EULA Interpretation

[Guest]

Question 1:
I need to know if I can re-install Vista legally:
EULA: Section 13. Upgrading
"To use upgrade software, you must first be licensed for the software that
is eligible for the upgrade."

Conundrum:
Once the upgrade is installed, the software license (eligible for
upgrade) is revoked and unusable. It cannot legally be re-installed to
perform the upgrade again.


Question 2:
Am I the End-User if I do not provide a Product Key?
EULA:
Section 2. Installation and Use
"Before you use the software under a license... "
Section 4. Mandatory Activation
"Your right to use the software after the time specified in the
installation process is limited unless it is activated."

Conundrum:
Vista can be installed as Trial Ware (thereby not using "under a license")
with a 30-day limit before functionality decreases. While this would be
worthless to daily use of my computer. Could I not simply repeat this process
every 30 days and restore a backup of my data? In this manner, I am never
identified as the "End-User" per the agreement and not subject to it's
limitations.

Question 3:
Am I accountable to third-party software installed by Vista?
EULA: Section 19. Third Party Software
The software contians third party programs. The license terms with those
programs apply to your use of them.

Conundrum:
What third party software am I complicit to obey a different set of
end-user licensing rules?
Where are these agreements?
Federal rulings state I cannot be held to EULAs that are "packaged" and
require installation prior to agreement, yet this EULA states I am.

Fourth question:
How many licenses do I need to install Vista?
EULA: Section 2.a Licensed Device
"You may use the software on up to two processors on that device at one
time."

Conundrum:
Most current platforms have one main processor with multiple cores. This
distinction is not clearly defined in the EULA. Additionally, my video card
has two processors. That means I have a total of three, or more, processors
on my computer.

Last questions:
Am I held accountable to a EULA if the agreement as written is unenforcable?
If Microsoft can change the EULA without my knowledge after I install the
software, is it a valid agreement?

 

[Carey Frisch [MVP]]

Take the EULA to a local contract attorney and
he will offer his professional legal advice. This
is a peer-to-peer newsgroup and not a group of
legal jurists.

--
Carey Frisch
Microsoft MVP
Windows Shell/User

----------------------------------------------------------------------

:

Question 1:
I need to know if I can re-install Vista legally:
EULA: Section 13. Upgrading
"To use upgrade software, you must first be licensed for the software that
is eligible for the upgrade."

Conundrum:
Once the upgrade is installed, the software license (eligible for
upgrade) is revoked and unusable. It cannot legally be re-installed to
perform the upgrade again.


Question 2:
Am I the End-User if I do not provide a Product Key?
EULA:
Section 2. Installation and Use
"Before you use the software under a license... "
Section 4. Mandatory Activation
"Your right to use the software after the time specified in the
installation process is limited unless it is activated."

Conundrum:
Vista can be installed as Trial Ware (thereby not using "under a license")
with a 30-day limit before functionality decreases. While this would be
worthless to daily use of my computer. Could I not simply repeat this process
every 30 days and restore a backup of my data? In this manner, I am never
identified as the "End-User" per the agreement and not subject to it's
limitations.

Question 3:
Am I accountable to third-party software installed by Vista?
EULA: Section 19. Third Party Software
The software contians third party programs. The license terms with those
programs apply to your use of them.

Conundrum:
What third party software am I complicit to obey a different set of
end-user licensing rules?
Where are these agreements?
Federal rulings state I cannot be held to EULAs that are "packaged" and
require installation prior to agreement, yet this EULA states I am.

Fourth question:
How many licenses do I need to install Vista?
EULA: Section 2.a Licensed Device
"You may use the software on up to two processors on that device at one
time."

Conundrum:
Most current platforms have one main processor with multiple cores. This
distinction is not clearly defined in the EULA. Additionally, my video card
has two processors. That means I have a total of three, or more, processors
on my computer.

Last questions:
Am I held accountable to a EULA if the agreement as written is unenforcable?
If Microsoft can change the EULA without my knowledge after I install the
software, is it a valid agreement?

 

[Guest]

Thank you for your advice.
I thought it was a group on Installation & Setup issues
(which a EULA seems to best fit.)

Prior to discussing the matter with an attorney, it is prudent to determine
public opinion on interpretation to ensure all points of relevancy are
addressed.

My issue started with correctly re-installing Vista as an upgrade, but after
actually reading the EULA, I wasn't sure I could. Then the other points came
to light.

