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Licensing -- legal question

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michuk's picture
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Joined: 2006-08-20

You write "It is illegal to let your neighbour or your Auntie type a letter with your version of Word on your Windows® computer.".

Are you sure that this is true? Which part of the licence says so? I always understood it in a way that the software is bound to your computer so you cannot give it away or let anyone else use it on *another computer*. But still, if you borrow your auntie your laptop, she should be prefectly legal to write an essay using Word. Isn't she?

dylunio's picture
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Joined: 2005-12-20
I'm not sure about this, but

I'm not sure about this, but isn't the license that comes with MS products per user, that is it is licensed to the licensee, and no others. Just a thought.

dylunio

a thing's picture
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Joined: 2005-12-20
illegal

I'm pretty sure dylunio's right.

ariadacapo's picture
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Joined: 2006-07-13
quite unsure

Well I looked through the Microsoft EULAs very carefully when I built the website. This was six months ago, so I had to dig them again.

I must admit this is probably the sentence on the website that I dislike most. It's very uncertain; so far I haven't received any remark about it. I suppose the EULAs are so unclear, and so well hidden (you have to pretend you're going to re-install your software, with the original install CD, so you can re-read it...), that no-one was sure enough to make any remark.

The sentence that refers most closely to our case, that I could find tonight, is:

Microsoft EULA wrote:

No Transfer to Third Party. You may not transfer, including by way of indirect transfer, such as a consignment, this HOME-USE EULA, the Software or the Certificate of Authenticity (if applicable) to any other end user.

Of course this does not define exactly who can use it.

We have (Home EULA):

Microsoft EULA wrote:

Installation and use. You may install and use a copy of the Software on one personal computer or other device located within your home.

then who is "you" ? Back at the start, we read:

Microsoft EULA wrote:

This Home-Use End-User License Agreement ("HOME-USE EULA") is a legal agreement between you (an individual) and Microsoft [blah-blah...]

Ah, but you may:

Microsoft EULA wrote:

You may permit any device to access and use your licensed copy of the Software for the sole purpose of providing you with technical support and maintenance services.

(not very helpful... Auntie isn't a "device" anyway)

And finally, of course:

Microsoft EULA wrote:

Microsoft reserves all rights not expressly granted to you in this EULA.

So indeed it's not written anywhere that Auntie cannot use Windows on your computer. There just seems to be evidence that it's not written that she can, and therefore she can't.

This does not make the sentence rock-hard, so do you think we should remove/rephrase it?

Thanks for pointing this out, Michuk.

Olivier.

kode's picture
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Joined: 2006-04-19
I think you guys are

I think you guys are over-thinking the matter... I'm not a lawyer, but I'm pretty sure that the license is to "'you' for 'your' one computer/device" -- if you lend your laptop to your aunt it doesn't violate anything -- the software is still installed on your one device, which you still own.

libervisco's picture
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Joined: 2006-05-04
Maybe it is better to remove

Maybe it is better to remove it, if nothing then because of possible criticism by sceptics who can't wait to accuse of GGL not being any different than the MS FUDsters, which isn't true of course. If it doesn't sound too convincing, despite the EULA semantics, it probably doesn't do much good.

And it's not like there's not enough better points to point out against MS anyway. Eye

Whistler's picture
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Joined: 2006-01-03
AFAIK that sentence is true

AFAIK that sentence is true in some cases as lending for commercial purpose will consitute public display of the copyright material (I'm not sure about non-commercial lending though).

However (for another part of the same page) the right to transfer the software is granted by the First Sale Doctrine, unless you have a special agreement (i.e., when the EULA explicitly prohibit it).

I'm not a lawyer so I may be wrong though.

PS: @ariadacapo, I've replied to your private message Smiling

tbuitenh's picture
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Joined: 2005-12-21
Maybe it is best to say it

Maybe it is best to say it is unclear if it is allowed or not? That is certainly true.

