Microsoft Pirating Their Own Software?

14ghz writes "Microsoft gave out copies of .NET Visual Studio Pro to attendees of the Microsoft .NET Student Tour. Despite the discs saying "UNLICENSED SOFTWARE -- Illegal without separate license from Microsoft", the freebie didn't contain any license document, and one guy decided to ask the MS conference rep about it. Read the in-progress story."

Comments

Not pirated

[Anonymous Coward]

Those are bulk media discs, not pirated discs. They require a separate volume licensing key to use.

Re:Not pirated

[yerricde]

They require a separate volume licensing key to use.

From the blurb: "the freebie didn't contain any license document." So where was this key?

Re:Not pirated

[Sparr0]

Sent this to the article author, thought I would share it here too...

I think the biggest problem with your interpretation of the events is your misunderstanding of what software is and how copyright and transfers of ownership work. Sasha, and Microsoft (the holders of the copyright) by extenstion, is within the law to distribute copies of their works in any way she wants, as long as she has permission from her boss (as a Microsoft employee, not as an individual). She has transferred ownership of one "copy" of VS.Net to you. By not including a license agreement she has placed no additional restrictions on the transaction (so called "after sale terms", common in purchases of software or insurance). As long as there were no terms to the sale (which it was, since you paid to attend the event at which you were promised the item) then the warning on the disc itself has no bearing. Having ownership of the copy you are legally allowed to do anything you want with it that isnt on this list: http://www4.law.cornell.edu/uscode/17/106.html , which tells you the things that the copyright holder has exclusive rights to with regard to a copyrighted work. You will notice that USING the software is not on the list.
Some will argue that by installing/running it you are "reproducing" it (on the hard drive, and in RAM, respectively), but you can easily dissolve that argument by pointing out two things. First, that running it is not legally reproducing because by the definitions of "copies" and "fixed" ( http://www4.law.cornell.edu/uscode/17/101.html ) you see that the copy must exist "for a period of more than transitory duration", which obviosly the copy in RAM does not. And secondly, installing it IS reproducing, but is specifically allowed under numerous legal precedents extending Fair Use to include software installation. However, you cant distribute it, because that is agaisnt the law (see the previously linked list).

Anywhere I have used quotes I am either citing law or using a word by its legal definition, elsewhere you can assume I am using the common definition.

(read "you" to mean the article author)

The 'MS rep' isn't an employee

[tc]

Check out the email address of the MS rep: v-sashak@microsoft.com. The 'v-' at the beginning is, IIRC, Microspeak for 'not a Microsoft employee'. It's probably a contractor or agency temp that works events who has been given an MS mail account. Which would explain the less-than-clueful answers (and why (s)he has to speak to his/her manager).

Re:The 'MS rep' isn't an employee

[Anonymous Coward]

I was under the impression 'v' was for vendor. I've a couple of friends who are vendors, and they're both v-.

I'm almost certain 'a' isn't for admins. The only people I know with a- email addresses are all contractors. I had presumed it stood for 'agency temp', or some such.

I could be talking out my ass, though :).

Not the first time...

[Cutriss]

I participated in a retail program giveaway for Windows XP. The copy of WinXP Pro that I received came in a plastic sleeve with a CD-key sticker on the back, but the CD said the same thing: "Use of this disc is illegal without a separate license certificate from Microsoft." And of course, the disc didn't come with a license.

Attendees were students -- MSDNAA is their license

[kalgen]

Presumably since this was part of a MSDNAA (Academic Alliance) Student event, all of the attendees are covered under their school's MSDNAA agreement and thus have a separate license.

Nothing to see here, please drive by.

done with school districts

[b17bmbr]

in my district, i had proposed several linux based solutions, from turning old p120's into thin X clients, to file servers, yada yada. all were shot down like a duck on opening day. so, i get to talking to our site district technidiot. turns out he goes to some microsoft seminars and they throw out VS, 2K pro, office pro, everything. in fact he laughed because he had a "no reg. key" copy cd. so next time you wonder why there is not the movement you would think towards FOSS, this is why. why would our district want to use FOSS, when the microsoft reps throw out cd's like halloween candy. the reps know full well that the schools have to pay, and they know how to get "the right people on board". it is so easy and cheap for them.

Re:not illegal, just license free!!!!

[Anonymous Coward]

No, no license means you get only the rights that copyright gives you. Use is ok, distribution is not. Hell, this issue is discussed right in the GPL, read it one day.

Actually..

[leerpm]

He is the Student Co-ordinator for Academic .Net. His name and email are on the business card that is given out to every single student that attends one of these conferences.

