Ed Bott posted an article on ZDNet last week about certain changes in the new proposed Vista licensing terms (Ed Bott's blog).
One of the changes is to do with the transfer of Vista to another machine. In the new retail licence for Vista - note we are talking about the RETAIL EULA, not the OEM EULA - the right to use the Windows OS has been changed. You may only transfer your retail version of Vista to another machine only once.
It has always been the case that when you buy a copy of Windows, you're only getting a licence to use it, on certain terms. Those terms are set out in the EULA (End User Licensing Agreement). There are different licences, such as the retail version, the OEM version, and for corporate users, volume licensing. For the home user, the versions we encounter most is either the retail version or the OEM version.
The OEM (Original Equipment Manufacturer) version of Windows usually comes pre-installed with a computer. If you buy a computer from Dell, HP, Gateway etc, it comes pre-installed with an "OEM version" of Windows. With the OEM version, the contract is made between the end user and the OEM. The Windows software is licensed to you together with the computer as a single integrated product. I can't find a copy of the OEM EULA online, but it's what you will see when you boot up the computer with your XP CD and select to enter Setup mode. The software plus the hardware is licensed to you as a single product and the software may only be used with that particular computer.
With the Retail version of Windows, you can transfer the Windows software to another computer. The only restriction is you may only run ONE copy of the software at any one time. So as long as you uninstall it from the previous computer, that's fine, and you can install Windows on a 3rd machine, as long as you remove it from the 2nd too. Fair enough, that makes sense. You may also sell the software to another person, as long as you remove your copy of Windows from your computer, and that person may on-sell it to someone else, as long as he does the same thing. That's my understanding of the Retail EULA, and I believe that of many other computer users. But read on for the now contrary views from Microsoft.
"... virtually everything you've read online ... is wrong"?
Following Ed Bott's blog, Paul Thurrott wrote an article on his WinSuperSite entitled Licensing Changes to Windows Vista and said "I'm here to tell you that virtually everything you've read online about the changes to Windows Vista's end-user license agreement (EULA) is wrong." I should add that his article is not targeted at any one particular report but is simply an attempt to clarify what he perceives to be a general misunderstanding.
I needn't say that Paul is a highly respected commentator in the field and he's not one to mince words when it comes to Microsoft, and no one doubts his objectivity. For my 2 cents' worth, I have to disagree with him.
Infinite Transfers: A Myth?
Paul in his article refers to the idea that you can transfer a single copy of XP to as many machines as you like (as long as you remove it from previous machines) as a "myth". To summarise Paul, this myth is the result of the argument by pundits in the field to the effect that since the retail EULA allows transfer of the XP software to another machine, it means you can do so with as many machines as you like, since the EULA does not impose any restrictions on the number of times of such transfer.
Paul then says, well, it turns out that the licence is tied to a single device. I was pretty surprised to read that myself. The idea that the Windows software is tied to a single PC is nothing new in relation to an OEM licence, but in relation to a retail version of XP, it is complete news to me.
Microsoft's "Intention"
In support of his contention, Paul does not cite any argument or reasoning of his own, but defers to Shanen Boettcher, general manager of Microsoft. "As it turns out," Paul writes, "infinite transfers wasn't the intention." We are told that Microsoft's supposed intention, as now enunciated by Boettcher, was to cover "very specific circumstances", namely, in the case of a hardware failure. So Boettcher is now saying that with your XP retail licence, you may only transfer XP to another machine if the original one has failed.
What is slightly disappointing about Paul's article is, never once in the article has he ever expressed his own understanding, if any, of the XP Retail EULA, prior to speaking to Boettcher, nor his views as to the consequences of such a contention by Microsoft of existing holders of the XP retail licence. Yet he rather hastily dismisses the reports of the Vista licensing changes as wrong.
My Two Cents
IMHO, the reports have been correct. The Vista Retail licensing terms have changed.
The XP Retail EULA is a binding legal contract between Microsoft and the end-user. Their respective rights and obligations are defined by the EULA. If there is a dispute about those rights, you look at the contract to see what the parties' common intention was, as expressed in the written document. You don't ask the parties (let alone just one party) what their original intentions were. Quoting Boettcher as the source of support for a particular view is as wrong as asking John Doe the gamer enthusiast who has an XP retail licence whether he thinks he has the right to infinite transfers.