I will keep future rebuttals to myself so you don't deem me antagonistic.
Thanks, again.

 

[Bruce Chambers]

Question 1:
I need to know if I can re-install Vista legally:
EULA: Section 13. Upgrading
"To use upgrade software, you must first be licensed for the software that
is eligible for the upgrade."

Conundrum:
Once the upgrade is installed, the software license (eligible for
upgrade) is revoked and unusable. It cannot legally be re-installed to
perform the upgrade again.

Not so. The license for the older, qualifying product becomes part of
(or subsumed by) the upgrade license. It does not become revoked or
unusable. Were you to remove the Upgrade, the original qualifying
license remains valid.

Question 2:
Am I the End-User if I do not provide a Product Key?
EULA:
Section 2. Installation and Use
"Before you use the software under a license... "
Section 4. Mandatory Activation
"Your right to use the software after the time specified in the
installation process is limited unless it is activated."

Conundrum:
Vista can be installed as Trial Ware (thereby not using "under a license")
with a 30-day limit before functionality decreases. While this would be
worthless to daily use of my computer. Could I not simply repeat this process
every 30 days and restore a backup of my data? In this manner, I am never
identified as the "End-User" per the agreement and not subject to it's
limitations.

If you don't mind formatting the hard drive and reinstalling
*everything* (starting with the older, qualifying OS) from scratch every
thirty days.... Seems like a lot of trouble to go through just to avoid
purchasing a legitimate license.

Question 3:
Am I accountable to third-party software installed by Vista?
EULA: Section 19. Third Party Software
The software contians third party programs. The license terms with those
programs apply to your use of them.

Conundrum:
What third party software am I complicit to obey a different set of
end-user licensing rules?
Where are these agreements?

Within the Vista EULA.

Federal rulings state I cannot be held to EULAs that are "packaged" and
require installation prior to agreement, yet this EULA states I am.

On the contrary, a Federal Appeals court has determined that once
you've been informed that such EULAs exist, your proceeding with the
installation is tantamount to your tacit consent to be bound by them.

Fourth question:
How many licenses do I need to install Vista?
EULA: Section 2.a Licensed Device
"You may use the software on up to two processors on that device at one
time."

Conundrum:
Most current platforms have one main processor with multiple cores. This
distinction is not clearly defined in the EULA. Additionally, my video card
has two processors. That means I have a total of three, or more, processors
on my computer.

It's plain English. You can install a single license on a single
computer. The number of cores within the CPU are irrelevant.

Last questions:
Am I held accountable to a EULA if the agreement as written is unenforcable?

Read the EULA; it makes this point clear: should any part of the EULA
be found unenforceable, the remainder remains in force.

If Microsoft can change the EULA without my knowledge after I install the
software, is it a valid agreement?

No.


--

Bruce Chambers

Help us help you:



They that can give up essential liberty to obtain a little temporary
safety deserve neither liberty nor safety. -Benjamin Franklin

Many people would rather die than think; in fact, most do. -Bertrand Russell

 

[Rick Rogers]

Hi Mark,

Question 1:
I need to know if I can re-install Vista legally:
EULA: Section 13. Upgrading
"To use upgrade software, you must first be licensed for the software
that
is eligible for the upgrade."

Conundrum:
Once the upgrade is installed, the software license (eligible for
upgrade) is revoked and unusable. It cannot legally be re-installed to
perform the upgrade again.

It cannot be reinstalled for other usage while it is part of the upgrade
license. If necessary to reinstall the system cleanly, then the license
originally used for upgrading should be reused for installation.

Question 2:
Am I the End-User if I do not provide a Product Key?
EULA:
Section 2. Installation and Use
"Before you use the software under a license... "
Section 4. Mandatory Activation
"Your right to use the software after the time specified in the
installation process is limited unless it is activated."

Conundrum:
Vista can be installed as Trial Ware (thereby not using "under a
license")
with a 30-day limit before functionality decreases. While this would be
worthless to daily use of my computer. Could I not simply repeat this
process
every 30 days and restore a backup of my data? In this manner, I am never
identified as the "End-User" per the agreement and not subject to it's
limitations.

Actually, it's not supposed to be used for trialware, nothing in the license
allows for this (trialware agreements state that there is a specific
free-use period, there is no such statement in a Windows EULA). The aim of
the delay is to allow for any initial hardware adjustments and for those
that don't have immediate access to the 'net or a phone for activation.
However, what you theorize is quite possible should you not mind starting
from scratch every 30 days (and don't forget about having to download and
reinstall updates!). Also, it is possible to extend the waiting period to
120 days.

