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UK Judge Rules COA is Not Evidence of a License
blane.bramble writes "In a ruling against a company selling counterfeit and genuine licenses, a UK judge seems to have ruled that the Certificate of Authenticity is not itself sufficient proof of license possession. This could have major ramifications for UK businesses that consider keeping the COA as proof of being licensed. The quote in question is 'Thus it can confer no license for the use of any Microsoft software by passing on the COA (certificate of authenticity), nor can the COA be evidence of, or itself confer, such a license'."
And maybe a notary as well. Some videographers would help out for all those business deals.
I think I'll go into the market of blood-filled pens. I think blood is still binding, but I am (thankfully) not a lawyer!
"I can do you an Office 2003 [Microsoft software] without a licence for eighty-five quid. The licensed version is one hundred and eighty-five quid. With the eighty-five quid one we're not lining Bill Gates's pocket. If he's installing it in a business or something he might want to do the licence. He might want to do it properly." Hill claimed that his remarks were taken out of context
What? How possibly could this be taken out of context???? Unless of course you were saying something to the effect of "Well, if you want to get sued by Microsoft then I can do you an Office 2003 [Microsoft software] without a licence for eighty-five quid. The licensed version is one hundred and eighty-five quid. With the eighty-five quid one we're not lining Bill Gates's pocket. If he's installing it in a business or something he might want to do the licence. He might want to do it properly."
The Certificate of Authenticity is just that, it has never been billed as a Certificate of License. Why would anyone assume anything else?
A slashdotter who didn't build his own computer is like a Jedi who didn't build his own lightsaber.
But I guess it supports the idea that you don't buy software, you buy a license.
I guess first sale law doesn't apply to software in the UK any more.
The sad part is that aside from the receipt, with which microsoft (for example) might or might not give you a new code, the only important part of buying windows or other software is getting the COA with the reg code. The CD is utterly unimportant if all you bought was a license to use the software; you have a license, so you have a legal right to make backup copies. The CD that came in the package doesn't mean shit.
Assuming you even got a CD...
"You're right," Fisheye says. "I should have set it on 'whip' or 'chop.'"
It would have been much better had the judge ruled that the EULA is not evidence of a license.
How in the world you can prove legality of anything, then?
What about the money in your wallet? Should it automatically lose its legal tender status just because some bills can be counterfeit?
If the certificate is not enough proof of your ownership of a license to run a particular piece of software, what is? The original recipt? I mean if the BSA raids my office and the certificates are not good enough, then we're totally boned, since it's the only thing Microsoft has ever given us to prove that we are legally running our software. If we fail to prove that we're legally running the software, the fines would be in the hundreds of millions of dollars given the number of OS installs we have on the desktops here.
While I don't think MS would want to alienate their customer base, but if they wanted to they could really turn that ruling into a money factory.
I read the internet for the articles.
eula's are not valid in many parts of the usa, so how exactly are you supposed to acquire your license from ms in these states?
sum.zero
If the silly certificate isn't the license, then what is?
It's all well and good to say that I'm buying a license, but if that's the case, then I want to know exactly how it was conferred to me, and how I can transfer or sell it to somebody else.
"Ladies and gentlemen, my killbot features Lotus Notes and a machine gun. It is the finest available."
The real problem here is that this judge, if the quote is truly from a judge, implicitly acknowledges the concept of a license to use software, a right that is not (under US and UK copyright law) the copyright holder's to license.
We don't need no steenkin' Certificates of Authenticity.
I'm trying to get my head around this ruling. On one hand it makes sense, on the other hand it doesn't. My question: if the bank receives no license because it paid money but didn't accept the EULA, then what did it receive for the money it paid?
Possible answers I can come up with:
1. The bank bought a computer, and chose not to use some software bundled with it, the same as if I "bought" Norton Antivirus with a new computer but never used it because I choose to use AVG. Dell won't refund to me their cost of the Norton software just because I don't choose to use it. Arguable, but not overly evil.
2. The bank bought a computer which was probably loaded with an OEM "only for sale with a new computer" license for Windows. The license should travel with the hardware, then. Arguable, moderately evil because of the whole "only with a computer" distinction.
3. ???
4. The judge got it wrong, and the bank should be able to sell the unused license the same as if they bought too many office chairs and sold the ones they never used. Non-evil, but IANAL.
Thoughts?
Why, oh why, didn't I take the Blue Pill?
most OEM windows products are only supplied with a COA and preloaded on the computer. does this mean that the vendor in selling the computer with preloaded MS o/s has insufficient evidence of being able to license it despite this regime having been invented by microsoft so we have to keep buying a copy of windows with every new computer even if we dont use the old licenses?
I'm not trolling - we're in the same boat. We still have a few MS machines in our company but we've been slowly getting rid of them over the last couple of years. With Vista, Windows Genuine "Advantage" etc., MS licensing paranoia etc. it's pretty self-evident that simply owning Microsoft licenses is an increasing risk - not to mention added burden on your IT team. Dump them. The alternatives are there and it's definitely worth it, if only to be free from the yoke of oppression. ;-)
"I wondered the same thing. Okay, so when you buy software, you're not really buying the software, you're buying a license (or so they tell us). Fine; but where the hell is the license? What confers it? The purchase receipt? Possession of the original authentic media? The front page of the manual? The click-through license?"
More importantly, how is it that a *minor* (who cannot be legally bound to a contract) can walk into any store, hand over cash and receive a copy of Windows? Won't somebody think of the children?
btw, I'm only half joking, the point being that if any kid can simply buy a copy of Windows in a store, then it's a freaking RETAIL TRANSACTION, not a contractual agreement. Here's another good question...since a software retailer takes copies of Windows into their inventory, shouldn't the supposed "license" be with the retailer and not Microsoft?
Bill Clinton: Pimp we can believe in. - The Shirt!!!
Thus it can confer no license for the use of any Microsoft software by passing on the COA (certificate of authenticity), nor can the COA be evidence of, or itself confer, such a license
And it also says:
there are circumstances in which disused or unwanted volume licences for some Microsoft software can be transferred; but this trade must be compliant with Microsoft's own transfer terms and conditions
Rrrright. So, somebody, please, educate us, what _can_ be an evidence of us properly using our legitimately bought MS software ? And, also, what exactly are those transfer terms and conditions ? And what can prove that someone was complying to those terms and conditions ?
I am putting myself to the fullest possible use, which is all I can think that any conscious entity can ever hope to do.
This ruling was made in another country, therefore it does not have much standing in the United States. Supreme Court Justice Kennedy likes to use international opinion in his rulings (see Roper v. Simmons and Lawrence v. Texas) but one decision in one case across the pond is no reason for American businesses to fear that they will be sued for their legally purchased software.
Information wants a fueled airplane waiting at the hangar and no one gets hurt.
--dave
davecb@spamcop.net
Instead of reinventing the wheel, companies could use an existing "certificate" with built-in anti-counterfeit measures... common paper currency.
For example...
And there you have a counterfeit-resistant, anonymous, verifiable proof of registration.
Just like your GNU/Linux operating system comes with a licence associated with it, defined in the accompanying documentation and here online. Doesn't need a physical embodiment.
"Buy Linux. We don't use licensing like some companies *cough*Microsoft*cough* use. When you buy our Enterprise platforms, you are also buying the peace of mind of knowing that we value our customers to not treat them like criminals. Buy Linux today and the only documentation you will ever need to have on hand is your support contract."