Note that MS EULAs often contain ridiculous things. For example the thing you "agree" to when getting a hotmail account states (or used to state?) that microsoft gets the right to publish anything you "post to the site". Hotmail tech support told me this referred to the other msn services (forums or blogs or whatever they are doing). As if agreeing that it will be published is needed for such services, and what is it doing in the agreement for hotmail anyway?
My conclusion is that MS lawyers smoke some really good stuff Sticking out tongue .

tbuitenh's picture
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Joined: 2005-12-21
multiple accounts = multiple users
Microsoft EULA wrote:

Installation and use. You may install and use a copy of the Software on one personal computer or other device located within your home.

Microsoft EULA wrote:

This Home-Use End-User License Agreement ("HOME-USE EULA") is a legal agreement between you (an individual) and Microsoft [blah-blah...]

Microsoft EULA wrote:

Microsoft reserves all rights not expressly granted to you in this EULA.

It seems the right to use is only granted to that one individual "you". The right to use is not expressly granted to others, so it seems they are not allowed to.

Of course this might be completely unintentional, just like the thing in my post above. I don't believe MS is going to publish anyones private email, and they're not going to revoke the license when you let someone else touch your computer either. Note that windows has the possibility to have more than two accounts (admin and safer regular user), so if they would ever sue they don't have much of a case because any sane person would assume it is allowed to let others use the computer and even get an account. If word is meant for only one person, then MS shouldn't let it appear on the desktop and start menu of every user after installation.

ariadacapo's picture
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Joined: 2006-07-13
should be removed
kode wrote:

I think you guys are over-thinking the matter...

libervisco wrote:

Maybe it is better to remove it, if nothing then because of possible criticism by sceptics who can't wait to accuse of GGL not being any different than the MS FUDsters, which isn't true of course. If it doesn't sound too convincing, despite the EULA semantics, it probably doesn't do much good.

And it's not like there's not enough better points to point out against MS anyway. Eye

You are perfectly right. I think I got carried away and ended up doing what they do... over-doing it and coming close to FUD.

I think we should remove that part from the Licensing page. We could move content from the "more bits" page to replace it.

We could state that this point is very unclear in this "more bits" page. Indeed it is very confusing and they could have made it clearer (this applies to the whole EULA which is almost unreadable).

I would start doing this immediately but unfortunately my computer let me completely down yesterday, so it might be another week before I can do this Sad If any of you wants to work on it, feel free to do it on the wiki .

Olivier.

ariadacapo's picture
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Joined: 2006-07-13
more licensing - page re-worked

I have reworked the page now:

http://www.getgnulinux.org/windows/licensing

It should be more accurate. I moved the "who can use it" point to the "More things about MS Licensing" page.

While re-reading through the licenses I noticed one more confusing, unclear sentence:

"Office EULA" wrote:

You may not rent, lease, lend or provide commercial hosting services with the Software.

So that's one more that puts doubt onto this fact.

However, all of the quotes above are for MS Office specifically. In the Windows XP EULA there is this one horrendous sentence:

"WinXP EULA" wrote:

Transfer to Third Party. The initial user of the Product may make a one-time transfer of the Product to another end user.

Which means, according to this excellent paper (pdf), that:

"Con Zymaris" wrote:

You are able to sell or give the software away to one other user (if you are the software's first
licensee.) This can happen only once. This means, that if you buy this software from the user who
purchased the software from Microsoft or a nominated reseller, then you are not able to sell or give
the software away to yet another user.

Anyways, the page is moderated somehow.
I also modified the bottom of the page to reflect more on free software. A sub-title different from "Theory and Practice" must be found now, but the content is ready I believe.

As usual your criticisms are welcome.

Olivier.

libervisco's picture
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Joined: 2006-05-04
That looks good. You've made

That looks good. You've made some great core points there in such a small piece of text. It ought to get people thinking.

It is true though that GNU/Linux and Free Software too are in legal terms licensed as well. You get the software under a certain license. As the legal system currently stands this is the only way to govern the distribution of digital stuff (through copyright licenses). The big difference is that the license under which we get Free Software is one that protects rights instead of restrict them. It is also (at least in case of GPL and similar licenses) much simpler to understand. GPL for example basically strives to protect the four basic freedoms so if an ordinary user wants to understand what rights or obligations he has, it is often sufficient to simply read the Free Software Definition and four freedoms in it.

ariadacapo's picture
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Joined: 2006-07-13
summing up

I have re-touched the modifications slightly, so to sum up, the Windows Licensing page now says:

Licensing page wrote:

You must abandon many rights to use the software.