Question 3:
Am I accountable to third-party software installed by Vista?
EULA: Section 19. Third Party Software
The software contians third party programs. The license terms with those
programs apply to your use of them.

Conundrum:
What third party software am I complicit to obey a different set of
end-user licensing rules?

Generally with third party software, the first usage will prompt for
disclosure of the terms of use.

Where are these agreements?

Presumably within the program, either in text format or as part of a program
file.

Federal rulings state I cannot be held to EULAs that are "packaged" and
require installation prior to agreement, yet this EULA states I am.

I'm not fully versed on this, but Vista's EULA is given prior to the
beginning of installation, and any third party programs that have one
disclose it prior to first use. From that perspective, it would seem as
though they are compliant with this condition as you see them (and often
must agree to them as a condition of use) prior to installation or use of
the software.

Fourth question:
How many licenses do I need to install Vista?

One license is good for one install on one system. Not like this is anything
new.

EULA: Section 2.a Licensed Device
"You may use the software on up to two processors on that device at one
time."

Conundrum:
Most current platforms have one main processor with multiple cores. This
distinction is not clearly defined in the EULA. Additionally, my video
card
has two processors. That means I have a total of three, or more,
processors
on my computer.

"main processor" is the key. A processor on a video card is, by definition,
a gpu that is dedicated solely to the function of that card. You cannot
employ it otherwise to aid in system functions run by the OS. The license is
to run two physical central processing units (cpu's) on the licensed device,
regardless of the number of cores per processor.

Last questions:
Am I held accountable to a EULA if the agreement as written is
unenforcable?

Think of it this way: Just because you don't get caught speeding doesn't
mean you aren't breaking the law.

If Microsoft can change the EULA without my knowledge after I install the
software, is it a valid agreement?

To my knowledge, any change to an agreement already in place must be agreed
to by all parties involved.

There is never a clear cut answer on licensing questions. There will always
be matters of interpretation, intent, and literal translation. Not to
mention the application of local, regional, state, and federal laws in the
many countries where Vista is offered. Plus, as technology changes, there
may well be unintended circumstances that arise that are not currently
addressed.

--
Best of Luck,

Rick Rogers, aka "Nutcase" - Microsoft MVP

Windows help - www.rickrogers.org
My thoughts http://rick-mvp.blogspot.com

 

[Guest]

Excellent feedback!
Thank you.

1. I did not find any third party products listed in the Vista EULA. Either
way, good come back on the federal issue.

2. Not sure on the enforcablility issue: The text "enforc" or a derivative
was not found within the EULA to cover uneforcable areas of the EULA.

 

[Guest]

Excellent feedback!
Thank you!

Only one comment:
If it is not supposed to be used as Trial Ware, why can it be installed
without a Product Key?

I understand a time limit for activation, just not the prior comment

Thanks, again!

 

[Bruce Chambers]

Excellent feedback!
Thank you.

1. I did not find any third party products listed in the Vista EULA. Either
way, good come back on the federal issue.

2. Not sure on the enforcablility issue: The text "enforc" or a derivative
was not found within the EULA to cover uneforcable areas of the EULA.

True, and I can't find the standard "separability" disclaimer that's
been a part of every standard contract I've read in the last 20 years or
so. It may be that I'm wrong on this point, unless the state
(Washington) laws alluded to make such a disclaimer unnecessary.


--

Bruce Chambers

Help us help you:



They that can give up essential liberty to obtain a little temporary
safety deserve neither liberty nor safety. -Benjamin Franklin

Many people would rather die than think; in fact, most do. -Bertrand Russell

 

[Guest]

I appreciate the straight forward answers!

The crux of my post was Question 1 and as stated, it appears that instead of
the old OS license being revoked by the upgrade, it is instead a part of the
current license (the "path" for upgrade.) While I don't think it is that
clear in the EULA, I can live with it and perform re-installs when needed.
(Even if it's a pain: the price of upgrading.)

Some other posts have led me to believe that the old OS was "banned" from
use, but that may only be activation of the old OS which I do not think is
required to perform the upgrade. (But, that's another post.)

Thanks again.

 

[Rick Rogers]

Funny, I asked the same question of the licensing group. Never got a
straight answer.

