Windows licencing

Discussion in 'NZ Computing' started by peterwn, Jan 18, 2011.

  1. peterwn

    peterwn Guest

    See:
    http://www.stuff.co.nz/technology/digital-living/4552166/When-selling-hardware-is-software-piracy

    "When selling hardware is software piracy"

    This seems like a typical BSA/Microsoft shill piece to me.

    I may be sticking my neck out, but if Microsoft wants to legally
    enforce compliance to some of its EULA terms and conditions, IMO,
    Microsoft should require the purchaser of the computer to execute a
    written contract at point of sale. IMO, ticking the box is not good
    enough.

    Lord Denning in a British case said that some contractural terms were
    so significant that they required proper acceotance by the purchaser.
    IMO ticking a box after unpacking the box is not good enougn. It may
    be in USA, but is it in UK or NZ.

    So I conclude that if you purchase a new computer with Windows
    installed, you are allowed to sell it without deleting Windows and the
    subsequent purchaser is entitled to continue using Windows.
    Microsoft's requirement that all PC's must be sold with windows
    installed adds further force to this argument.

    If you sell a car, you are not obligated to delete any on-board
    software - so it would seem the same applies to a PC sold second hand
    with pre-installed with Windows.
    peterwn, Jan 18, 2011
    #1
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  2. On Jan 18, 9:37 pm, peterwn <> wrote:
    > See:http://www.stuff.co.nz/technology/digital-living/4552166/When-selling....
    >
    > "When selling hardware is software piracy"
    >
    > This seems like a typical BSA/Microsoft shill piece to me.
    >
    > I may be sticking my neck out, but if Microsoft wants to legally
    > enforce compliance to some of its EULA terms and conditions, IMO,
    > Microsoft should require the purchaser of the computer to execute a
    > written contract at point of sale. IMO, ticking the box is not good
    > enough.
    >
    > Lord Denning in a British case said that some contractural terms were
    > so significant that they required proper acceotance by the purchaser.
    > IMO ticking a box after unpacking the box is not good enougn. It may
    > be in USA, but is it in UK or NZ.
    >
    > So I conclude that if you purchase a new computer with Windows
    > installed, you are allowed to sell it without deleting Windows and the
    > subsequent purchaser is entitled to continue using Windows.
    > Microsoft's requirement that all PC's must be sold with windows
    > installed adds further force to this argument.
    >
    > If you sell a car, you are not obligated to delete any on-board
    > software - so it would seem the same applies to a PC sold second hand
    > with pre-installed with Windows.


    why don't you read the article, slowly and carefully again, and then
    see if what you replied with makes sense

    the way I read that article it doesn't say you cannot sell a PC with
    or without Windows, just that it has to include the original license
    if you're selling it including Windows OS

    "You'll have no worries about piracy selling a machine with this
    sticker attached, as long as the licence is for the current version of
    Windows installed. "
    Nathan Mercer, Jan 18, 2011
    #2
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  3. In message
    <>, Nathan
    Mercer wrote:

    > "You'll have no worries about piracy selling a machine with this
    > sticker attached, as long as the licence is for the current version of
    > Windows installed. "


    But that’s not the criterion the BSA accepts. They demand the software be
    listed on an itemized invoice, with the current owner named as the
    purchaser.
    Lawrence D'Oliveiro, Jan 18, 2011
    #3
  4. peterwn

    Simon Guest

    On Jan 18, 11:44 pm, Lawrence D'Oliveiro <l...@geek-
    central.gen.new_zealand> wrote:
    > In message
    > <>, Nathan
    >
    > Mercer wrote:
    > > "You'll have no worries about piracy selling a machine with this
    > > sticker attached, as long as the licence is for the current version of
    > > Windows installed. "

    >
    > But that’s not the criterion the BSA accepts. They demand the software be
    > listed on an itemized invoice, with the current owner named as the
    > purchaser.


    The auditors that we've had through ran a tool to check what products
    were installed and in what volumes, and then compared that against
    what records Microsoft held about purchases we'd made. Where products
    were under-licenced, they checked whether their records were correct,
    and where necessary we were asked to "sort it out when you can" by
    either purchasing additional licences, or removing the software in
    question down to the licences level.
    Simon, Jan 19, 2011
    #4
  5. In message
    <>, Simon
    wrote:

    > The auditors that we've had through ran a tool to check what products
    > were installed and in what volumes, and then compared that against
    > what records Microsoft held about purchases we'd made.