There are a number of restrictions that you must accept by law.
Restrictions on who can use the software, what kind of revenue you may earn with it, on how you choose to install it, restrictions on your privacy, even on whether you can give it away: the list is long. Reading the license and enumerating your remaining rights is itself a difficult task.

Further down the page, there is some better contrast with the GPL (that's the point of the whole website) and more linking to GNU, under the subtitle the the meaning behind (completing the first subtitle "the small print").

One level down (the More licensing bits page), I have added this paragraph:

Licensing further bits page wrote:

It is unclear who can use, receive or buy your software.

The license is particularly unclear as to who may or may not use your version of Windows® or Office. Several sentences in the Microsoft Office license suggest it would be illegal to let your neighbour type a letter with your version of Word on your computer.

It is however clear in the Microsoft Windows® license that you may only give or sell your copy of Windows® software to anyone if you are the first buyer. This means, that if you buy it from the user who initialy purchased it from Microsoft, then you are not able to sell or give the software away to yet another user, even if you do not use it anymore, even if you buy the latest software version with your new computer.

And one level up (the Windows page), the text now says:

Windows page wrote:

These legal bindings are very easy to breach: keeping your software when replacing your hardware, or giving your software away after you are done with it, is often illegal.

Hopefully this is clearer and more strictly true. A very good improvement in my opinion, but please don't hesitate to criticise further.

Olivier.

libervisco's picture
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Joined: 2006-05-04
Looking good as far as I can

Looking good as far as I can judge. Smiling

On a related note here's a recent blog entry featured on digg.com which reflects on a particular restriction found in Vista EULA, which only confirms what you are saying on that page: http://www.hotubuntunews.com/blog_7.shtml

Although I think the author has some misconceptions about "piracy" and developers getting payed (pretty much implying that proprietary licensing is the only way to get payed), what he says about this Vista restriction and also his thoughts on why unauthorized copying (AKA piracy) is so widespread ring true.

a thing's picture
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Joined: 2005-12-20
accidents
Windows page wrote:

These legal bindings are very easy to breach: keeping your software when replacing your hardware, or giving your software away after you are done with it, is often illegal.

Add "accidentally" between "to" and "breach".

ariadacapo's picture
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licensing

Thanks for the sidenote libervisco.
It is not the first time that I see people find out things about Windows Vista, not realising they apply to Win XP and/or MS Office already.
The article you posted on libervis, also related to this, was very interesting. I am currently (slowly...) building a small website just on this theme.

a thing wrote:

Add "accidentally" between "to" and "breach".

Thanks, added!

Olivier.

libervisco's picture
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Heh not everybody liked that

Heh not everybody liked that article. It got on digg homepage and then was modded down as "lame" or "inaccurate" as apparently some people thought my quoting of CNET comments implied some sort of statistical evidence, which wasn't the case, but anyway, some comments on digg and libervis were interesting.

Also, the new restriction in Vista did not actually apply to WinXP. It is a new one, though it's true former versions of Windows are restricted enough as it is.

ariadacapo's picture
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libervisco wrote: Heh not
libervisco wrote:

Heh not everybody liked that article. It got on digg homepage and then was modded down as "lame" or "inaccurate" as apparently some people thought my quoting of CNET comments implied some sort of statistical evidence, which wasn't the case, but anyway, some comments on digg and libervis were interesting.

Don't worry about Digg people not liking it. My experience is that generally the Digg community is very efficient at finding new stuff quickly and moving on - but very poor at being constructive. Many members are only too prompt to bash webpages and their authors, when they don't find what they expect to read. Moderate members rarely post comments. I generally keep away from it.

libervisco wrote:

Also, the new restriction in Vista did not actually apply to WinXP. It is a new one, though it's true former versions of Windows are restricted enough as it is.

You are right, I read through the blog post too quickly (I thought the restriction was the same as the one I mentionned above). This might be material for the Licensing:more bits page in the future; as well as for a possible "sattelite" page aimed directly at Vista.

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