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Microsoft Your Rights Online

Microsoft Shuts Auction Doors On Old Windows 403

Posted by timothy
from the better-sell-the-hard-drive-too dept.
mrv writes "Microsoft is keeping a more-vigilant eye on online auctions of old copies of Windows software, with people trying to offload it due to the upcoming release of XP. Also within the story is info and tips for donating a computer (and software licenses) to charity. (Charities must have site licenses for Windows 98 or newer!)" A lot of users seem to think that they can sell off their no-longer-used software to subsidize upgrades, but that's just not what the EULAs say (at least with pre-installed MS software). Time to go re-read what sellers of used software have had to say last year, and the MS method of shutting own eBay auctions.
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Microsoft Shuts Auction Doors On Old Windows

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  • by No-op (19111) on Monday October 15, 2001 @10:38AM (#2431080)
    I should point out that microsoft rarely goes after people selling pirated or improperly licensed MS software when the amount is under $50,000 (US) or so. I have tried several times in the past to have marketplace competitors shut down for blatantly pirating software, and each time Microsoft has been primarily interested in the money value of the software in question. I suspect that there is a cost limit for them, and under a certain value there is nothing gained by prosecution or even basic legal action.

    So with the obvious eBay incidents aside, I get the feeling you can quietly pirate your software to your heart's content, as long as you stay under the high-water mark.

    my 2 cents.
  • by Wakko Warner (324) on Monday October 15, 2001 @10:43AM (#2431112) Homepage Journal
    ...we're making a tremendous leap of logic in assuming the EULAs are legally binding, aren't we?

    - A.P.
  • by typical geek (261980) on Monday October 15, 2001 @10:45AM (#2431123) Homepage
    some software you want. When Ebay pulls his auction a day later, you can email him privately and pick up the woftware for a song.
  • by billmaly (212308) <bill@maly.mcleodusa@net> on Monday October 15, 2001 @10:49AM (#2431145)
    Sad but true, if it's in the license agreement that "Thou shalt not resell this OS", then that's the way the ball bounces, cookie crumbles, yadda yadda. It sucks, but that's the bitter pill that we as the consumer will probably have to swallow.

    OTOH, if a person wants to DONATE a computer/software to a charity, or a school, I think MS ought to shut their collective legal yaps and let the charity/school get what productivity they can out of the thing, gratis. Nailing the Red Cross or a rural elementary school $100US for a 6 year old version of Win95 borders on criminal...I mean, how many BILLIONS does Gates and company really need?

    So long as schools and charities are not using their software to pirate or commit crimes, MS ought to make themselves into a shining white knight and give their OS away to them. They do that, and the govt' will suddenly seem like the bully, rather than MS.
  • Re:How barbaric. (Score:2, Insightful)

    by spongman (182339) on Monday October 15, 2001 @10:50AM (#2431154)
    Remember that you're not buying the software, you're buying a license to use that software. It's the same for most distributed media/services, and it's been like that for a while.
  • by Green Aardvark House (523269) on Monday October 15, 2001 @10:52AM (#2431176)
    Charities must have site licenses for Windows 98 or newer!

    If only charities could find the time and know-how to use open source, they could save a lot of money, and direct the saved funds into their work.

    Maybe tech-savvy people could donate know-how, instead of money in this case.

    Although, AFAIK Microsoft does offer some sort od discount for charities.
  • by Brian Kendig (1959) on Monday October 15, 2001 @10:54AM (#2431185) Homepage
    Let me get this straight. It's basically not possible any more to purchase a new PC without a copy of Windows bundled in (and included in the price), and you're not legally allowed to sell or even give this copy of Windows to anyone else?

    So, even if you're upgrading from an old PC to a new PC and you want to use your copy of Windows 98 on this new PC, you're still required to pay for a copy of Windows XP that you can't get rid of? And if someone wants to get some new life out of an old PC, he's not allowed to have a copy of Windows 95 unless Microsoft lets him buy it from them (yeah right), even if you have an extra legal copy you're not using?