    So your resellers were passing information about their customers back to
    Microsoft?
    Lawrence D'Oliveiro, Jan 19, 2011
    #5
  6. peterwn

    Sweetpea Guest

    On Tue, 18 Jan 2011 00:37:13 -0800, peterwn wrote:

    > I may be sticking my neck out, but if Microsoft wants to legally enforce
    > compliance to some of its EULA terms and conditions, IMO, Microsoft
    > should require the purchaser of the computer to execute a written
    > contract at point of sale. IMO, ticking the box is not good enough.


    Agreed!


    --
    "Filtering the Internet is like trying to boil the ocean"
    Sweetpea, Jan 19, 2011
    #6
  7. peterwn

    Sweetpea Guest

    On Tue, 18 Jan 2011 01:28:04 -0800, Nathan Mercer wrote:

    > the way I read that article it doesn't say you cannot sell a PC with or
    > without Windows, just that it has to include the original license if
    > you're selling it including Windows OS


    Given that most OEM MS Windows boxen don't come with original
    installation media, and the license is a sticker that is nigh on
    indestructibly attached to an essential part of the PC, it is difficult
    to see how a MS Windows box can't be sold second-hand without the license
    being attached.


    --
    "Filtering the Internet is like trying to boil the ocean"
    Sweetpea, Jan 19, 2011
    #7
  8. peterwn

    Sweetpea Guest

    On Tue, 18 Jan 2011 19:11:28 -0800, Simon wrote:

    > The auditors that we've had through ran a tool to check what products
    > were installed and in what volumes, and then compared that against what
    > records Microsoft held about purchases we'd made. Where products were
    > under-licenced, they checked whether their records were correct, and
    > where necessary we were asked to "sort it out when you can" by either
    > purchasing additional licences, or removing the software in question
    > down to the licences level.


    I think that's called a "true-up" in MS speak.


    --
    "Filtering the Internet is like trying to boil the ocean"
    Sweetpea, Jan 19, 2011
    #8
  9. peterwn

    peterwn Guest

    On Jan 18, 11:50 pm, EMB <> wrote:
    > On 18/01/2011 11:44 p.m., Lawrence D'Oliveiro wrote:
    >
    > > In message
    > > <>, Nathan
    > > Mercer wrote:

    >
    > >> "You'll have no worries about piracy selling a machine with this
    > >> sticker attached, as long as the licence is for the current version of
    > >> Windows installed. "

    >
    > > But that’s not the criterion the BSA accepts. They demand the software be
    > > listed on an itemized invoice, with the current owner named as the
    > > purchaser.

    >
    > Cite?


    Sorry, I cannot remember where I saw it, but in USA, BSA has been
    requiring to see such invoices. If such invoices are not forthcoming I
    understand they try and extract a hefty penalty from the alleged
    'offender' under threat of dragging the offender's arse through the
    courts at enormous expense.

    The BSA presumably would try and persuade the court to accept a
    'presumption' that it is for the user to show that the software use is
    'lawful'. They would probably get away with it, especially if the case
    is heard in a 'rocket docket' court circuit.

    NZ courts are likely to give the BSA short shift on this.
    peterwn, Jan 19, 2011
    #9
  10. In message
    <>, peterwn
    wrote:

    > If such invoices are not forthcoming I understand they try and extract a
    > hefty penalty from the alleged 'offender' under threat of dragging the
    > offender's arse through the courts at enormous expense.


    They also resort to “unbundlingâ€. That means if they find a copy of
    Microsoft Word and Microsoft Excel on your machine, they charge you for each
    as though they were sold individually, even though everybody who buys them
    does so as part of the Microsoft Office bundle nowadays.

    <http://www.techdirt.com/articles/20091015/0251156547.shtml>
    Lawrence D'Oliveiro, Jan 20, 2011
    #10
  11. peterwn

    peterwn Guest

    On Jan 20, 1:02 pm, Allistar <> wrote:
    > peterwn wrote:
    > > On Jan 18, 11:50 pm, EMB <> wrote:
    > >> On 18/01/2011 11:44 p.m., Lawrence D'Oliveiro wrote:

    >
    > >> > In message
    > >> > <>,
    > >> > Nathan Mercer wrote:

    >
    > >> >> "You'll have no worries about piracy selling a machine with this
    > >> >> sticker attached, as long as the licence is for the current version of
    > >> >> Windows installed. "

    >
    > >> > But that’s not the criterion the BSA accepts. They demand the software
    > >> > be listed on an itemized invoice, with the current owner named as the
    > >> > purchaser.