So my Dell laptop came with WinXP preinstalled and on the bottom of the laptop there is this certificate of authenticity and there is nothing else. Does it mean I am actually not allowed to run the preinstalled WinXP on this machine legally?
You can't handle the truth.
I assume by the "????" that you really, really want to know, but couldn't be arsed to read the next paragraph. When faced with significant cost or effort, most people are satisfied if they are at least obeying the spirit if not the letter of the law. If Microsoft has already been paid for a copy of software but the buyer cannot use it, should it then simply go to waste, or could it be passed on to someone else? (With the new buyer paying whatever was originally paid to MS to the original buyer of the software).
No question that the letter of it is being broken in that MS has structured their EULAs and bulk purchase agreements in such a way as to restrict this, but this is different I would argue than flat out piracy or counterfitting.
Have you ever purchased something expensive on a friend's Sam's Club card? Had a second rebate mailed to your friend's house for something you bought two of? Bought one of those "Do not sell Radio Promo CDs"?
I'm not saying any of these things are right, but the context you can't seem to find is that this software was bought from MS (they got paid) and because they couldn't use it they then resold it to someone else (prohibited by MS). The selective quote by the salesperson makes it sound like what's going on is on the far side of wrong, but with context it seems to be one of those gray in between things instead. (Assuming what was related was true.)
What Microsoft is doing here is taking legitimate software (they made it and they sold it) and by fiat converting it into pirated/counterfeit software solely by stint of how they have their EULA structured. The software hasn't been reproduced, isn't being used by multiple people, in fact the core of the argument rests on the fact that the software has been completely unused prior to the sale.
Translation: "I use a Mac because I'm concerned only with trying to look cool and stuffing Steve Jobs' wallet with my parents' money".
:)
Fortunately, I know some Mac users who *aren't* vapid, so I know you don't represent them all.
P.S. I use Linux AND Windows, and my girlfriend makes the skanks in those photos look like boys. So there.
I've also wondered this for a long time.
My organization has some sort of an umbrella purchase agreement with Microsoft. When I had to manage a vendor product that ran only on Windows and MSSQL ( version 2000 in both cases, I think), I ordered licenses under that agreement. Got the CDs. Got some piece of paper that said 'this is not a license. you can get your license by contacting your vendor'. Clearly no other piece of paper provided was a license. I pursued the matter with both the vendor and Microsoft. I never got a certificate of license. What did I actually pay for?
Extend this question to every CD you've ever purchased, in the context of the music industry's ever-changing comments on what you bought from them. If challenged, how would you ever prove your right to any of it?
This could have very far reaching implications: it has just raised the bar for corporate users in proving that they have no outstanding financial liability for software licensing. So before a company can have its books signed off, it must either prove the software licensing or go and buy new ones.
It complicates the issue of licence management for a great many businesses, providing another incentive for using libre software instead.
The last scintilla of doubt just rode out of town
This is a very good point. Isn't it illegal for a minor to enter into a contract. Something like "corrupt a minor" or some such law? If so shouldn't it be illegal to sell Windows (or any software with a legally binding contract, such as a EULA) to a person under the age of 18 (or whatever the age for becoming an adult is in your country?).
A licence for these purposes is an abstract concept, not a physical object, though a physical object may be evidence that the abstract concept has been brought into being: in this case the physical object -the COA- was not sufficient evidence because it's received before the licence is agreed. It seems an utterly unremarkable judgment to me.
But then, IAAL.
The idea I get is this, and this only applies to the OEM versions of Microsoft Software (where they provide a discount to the OEM).
The judge says that businesses that have not used the Software Licenses, and thus aparrently not agreed to the license, cannot transfer the license. Only upon acceptance of the license terms does the ownership of the license begin.
Further, the license terms forbid the transfer of the license w/o being attached to a piece of hardware (some businesses have gotten around this by attaching an IDE cable or network card).
Thus, w/o acceptance of the terms one does not own, and the terms disallow transfer. This does assume that those terms are enforceable and legal, but that may not have been at issue here.
This reminds me of "I am Dennett" (http://www.cs.umu.se/kurser/TDBC12/HT99/Dennett.h tml)
In short, if you scoop your brain out of your head and hook it up to a wireless network so it can communicate with a receiver in your now (otherwise empty) skull, where "are" you? What if they sectioned your brain and scattered it across the world, each still connected to the other parts (and your body) by the intranets. Then where "are" you?
This has always been the case in the US. You need a receipt of purchase to prove licensing, not a COA or the original box or the CDs. Proof of purchase only.
"The judge rejected the argument. "The fallacy in the argument is that if the bank does not accept the EULA [licence] terms [by operating the software and agreeing the terms], it receives no licence. Thus it can confer no licence for the use of any Microsoft software by passing on the COA (certificate of authenticity), nor can the COA be evidence of, or itself confer, such a licence. Thus, provided that the licensing system is enforceable in law, the circumstances exemplified cannot give rise to a legitimate trade in COAs."
There in lies the basis for appeal and in my opinion where a class-action suit lies for all Windows OEM buyers. If I pay for something within the purchase of a system and don't use it what have I bought? The OEM has nested the purchase of a license I didn't accept, yet I "bought" it. This is where Microsoft has done a disservice to the computing industry and where OEM's continue to do so. Tying the the license to the machine, for one, and not allowing that license (unused) to be transferred or rejected for refund. In essence, Microsoft gets paid either way. For all of you "Microsoft is just doing good business" folks out there, they are not. They've set themselves up to, in this area, completely eliminate any risk in the marketplace. If a box ships, they're paid. Period.
For those who can't see this coming:
BSA comes to your business for a audit.
-You have COA? we will need to see the receipts.
-You have receipts? we will affidavits from all persons who clicked the EULA.
-You have COA, receipts, EULA's? we will need to see the CD's.
-etc.etc.etc.
repeat till you fail their never ending requirements of Proof of Purchase/Ownership/Bloodletting.
I'm not sure that the statement at the end
... unwanted volume licences for some Microsoft software can be transferred; but this trade must be compliant
+ goes+on+sale/2100-1012_3-5944617.html
>
> with Microsoft's own transfer terms and conditions.
is entirely correct - it's a "feature" of UK insolvency laws. See here:
http://news.com.com/Secondhand+Microsoft+software
http://www.openfree.org/opinion/?p=31
So if this is true, why does my COA on my laptop specifically state "Proof of License" directly above where it reads "Certificate of Authenticity"? Is Microsoft lying about that now? Cuz if they are, and I get screwed for not having proof of license, they're gonna be hearing from me about it.
Bought one of those "Do not sell["] Radio Promo CDs...?
I can tell you this: I haven't sold any.
I don't think it's illegal for a minor to enter into a contract, it's just that their signature doesn't have any weight. It can't be 'illegal' for them to enter into a contract, because as far as the law is concerned, they can't do it. They don't have the necessary legal status (unless they've been legally emancipated).
It's not a prohibition, like selling drugs (where you can do it, but it's illegal), it's just a nullification of their ability to agree to the terms. Thus, anything they'd sign would be unenforceable. That's why credit card companies don't give cards to minors -- you couldn't force them to pay up.
IANAL, naturally...but I don't think that you could endanger the morals of a minor by making them click on a clickthru license (snarky anti-Windows comments go here); however you couldn't hold them to the terms of whatever they "agreed" to, because they can't legally enter into a contract.
"Ladies and gentlemen, my killbot features Lotus Notes and a machine gun. It is the finest available."
I wondered the same thing. Okay, so when you buy software, you're not really buying the software, you're buying a license (or so they tell us). Fine; but where the hell is the license? What confers it? The purchase receipt? Possession of the original authentic media? The front page of the manual? The click-through license?