Re:Discretionary licensing

[Kevitt]

I disagree. That's the equivalent of installing, say, 50 copies of AutoCAD when you only have one license, and then saying "well... yeah but only one person uses it at a time."

That's not the way it works. There is no descretionary license. If you want to play by the rules, then *everyone* plays by the rules. Including Microsoft Sales managers that like to hand out CDs to the unwitting.

BTW... I wouldn't install that POS "development suite" if *they* paid *me*.

HEH! HA!

This is all silly...

[Anonymous Coward]

As someone who has distributed these CDs for Microsoft in the past, the license is contained WITHIN the actual install program. When you agree to the license (EULA) during install, there's your license. These CDs contain that disclaimer because Microsoft does not want to spend money bundling a separate license when the one in the installer will suffice.

That won't cut it...

[sterno]

This guy could make a hundred copies of that CD, hand them and the key out to his friends, but if there was a license, only one would have that legal document proving ownership. A CD and a key number don't prove legal ownership.

Re:EULA != License?

[Dunkalis]

The EULA is an "agreement" between you and the company that you won't do anything they prohibit with your license. A license is simply a document saying that this software is legally yours, and generally has a serial number on it. The EULA usually states you can't copy licenses software for non-licensed users, so there you go.

Re:Attendees were students -- MSDNAA is their lice

[JayateMo]

Check out this

Amendment to Master End-User License Agreement (For the Microsoft Developer Network Academic Alliance Program)

This amendment (the "Amendment") to the Master End-User License Agreement for the Microsoft Developer Network Subscription (the "EULA") is a legal agreement between Microsoft Corporation ("Microsoft") and a Qualified Educational User approved by Microsoft for participation in the Microsoft Developer Network Academic Alliance Program ("MSDN Academic Alliance Program"). This Amendment allows for the not-for-profit instructional and non-commercial research use by a Qualified Educational User (as hereinafter defined) of the Product provided under the EULA. This Amendment further allows the Qualified Educational User to utilize the Product for the not-for-profit design, development and testing of software applications or hardware created by Qualified Educational User. Product includes subscription UPDATES provided by Microsoft (as defined in the EULA).

Separately Licensed Software

[DragonHawk]

You can obtain a media kit for just about any Microsoft product by calling your local Microsoft Product Fulfillment sales office. Most of the kits cost $24.95. That includes things like Windows 2000 Server, Exchange 2000 Server, etc. Any software media you get this way will be marked "Unlicensed Software -- Illegal Without Separate License From Microsoft".

The general idea here is that software -- all software -- is licensed independently of the media it comes on. For example, if you lose or damage your Windows install CD, you can order a replacement for a small fee. The license that you purchased originally is still valid, and is what counts.

These CDs are also used with the various volume licensing programs (Open, Select, and so on) that Microsoft offers. Basically, you order licenses for your organization separately, and then order however many media kits you want or need. You can find more information on these programs at http://www.microsoft.com/licensing/.

Now, as far as these discs go: Without a separate license agreement, they are not legal to use. It sure sounds to me that no such license agreement was distributed. I would be very careful about using such media unless I received an agreement.

The fact that some marketing dweeb at Microsoft handled them out is not enough. The fact that the same dweeb said it was okay is not enough, either. A dweeb is not a legal license agreement. Those facts would give you plausible denial in court, and likely decide the case in your favor, but it would have to go to court.

Finally, I doubt Microsoft has any nefarious intentions here. I suspect that Microsoft is just like any other large company, and that as such, they employ people (like this marketing dweeb) who don't understand that software licensing is a legal contract. I'm sure it never occurred to him that he was doing something wrong. Most people don't think before they pirate software. Heck, far too many people don't think, period.

The fact that Microsoft's own people have this problem is certainly ironic, and highlights just how crazy the world of software licensing is.

Zealots, please note: Free/Open Source Software is still licensed. You need to very carefully understand your rights and obligations under a software license, be it a Microsoft EULA, the BSD license, or the GPL. Failure to do so may open you up to legal problems, regardless. (Go ahead and incorporate some GPL code into a closed product, and see how the FSF reacts.)

Perhaps your VS.NET is already licensed...

[WebCowboy]

...to the University of Calgary. The license need not be represented by one of those nifty little certificates with intricate graphics, numbers and holograms all over it. It is entirely possible that in return for letting MS put on its dog-and-pony show microsoft granted some sort of volume licensing deal with the UofC.

