Microsoft bites more than it can chew.. again! :)

Show Comments

Selling OEM software is a violation of the license to that software. Any court that decides otherwise is clearly biassed against the "big bad corporation" and therefore partial (and thus not capable of handing out judgment).

duckman

Team Colleague

8,392 posts since Nov 2004

Reputation Points: 1,662

Solved Threads: 337

I, too, find this case kind of funny. It is refreshing to see someone take a company (any company, really), to task over their policies.

I agree with the "little guy"'s position and all, but I personally wouldn't have settled if I had the time. It would have been interesting to see just how far he would have to go to get a judgement against Microsoft from a jury. At the very least, I wouldn't have allowed signing an NDA to become part of my agreement, especially if I didn't do anything wrong...

alc6379

Cookie... That's it

Team Colleague

2,820 posts since Dec 2003

Reputation Points: 186

Solved Threads: 147

My personal opinion is that MS Is Full of crap. If I buy a bottle of Coca-Cola, and someone says "hey man, I'll give you two bucks for that!". Isn't it mine to sell? I think it is. I bought it at a given rate, agreed upon between party A and B (myself). The deal between B and C has no relation to the deal between A and B. Plain and simple. To dig deeper, He didn't open the package... therefore, he couldn't have even read that "license agreement", moreless clicked "I accept". He never accepted the license agreement, and is therefore not bound to the confines of it. Had he installed it, well... that might be a different story.

Taboo Programmer

Team Colleague

2,910 posts since Dec 2004

Reputation Points: 361

Solved Threads: 215

Exactly, you are right Comatose, the agreement is not displayed until you install the software, that is a booboo on MS part, and it would not surprise me if that wont change on future boxes.

And this was not an oem box, it was an academic version and I think he was right in calling MS out on it - but after all that work and time spent, I think he dropped it too quickly; IMHO.

--Tone

Shackbase

Junior Poster in Training

79 posts since Feb 2005

Reputation Points: 12

Solved Threads: 1

The agreement states clearly that you can take the software back to the store for a refund if you don't agree with it.

He chose to not do so but instead sell it himself, which is NOT allowed with OEM software.
OEM software says clearly and on the packaging "for sale with a new PC only".

Microsoft should have dug deeper and they'd probably have found evidence of this guy selling more than he'd ever purchased...

duckman

Team Colleague

8,392 posts since Nov 2004

Reputation Points: 1,662

Solved Threads: 337

Did you read it Jw? Microshaft made a pact with the college store to REFUSE returns of Microsoft Products! Thereby refusing him the return that he was entitled to. If the store would have accepted his return (which they refused...) then he would have been content. Also, he even told microshaft about it, and requested to return the product to them, they waited until time ran out for his "30 day return policy" before sending him a "oh, sorry, we don't take it back."
Frankly, Microsoft is up to shady tactics, and IMO downright wrong.

Taboo Programmer

Team Colleague

2,910 posts since Dec 2004

Reputation Points: 361

Solved Threads: 215

As I read it, it was an educational package and not OEM software. The operative word in the whole article was ¨unopened¨. The reason for any software not to be resold is if it has already been used. The vast majority of software licenses are for use on a single CPU. If the package was unopened, then he has the right to sell it for anything he can get for it. Theoretically, if he installed the software and removed it before reselling it, he is still in accord with the software license.

There is nothing in any law that forbids the sale of something that you own as an end user. If there is something in the software license agreement that says something else, then that statement is illegal and would not, as we have seen, hold up in court.

The Microsoft lawyers know all this; these are only tactics to make the majority of users out there think that Microsoft is watching...as the guy said, most people would just have ignored the whole thing.

zeroth

Nearly a Posting Virtuoso

1,226 posts since Mar 2005

Reputation Points: 343

Solved Threads: 40

Educational licenses can only be sold to qualified people.

AFAIK there is no company called "Microshaft" and even if there is any agreement they make with anyone won't have any impact on this case which involved a company called Microsoft.