The license doesn't need to be carried through a physical object any more than the copyright that you're desiring to license. That's why it's called "intellectual property", it only exists in the collective mind of society.
Now, if you want to prove to somebody that you actually have a license, some manner of physical object like a receipt would probably help. But that piece of paper isn't actually the license, it's just evidence that you have one.
Someone should tell Microsoft, they don't need to pay for all that security on the rooms where they are printed. In fact, let's replace the COAs with photocopies of a a piece of paper saying "Fine, go ahead and run Windows if you must. But don't come crying to us when you break it."
Undoubtedly the type of boring, big-breasted blonde bimbo with which no Mac user would be caught dead. How much more white-bread can you get?
If not, provide photographic evidence, or fail.
The majority of the development team for the almighty Mac probably look like a cross between RMS and Bill Gates. There might be some vapid artists designing the UI. Of course it's been toned down in nearly every release because it was just too damn artsy for their users' taste.
What Microsoft is doing here is taking legitimate software (they made it and they sold it) and by fiat converting it into pirated/counterfeit software solely by stint of how they have their EULA structured. The software hasn't been reproduced, isn't being used by multiple people, in fact the core of the argument rests on the fact that the software has been completely unused prior to the sale.
I thought the EULA wasn't binding until agreed to. Until I install the software or break certain seals, I do in fact own that copy of the software, up until I agree that I don't via the EULA. I don't need a license until I agree to a license that says I need one. It's up to them to put the license agreement between me and ability to use it. And if I never agreed to a license that revokes First Sale Doctrine saying I couldn't resell it, then I sure as hell can resell it.
(And if that flies, expect Microsoft license agreements to be amended with terms that say you agree that all Microsoft software requires a license and cannot be resold so that once you agree to one you've agreed to them all.)
Oh, say does that Star-Spangled Banner entwine / The myrtle of Venus with Bacchus's vine?
If COAs cannot be traded without prior acceptance of the EULA then no entity that sells software is doing so legally. Stores that sell boxed software have not agreed to the licenses for that software and so cannot transfer licenses. If Dell loads a computer with software and sells it, they have not agreed to the license as evidenced by the fact that I have to click through the EULA when the machine boots up. This arguably makes selling software that you did not create illegal in the UK.
They bought a computer, or maybe a software bundle that included an EULA to which they did not agree. That implies they do not have the right to transfer the license they did not agree to and therefore did not own.
I believe the intention is to elminate the ability to transfer -any- license, even the one you have when you agree to MS's EULA. Thereby increasing consumption of new OS licenses.
This is the logical step forward in a society that fully embraces capitalism. Microsoft/RIAA corporations own the content and allows you to use it temporarily and that's it.
http://www.maxineudall.com/2010/02/should-economists-be-sued-for-malpractice.html
Unfortunately, he did exactly the opposite. From TFA:
I'm not a lawyer, but it sounds disturbingly as though a High Court judge just ruled EULAs legally binding in the UK without even having the case go to court.
If you disagree, post your argument. (-1, Overrated) isn't your personal censorship tool for views you don't like.
Understood. I guess my question boils down to 'a tree falling in a forest.'
If we create a legal construct, but there's no objective evidence of it being created or agreed to, then can the construct really be said to exist?
If it's uncontested, it may not be an issue; but as soon as one party tries to contest some part of the construct, then whether or not there's evidence of the agreement/construct becomes a serious problem. That's why we have contracts and signatures -- not because they are legal constructs themselves, but because they're physical embodiments of them, setting out what has been agreed to, and the consent of the various parties concerned, in a way which is obvious to a third party.
Particularly in regions where clickthru EULAs are not enforceable, it seems as though there's a shortage of the physical embodiments of the license 'agreement.'
"Ladies and gentlemen, my killbot features Lotus Notes and a machine gun. It is the finest available."
...and the ONLY proof that I would get of a license is that piece of paper. MS actively discourages manufacturers sending out CDs. So that can't be used as proof. The reciept? How many people keep those forever. Besides, I ordered it online, so the only reciept would be the packing slip. The sticker on the side of the case? Well, if the sticker on the paper with a bunch of legalease isn't enough, why would it being on a painted piece of sheet metal be enough?
If you think education is expensive, you should try ignorance -- Derek Bok, president of Harvard
"Ultimately it comes down to taste. It comes down to trying to expose yourself to the best things that humans have done and then try to bring those things in to what you're doing. ... I think part of what made the Macintosh great was that the people working on it were musicians and poets and artists and zoologists and historians who also happened to be the best computer scientists in the world."
— Steve Jobs
For much of their stuff, they consider that a license is invalidated by "transferring" it to another user and you'll have to repurchase it again, even if you have all the media. I found that out when trying to get some SGI software off Ebay.
I've already experienced this pain. At my last programming shop, I was tasked with gathering up all the licensing info for an upcoming USAF Unit inspection. For the most part, we had done a pretty good job of keeping receipts and original CDs/certificates. I figured I could make a good case for proving that we actually had licenses for everything, even though none of those is technically a license. However, we had some software from Borland that we purchased online and downloaded at an annual cost of $15,000. The only things I could produce, in fact the only things we ever received, were burned CDs, a registration key, and some email traffic which was saved as .txt files... not exactly convincing evidence. Of course, all we ever had to do was call Borland and ask them if we had the licenses, and they would have said "sure," but what if their records got corrupted? And how could I appease the management? Just by saying, "trust me," and "call Borland if you don't believe me." It got pretty ugly... luckily I left before the shit hit the fan.
IANAL and don't really know what I'm talking about. But if I were to guess, I'd say that the *agreement* between Microsoft and the customer is the "license" (otherwise known as a contract). So what signifies the agreement? Well as far as I know there doesn't have to be anything physical that indicates an agreement. A handshake or a conversation can be enough.
So, again guessing, I think the point of the judgement is that the COA is not *necessarily* a proof of license. In the case here, there was clearly no agreement between Microsoft and the sellers of the software. Therefore no contract. Therefore no license, despite the presence of certificates.
I think if MS were to say that the certificates were not proof of a license, then the case would hinge on the details of how the certificates were obtained. If they were obtained through a regular channel, then I think MS would have a *very* hard time showing that no agreement was entered into.
Here's the description of the justification from the judge's decision:
Granted, it's a bit harder to get laptops without an OS than desktops, but it still certainly can be done, and I don't see any indication (though they don't really go into it) that they're not trying to get a bulk-liscence discount to sell to individuals under the table, which would be like me like college students selling off their personal OS liscence they got from paying their shcool tech fee.
Seems to me in most matters legal, the burden is on the plaintif to prove the defendant did something. Said defendant is innocent until proven guilty, and need not testify on his own behalf... for or against himself.
Lawyer: You are not licensed.
User: Prove it.
Lawyer: We have no record of you having purchased a license.
User: I can't help it if you have shotty book-keeping.
etc.
This issue is a bit more complicated than you think.
Have you ever purchased something expensive on a friend's Sam's Club card?"
It is allowable by Sam's Club to bring a guest shopping with you.
"Had a second rebate mailed to your friend's house for something you bought two of?"
This is also okay - having two sent to the same household is what is not okay.
"Bought one of those "Do not sell Radio Promo CDs"?
Buying this is not wrong, selling it is.
Baaaddd examples man...
"But this one goes to 11!"
That depends. Are you in the UK, where this ruling occurred?