I agree with the article that "Sasha" (the MS point-of-contact for the student tour) is out of the loop concerning licensing issues--understandable since keeping everything straight is something akin to brain surgery and rocket science. Sasha might reply after talking to one of the MS High Priests of Licensing saying as much as I've stated above.

If in doubt, ultimately I'd talk to the UofC's Computing Services department--or the departments of Computing Science or Computer Engineering--to inquire about how student licensing works (ie it it technically property of the U of C and you only buy the media--or whatever).

I don't know how it works at the U of C, but at the U of Alberta bookstore, you didn't need to be a student to buy most anything there, but for software it was a different story--you needed to present a valid, current student ID card and fill out documentation before you could cart your purchase home.

It was many years ago when I did that (1996), however when I bought MS Office it didn't come with the same licensing documentation (certificate, registration postcards, etc) that retail (or even OEM) software was packed with. Perhaps that meant it was licensed to the U of A for use by all students who bought the media. However I didn't really care then about the legal details of licensing at the time. Come to think of it, I don't now either. I don't purposely go out of my way to "steal" MS software, but it gets legally murky when your software library from MS is a mishmash of retail, OEM, NFR copies obtained from being a former "MS Partner" and student editions. If I worried about it I'd get ulcers and never have time to do real work.

Posting private comments publicly is illegal

[SuperBanana]

The dude who posted the article should have had the common decency to obscure the name of the person at Microsoft that he was corresonding with. I have had my name posted on the internet with correspondance I made on behalf of my employer and it always makes me uncomfortable.

IANAL, but it's not just obnoxious, it's illegal- regardless of whether you obscure the names. Unless I specify otherwise, any communication I send you is intended for you, and you only. If you forward it to someone else, or, say, post it online for all to read, I can sue you. It's quite similar to how you may not tape-record a conversation without my permission.

Unless the content is quite obviously harmless, I ask the permission of the sender before forwarding a message from them to a mailing list(or cc'ing others in a reply that contains part of their comments, quoted.) It is at the very least considered good manners.

MS could quite easily slap him with a cease-and-desist letter, although it'd probably draw even more attention to the matter, one which, at the very least, seems almost entirely pointless and will be forgotten in a day or two.

Re:Posting private comments publicly is illegal

[Badmovies]

Uh, let me include some actual law here:

PER TITLE 17 - UNITED STATES CODE - SECTION 107
"Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include -
1 the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2 the nature of the copyrighted work;
3 the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4 the effect of the use upon the potential market for or value of the copyrighted work. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors."

Now, all the being said, private letters are published all the time. Just look at the glee that websites take in posting "Cease and Desist" letters from lawyers. And they do it all the time. Funny, if there was a leg to stand on, I would think that a law firm would try and use that to get the letters yanked.

How is this so? Check condition #4 of fair use. I think that is key here.

False alarm. I went to one of these...

[sheetsda]

sometime in early March last year. I had the same concern and I didn't install any of the stuff I got until some time later I read on MS's site that the software was licensed. They also gave out Visual Studio .NET Academic t-shirts, a free full copy of WinXP Pro (using it on my gaming machine), some mints in a strange tin that you have to press on the top to open and squeeze the sides to lock (mmmm... mints), a Visual Studio .NET pen and I can't remember what else. In short, this story is a false alarm, MS does a lot of evil stuff, but this isn't a case of it.

Wow, I never thought I'd be defending MS, especially on /.

Re:No license == no copying

[Newander]

Not true, it is perfectly legal to make back-up copies so that you don't damage the original media.

Re:Discretionary licensing

[SN74S181]

Back more than a few years ago I bought a retail box copy of Windows NT 3.51. It was only on floppy diskettes, that was the only version the store had.

I called up Microsoft and for a 'media charge' of ten dollars they send me the CDROM version.

It was actually a good deal, as I then had the floppy and the CD version and could install NT on machines that didn't have a CDROM drive.

The same exact thing happened with Visual C 1.0. I bought it retail-box and it was the floppy-only version. I ordered the CD from Microsoft.

I ordered the 5-1/4" diskette version of Windows 95, for a 'media charge' of $10 too. Its the primative very first version of Windows 95, and it does have a few plusses. No Internet Explorer at all, and no CD-Key or 'finger print the floppy' process. So copying all the 5-1/4" diskettes to a single folder on a CDR disk gives you a copy of Windows 95 that requires no Key, does no fingerprinting, and is pretty close to untracable.

Ordered the floppies for Windows 98 the same way (cheaper than the floppies themselve would have been retail) but I've never even broken them out of the plastic seal.

Microsoft has a clear, proven, track record of providing additional media copies of their software to people who have legitimate copies.