    And what's more, Microsoft appears to be strong-arming the issue to get even more leeway. The article [yahoo.com] says that Ron Faul was selling two copies of Windows 95 and that Microsoft had eBay shut down the auctions; it doesn't say that these were preinstalled copies. I especially like this quote: "The preponderance of history is against them in this case, but light bends when it gets near Microsoft."

    Years and years and years of court cases against Microsoft, from their killing DR-DOS back in the early 1980's by spreading Fear/Uncertainty/Doubt all the way up to their killing Netscape in the late 1990's by 'cutting off their air supply,' and they're still powerful enough to pull trash like this -- Bill Gates is probably laughing his head off at the all-bark-no-bite of the American legal system.
  • Upgrading... (Score:2, Insightful)

    by tomknight (190939) on Monday October 15, 2001 @10:56AM (#2431201) Homepage Journal
    A lot of users seem to think that they can sell off their no-longer-used software to subsidize upgrades

    I really found myself smiling at this. Isn't the idea that if you're upgrading that you have to still have the original licence?

    For example.... with Dreamnweaver 3, when the user of that damn softawre in my company was given a new computer, part of the installation procedure was to type in the licence key for Dreamweaver 2. Okay, so this is really just to avoid people buying an upgrade when they aren't upgrading, but I think it's valid enough.

    Tom.

  • by M_Talon (135587) on Monday October 15, 2001 @10:56AM (#2431204) Homepage
    I know that a Microsoft related question may be way off base here, but I want to get a feeling for this.

    How many of you actually own a retail version of a previous version of Windows? This excludes pirated copies as well as copies that came with computers when you bought them (those are OEM copies and are subject to bundling licenses).

    In my experience (your mileage may vary), most people don't own a retail version. They have OEM versions that came with their computers. Microsoft doesn't like people selling OEM versions, since there's a whole big nasty license that goes with it that says that particular version of Windows is for that PC only. You also get into the sob stories of people wasting their money on a copy of Windows that doesn't work on their PC because it's actually a recovery CD or a special load.

    Does anyone have a strong case where Microsoft froze a resale of true retail copies of their software? I'd like to hear about it. Right now, it seems like Microsoft is justified in the auctions it's closed.
  • by Brian Kendig (1959) on Monday October 15, 2001 @10:59AM (#2431217) Homepage
    The complaint isn't that a user must have an original license for every computer -- the complaint is that the user must purchase a *new* license for every computer. What if you're upgrading to a new PC, you won't be using the old one any more, and you want to use your old copy of Windows 98 on the new PC; why should you be required to purchase Windows XP bundled with the new PC? What if you do get this new PC with Windows XP on it, why aren't you then allowed to give your copy of Windows 98 to someone else?

  • Re:First Sale (Score:3, Insightful)

    by sql*kitten (1359) on Monday October 15, 2001 @11:01AM (#2431231)
    Reselling software is a first sale right. A EULA that takes this away is misuse of copyright.

    If you sold your copy of Windows NT and bought a new full retail copy of Windows XP, I don't think MS would mind. If you sold your NT and only bought a cheaper "upgrade" to XP, then there is a problem, since you no longer have a right to run the upgrade. That's the core of the matter.
  • Sort of. (Score:5, Insightful)

    by www.sorehands.com (142825) on Monday October 15, 2001 @11:01AM (#2431233) Homepage
    What you say is true, but there is a rub. I have 3 copies of Windows that I don't use. They were preloaded, but I did not agree to the terms. I have not been able to get refunds for these packages either.

    Since they refused to take the return, does the EULA that I did not agree to hold valid?

  • by MeerCat (5914) on Monday October 15, 2001 @11:08AM (#2431271) Homepage
    Why Microsoft is so worried about old software puzzles me

    Apart from all the valid points contributed so far about ownership etc. I'd also point out that...
    MS don't want you running old software, they want you to buy new software, and then pay to upgrade, and pay to upgrade it continuously.