All kidding aside, it looks like this ruling would keep people in the UK from peeling that label off the laptop and transferring it to someone else.
My old Thinkpad has a Windows 98 license key on the bottom. It looks like this ruling would prevent me from, for example, installing that copy of Windows 98 on a PC for my sister and giving it to her. It might even prevent me from installing that license in a copy of Parallels running on my Mac, or using it in a VMWare image on my work PC.
"Live Free or Die." Don't like it? Then keep out of the USA
You can bet your bottom dollar that they'll be trying it here next. Whether they get a similar
ruling over here or not remains to be seen, but just because it's not happened yet over here
doesn't mean it won't.
I am not merely a "consumer" or a "taxpayer". I am a Citizen of the State of Texas
Why the hell would anyone pay eighty-five pounds for an unlicensed copy of anything?
Do people really think that the box and the manuals and the stamped CDs really cost that much? If you're going to get "unlicensed" software, why not just pay someone a couple of bucks to dupe the CDs? That's effectively what you're getting; a set of installation media without any right to use the software that's on it.
I bet if you called up Microsoft as a licensed user and said that your dog had eaten your media, that they probably wouldn't charge you that much for a new set of media for use with your existing license. The "license" is the only thing that has any value -- the installation media and manual are just extras, worth maybe a few bucks, but certainly not a significant percentage of the 'retail price' of the software (with license).
"Ladies and gentlemen, my killbot features Lotus Notes and a machine gun. It is the finest available."
I keep my COAs as proof, if that is not the proof I need then what do I need to show Microsoft if they try to turn off my updates? Corperate Product Keys are having this problem right now.
Isn't it illegal for a minor to enter into a contract. Something like "corrupt a minor" or some such law?
No. But it is voidable, if the contract is not for "necessities." So presumably, a minor could argue that the licensing agreement was void, even if they clicked "I agree," and use the software in ways prohibited by the license.
If you don't know where you are going, you will wind up somewhere else.
That is interesting. The judge is saying that if the buyer does not agree to the EULA (even if they don't disagree with it -- if they just never install or use the software) that the license vanishes into nowhere. The company does not get a refund, nor do they get the license. That is pretty bizarre.
Whooahhh hold on...!!! So the judge made the ruling under the assumption that the licensing system is enforcable. But he doesn't state that it is enforcable. It sounds like he just told the defendants to claim that the licensing system isn't valid. That is also odd, since the defendent thought they were working within the system, and they weren't interested in challenging it. And the judge wasn ruling about how a system works, but hinting that the system isn't valid. Sounds like he should have let it go to trial.It can't be 'illegal' for them to enter into a contract, because as far as the law is concerned, they can't do it.
Yes they can. They can turn around and break the contract without consequence. Of course, this is the UK - they may have different ideas.
"We returned the General to El Salvador, or maybe Guatemala, it's difficult to tell from 10,000 feet"
Well, in a nutshell, MS has a nice cash-cow selling software twice, and tries to protect it. The scam is sorta like this:
1. Thanks to MS anti-piracy lobbying and differential pricing, it's not even possible to buy a PC without Windows on it from a major OEM any more. Or not without paying for Windows anyway: see Dell's Linux PCs or PCs without an OS, that cost exactly as much or more than the same with Windows. (And if you managed to get one without an OS anyway, it would get added to BSA's piracy statistics anyway.) And
2. Most corporations prefer to have a small numbers of standard configurations, to minimize support and training costs. Mom and pop shops may just leave whatever OS was on that PC, but for a corporation supporting 10,000 PCs or more, they prefer to install their version of Windows, Outlook, Office, etc, on each of them. So they buy a corporate version of all that stuff.
The problem is that in the process that corporation has paid twice for Windows and maybe for a few other programs too. E.g., they bought 100 new Dell computers with Windows XP Home on them, and then went and installed their corporate Windows 2000 image on each of them. It paid for both.
And this is just one of the many episodes where MS tries to defend its right to fleece them twice. It tried repeatedly to get it its way that you can't stop paying twice by either:
1. just buying your computers without an OS, if you have your corporate license anyway. (Believe it or not, it actually went on record as saying that the corporate licenses were some sort of "upgrade" to the Windows OEM license bought with the computer, and hence illegal to install on a blank machine.)
2. selling your unwanted and unused OEM licenses (Like the bank in TFA did. This is all that this BS about COA not proving purchase is: being told that, nope, you're not allowed to sell those unwanted OEM licenses that you were forced to buy.)
It's a money grab. Plain and simple. It's fucking stupid to pay for an OS twice. (And it's even more fucking stupid to pay for an OS once when you don't use it: e.g., being unable to sell that Windows OEM license that came with the computer, when you really wanted to install Linux on it.) But for MS it's more money if they can keep forcing you to do just that.
And as long as they can, they and the BSA will do all they can to prevent people from finding a way out of this stupidity.
And don't think that such lawsuits are the only thrust in that war. The BSA isn't just the enforcing arm, it's also a useful source of BS and FUD in that campaign. As I may have mentioned before, even if you did manage to establish your right to buy a PC without an OS, the BSA will write it as a PC running pirated software anyway. That's how they make their infamous statistics: pull an assumption of how many PCs should have also caused a sell of Software X, and anything lower than that is automatically piracy. So if your company bought 1000 PCs without Windows, Office, etc (e.g., because you're installing Linux and OpenOffice on them), it _will_ be written by the BSA as 1000 PCs that are running pirated software.
Cue inflated statistics about rampant piracy and appeals to the governments and courts to give them more power.
A polar bear is a cartesian bear after a coordinate transform.
I'm the network admin for a city government. We were audited by MS a couple of years ago (and passed with flying colors -- we actually had a small surplus of licenses above and beyond what MS software was actually deployed), and the only proof of license that was deemed acceptable was the combination of our archived purchase order paperwork, receipts plus the archived cancelled checks to our MS software vendor (a state contract vendor) showing we had actually ordered and payed for all the MS licenses. Thank goodness we keep all our paperwork archives for seemingly forever (public records retention law requirements).
Does the United Kingdom even have a constitution?
Sig withheld to protect the innocent.
dunno wtf. happened to that url, should have been:
o .mspx
http://www.microsoft.com/piracy/partners/YourPC_d
"IANAL and don't really know what I'm talking about"
Please, don't let that stop you from posting.
"Among the evidence produced were transcripts of conversations which Microsoft claimed took place between a test purchaser, Kenneth Anderson, and Edward Hill"
How were these transcripts obtained? Did either of the parties know they were being recorded. Did the test purchaser lead Edward Hill into making incriminating statements.
Re:Out of Context? You screwed buddy
davecb5620@gmail.com
The actual article says: "The three were found to be selling counterfeit software and of selling 'loose' certificates of authenticity - i.e. certificates not attached to computers - in breach of the licence terms of the software." Thus COA's are proof of license, but they have to be attached to the computer.
"Bought one of those "Do not sell Radio Promo CDs"?
Buying this is not wrong, selling it is.
There is nothing wrong with selling promo CDs. Just as there is nothing wrong with selling items labeled "Not for individual sale."
Laws are not enacted by printing words on a package. You will not go to jail for refusing to wash, rinse and repeat.
They could allow anyone to download, install and use their software for free for personal use. Charge a reasonable, transferable licensing fee for commercial use and OEM distribution. And make the real money on support, training and customizations. It just sounds so much simpler, doesn't it?
"White-bread"? LOL. As a matter of fact, she's anything but. There aren't too many blonde Thai women. And no, I'm not posting her photo - find your monkeyspank-fodder elsewhere, loser.
