Activation re: XP Home

[Bruce Chambers]

Greetings --

At least one U.S. Federal judge has ruled that "shrink-wrapped"
EULAs, of which WinXP's is an example, _are_ enforceable, unless it
can be demonstrated that their terms violate some other specific law,
or unless their terms are "unconscionable."

Circuit Judge EASTERBROOK for the United States Court of Appeals For
the Seventh Circuit wrote:

"Shrinkwrap licenses are enforceable unless their terms are
objectionable on grounds applicable to contracts in general (for
example, if they violate a rule of positive law, or if they are
unconscionable)." -
http://www.law.emory.edu/7circuit/june96/96-1139.html

The decision also includes this pertinent snippet:

" Following the district court, we treat the licenses as ordinary
contracts accompanying the sale of products, and therefore as governed
by the common law of contracts and the Uniform Commercial Code. "

(My thanks to Kurttrail for pointing out this link and thereby
providing the proof that Microsoft's EULA _is_ legally valid, even if
that wasn't his intent.)


Bruce Chambers

--
Help us help you:



You can have peace. Or you can have freedom. Don't ever count on
having both at once. -- RAH

 

[kurttrail]

Greetings --

At least one U.S. Federal judge has ruled that "shrink-wrapped"
EULAs, of which WinXP's is an example, _are_ enforceable, unless it
can be demonstrated that their terms violate some other specific law,
or unless their terms are "unconscionable."

Circuit Judge EASTERBROOK for the United States Court of Appeals For
the Seventh Circuit wrote:

"Shrinkwrap licenses are enforceable unless their terms are
objectionable on grounds applicable to contracts in general (for
example, if they violate a rule of positive law, or if they are
unconscionable)." -
http://www.law.emory.edu/7circuit/june96/96-1139.html

The decision also includes this pertinent snippet:

" Following the district court, we treat the licenses as ordinary
contracts accompanying the sale of products, and therefore as governed
by the common law of contracts and the Uniform Commercial Code. "

(My thanks to Kurttrail for pointing out this link and thereby
providing the proof that Microsoft's EULA _is_ legally valid, even if
that wasn't his intent.)

In general, "shrink-wrap licenses" are valid. It says so on my Multiple
Activations FAQ. The legal question is whether an anonymous post-purchase
"shrink-wrap license" is a valid software usage license, and whether it is
enforceable in the privacy of one's own home, for non-commerial use.

Can MS's "shrink-wrap license" "fair use" away legally? Since the US
Constitution gave Congress the right to limit copyright owners, hense "fair
use," I seriously doubt the copyright owner can later rewrite the US
Constitution and Congress in a "shrink-wrap license," through the purchase
of a retail copy of a copyrighted computer program.

MS has had over a decade to prove their "shrink-wrap licensing" claims
legally, since the one computer term was introduce with Windows 3.1, but has
choose to keep the FUD to get people to believe them, rather than legally
prove it's & the rest of the BSA Trust's shrinkwrap into software licensing
claims.

--
Peace!
Kurt
Self-anointed Moderator
microscum.pubic.windowsexp.gonorrhea
http://microscum.com
"Trustworthy Computing" is only another example of an Oxymoron!
"Produkt-Aktivierung macht frei!"

 

[Brian Coats]

Bruce,
I'm the one that told Greg about Wal-mart.
But as you just pointed out the eula is enforceable

So in a sense Wal-mart is violating the law by selling xp oem
With just a mouse.

If that was the case on the Oem cd it would not say for "distribution
with an new pc only. It should actual say-Oem Not for resale unless a
computer is include with it. Technically-you could not resale Oem
with you computer because it say "new pc" However, Microsoft did
change that. So you could sell your own computer. It does not say
anything on the cd like "not for resale"

Brian

 

[Bruce Chambers]

Greetings --

No, Wal-Mart isn't violating any laws. It's permissible for
authorized (by Microsoft - there are conditions and contracts
involved) resellers to sell OEM licenses with a single hardware
component, rather than with an entire PC. (Earlier OEM versions of
Windows had to be sold with a _major_ component, such as a hard drive
or a motherboard, but Microsoft greatly relaxed the rules for OEM
WinXP.) The print on the face of the CD is _not_ the EULA.