    New MS software in one area tends to force you to use new software elsewhere (XP ? Better upgrade to Office XP as 2000 is being phased out and might have problems. And IE6, as 5 may not run properly. Oh, and that include WMP, maybe you'd better buy something else too) - its called locking in the users and raiding their wallets.... and thats the part of their business model that I find unethical.... (wanna run IE, its free, but the new version with the bug fixes needs a new version of windows)

    T
  • by JenovaSynthesis (528503) on Monday October 15, 2001 @11:09AM (#2431283)
    No, it doesn't because otherwise they in good company with Avid, Discreet, Alias|Wavefront and a host of others. Comparing tangible, physical constructs to digital ones is Apples vs Oranges. End *USER* License means use, not sell. If you want to sell Windows, become an MS Reseller.
  • by dattaway (3088) on Monday October 15, 2001 @11:10AM (#2431287) Homepage Journal
    I would return to the store the bundled software and request my money back for that portion.

    When I bought my new Toshiba laptop last month, the seal on the box had large type stating the enclosed software operating system is sold with the unit, cannot be seperated, and may not be subject to a refund, except for the whole unit.

    Since I bought a laptop, I was legally required to buy Windows and it would be illegal for me to sell it, unless I sold my laptop with it. Great free country we live in, eh?
  • by Deagol (323173) on Monday October 15, 2001 @11:13AM (#2431308) Homepage
    Reminds me of the "shipbuilder problem" in philosophy class. Back in the days when ships were big, a shipbuilder is contracted to repair someone's vessel. Over the years, he'd take home each piece he replaced on the old ship, until he had the parts to build is own ship. The person who paid him sued for "his" ship back.

    So, what's meant by "that PC"? Do I need a new license for each part I replace? If not, then if I've replaced everything (either over time or wholesale), then I should be able to use that license on the improved "old" machine.

    Gets kinda sticky, doesn't it?

  • by JohnG (93975) on Monday October 15, 2001 @11:18AM (#2431332)
    Speaking as someone who is in the process of developing a commercial software product, I still must side with the users. The problem is you don't get to see the EULA until AFTER you buy the product. I thoroughly believe that MS or any other company should tell you the terms of the deal BEFORE you give them your money, especially when the terms of the deal go outside of the norm, as is the case here.
    Also I really don't see were I would want to stop people from selling my game if they wanted. Obviously they could keep a copy and sell the original which would bother me, but I wouldn't want to punish honest users, especially in MS's case when the honest user has actually paid money for an upgrade so you know he isn't using the software anymore.
    Of course I also wouldn't get up in arms if they wanted to install my game on more than one computer, as long as they owned the computers, but most companies today seem to mind that as well. It seems ashame that parents should have to buy two copies of a game if two of their children with two seperate computers both want the game.
  • by squaretorus (459130) on Monday October 15, 2001 @11:21AM (#2431345) Homepage Journal
    #2 is the most relevant for most people. How many times has someone with an ageing Win machine called you up (thats right - they cant use email because their machine broke) asking 'could I borrow a win95 CD?

    I have about half a dozen of these loaned out to various people who needed a new hard drive, or had to reinstall for whatever reason. The fact that they didn't get media, or they got a Win98 upgrade disk but no 95, means they would have to go out and buy a NEW MS OS for £100+ to run on an old P100 32Mb RAM. They wouldn't.