And I'm supposed to be impressed by waif-girls who wear too much makeup and pretend-engrave themselves with corporate logos, right. That's not creative, that's boring at best and at worst it's just pathetic.
It's really a stretch to call this "capitalism" at work. True capitalists want less government regulation.
1. The "true capitalist" does not exist. Please do a search for the "no true scotsman" argument.
2. Capitalism has no mechanism for the distribution of wealth. It promotes the opposite. In this situation, you are given only the rights explicitly given to you in the EULA. It's their software to sell to you at a price they see fit to charge you for its limited use. Furthermore, Microsoft is allowed to change the EULA terms as they see fit. That's capitalism. And it works great for Microsoft. Not so much for the individual.
http://www.maxineudall.com/2010/02/should-economists-be-sued-for-malpractice.html
Dude, I know. She has those ... boobs ... getting in the way. I bet she doesn't even have a penis. How boring can you get?
P.S.
You're gay.
P.P.S.
Not that there's anything wrong with that.
<xml><I><am><so><damn>Web 2.0</damn></so></am></I></xml>
AFAICT, the cat is not legally responsible for the consequences of its actions.
See EULA kitty,
Click EULA kitty,
nice kitty - here is a piece of catnip!
Sent from my ASR33 using ASCII
says the Anonymous coward
Someone help me here. The judge states that the COA is not proof of licensing and that a license is not granted until the EULA is agreed upon. Because of that, an end user is not allowed to sell their license for X software (because they don't have a license until the EULA is agreed). The only way this seems possible is if the software manufacturer never sells a license. This means that the shrink wrapped box includes software and a nontransferable ownership of a license to the purchaser. It isn't a license until the purchaser agrees to the EULA, however. So basically (by this logic), I cannot buy software as a gift for a friend. Once I purchase the software, the license can only be granted to me (as the purchaser).
Since that doesn't seem reasonable, where I am interpreting this incorrectly?
So let me get this straight...
I've made a point to buy all software I use, if buying a license or CD is even possible. So, yes, even the SuSE Linux 10.0 that I'm writing this on is bought and I have the CDs and manual next to me. (Hey, lip service is cheap. I prefer to vote for OSS with my wallet.) I also have bought a copy of Windows for each of my two computers, because I do play games a lot. At any rate, I have the COAs and CDs and everything. I also have these three bookcases full of games I've bought. With original case, CD, manual, whatever. I've also bought all music I'm listening to, and I can show you an original CD for any MP3 you might find on my hard drive.
So now you're telling me that someone could come and say that in the eyes of the law I'm a bigger pirate than Blackbeard? Just because I didn't keep the receipts from EBGames and whatnot? That someone could look at all those hundreds of games in their original cases and all, and count them _all_ as pirated software?
Nothing personal, and please understand that my anger isn't directed at _you_, but I find that bloody stupid and offensive. Essentially then the US is calling me a pirate and a thief, in spite of my efforts to be a honest lawful gamer, and in spite of the ample evidence to the contrary. I find it utterly insulting.
Whatever happened to innocent until proven guilty, ffs? It seems to me like the current attitude is basically the exact opposite: you're by default a pirate, and from there it's your uphill battle to prove yourself innocent. And, oh, let's also make it nearly impossible to prove that. You may have the original CD, the box, the manual, the certificate of authenticity and everything else that a sane person would have guessed would be enough, but if you can't find the receipt you're a thief anyway. I mean, seriously, wtf?
And what next? Should I expect that my washing machine or TV also count as stolen, because I threw away the receipts once they got out of warranty? Should I start keeping the receipts for the groceries I buy, or be considered a thief that lived on stolen food for the last decade? WTF?
A polar bear is a cartesian bear after a coordinate transform.
Of course, Microsoft would claim that without accepting the license they have no right to use the software at all, even though copyright law does not give them the power to say so.
Sort of. They don't have a written constitution, but they do have constitutional law. This is derived from a collection of laws, traditions, and precedents that dictate how the UK government runs. They don't have a system where an Act of Parliament can be declared unconstitutional, as far as I know, so it's not like the US Constitution in that respect.
Hi. Everyone's had an Asian girlfriend. We're not impressed.
I don't like Microsoft licensing as much as the next person, but--unless there are some hidden implications for case law--, I don't think the judge was far off. The company who sold these licenses knew exactly that what they were doing was wrong, or at least not covered by the license agreements. Please lets not make them into victims or crusaders for free software just because their lawyers tried to come up with some justification after the fact.
Anyone who tells a customer: "I can do you an Office 2003 [Microsoft software] without a licence for eighty-five quid. The licensed version is one hundred and eighty-five quid. With the eighty-five quid one we're not lining Bill Gates's pocket. If he's installing it in a business or something he might want to do the licence. He might want to do it properly." knows 10000% that he's doing something that's not entirely kosher.
Or do you think someone who tells you: "I can get you a BMW without a title for $10,000 in cash" is entirely legit?
Just becuase you have a valid licence, that's no guarantee the software will be useful to you. Same as buying glue; I'm sure the shop has every right to sell you that tube of glue, but they don't guarantee that it will stick anything. You're making that leap of faith yourself. To get a 'stick it' guarantee, you have to pay extra for a 'glue application service'.
Who is the jackass that thought this boner up. The COA is supposed to be the be-all end-all otherwise there is no use for it. I don't get just what they want now, A reciept maybe? Good luck finding that. I think it's time to really consider a court strictly for computers. We don't have enough time to train the knuckledragging oafs sitting on the bench presently. They aren't smart enough to poor piss out of a boot with the instructions on the heel so we need a geek court. You don't have to be a lawyer to become a judge and you can consult anybody that isn't involved in any particular case in front of you for guidance.
There does seem to be something to this. If someone steals a COA, surely that doesn't make it illegal for me to continue using the software. Just looked at the XP Home EULA. The EULA prohibits reselling the software without the COA, but it doesn't prohibit using the software if one's COA has been lost or destroyed. So the license does not consist in the COA.
Moreover, if the COA were to confer license, one would get the ridiculous result that each copy of XP (I assume Pro has a similar EULA) automatically is licensed for two computers. For you could give away your COA and continue using your copy (the EULA doesn't prohibit giving away or selling the COA), and then the recipient could use the COA as a license for his copy.
Most likely, you don't. What you probably have, if you have anything, is receipt of purchase from the dealer - not the receipt of purchase from the manufacturer. This document is known as the "Manufacturer's Statement of Origin" (MSO).
Most people "purchase" their vehicles through a dealer, via a loan or credit. A payment schedule is set up, a down payment is made, and the new "owner" drives off with the vehicle and a dealer "receipt". The MSO (among other documents) is transferred to the Motor Vehicle Department of the owner's state of residence. When the loan is paid off, the owner may get a copy of the MSO sent to him, but more likely he just gets a note and/or receipt saying the loan is paid in full. The state still has the original MSO. The dealer receipt is not valid proof of ownership of the vehicle - only the MSO is. If you don't have the MSO, and the state does, guess who really owns your vehicle?
The only way (that I know of) to get the MSO of a vehicle is to buy the vehicle directly from the manufacturer, and not the dealer. You can pay cash, credit, or have a private loan to do this, but you will need a trailer to move the vehicle, since it isn't licensed in any way. Actually, this is somewhat false - in theory, you can drive it, without insurance or a license, under the doctrine of "Right to Travel" - but you must have that MSO with you to have any chance of beating this in court when you are hauled in.