If a store refuses to take back software sold there, that's no responsibility of the software manufacturer... The purchaser should have been made aware of that at time of purchase (usually via signs saying "no returns on software" or some such). If he wasn't he has a case against the store, but that doesn't give him the right to sell the product to parties who are not entitled to buy it.

duckman

Team Colleague

8,392 posts since Nov 2004

Reputation Points: 1,662

Solved Threads: 337

Educational licenses can only be sold to qualified people.

AFAIK there is no company called "Microshaft" and even if there is any agreement they make with anyone won't have any impact on this case which involved a company called Microsoft.

If a store refuses to take back software sold there, that's no responsibility of the software manufacturer... The purchaser should have been made aware of that at time of purchase (usually via signs saying "no returns on software" or some such). If he wasn't he has a case against the store, but that doesn't give him the right to sell the product to parties who are not entitled to buy it.

Sorry you couldn't catch that pun. Regardless of our feelings about Microsoft, IF MS made a pact with the store (which the article clearly defines), to refuse returns of it's product.... then it is responsibility of the software manufacturer. (I'll give you an extra 2% if you don't accept returns of products with our name on it). Who's at fault there? I also don't see how if he owns something (which he bought it, so clearly he does), how he doesn't have the right to sell it. If I go to the store and by a DVD Player, and before even opening the package, realize that I can't use it with my TV, because it only accepts coax... I have every right in the world to sell it, at my price and my cost.

Taboo Programmer

Team Colleague

2,910 posts since Dec 2004

Reputation Points: 361

Solved Threads: 215

Several issues here, I feel.

Firstly, claims that any 'deal' to refuse returns are underhanded and involve Microsoft are quite correct. That's bad practice according to any criteria of analysis, including a legal one.

Secondly, any implication that Microsoft would be justified in believing that an OEM or an Educational license is only valid for the original purchaser is also quite justified. It's reasonable to expect that a greatly reduced price restricted license would have such a restriction. Unfortunately, Microsoft, to my knowledge, does not explixitly state that this is the case in the license agreement, and I'd argue that for it to be valid for an unopened product, indication of it should be included on the packaging!

Thirdly, it is NOT the case that an OEM Windows is only available with a new PC! An OEM Windows can be purchased with components as well, and in the event that it is, then the license is tied to that COMPONENT, not to the system. I've personally got a home built household system which uses an OEM Windows XP which was purchased with the hard drive installed. When I later decided to replace motherboard, processor and display card in it, to improve its games capability, I rang Microsoft first, knowing that a reinstall was in order so that I could be sure of the system booring to Windows afterwards. Here's the response:

MS dude: No sir, you cannot reuse that OEM Windows XP, because if you replace the motherboard it will be a new system.
Me: No, it will not be. In any case, the license is tied to the hard drive, not to the motherboard.
MS dude: No sir, that's not the way it works.
Me: Yes sir, I'm afraid it is. Put your supervisor on the line please.
Supervisor: No sir, you cannot use that OEM Windows with a new motherboard. It's a new system.
Me: Yes, I can. The license was purchased with the hard drive, not with a prebuilt system. The computer is, and will be, the same machine. It has the same box, the same monitor, the same peripherals connected to it, and will have the same programs and data installed to it. All I'm doing is giving it an engine overhaul. If I fit a new engine to my car it's still the same car!

(I then quoted the relevent details from the license agreement, together with the relevent sales receipt numbers.

Supervisor: OK then sir, when you reinstall, please call our centre here by phone to reactivate, and we will ensure that the process takes place.

(I then got his name, for further reference, along with his personal assurance that written communication and the furnishing of proof would not be required.)

