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Microsoft Your Rights Online

Microsoft Shuts Auction Doors On Old Windows 403

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 definition... (Score:4, Informative)

    by sphealey ( 2855 ) on Monday October 15, 2001 @11:39AM (#2431081)
    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. It's been that way in the PC market since 1978 (well before M$ became dominant) and in the commercial software market long before that. Why would anyone think otherwise?

    Similarly, even William Mossberg (of the WSJ) seems to think that it is onerous of Micros$oft to require home users to purchase a copy of the (M$) OS for each home PC that they wish to run that OS on. That has _always_ been required (with the specific exception of WordPerfect) for all PC software as long as I can remember.

    I am not happy about Microsoft's licensing policies, but some of these complaints are pretty bizarre in my ears.

  • by Sique ( 173459 ) on Monday October 15, 2001 @11:42AM (#2431102) Homepage
    Luckily the Bundesgerichtshof (Federal Court) in Germany ruled recently, that selling no longer used MS licenses is perfectly legal in Germany as long as you don't keep a copy with your computers and files. And even reselling them with new computers is legal too.

    So for everyone who wants to sell his old license: Look for your german mates and let them do the ebay.

  • by update() ( 217397 ) on Monday October 15, 2001 @11:44AM (#2431118) Homepage
    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).

    That may be true but that's not what the article is about:

    Charmaine Gravning, a product manager for Microsoft's Windows XP, said the policy is clear that people cannot sell or even share the software that comes pre-loaded on computers. If a consumer buys a copy of Windows in a store, they can resell the software, provided they include the license agreement, and all other documentation and don't try to sell multiple copies.

    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.

  • by egburr ( 141740 ) on Monday October 15, 2001 @11:47AM (#2431135) Homepage
    The reason they are able to use the shrinkwrap license to stop sales is because it hasn't been tested in court. Until someone has the desire, time, and money to take them to court over their enforcement of the shrinkwrap license, and convince the court it is invalid, they can do pretty much whatever they want. Something like this would probably be a multiple-year-long process, through appeals and counter appeals, all the way up to the supreme court. Do you have the desire, time, and money to do this for all of us?
  • by robbyjo ( 315601 ) on Monday October 15, 2001 @11:53AM (#2431182) Homepage

    Here's Win 2K EULA excerpt about transfer of license:

    Transfer to Third Party. Initial user of the Product may make a one-time transfer of the Product to another end user. The transfer has to include all component parts, media, printed materials, this EULA, and if applicable, the Certificate of Authenticity. The transfer may not be an indirect transfer, such as a consignment. Prior to the transfer, the end user receiving the Product must agree to all the EULA terms.

    Now, Microsoft may condemn people on the auction site as the seller cannot assert the buyer agreement to the EULA. Then, M$ can say the seller cannot assert that the buyer will not resell the software. All in all, this EULA does NOT rigorously govern on how the software may be resaled. Thus, M$ can bend this to their significance.

    IANAL, but be careful on this issue.

  • First Sale (Score:4, Informative)

    by bwt ( 68845 ) on Monday October 15, 2001 @11:57AM (#2431207) Homepage
    Reselling software is a first sale right. A EULA that takes this away is misuse of copyright. Trying to enforce that EULA should be an antitrust violation. Somebody should sue.
  • Re:EULA's (Score:4, Informative)

    by garcia ( 6573 ) on Monday October 15, 2001 @12:01PM (#2431234)
    not very. BMG suffers a lot from young kids screwing them over. They have no right to enter into a contract and thus BMG has little course of action to take against one.

    I really don't understand why BMG lets them get CDs but I guess the ones that don't pay are a lot less than those that actually do.
  • E-bay has the right (Score:3, Informative)

    by wiredog ( 43288 ) on Monday October 15, 2001 @12:12PM (#2431298) Journal
    They can do business with whomever they please.
  • by Sique ( 173459 ) on Monday October 15, 2001 @12:16PM (#2431324) Homepage
    Can you or somebody give a reference to more info about the legal situation in Germany? Is it completely legal to sell OEM licenses separately? Does Microsoft agree on that, or do they still hunt people who do so?

    The situation was this: A german computer distibutor got problems with Microsoft where Microsoft claimed, the distributor was selling not licensed preinstalled Windows. Microsoft claimed, that the distributor was selling CD-ROM and Book with different computers and thus selling every license twice.

    So Microsoft stopped the contract with this distributor, and the distributor was not getting OEM licenses anymore.

    Then the distributor was starting to bid for not used OEM licenses on eBay and resold them with his computers instead of directly licensed software from Microsoft. Microsoft brought the distributor to court for violating license agreements in the OEM EULA, which included a non reselling clause.

    The federal court ruled, that those clauses are only valid for the original licensee, that is the computer dealer, who sold the first computer with this license. But it is not legally binding for anyone else, including even the buyer of the first computer. And as long as there is no technological difference between the software, that comes with the different licenses, there is no right for Microsoft, to controle the distribution ways for the different licenses.

    The federal court stated, that there is "no way to deduce from Copyright a right to control distribution channels."

  • by Moritz Moeller - Her ( 3704 ) <.mmh. .at.> on Monday October 15, 2001 @12:19PM (#2431340)
    Our Bundesgerichtshof (federal civil court) has decided last year, that all Microsoft provisions trying to prevent the unbundling of OEM versions of the machines they came with are not enforcable against customers. Basicly the same as the "frist sale " - doctrine of American law.