As far as I have been able to research, this is all true. It is simply way more obscure than even the whole FIJA (fully informed jury) issue. "Right to Travel" is yet another one of those areas of law which make judges and the states seethe at the mere mention of it, because it is a Constitutionally protected sovereign right of a free man who owns property. At a certain level, it removes control of the state from an otherwise law-abiding person. This angers the state, but they are (currently) unable to do anything about it.
What has been done about it is a nearly institutionalized form of slavery of perpetual indebtedness of citizens via "easy credit" and loans, among other measures (such as the separation of selling mineral rights from property rights, for instance). If a man does not actually own his own property - is he really free, or is he merely another form of a slave?
Licenses, DRM, the DMCA, etc - it is all a part of a very real pattern to control the populace via removal of property ownership rights. Unfortunately, most of the citizens - er, consumers - are playing right along. It is even at a point now where people look at you strangely when you tell them you are paying off your credit, or you use cash, etc - a form of peer pressure to conform to economic slavery. You are suspected if you don't play along, or if you play differently (such as by "living within your means" instead of racking up credit debt). These are sad times we Americans live in - what is pathetic is that most people aren't even aware of what is happenning, and nearly ostracize you if you so much as suggest it...
Reason is the Path to God - Anon
"White-bread" was in reference to you, an assessment you've supported with your miscarried defense; being attracted to the exotic Other, ceteris paribus, is even more typical of square culture than being attracted to Pamela Anderson. Congratulations on your failure.
One of the funny things about EULAs, is that there never is any direct evidence of a license. The copyright holder never has any evidence (i.e. a signed contract) that the user agreed to the terms. The user's only evidence, is a piece of paper which doesn't even say to whom the license has been granted, so they really don't have any serious proof either.
EULAs are a nearly invisible contract that one side never consents to, and neither side can proove exists.
So while this case appears to be a win for Microsoft, I think this is a double-edged sword. EULAs were already pretty shady, and now a judge has gone on the record, saying that the COA is not proof of a license. This is another nail in the coffin of all EULAs' appearance of legitimacy.
I also think it's hilarious that a bank can't transfer a license but a retail software store can. Neither party is Microsoft, neither party has a direct relationship or contract with Microsoft, neither party even breaks a seal with a sticker on it that says "by breaking this seal, you agree to..." and neither party clicks on a "by clicking on 'install' you agree to.." button. And yet they also (in addition to the end user) are bound by a contract that they have never even seen? EULAs are so cheesy and fake-looking, that I can't believe anyone takes them seriously. Wake up, judges. If fake contracts can be applied to people without their knowledge, how do you know I'm not going to make up a contract and apply it you you?
As copyright owner of this comment, I authorize everyone to defeat any technological measure which limits access to it.
You guys are really something else.
You are actually defending organized crime here. Vendors selling software with unattached (i.e. illegit) COAs at blackmarket prices, and you defend that because you guys defend piracy in general.
eula enforcement is not consistant across every state in the usa. in some cases they have been ruled as enforceable, in others not.
sum.zero
What then proves you are licensed to use software if the COA isn't proof that you have authentic (therefore licensed)software?
This is why I don't pay for MS products. I'd love to see someone get taken to court by MS for not having licensed software. The user's defense could easily be...well according to this the license doesn't actually exist.
Someone needs to write an EULA destroyer that removes EULAs from proggies.
So far as I'm aware, Britain doesn't have a first sale doctrine. Otherwise, I believe you'd be right.
You are not alone. This is not normal. None of this is normal.
I thought the EULA wasn't binding until agreed to. Until I install the software or break certain seals, I do in fact own that copy of the software, up until I agree that I don't via the EULA
From the article:
The defence argued that if a large organisation, such as a bank, bought a large number of computers and never used the bundled Microsoft software and sold on the licences, that a company such as Digital could sell those licences, for which Microsoft had already been paid.
The judge rejected the argument. "The fallacy in the argument is that if the bank does not accept the EULA [licence] terms [by operating the software and agreeing the terms], it receives no licence. Thus it can confer no licence for the use of any Microsoft software by passing on the COA (certificate of authenticity), nor can the COA be evidence of, or itself confer, such a licence. Thus, provided that the licensing system is enforceable in law, the circumstances exemplified cannot give rise to a legitimate trade in COAs."
So, according to this judge, in the UK, if you don't agree to the licenses, you don't, in fact, own anything, even if you've paid for it.
Kinda scary.
IANAL of course.
All I think this is saying is that if person A sells you a "license" - and it then turns out that A had no right to sell you such a license - then you do not have a license, regardless of how many hologram-encrusted bits of paper person A gave you.
Now, say A aquired that paperwork along with a PC from vendor B, and B tried to impose on him a ridiculous Catch-22 clause that purports to say "you can't resell that as a license because you haven't accepted the license, and if you do accept the license you have to agree not to resell it". That stinks - but if A doesn't like it he needs to take that up with B - not sell the disputed item on to you. You can't take it up with B later because you are not party to any agreement with them.
For added complexity say that A was probably buying hundreds of computers under a negotiated commercial contract (i.e. not retail) and your dealings with them are actually indirected through allegedly-shady software dealer C and you have a right mess.
Note that the defence here was a long shot involving EU competition law, and that the Judge left a big caveat about "if the license is legally enforceable". It doesn't sound as if the actual fairness and enforcablility of the original OEM license was ever tested.
In a survey of 100 programmers, 111111 thought that duck-typing was a good idea.
I'm sorry, my use of capitals has suggested too much weight given to the letter of the law as opposed to the concepts.
r icingretail.mspx/ It's hard to imagine that the physical media might be worth that or anyone might pay that to merely "own a copy". The only reasonable commodity trade surely is the right to use the software.
When you purchase an intrinsically physical item such as a book, the valuable commodity purchased is (mostly) the physical item itself. The user commonly derives the benefit of the book by reading it but there are other valuable uses: doorstop and table leg leveller being the obvious ones.
When you purchase a piece of software there are only two valuable uses: using it and learning from it. Some learning uses are simply by-products of normal use and can be treated as normal use; other techniques such as reverse engineering are generally outlawed one way or another.
Microsoft Windows XP Professional retails at $299. http://www.microsoft.com/windowsxp/pro/howtobuy/p
With a bulk license you agree to the terms before they sell you the software. One of the terms is no-resale.
I'm signed up as a Microsoft Partner, and I paid good money to purchase the Microsoft Action Pack with is basically a not for resale bundle of all of microsoft's current software. this bundle is updated quarterly with new software and software upgrades coming to you several times during the year that your "action pack" subscription is active. I only used 1 of my 10 Microsoft Windows XP Professional licenses and 1 of my 10 Microsoft Office 2003 Professional licenses during the 2 years that I paid for my subscription. At the end of 2 years I was not financially able to renew my Subscription because I was unemployeed.
about a month or so after I let my subscription lapse I was send a legal notice from microsoft that I was to destroy all software and licenses that was sent to me by Microsoft while my Action pack subscription was active and that as a gesture of good faith they would assume that I had complied with their request, but that I could be audited later.
My response to this was to say Bull crap, I paid for this software and since I never used it or activated it, It's mine to do with as I see fit, barring me reselling it which I agreed not to do when I signed up for my action pack subscription. I still have the Binder with ALL of the software and licenses and Terminal Server CAL Licenses that they sent me. I may never use any of the other software besides XP but I'll be damned if I will just throw it away.
It costs about $0.50 to manufacture a CD, not $15-20. Nearly the entire cost of the product is the right to own a legal copy of the music; the fact that it comes on a physical disc is not particularly relevant.
