microsoft products to compeate but the end user should be allowed to say "No" to Windows and buy something else for this computer.
Pacage deals are good when it's an OEM working to offer a better deal to the consummer. It's bad when it's a software company trying to rob consummers of the ability to NOT buy a product they will not use.

The accual story... OEMs desiring to sell PCs with Windows preinstalled can do so an remove pacages such as IE and replace them with pacages such as Netscape. This is exactly what Compaq did in the United States and Microsoft sued them over it.

Now in Germany if Microsoft wants to preinstall IE thats fine... but then an OEM in Germany dosn't have to install it. They may instead go with Netscape.
Other posablitys with this... A DrDos as a functional replacement to the Dos that Win9X runs ontop of.

If Microsoft wishes to preinstall MsOffice with MsWindows fine but then an OEM can then rip the two appart and sell them as two diffrent products.

That reduced price has allways been a sham. Windows is over priced to start with....
The reduced price is something like $25 to $50... I rember when $25 was what you charged for high quality software. $200 and up was for mainframes and other such deals where you expected there to be 4 to 200 users using a single computer. I personally object to pricing policys based on the estimated amount of users on a given box. But that was how it was done and still is by some companys.

The whole idea of selling Windows for $100 to $200 is really obnoxous.

Re:Another solution...

[technos]

I really should do that.. Blue spandex leotard, a cape, a glue gun, and fifty or so NT5 developers discs. Carrying a 2x4, I'd be the Blue Screen Of Death.

Or perhaps go out to the Army/Navy surplus store and pick up a dress uniform and the appropriate insignia. I still have my ID badge from a trip out to Selfridge; I'll just do a little digital magic to make it read "General Protection Fault, Microsoft Corporation".

I think I'll pull the latter on Halloween. I look far better in uniform than in spandex.

Impact on GPL?

[tdowd]

Has anybody given any thought to the impact this ruling might have on the legality on the GPL, at least as interpreted in Germany? The court ruled: "The right of authorship can only be exercised once. Once the product has entered the marketplace, with the author's agreement, he can no longer engage rights of authorship". Isn't that what the GPL is, though? An attempt to compel specific behaviours based on rights of authorship? The legal fuzziness of the GPL as already seen in a slashdot conversation earlier, might only get worse. Linux fragmentation as a result? Who knows.

Laughing uncontrollably.

[technos]

Does this means I can finally part with the 200+ OEM copies of Win95 OSR2 and Windows98SE I have sitting in the back room, and do it legally??

Man, does it suck to have to pay for the software and then not be eligible to sell it... Not for resale, my ass..

And in other news...

[MostlyHarmless]

German courts ruled today that computer manufacturers are alllowed to bundle non-Microsoft software with their computers. Speculation abounds about whether or not this applies to other operating systems as well. If so, this has the potential to allow OEMs to bundle computers with Linux or MacOS against Microsoft's wills. Microsoft is expected to file an appeal later today.

satire=false;

Sheesh. It's amazing that the courts have to uphold what should be common sense. Maybe this says something about our legal system?

This is good

[(void*)]

Does anyone somehow feel that this is the way Big Monopolies should be dealt with? A clear concise ruling yet far reaching ruling that prevents MS (and fture companies) from attempting to leverage its monopoly is far far better than an expensive anti-trust lawsuit. Germany seems to be getting it right, IMHO.

Another solution...

[tilly]

Someone I know writes device drivers for a living. One Halloween he put together a costume out of free NT installation CD's he had been given that he was never going to use.

I nearly died laughing when I saw it. :-)

I am not sure that he would have resold them. Something about it being an, "abuse of computer rights"... :-) (Actually he probably would have.)

Cheers,
Ben

Ahhhh...

[rnd()]

So does this mean that Microsoft will have less incentive to sell software to OEMs at a reduced price? Absolutely.

This means that OEM's who want to continue selling PC's with Microsoft products will have to start charging more for the PC's.

And this will lead to more expensive PC's for everyone, since OEM's need to offer M$ products in order to be competetive.

Is this any different from a store owner opening up a bag of bite sized candybars and selling them despite the fact that they all have "this item is not packaged for individual retail sale" written on the label?

Hmm..Was this really about MS?

[ejbst25]

I find it interesting to note how a seemingly small article lacking a lot of specifics needed to truly understand this is found to be very newsworthy specifically about MS. I found the article generally uninformative about Microsoft...

However, after having read the article, (unless I misunderstand the article) I think this has more to do with every software vendor selling items in Germany. The whole spiel about how once an item enters the marketplace, the author loses some rights to control the terms of secondary sales. This seems like a very big deal considering how big secondary sales are. This ruling could have a serious effect on sales of software in Germany. Its a ruling that may cause serious reform. If I am a big software company, do I want to sell it to a secondary sales company and lose my rights to protect the terms under which that item is resold? This would definitely worry me as a secondary sales company, while the big companies might begin to shy away from contracts for this sort of product sales. This ruling seems like it would be big for any type of vendor in Germany...and it definitely will be interesting where it will lead to.