--
Best of Luck,

Rick Rogers, aka "Nutcase" - Microsoft MVP

Windows help - www.rickrogers.org
My thoughts http://rick-mvp.blogspot.com

 

[Kerry Brown]

The old license is "banned" from being used on it's own while the upgrade is
installed. For instance you shouldn't install it on another computer or on a
virtual machine or dual boot on the upgraded computer. While the upgrade
license is in place it is part of the upgrade.

 

[PTravel]

I'll reply to two posts at once:

On the contrary, a Federal Appeals court has determined that once you've
been informed that such EULAs exist, your proceeding with the installation
is tantamount to your tacit consent to be bound by them.

Sorry, you're both incorrect. "Shrink wrap license" validity varies
depending upon your jurisidiction -- this is a function of state, and not
federal, law (though, of course, a federal court can decide issues of state
law). Most jurisdictions require that, for a "shrink wrap license" to be
enforceable, two criteria be met:

(1) There must be an opportunity to reject the license. This can be
satisfied by, for example, having an "I accept" or "I reject" button as part
of the installation process.

(2) The purchaser must be able to return the software for a full refund.

In most juridictions, absent these criteria, the EULA would not be valid.
Merely informing someone, "there's a EULA" would not be sufficient to create
an enforceable agreement.

The more interesting question, however, is whether a specific software
product is subject to license at all. Jurisdictions are split on the
question, but for many products (which may or may not include Vista), the
nature of the product and the circumstances of transfer suggest that
particular products are not licensed, but sold and subject to First Sale
doctrine, e.g. you can sell, loan, gift or assign your lawfully-acquired
copy, as long as you don't violate one of the reserved rights under
copyright.

Do not assume that, just because a particular software product is
accompanied by a restrictive EULA, it is necessarily enforceable as a
license.

Note: I have no opinion as to the validity or enforceability of the Vista
EULA. Microsoft is rather careful about not letting a First Sale doctrine
defense be litigated to a final determination on the merits. I am not,
therefore, prepared to say whether or not Vista is licensed or sold as a
matter of law and, in any event, I can't give legal opinions to non-clients,
which is everyone in the newsgroup.

Take the EULA to a local contract attorney and
he will offer his professional legal advice. This
is a peer-to-peer newsgroup and not a group of
legal jurists.

This group is, indeed, a peer-to-peer newsgroup, and some of the "peers"
include attorneys. The question was, most certainly, on-topic for this
newsgroup and there is no reason not to discuss Microsoft's license
restrictions in this venue.

 

[Mark]

Thanks for the clarification!
I was of the opinion that the current Vista EULA was pretty weak.
Maybe MS is caving in on the issue by creating a harder means of duplicate
installation and not worrying so much about the paper end of the story.

 

[PTravel]

Thanks for the clarification!
I was of the opinion that the current Vista EULA was pretty weak.
Maybe MS is caving in on the issue by creating a harder means of duplicate
installation and not worrying so much about the paper end of the story.

Know this about Microsoft's EULA, though. Microsoft _will_ sue to enforce
it and will fight any effort to invalidate through First Sale doctrine or
otherwise. Take my word about this: you do NOT ever want to be in the
position of having to litigate against Microsoft unless you have an awful
lot of money and aren't particularly risk-averse. They are the one of the
most aggressive litigants I've ever opposed (and I've gone up against them a
number of times).

 

[Bruce Chambers]

I'll reply to two posts at once:




Sorry, you're both incorrect. "Shrink wrap license" validity varies
depending upon your jurisidiction -- this is a function of state, and
not federal, law (though, of course, a federal court can decide issues
of state law). Most jurisdictions require that, for a "shrink wrap
license" to be enforceable, two criteria be met:

(1) There must be an opportunity to reject the license. This can be
satisfied by, for example, having an "I accept" or "I reject" button as
part of the installation process.

(2) The purchaser must be able to return the software for a full refund.

In most juridictions, absent these criteria, the EULA would not be
valid. Merely informing someone, "there's a EULA" would not be
sufficient to create an enforceable agreement.

I admittedly over-simplified the implications of Procd, Inc. v.
Zeidenberg (http://www.law.emory.edu/7circuit/june96/96-1139.html).
Thanks for putting a more detailed legal perspective in play.


--

Bruce Chambers

Help us help you:



They that can give up essential liberty to obtain a little temporary
safety deserve neither liberty nor safety. -Benjamin Franklin

Many people would rather die than think; in fact, most do. -Bertrand Russell