Clause 4 of the XP Retail EULA says that you may transfer the Product to a different Workstation Computer. It doesn't say you may have infinite tranfers, but nor does it say you may transfer only if the old machine has failed. Is it ambiguous? I don't think it is. The singular expression includes the plural, unless a contrary intention appears. There is no contrary intention anywhere in the EULA. Nor is there any compelling reason for implying into the contract a term in accordance with Boettcher's now expressed "intention". I've bought a licence to use XP. I have used it on one computer. Now I want to ditch the old one, and build a brand new machine and install XP on it. What's wrong with that? Nothing. More pertinently, what's so obvious about Microsoft's intended restriction that we have to imply it into the contract which is otherwise silent on the point?
If one reads on in clause 4, it restricts the transfer of the software to a third-party very specifically to a one-time transfer. The absence of any simliar or other restrictions to "internal" transfer (i.e. by the same user to another machine) in the same clause speaks volumes in support of the interpretation that you can transfer to another machine for as many times as you like.
Microsoft has always known of this practice of transfer; has never disputed it as being in breach of the retail EULA; and has never chosen to make any changes to the relevant term in various forms of the retail EULA in progressive versions of Windows. Objectively speaking, there is only one conclusion to be drawn. They fully understood that clause 4 allows infinite transfers whether or not the existing machine has failed and intended it to be so understood, and has acted in accordance with that understanding over the years.
If Microsoft wants to introduce the new restriction into the new EULA, probably because of piracy concerns, fine, do it, and justify the change. But for Microsoft to say now, 4 years after XP was launced (and many more years after the launch of other Windows platforms with similar retail EULAs), that their intention has always been to allow a transfer to a new machine only when the old one has failed is disingenuous.
True, the proposed new restriction for Vista probably affects a small percentage of users, the PC enthusiasts who regularly upgrade their computer hardware. Don't forget, however, that Microsoft has a huge market and even 5% of that market is huge number. As Karoush Ghazi writes on Paul's site (invited by Paul to do so), why should these enthusiasts be ignored, and how does Microsoft justify the conventionally huge price difference between an OEM version and a retail version of Windows?
That was at least the one question I would expect someone of Paul Thurrott's calibre to have asked. Uncharacteristically, he failed to tackle Microsoft on it.
One of the changes is to do with the transfer of Vista to another machine. In the new retail licence for Vista - note we are talking about the RETAIL EULA, not the OEM EULA - the right to use the Windows OS has been changed. You may only transfer your retail version of Vista to another machine only once.
It has always been the case that when you buy a copy of Windows, you're only getting a licence to use it, on certain terms. Those terms are set out in the EULA (End User Licensing Agreement). There are different licences, such as the retail version, the OEM version, and for corporate users, volume licensing. For the home user, the versions we encounter most is either the retail version or the OEM version.
The OEM (Original Equipment Manufacturer) version of Windows usually comes pre-installed with a computer. If you buy a computer from Dell, HP, Gateway etc, it comes pre-installed with an "OEM version" of Windows. With the OEM version, the contract is made between the end user and the OEM. The Windows software is licensed to you together with the computer as a single integrated product. I can't find a copy of the OEM EULA online, but it's what you will see when you boot up the computer with your XP CD and select to enter Setup mode. The software plus the hardware is licensed to you as a single product and the software may only be used with that particular computer.
With the Retail version of Windows, you can transfer the Windows software to another computer. The only restriction is you may only run ONE copy of the software at any one time. So as long as you uninstall it from the previous computer, that's fine, and you can install Windows on a 3rd machine, as long as you remove it from the 2nd too. Fair enough, that makes sense. You may also sell the software to another person, as long as you remove your copy of Windows from your computer, and that person may on-sell it to someone else, as long as he does the same thing. That's my understanding of the Retail EULA, and I believe that of many other computer users. But read on for the now contrary views from Microsoft.
"... virtually everything you've read online ... is wrong"?
Following Ed Bott's blog, Paul Thurrott wrote an article on his WinSuperSite entitled Licensing Changes to Windows Vista and said "I'm here to tell you that virtually everything you've read online about the changes to Windows Vista's end-user license agreement (EULA) is wrong." I should add that his article is not targeted at any one particular report but is simply an attempt to clarify what he perceives to be a general misunderstanding.
I needn't say that Paul is a highly respected commentator in the field and he's not one to mince words when it comes to Microsoft, and no one doubts his objectivity. For my 2 cents' worth, I have to disagree with him.
Infinite Transfers: A Myth?
Paul in his article refers to the idea that you can transfer a single copy of XP to as many machines as you like (as long as you remove it from previous machines) as a "myth". To summarise Paul, this myth is the result of the argument by pundits in the field to the effect that since the retail EULA allows transfer of the XP software to another machine, it means you can do so with as many machines as you like, since the EULA does not impose any restrictions on the number of times of such transfer.