    MS should either sell win95 CDs in supermarkets for £20, or let you sell your copy for what you like. A current OS is perhaps a different matter - they have to make a living you know!
  • by silicon_synapse (145470) on Monday October 15, 2001 @11:23AM (#2431360)
    But chances are, MS cut the manufacturer a pricebreak to include MS software on the computer. If the end user sells that discounted copy to someone else, MS never gets the full purchase price. I still disagree with them, but I can see their reasoning.
  • by grahamm (8844) <gmurray@webwayone.co.uk> on Monday October 15, 2001 @11:25AM (#2431381) Homepage
    Why is this allowed? If you buy a new computer and wish to transfer your sound or video card from the old one, you are allowed to sell the one which came "bundled" with the new computer. So why should you not be allowed to do the same with the software (either OS or application)? As long as you do not keep a copy for yourself.
  • by CheechBG (247105) on Monday October 15, 2001 @11:27AM (#2431390) Homepage
    #2 - people buying used OS's are not buying them to get the disks. Come on, everybody and their brother has a CDR and will burn you off a copy of the Windows cabinet files. I'd like to see a geek version of Survivor, where we get dropped into a foreign country and have to come up with a CDR filled with Microsoft Juarez as quickly as possible. It would be a half-hour show, unedited. Point: people are buying these things on EBay because they want to be quasi-legitimate, ie "I should buy a copy of the software that I use!". Remove that as a possibility, and how many people are really going to spend $150 on an OS for a $150 computer? Arrr, Billy, time t'uh fire up me CDR!

    This is true in theory, that the sellers and the buyers generally are honest people that aren't looking to pirate, but I think we should follow the money here. MS's OEM EULA states that the software in which this system is installed with cannot be separated, blah blah blah. This is why MS makes the distinction between OEM and Retail products in the first place. They have been doing this for years. Why buy one copy of Windows for $199 when you can get a OEM for $99? Because of their wonderful packaging, and the ability to resell. Besides, EULA's aside, MS isn't getting anything out of this deal, they are seeing someone who SHOULD be UPGEADING their system to run XP instead taking the easy way out and buying a OS that will work on their current machine.

    I agree with you completely, they should be DAMN HAPPY that they are making a concerted effort to BUY a OS vs. having next-door neighbor with a spiffy new machine burn his old OS.
  • Re:How barbaric. (Score:4, Insightful)

    by aozilla (133143) on Monday October 15, 2001 @11:30AM (#2431425) Homepage

    I've heard this said over and over again, but it's simply not true. You are buying a CD with an installer on it. As long as you obtained that CD legally you have the right to install it on your computer and use it, unless you give up that right some other way. You do not need a license to install and run software, just like you don't need a license to read a book. You only need a license to copy, distribute, or create a derivitive work. While installation involves copying, it is exempted by copyright law as long as you follow certain rules (basically, you have to have purchased the copy legally and cannot install it on more than one computer at a time).

  • by mrv (20506) on Monday October 15, 2001 @11:38AM (#2431495) Homepage
    The issue here is cutomers trying to resell their bundled system software when they upgrade. If you upgrade to Linux, you're still not allowed to resell the bundled OS.

    That is true. However, as a quote from the article:

    When eBay gets a complaint, the company pulls the auction and notifies the seller of the complaint without trying to determine whether there has been an actual violation. It is up to the seller to prove the sale is legitimate for it to be re-listed."

    so, even if you have a legit. retail version of an older Windows product, your auction can be pulled until you jump through the hoops to establish that you have a non-OEM version...
  • by SilentChris (452960) on Monday October 15, 2001 @12:05PM (#2431616) Homepage
    As much as I'm indifferent towards MS (I don't share the rampant hatred most people have towards the company around here, but I don't think Windows ME was a stellar marketing decision, either) I have had one negative experience selling MS software on eBay.

    Specifically, I received a copy of Windows NT 4.0 workstation with my copy of Visual C++ I purchased in college. I attempted to sell just the NT 4.0 workstation CD (with key, and thus its license). I never installed the CD on any of my machines, so I thought it would be ok.

    MS contacted eBay and my auction was immediately shut down for "illegal goods". When I asked eBay customer support the reason, they said that Microsoft claimed I was selling the CD without a proper license. I said to them I was selling the CD with its associated license, and I had never installed the software. They said to contact Microsoft, which I did and it was never resolved.