If you have a genuine case to argue, pursue it. They do NOT want to spend large sums of money prosecuting cases which could only end up making them look foolish. But if you let them con you, they will ;)

Catweazle

Grandad

Team Colleague

4,335 posts since Mar 2004

Reputation Points: 229

Solved Threads: 149

You can, Comatose. I repeat, if a statement in a software licence does not meet the requirements of the law, then it is invalid. You cannot, in the US, restrict the owner of anything, from selling it. In the case of software, you can stop someone who has already installed the software on his computer from reselling, as that breaks the one software installation - one CPU rule. And that does meet legal guidelines. Again, theoretically, if you remove the software from your CPU, then you can resell it.

All this is moot, anyway. The guy was obviously within the letter of the law since the case was dropped. Whether he folded too soon is a matter for conjecture...

zeroth

Nearly a Posting Virtuoso

1,226 posts since Mar 2005

Reputation Points: 343

Solved Threads: 40

wow guys - i thought it was an interesting you know.. story... didn't mean to get ya'all all stirred up. :)

--Tone

Shackbase

Junior Poster in Training

79 posts since Feb 2005

Reputation Points: 12

Solved Threads: 1

wow guys - i thought it was an interesting you know.. story... didn't mean to get ya'all all stirred up. :)

--Tone

Oh, it was certainly an interesting story :cheesy:

Taboo Programmer

Team Colleague

2,910 posts since Dec 2004

Reputation Points: 361

Solved Threads: 215

wow guys - i thought it was an interesting you know.. story... didn't mean to get ya'all all stirred up. :)

--Tone

Its alright...Its nice to have a friendly debate every once in a while...I have certainly enjoyed reading everyones opinions. ;)

moderate_rock48

Posting Pro

571 posts since Nov 2004

Reputation Points: 29

Solved Threads: 1

Show Comments

yes, very interesting debate

meksikatsi

Posting Whiz

314 posts since Apr 2005

Reputation Points: 157

Solved Threads: 4

a debatable story

Catalana

Posting Whiz in Training

214 posts since Mar 2005

Reputation Points: 119

Solved Threads: 5

Show Comments

Quite interesting. However much I dislike MS, they have a valid case here. He's not selling to someone at his school, so it does not fall under the license.

Toba

Junior Poster

192 posts since Jun 2004

Reputation Points: 115

Solved Threads: 5

Hello,

Motorola sells software to program their two-way radios, such as what the police, fire, ambulance people use. When purchasing the software, you are entered into an agreement that you will not re-sell it, even if you sell off your radio investment.

I am also willing to bet that custom designed software that runs on industrial machinery also carry the same sort of license. Yes, it is restrictive, but then again, these are also highly specialized pieces that only a select group would work with.

To solve the WIndoze problem, install Linux. Even the Lawyers cannot argue with that one. I do not believe my Mac software has these types of things either.

Christian

kc0arf

Posting Virtuoso

Team Colleague

1,937 posts since Mar 2004

Reputation Points: 121

Solved Threads: 57

"Thirdly, it is NOT the case that an OEM Windows is only available with a new PC! An OEM Windows can be purchased with components as well, and in the event that it is, then the license is tied to that COMPONENT, not to the system. I've personally got a home built household system which uses an OEM Windows XP which was purchased with the hard drive installed. When I later decided to replace motherboard, processor and display card in it, to improve its games capability, I rang Microsoft first, knowing that a reinstall was in order so that I could be sure of the system booring to Windows afterwards. Here's the response:"

Maybe in the US. Here you can't purchase an OEM license separately from a complete machine (though stores interpret that to mean you can purchase a complete set of parts to assemble yourself and they'll call that a complete machine).

Microsoft also clearly prints on the packaging (and often the CDs too) of OEM and educational versions the restrictions on use and resale of those products, as do others.
In fact, they only supply educational versions through educational institutions through a specialised organisation which handles educational distribution all over the country.
These are specially printed CDs which can only be purchased by students and teachers on showing student ID or proof of their status as a teacher.
These licenses become invalid when that status changes, a fact clearly stated to you before you purchase.