    >
    > >> Cite?

    >
    > > Sorry, I cannot remember where I saw it, but in USA, BSA has been
    > > requiring to see such invoices. If such invoices are not forthcoming I
    > > understand they try and extract a hefty penalty from the alleged
    > > 'offender' under threat of dragging the offender's arse through the
    > > courts at enormous expense.

    >
    > > The BSA presumably would try and persuade the court to accept a
    > > 'presumption' that it is for the user to show that the software use is
    > > 'lawful'. They would probably get away with it, especially if the case
    > > is heard in a 'rocket docket' court circuit.

    >
    > > NZ courts are likely to give the BSA short shift on this.

    >
    > What gives the BSA the right to enter your premises in the first place?


    For bulk licences where a formal contract is executed, one of the
    conditions agreed to is entry to customers' premises to conduct
    audits. In my opinion 'ticking the box' with respect to retail
    shrinkwrap versions' is not sufficient to 'enliven' an entry clause
    since this would fall foul of Lord Denning's 'ratio' requiring clauses
    of this sort of thing to be very formally agreed to.

    It is worth noting that anyone contemplating a lawsuit can seek a
    court order to search the other party's premises if the judge can be
    convinced that key evidence (eg copies of pirated software) weould be
    removed or destroyed. This includes dwellinghouses. The judge lays
    down strict conditions such as a court appointed lawyer to supervise
    the search.There was such a search in Auckland several years ago
    concerning trade secrets and the searchers hit paydirt in a big way.
    peterwn, Jan 20, 2011
    #11
  12. peterwn

    Sweetpea Guest

    On Thu, 20 Jan 2011 20:19:05 +1300, EMB wrote:

    > Without a cite your statement is nothing but FUD - especially as what
    > you are claiming directly contradicts the Microsoft EULA.


    The Microsoft "EULA" has no power if you were not in a position to read
    and agree to it prior to purchasing the computer.


    --
    "Filtering the Internet is like trying to boil the ocean"
    Sweetpea, Jan 20, 2011
    #12
  13. peterwn

    Richard Guest

    On 20/01/2011 1:02 p.m., Allistar wrote:
    > peterwn wrote:
    >
    >> NZ courts are likely to give the BSA short shift on this.

    >
    > What gives the BSA the right to enter your premises in the first place?


    Entering into a volume license agreement with any of their member vendors.
    Richard, Jan 21, 2011
    #13
  14. peterwn

    Richard Guest

    On 19/01/2011 11:53 p.m., Sweetpea wrote:
    > On Tue, 18 Jan 2011 01:28:04 -0800, Nathan Mercer wrote:
    >
    >> the way I read that article it doesn't say you cannot sell a PC with or
    >> without Windows, just that it has to include the original license if
    >> you're selling it including Windows OS

    >
    > Given that most OEM MS Windows boxen don't come with original
    > installation media, and the license is a sticker that is nigh on
    > indestructibly attached to an essential part of the PC, it is difficult
    > to see how a MS Windows box can't be sold second-hand without the license
    > being attached.


    Sticker may be well attached, but the letters soon become illegible when
    on the underside of a laptop.
    Richard, Jan 21, 2011
    #14
  15. peterwn

    ~misfit~ Guest

    Somewhere on teh intarwebs EMB wrote:
    > On 22/01/2011 4:17 p.m., ~misfit~ wrote:
    >>
    >> Here's a very telling pic from a Trademe auction for a "parts kit"
    >> (stripped-down non-working laptop) that I won recently. Note the
    >> hair-dryer at the left of the picture? I wasn't surprised to see
    >> that the Windows COA was gone from the bottom of the laptop (very
    >> cleanly from what I could tell) when I got it.

    >
    > I didn't even have to look at the picture to be certain who the
    > seller was.


    Heh! I knew that you'd know. :-/

    The only reason that I have that pic is because it was listed wrongly and I
    had to save the pic of the BIOS screen and magnify it to try to find the
    type number, and so what model it was. (He never answers questions on his
    auctions.)

    Cheers,
    --
    Shaun.

    "He who fights with monsters might take care lest he thereby become a
    monster. And if you gaze for long into an abyss, the abyss gazes also
    into you." Friedrich Wilhelm Nietzsche
    ~misfit~, Jan 23, 2011
    #15
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