    Here is the press notice in German: 00 /BGH/zivil/bgh49-00.html
  • by Bangback ( 471080 ) on Monday October 15, 2001 @12:33PM (#2431448)
    I used to be the IT guy for an accounting firm. As such I used to get this sort of advice as a fringe benefit :)

    The way they accounted for their software was as a consumable expense. Essentially any shrink-wrapped software can be treated this way since you're buying a license rather than a piece of software -- this is not necessarily the case for custom-developed software in which you have a real asset (the source code and licensing rights) which you may resell or modify down the road. This wouldn't apply to in-house developed custom software though since those costs (wages, computers) would be part of general business costs -- it makes no sense to try to quantify development overhead so something could be treated as an asset.

    This is for taxes where the goal is to drive down profits. If you have alternate goals (or are already making too big a loss) you may want to expense long-term projects. This is sometimes done on corporate financial statements for the markets which "expense" a $10 million software package over a number of years to keep profits up. This can also lead to the big write-off numbers you see post-merger. All the software that is no longer is use can be written off in one fell swoop allowing bigger profits to be reported in future quarters.
  • by rew ( 6140 ) <> on Monday October 15, 2001 @12:52PM (#2431539) Homepage
    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).

    Ah, You must be living in that funny country across the big pond.

    Here in Europe, basic consumer rights say that you can sell whatever you leagally paid for, including software, even if the EULA says otherwise.

    If microsoft doesn't like that, they can come and battle with the EU governement, or stop selling their products out here.


  • NOT (Score:3, Informative)

    by Dego ( 182553 ) on Monday October 15, 2001 @12:54PM (#2431547) Homepage
    I tried to sell 1 (that's ONE) copy of windows 2000 professional on E-BAY that I won at a microsoft recruiting seminar and I was contacted by microsoft's goons, insisting that I provide the serial number of the software or I would be reported to E-BAY

    You are just talking out of your butt with nothing to suport it.
  • by byoon ( 121785 ) on Monday October 15, 2001 @01:07PM (#2431627)
    The RIAA tried unsuccessfully to strong-arm independent music retailers into not selling used CD's back in 1992 or 1993. They threatened to pull all co-op advertising money if the smaller stores continued which kind of stuck the retailers between a rock and a hard place.
    They had to sell used CD's in order to make SOME profit since places like Best Buy sold new CD's below cost and they certainly didn't want to give up the ad money. Finally enough of the independent stores, through NARM (National Association of Record Merchanisers) told the RIAA to shove it...and they did.

    The best part was how the RIAA was using Garth Brooks as their point man on the deal. You should have heard him whine about not getting a second royalty on the used CD. It would have made Metallica proud.

    In this case, a royalty has already been paid. Imagine if someone had to pay the estate of James Joyce a royalty everytime a fifty cent copy of "A Portrait of the Artist..." is sold at a campus used bookstore.

    The RIAA is hot and bothered not about the sharer, but the person downloading all the tunes who may not have purchased a copy of the original recording. Problem is, it's easier to try and shut down the sharer then nail every single person who downloads the new Strokes album off of Kazaa.
  • by SCHecklerX ( 229973 ) <> on Monday October 15, 2001 @01:24PM (#2431738) Homepage
    What would be a free ISP application for Linux? What would be a free web based mail application which also lets you use client based access like Outlook Express and Hotmail? What would be an AIM program for linux which lets you send files?
    • what is an 'ISP application'?
    • Lots of free webmail apps out there (look in freshmeat) or, god forbid, take the day (literally) it takes to piece one together with PHP or embedded perl.
    • I've never had a problem sending/receiving files using everybuddy.

    seriously...what the hell are you running windoze through vmware for when all these things exist natively?

  • by coyote-san ( 38515 ) on Monday October 15, 2001 @01:42PM (#2431878)
    Were you aware that early records included licenses that restricted the purchaser from reselling them, or even playing them on unauthorized players?

    Those restrictions went into the dustbin of history.

    Even earlier, books used to have the same restrictions. You could not sell them, loan them to others, etc. Benjamin Franklin, that radical, really shook up a lot of people when he created public libraries that lent books to anyone who asked.

    Again, those early restrictions went into the dustbin of history.

    Off the top of my mind, I think *every* new media has started out with this "you don't own the material, you only lease it, and you can't transfer or sell your right to access it" crap. Or worse, the time-restricted variant like that unlamented "Div-X" DVD format.

    Software is no exception. It's only because of our collective short memory that Microsoft is currently getting away with this... and the RIAA and MPAA are trying to revive the same crap that our great-grandparents defeated.

    NOBODY is claiming that the $200 you pay for a retail copy of Windows gives you the right to duplicate it and sell it to others. But that is ALL copyright is intended to stop - prior to copyright laws it was common for publishers to reprint and sell books published by others, without any compensation to the owner or original publisher. And even that "abuse" wasn't totally unreasonable prior to the development of good distribution channels. (This was done even before canals were first built, when transportation was always extremely expensive because it involved mule trains on muddy roads that where often unpassable.)
  • by Anonymous Coward on Monday October 15, 2001 @02:23PM (#2432070)
    I doubt this would get you very far... "I'm selling electrons, protons, and neutrons that happen to be arranged like Plutonium, is that wrong?" I think that this could be applied to anything but it won't work.
  • by Anonymous Coward on Monday October 15, 2001 @06:27PM (#2433535)
    >No good press would be won by Microsoft trying to prosecute a non-profit trying to improve inner-city literacy rates on those same sorts of systems

    In australia they did this exact thing against a charity known as PCs For Kids. PCFKs tried to shame them in the media , and other various acts of pleading , but they wouldn't listen.

    Various Linux groups in the country, (LUV, SLUG , everythinglinux , computerbank) have been trying to convince them that using linux would be better than installing win95 on these machines , but we weren't successful in making them listen.

    To this day I have no idea if they stopped using "ilegal" copies of windows. It's a bit like Alcaholics Anonymous , you can only start to help these people if they agree they have a problem.

    "My name is XXX , and I use M$ software"

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