    To this date I harbor no ill will towards MS or eBay (I've completed dozens of other auctions without issue, and for what eBay does [getting a ton of people to look at your auction], it does well). Still, I can't imagine what it'll be like in the future.

  • by dattaway (3088) on Monday October 15, 2001 @12:08PM (#2431631) Homepage Journal
    And keep in mind while the BSA sends out it's threat letters all the time, it rarely ever follows up on any of them. it's a scare tactic.

    I have this funny feeling at least one of Microsoft's legal staff is reading this that happens in the mood to set an example about how strict copyrights can get.

    I'd imagine with a world with too many lawyers, some get bored and like to investigate the damnedest things. Do you feel lucky today?
  • by WNight (23683) on Monday October 15, 2001 @12:10PM (#2431647) Homepage
    The property rights of the seller are taken care of perfectly well by copyright law. The EULA doesn't concern itself in any way with MS's property rights, its only purpose is to deprive you of your rights to use the property you purchased.

    But the EULA isn't valid for so many reasons I won't begin to list them all. *If* they showed you the license before you bought the software it might be different.
  • An upgrade is a change or refresh of a product you already own. If you sell the original product, you no longer have the right to install the upgrade.

    In any industry but proprietary software, this argument would be laughed at. Indeed, similar aruments are quite laughable:
    • If you sell your old 140hp internal combustion engine, you no longer have the right to install the 280hp internal combustion engine you've purchased as an upgrade.
    • If you sell your Matrox G200 video card, you no longer have the right to install the upgraded SooperGL 3000 card you've purchased as an upgrade
    • If you sell your old copy of Windows 95, you no longer have the right to install Debian GNU/Linux, which you've acquired as an upgrade.

    Software publishers have been pushing fiction as fact in the hopes that it will become fact. Indeed, many people now believe that software publishers can add and enforce additional restrictions above and beyond copyright restrictions after the sale has taken place. In reality, after buying a copy of any copyrighted work, you're free to dispose of it as you see fit. Tear the pages out of a book you no longer read and use them as kindling or emergency toilet paper. Use your old Windows 95 and Office CDROM's as coasters or frisbees. Shim up that wobbly table with those useless copies of Microsoft Bob. Sell your old, useless, buggy software to suckers on eBay or at the local geek flea market. But don't be a sucker yourself. Don't be fooled into taking a total loss on software you no longer use by the proprietary software industry's propaganda.

  • by Sloppy (14984) on Monday October 15, 2001 @12:40PM (#2431871) Homepage Journal

    The telling word is Charmaine Gravning's use of "policy." That's all this is: Microsoft's policy, which eBay happens to be cooperating with. It's a matter of MS policy, not copyright law, and not contract (EULA) law. It's just Microsoft's will and desires, which they are successfully imposing upon. As with many things, the solution is simply this: Just Say No.

  • by Sloppy (14984) on Monday October 15, 2001 @01:08PM (#2431990) Homepage Journal

    Since I bought a laptop, I was legally required to buy Windows

    Whoa, whoa. You were not "legally required" to do anything. It's just that the party you bought that laptop from, offered no other options. You could have purchased some other laptop from some other, more reasonable, party. (Assuming there are any.) There is obviously nothing in the law that says people who buy laptops must buy MS Windows.

    and it would be illegal for me to sell it,

    This has not been established. Microsoft doesn't want you to sell it, and eBay complies with their wishes in that regard, if you try to use eBay to sell it. That is all. Copyright law is what determines if something is "illegal" or not, and it doesn't appear to say anything about this issue.

  • by ackthpt (218170) on Monday October 15, 2001 @01:26PM (#2432092) Homepage Journal
    Looked around and found what you're refering to in regard to Hardware Identifier [microsoft.com] Seems like this would be a poor choice of an operating system if you plan to change your hardware configuration frequently, particularly if you're the type to build your own system and peform hardware upgrades frequently Oooo! There's a Pentium IV which is marginally faster than they one I've got and it works with a new motherboard from Tyan!