You are not however purchasing a "right to use". You are purchasing a legal copy of the music, which you can then do whatever you want with.
Similarly with software you are purchasing a legal copy of the software. It even comes on a disc, the exact same media that music CDs do!
10 PRINT CHR$(205.5+RND(1)); : GOTO 10
"The fallacy in the argument is that if the bank does not accept the EULA [licence] terms [by operating the software and agreeing the terms], it receives no licence."
That is not in dispute. The issue is that the only thing that grants validity to the license is the agreement to it. You can't enforce terms of an unsigned contract. Upon resale, one is not conferring a license, one is conferring ownership which carries with it the option to license in order to use. It is selling of the opportunity to agree to the license, not the license itself.
Even if the licensing system is enforceable by law, one cannot be bound by an unsigned contract, especially one you can demonstrate have had no opportunity to read (e.g. by not breaking the seal).
The CoA has a 1:1 correspondence to the number of licenses offered by Microsoft. It is thus a prima facie artifact of a presence of a license, and its absence a lack of a license. Whether or not the license was agreed to is evidenced by the number of actual installations matching or being fewer than the number of CoAs.
That a judge would not agree to that smacks of corruption and a willful ignorance of the facts and of reality.
I would wish UK vendors would pull all Microsoft products off their shelves and force Microsoft to sell their OS direct to the consumer, and for consumers to demand proof from every vendor on their authorization to convey to them the opportunity to agree to the contained license agreement.
Oh, say does that Star-Spangled Banner entwine / The myrtle of Venus with Bacchus's vine?
You are deeply mistaken. The GPL is not based on EULA law in any way, shape, or form. The GPL itself makes it clear: you do not need to agree to the GPL. "You are not required to accept this License, since you have not signed it. However, nothing else grants you permission to modify or distribute the Program or its derivative works." If you don't, you're under basic copyright law. You're still free to use GPL licensed software. You only need to be aware of an obey the GPL if you plan on distributing copies. Normally copyright law forbids that; the GPL grants you a license to do so provided you agree to some restrictions.
Search 2010 Gen Con events
Capitalism has no mechanism for the distribution of wealth.
You are quite incorrect. It doesn't have a *coercive* mechanism for distributing wealth, but distributing wealth is one of the foundations of capitalism. The consumer transfers part of his wealth to the producer in exchange for goods, and the producer transfers part of his wealth to the employee in exchange for labor and skills, and the employee goes and buys a new computer, restarting the cycle.
Voluntary economic transactions increase the wealth of both parties. When you buy a bag of apples for one dollar, it is because you value the apples more than the dollar, and so you are wealthier. The seller values the dollar more than the apples, and so he is wealthier. It is not a zero sum game, you both end up wealthier.
Don't blame me, I didn't vote for either of them!
And? When I buy a book I get a receipt of purchase from Barnes & Noble, not from O'Reilly and Associates.
The MSO is not a receipt of purchase. It's exactly what it claims to be, a statement of origin. "This car came directly from us." It's essentially a title to the vehicle.
When title in a car (or, say, a house) is transferred, the state wants to make sure that the previous title is gone. Otherwise two or more people could have titles and claim ownership. So to apply for title you typically need to turn in the old title. If you buy a car from me, I sign my title and give it to you. you go to the DMV and turn in my old title. The DMV issues you a new title.
Essentially the MSO is the original title for a vehicle. It gets sent to the state so the state is free to issue you the real title.
Your theory also fails if you get your auto loan from someone other than your auto dealer (as I did). In that case the dealer transferred the title to my credit union. At that point the MSO was gone and the credit union had a title. When I paid off the car they told the state (and turned in their title) and the state issued me a new title in my name.
If you have the title (in your name) to your car you own your car.
This will go down in practice about as well as attempts to not pay income tax. You'll get the occasional lucky people who manages to find a weird loophole or sloppy prosecutor, be most people trying this stunt will lose in court. Reasonable, non-discriminatory licensing of vehicles is no more infringing on your right to travel than licensing of broadcast airwaves infringes your right to free speech.
Search 2010 Gen Con events
The judge rejected the argument. "The fallacy in the argument is that if the bank does not accept the EULA [licence] terms [by operating the software and agreeing the terms], it receives no licence. Thus it can confer no licence for the use of any Microsoft software by passing on the COA (certificate of authenticity), nor can the COA be evidence of, or itself confer, such a licence. Thus, provided that the licensing system is enforceable in law, the circumstances exemplified cannot give rise to a legitimate trade in COAs."
p x
-----------
Let's break it down, shall we? The original purchaser receives software. She has no intention to every use it, and further never installs, operates, or agrees to terms, she cannot "pass on the license" as an offer. Never opened, and yet useless.
Interesting, and so I checked the Microsoft EULA FAQ. Googled "microsoft eula faq", first hit doesn't exist, second is:
http://www.microsoft.com/piracy/activation_faq.ms
the section of interest is
"Licenses for Office XP or Office 2003 acquired preinstalled on a new PC are single-PC licenses that cannot be transferred or installed a second time on another PC or laptop computer".
I couldn't be bothered digging down further.
So, such software is "locked" to a specific CPU, and is not transferable. Of course, I may not have known that, and re-sold what I had received (and I did so, once. Bought a cheap computer for a BSD project. They wouldn't sell it WITHOUT around 15 CDs of useless, to me, software. Turned around and sold the lot "over $500 worth of software included!" to someone for $50 and a beer). It wasn't Office XP or Office 2003, and I have no idea what the license would say.
Crap; I may guilty of breaking the law! Who the fuck reads EULAs for software you are NOT going to install? And, what if the EULA DOESN'T show up UNTIL you install it? Isn't that Catch-22?
Ratboy
Just another "Cubible(sic) Joe" 2 17 3061
I had a choice of Windows 2003 R2, Windows 2003 R2 64bit, RedHat with different lengths of support, SUSE with different lengths of support, and no OS (for $800 less, than the Windows 2003 R2 option).
Not sure, if choosing "no OS" would've been added to BSA's statistics, but I don't care for them anyway.
In Soviet Washington the swamp drains you.
... but now I realise that in fact my ass is an ass and the law is instead the big sharp pointy stick being inserted into it !
----------------------------------- My Other Sig Is Hilarious -----------------------------------
The judge rejected the argument. "The fallacy in the argument is that if the bank does not accept the EULA [licence] terms [by operating the software and agreeing the terms], it receives no licence. Thus it can confer no licence for the use of any Microsoft software by passing on the COA (certificate of authenticity), nor can the COA be evidence of, or itself confer, such a licence. Thus, provided that the licensing system is enforceable in law, the circumstances exemplified cannot give rise to a legitimate trade in COAs."
The judge is saying that a "certificate of authenticity" is just what it says... a certificate that you can use to evidence that your software is genuine and not counterfeit.
The COA is not a license, but merely evidence of a license. If you take someone else's COA and put it with your counterfeit copy of the software, you have not "received a license".
The people who sold the COA never accepted the license, so they could not have transferred a license that they did not have. This is similar to the way the GPL works... you either agree to the terms and abide by them, or you don't have a license.
That a judge would not agree to that smacks of corruption and a willful ignorance of the facts and of reality.
That a judge has not agreed to that smacks to me of a guaranteed problem with the Business Software Alliance. You seen all your invoices from computer purchases lately? I bet you anything you like they don't give a detailed breakdown of everything including the fact that a Windows license was included - which means that without an invoice showing that, and the CoA "not being sufficient", it is not physically possible to use Windows and get through a BSA audit intact.