Paul then says, well, it turns out that the licence is tied to a single device. I was pretty surprised to read that myself. The idea that the Windows software is tied to a single PC is nothing new in relation to an OEM licence, but in relation to a retail version of XP, it is complete news to me.
Microsoft's "Intention"
In support of his contention, Paul does not cite any argument or reasoning of his own, but defers to Shanen Boettcher, general manager of Microsoft. "As it turns out," Paul writes, "infinite transfers wasn't the intention." We are told that Microsoft's supposed intention, as now enunciated by Boettcher, was to cover "very specific circumstances", namely, in the case of a hardware failure. So Boettcher is now saying that with your XP retail licence, you may only transfer XP to another machine if the original one has failed.
What is slightly disappointing about Paul's article is, never once in the article has he ever expressed his own understanding, if any, of the XP Retail EULA, prior to speaking to Boettcher, nor his views as to the consequences of such a contention by Microsoft of existing holders of the XP retail licence. Yet he rather hastily dismisses the reports of the Vista licensing changes as wrong.
My Two Cents
IMHO, the reports have been correct. The Vista Retail licensing terms have changed.
The XP Retail EULA is a binding legal contract between Microsoft and the end-user. Their respective rights and obligations are defined by the EULA. If there is a dispute about those rights, you look at the contract to see what the parties' common intention was, as expressed in the written document. You don't ask the parties (let alone just one party) what their original intentions were. Quoting Boettcher as the source of support for a particular view is as wrong as asking John Doe the gamer enthusiast who has an XP retail licence whether he thinks he has the right to infinite transfers.
Clause 4 of the XP Retail EULA says that you may transfer the Product to a different Workstation Computer. It doesn't say you may have infinite tranfers, but nor does it say you may transfer only if the old machine has failed. Is it ambiguous? I don't think it is. The singular expression includes the plural, unless a contrary intention appears. There is no contrary intention anywhere in the EULA. Nor is there any compelling reason for implying into the contract a term in accordance with Boettcher's now expressed "intention". I've bought a licence to use XP. I have used it on one computer. Now I want to ditch the old one, and build a brand new machine and install XP on it. What's wrong with that? Nothing. More pertinently, what's so obvious about Microsoft's intended restriction that we have to imply it into the contract which is otherwise silent on the point?
If one reads on in clause 4, it restricts the transfer of the software to a third-party very specifically to a one-time transfer. The absence of any simliar or other restrictions to "internal" transfer (i.e. by the same user to another machine) in the same clause speaks volumes in support of the interpretation that you can transfer to another machine for as many times as you like.
Microsoft has always known of this practice of transfer; has never disputed it as being in breach of the retail EULA; and has never chosen to make any changes to the relevant term in various forms of the retail EULA in progressive versions of Windows. Objectively speaking, there is only one conclusion to be drawn. They fully understood that clause 4 allows infinite transfers whether or not the existing machine has failed and intended it to be so understood, and has acted in accordance with that understanding over the years.
If Microsoft wants to introduce the new restriction into the new EULA, probably because of piracy concerns, fine, do it, and justify the change. But for Microsoft to say now, 4 years after XP was launced (and many more years after the launch of other Windows platforms with similar retail EULAs), that their intention has always been to allow a transfer to a new machine only when the old one has failed is disingenuous.
True, the proposed new restriction for Vista probably affects a small percentage of users, the PC enthusiasts who regularly upgrade their computer hardware. Don't forget, however, that Microsoft has a huge market and even 5% of that market is huge number. As Karoush Ghazi writes on Paul's site (invited by Paul to do so), why should these enthusiasts be ignored, and how does Microsoft justify the conventionally huge price difference between an OEM version and a retail version of Windows?
That was at least the one question I would expect someone of Paul Thurrott's calibre to have asked. Uncharacteristically, he failed to tackle Microsoft on it.
2 comments:
You sir aren't smart and don't really understand what the hell it means. This is the same god damn user end agreement in XP and i don't see enthusiastic having any real issue with that agreement. They haven't added any thing new in the activation processes. Same processes:!!
From a Hardware engineers
Thanks for your comment. I agree that the issue is not whether only the enthusiasts are affected or not (although you think so for a different reason, that I'm just wrong about the EULA). To me it's an issue as a matter of principle.
I don't agree that the new licence is the same as the one for XP.
As to the activation processes, we don't know whether they will be the same or not. Even if we assume in Microsoft's favour that Microsoft will continue to be "generous" and will allow more than one tranfer to new machines when it comes to reactivation, it's a question of legal rights as defined by EULA. If Microsoft decides one day they will strictly enforce the EULA, we're stuck with it. And if Microsoft really intends to stick to the old practice, why the need to make those very specific changes to the Vista EULA - which is NOT their current practice?
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