Bruce Chambers
--
Help us help you:



You can have peace. Or you can have freedom. Don't ever count on
having both at once. -- RAH

 

[kurttrail]

Greetings --

No, Wal-Mart isn't violating any laws. It's permissible for
authorized (by Microsoft - there are conditions and contracts
involved) resellers to sell OEM licenses with a single hardware
component, rather than with an entire PC. (Earlier OEM versions of
Windows had to be sold with a _major_ component, such as a hard drive
or a motherboard, but Microsoft greatly relaxed the rules for OEM
WinXP.) The print on the face of the CD is _not_ the EULA.

Of course the OEM EULA doesn't define what a major component is, so what MS
considers a major component is unclear.

It just the way MS does business, the EULA is dependent on unstated
post-EULA policies.

--
Peace!
Kurt
Self-anointed Moderator
microscum.pubic.windowsexp.gonorrhea
http://microscum.com
"Trustworthy Computing" is only another example of an Oxymoron!
"Produkt-Aktivierung macht frei!"

 

[kurttrail]

Bruce,
I'm the one that told Greg about Wal-mart.
But as you just pointed out the eula is enforceable

So in a sense Wal-mart is violating the law by selling xp oem
With just a mouse.

If that was the case on the Oem cd it would not say for "distribution
with an new pc only. It should actual say-Oem Not for resale unless a
computer is include with it. Technically-you could not resale Oem
with you computer because it say "new pc" However, Microsoft did
change that. So you could sell your own computer. It does not say
anything on the cd like "not for resale"

Shrink-wrap license are generally enforceable, but whether a shrinkwrap
license is an enforceable software license in the privacy of your own home
for noncommercial use of copyrighted software is still very legally
unsubstatiated.

--
Peace!
Kurt
Self-anointed Moderator
microscum.pubic.windowsexp.gonorrhea
http://microscum.com
"Trustworthy Computing" is only another example of an Oxymoron!
"Produkt-Aktivierung macht frei!"

 

[Brian Coats]

I bet if you buy this at wal-mart.com xp oem. You tried to resale
(They way you just bought it) Microsoft and Ebay would close it down.


A lot of Ebayers have said that Oems can’t be sold without a computer
attached to it. Even if you bought the oem that way and didn’t use
it. Including hardware does not qualify and they say all oems. Not
just Microsoft’s

Hey, Mike B.
Does Wal-Mart.com have a special agreement to sell the windows xp oem
with just a mouse?

Brian

 

[myself]

I bet if you buy this at wal-mart.com xp oem. You tried to resale (They
way you just bought it) Microsoft and Ebay would close it down.


A lot of Ebayers have said that Oems can't be sold without a computer
attached to it. Even if you bought the oem that way and didn't use it.
Including hardware does not qualify and they say all oems. Not just
Microsoft's

You can't even sell free software on ebay. Several helpful people have tried
selling ultra-cheap CD's to save users on dial-up having to download thousands
of open-source applications. They were closed down because ebay has a policy
against selling homemade CD's.

Hey, Mike B.
Does Wal-Mart.com have a special agreement to sell the windows xp oem
with just a mouse?

Now that Linux is hitting Wal-Mart's retail shelves MS needs to do something to
compete on price. However, a critical piece of their business strategy for
maintaining high prices requires that they never compromise on the price of
Windows XP Retail. Their standard solution whenever competition rears its ugly
head - and they've done this almost from the beginning - is to push the cheaper
OEM, Academic, and/or Upgrade versions and then conveniently look the other way
while resellers and consumers "abuse" their agreements.

Then, once the competitor has been starved of sales and slunk off to bankruptcy
court, comes the hand-wringing over how all those cheating low-life consumers
stole poor little Microsoft's profits by abusing their EULA's.

 

[Brian Coats]

Then I was just lucky enough to get linux software. Or they just
looked the other way because they were big sellers.

Microsoft could of stopped ebay and others in it tracks.
Also, Make a fortunate in $ by do the following.

Offer a retail version of any OS they made for $50.00
For six month period and accept Money Orders. So people who don’t
have credit card can order it.

Microsoft would think they would lose money. They would actual gain
money. It would stop a lot of piracy. That saves them money. It
would also, stop a lot of what Microsoft thinks are illegal oem sales
on places like ebay. Then 90% would all have a legal version.


Brian

 

[Danny Mingledorff]

While I agree that would attract some people, I don't think you would get to
90% using a legal version.

Remember how many people used to pass around $40 and $50 copies of DOS?