(That being said, I suspect companies with unbranded white box desktop PCs rather than a whole bunch of nice'n cheap Dells or HPs are at higher risk of being on the wrong end of an audit anyway).
A big problem here lies in what constitutes a given system. To the typical end-user, the "original system" is the computer they purchased, no matter how many components in it eventually get replaced either under warranty, or as paid repairs after the warranty expires.
To Microsoft, however, the "original system" seems to mean the original motherboard used in the PC. If a user has a dead motherboard 3 months into ownership of the computer, and it's swapped out with a different model (happens all the time, the way motherboard manufacturers discontinue product lines and release new ones every time you turn around!), all of a sudden, XP thinks it's loaded on a different PC and activation fails.
starts googling like crazy
I don't think that suggesting draconian licenses will lead (at least eventually) to the natural marktet selection of a more user friendly license, is "flamebait". Come on, people. Lets be fair.
Am I the only person who read that headline as "UK Judge Rules Curse Of Agony is Not Evidence of a License"?
by the judges logic, the next person who buys the unopened software secondhand, and does agree to the EULA, and opens the box, does recieve a license. if the license is given at time of agreement to the EULA, then it still works fine.
The issue is that some bank got a special deal for their M$ licenses. They paid a whole lot less than retail, and in consideration they agreed to restrictions in what they could do with the software. They then went and broke their part of the deal.
This wasn't some innocent end-user who didn't read the EULA. I am sure the bank has a large and expensive team of lawyers who can read. Similarly, I am sure the bank has a professional IT staff who as professionals should understand software licensing, and who can also read.
The only thing in all this chatter that resonates with me is how to avoid doing business with M$ when buying the computer, or barring that, how to buy one copy of the software instead of 1.1 copies (the (discounted) volume license and the OEM license).
I thought the judge's ruling was spot on. If you think about it, the bank (or the reseller) can only sell two things: the software license or the tangible media. If it is a license, then the terms of the license agreement apply (i.e. you should know what you are selling). If just the media, then the unfortunate end-user has a hunk of plastic which they can't use. If the end-user *thought* they were buying a license, then the reseller misrepresented what they were selling. I don't see how the bank/reseller can have it both ways by pretending that they are selling a tangible in one case (and can ignore the EULA), but the end-user is getting a license.
If you don't agree with a business practice of someone else, don't try to hide behind lawyers to get around their intent, just don't do business with them.
Inquiring minds need to know!
On the VMWare box?
If a user has a dead motherboard 3 months into ownership of the computer, and it's swapped out [...] activation fails.
Don't mix up activation with what is a legal license. Activation is a relatively crude enforcement tool which is why it can be overridden (which is what they do over the phone). MS specifically differentiates between replacement of a defective motherboard (no new licence required) and upgrade (new licence required - old one stays with the old, not dead, board).
Conversely, you can successfully activate copies which are in violation of the eula - as in the case in TFA.
...and how I can transfer or sell it to somebody else.
That information would be described in the specific license for the product. They are usually pretty straight forward (even Microsoft's).
Nice attempt to dodge the bullet, Ace, but no dice.
The fact is that you have to compensate for your own emptiness and meaninglessness through elitism and deconstructionism. Since you have no sense of purpose or self-worth, you hide in your own little ingrown, made-by-and-for-the-media world and proclaim just a bit too loudly about how "special" it is.
That's pretty sad.
You are at the point where your inputs (eyes, ears etc.) are, and where your mechanical actuators (arms, legs etc.) are. It can be, probably, possible for such a cyborg to comfortably "move" his viewpoint along the surface of the Moon, while petting a cat in a house somewhere. This is not any different from looking through binoculars, for example. People associate their "being somewhere" with the place they see because that's usually a very good starting point. An FPS gamer may tell you that during the game he is "in" the map, not in his chair.
Reread my first response. It's clear what I meant. And do you even know what "deconstruction" means, you poser?
This argument makes no sense at all. At what point does a purchase of software stop being transferrable? Does this ruling mean that noone can re-sell microsoft software? not even OEM's? If I buy a pc with XP Home & Office, tommorrow can I sell it to someone I know? Or is it because the license to use the software is supposed to be bound to the system it was sold with?
09F91102 no, 455FE104 nope, F190A1E8 uh-uh, 7A5F8A09 that's not it, C87294CE no. Ah! 452F6E403CDF10714E41DFAA257D313F.
A license, if it was going to be a reliable legal construct, would be a document on paper that said "I, Microsoft Corporation, hereby grant a license to Joe Blogs to use one copy of Microsoft Office Super Pro on the computer with ethernet card MAC Address ############ and CPU ID ################## subject to the following extensive limitations..." and signed by an authorised representative of Microsoft Corp.
If the license isn't exactly in this form, it should somehow be logically equivalent to this form using information which would be valid in a court of law at each step.
Not quite. If you read the judgement, what the defendant was doing was:
MS's argument is that a license is only present if both the COA and the original source media and documentation bundle are transferred together, and that the COA is only valid for an installation from that source media. Of course, if your OS is an OEM softload package you're out of luck... due to these restrictions, you can't sell it.
The judgement quotes a rather nasty piece of law:
The effect of this law is to enable copyright holders to block or impose arbitrary conditions on the resale of their copyrighted works. I didn't know this existed, but it does look bad for the defendant. It basically means that he has to abide by MS's restrictions, which he didn't. Hence the judgement against him.
I think I read a while back that there was a university student in the same sort of situation. He had bought a student discount version of Office, and when he could not get a refund at the university library where he bought it, he put it up for sale in E-Bay or something.
When the MS spies saw this, they tracked him down and sued him, and he counter sued under some fraudulent business / anti-trust practices laws. Because of all the anti-trust stuff going on with MS, I understand that they backed away and settled. This was in the US though not in the UK, so the laws may be somewhat different.
I understand what you're saying, BUT, I don't think it's made *clear* at all that this is the case. Windows Activation is made out to be the end-all ,be-all of authorizing or denying you the right to use a particular copy of Windows XP on a system. Yes, you can call Microsoft by phone and request a new activation code -- but that's a big pain. You have to read off the huge key code on your screen to a voice-recognition system on the other end, only to have it run through another time and fail to recognize your key as valid. Then you get put on hold while being forwarded to a live human, who AGAIN asks for the first part of that key on your screen. Then you get grilled about things like 'Is this a retail or an OEM version of Windows?" and "Do you have this copy installed on any other machines?", and "What is the make and model of the PC you're using?" After you answer to their satisfaction, you're finally given another key which has to be painstakenly keyed in as they read off the letters to you.
In theory you are correct.
The real world differs drastically. Sharecropping, slavery, prostitution, desktop OS's, so-called "energy markets", telecomm markets all exhibit market behavior that defy the theory.
Mostly because humans are greedy and will do anything to maximize their profit-making systems.
http://www.maxineudall.com/2010/02/should-economists-be-sued-for-malpractice.html
Nonsense. Sharecropping- the result of racism, not capitalism; Prostitution- an illegal occupation in most jurisdictions; desktop systems- the result of grants of privilege by the government (ei. copyright); energy markets- a micromanaged and overly regulated industry (the so-called "deregulation" was anything but); telecoms- the result of decades of government mandated monopolies.
Though this sounds like a bunch of excuses, it's because the present system in the US is NOT true capitalism, and it's participants are NOT wholly rational. But just because there is some grit in the rice, it does not follow that rice is inedible.
Don't blame me, I didn't vote for either of them!