    I find it utterly fascinating that a source listing for that page (WinXP) is littered with Javascript, something I was under the impression Microsoft was dumping support for.

  • Re:Sort of. (Score:2, Insightful)

    by pyros (61399) on Monday October 15, 2001 @01:34PM (#2432133) Journal
    You should definitely pursue this. Someone else replied suggesting you contact your stat AG. Get in touch with some of the Austin, TX, linux groups (search www.mail-archive.com for siglinux and go from there) for ammo. Several years ago, there was quite an uprising by a bunch of linux users who had Dell computers (based in Round Rock, which neighbors Austin). The linux users won and Dell started handing out refunds on the order of $200 for people who wanted to return their pre-packaged Windows OS.
  • Bullshit. (Score:1, Insightful)

    by Anonymous Coward on Monday October 15, 2001 @01:58PM (#2432288)
    The issue here is cutomers trying to resell their bundled system software when they upgrade. If you upgrade to Linux, you're still not allowed to resell the bundled OS.

    And why not?

    Because the EULA says so? Interesting concept: You're bound by a contract you didn't agree to.

    Here's one that should make your head explode: By reading this post, you agree to agree with everything I say. By NOT reading this post, you agree to agree with everything I say.

    So now everybody in the world (including you) has to agree with what I say, right?

    Bottom line: I bought something (CD and license), Right of first sale says I can re-sell it to whoever I damnwell please. (as long as I don't keep a copy.)
  • by Zinho (17895) on Monday October 15, 2001 @02:02PM (#2432338) Journal
    #1 - a lot of the software in question can NOT be purchased new any more, so its not like MS is missing out on a Win95 sale - there's plenty of legitimate uses for old Win9x OS, esp if you have a machine that has limited RAM or CPU (ie my toshiba libretto, a P75 with 16MB). IE no loss. So why spend the $

    Microsoft's biggest competition comes from its own obsolete software. They're not worried that they're losing the profits from a win9x sale, they're worried that you're choosing to use a copy of YAOS (for values of YAOS != M$OS.current_version), thus depriving them of a sale of WinXP. If they can reduce the supply of all obsolete versions of their software, then it's more likely that joe user will pay to license the current version.

    Oh, and I'm sure that Intel would agree with them that since you can't legally get a copy of win95 anymore that it's time to upgrade your hardware as well...

  • by coats (1068) on Monday October 15, 2001 @02:47PM (#2432698) Homepage
    But copyright IS a right to control distribution channels!
    IANAL, but...

    NO. Copyright is only a right to control the first distribution channel, as established by the Supreme Court in a case dealing precisely with second-sale of books. The law is (q.v. http://caselaw.lp.findlaw.com/casecode/uscodes/17/ chapters/2/sections/section_202.html [findlaw.com]:

    ... nor, in the absence of an agreement, does transfer of ownership of a copyright or of any exclusive rights under a copyright convey property rights in any material object.
    or, for a readable-English account of what this means, see http://profs.lp.findlaw.com/copyown/copyown_8.html [findlaw.com] :
    Copyright law distinguishes the ownership of a copy of a protected work (a print of a photograph, a compact disc, a book, a diskette) from ownership of the intangible copyright rights...If you buy a copy of a work, you have a right to resell (distribute) that copy.

  • underage (Score:2, Insightful)

    by kpeerless (122687) on Monday October 15, 2001 @03:53PM (#2433093)
    It would seem that Microsoft doesn't have a leg to stand on in regard to folks who are under the age of consent when the purchase takes place. Most jusrisdictions don't allow underage folks to enter into legaly binding contracts. Perhaps minors should be required to have a note from their mothers before they can purchase a shrink wrapped product.

    IANAL. thank god

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