divoch said:
Thanks Bruce for fairly detailed treatment of the subject.
You're welcome.
If what I might
do is or was clearly outside the boundaries of what I perceive the licence
states, I would take it as it is, I do not intend to break clearly stated
rules to save £50 or so. Although I am now clearer as to what the licence
says I still do not think it is a clear cut as you seem to imply.
That comes down, I think, to the way different people have always read
and yet differently interpreted the same words. As you said, it seems
clear and straight-forward to me, from my perpective, and the way I
learned English. You, having probably had a different education and
certainly different experiences, read it with some "wriggle-room," as it
were.
I do not
want to break the contract but I do not want to keep buying licenses unless
I have to.
That's understandable; very few people wish to spend more than
necessary. Also, please bear in mind that I am giving you my
understanding of the licensing conditions; I am neither endorsing or
condemning those terms, nor saying that I necessarily like them.
1) Firstly, the OS was installed into my "old" computer by a computer shop
on a new hard drive which they supplied. I did not need to activate anything
and so I did not accept or signed anything. They must have done it. You will
probably say that even in this case I am bound by it.
Yes, that would be my contention. Had you not deliberately contracted
with the personnel of that shop to perform certain tasks (the
installation of the hard drive and operating system) for you? Were they
not then acting as your agents, with your permission to do whatever was
legally necessary to complete said installation? I think any first year
law student would be able to argue that you therefore gave them
permission to act on your behalf and to commit you to the terms of the
EULA. (Only if they installed the OEM license without your prior
knowledge or permission would you have some leeway in the matter, to my
mind.)
I do not know that but
if you'd say so I would belive it, BUT even so:
2) If repair is OK then where is the boundary of that repair? If I change
faulty motherboard and re-install OS then that is presumeably OK? If it is
hard drive that failed and I replace it, I presume that is also OK? If I
replace both because I was not sure which was faulty, is that OK? If the
hard drive is OK but I change motherboard, because it was or I thought it
was faulty and also replaced my CD-ROM drive with DVD writer at the same
time because I would like to upgrade it at the same time, is that OK or not?
My current PC has developped in this peacemeal fashion, only floppy drive is
now original, even the case has been changed from the original Dell box, but
it is still only ONE PC with ONE operating system.
This is where it admittedly gets complicated. Some people believe that
the motherboard is the key component that defines the "original
computer," but the OEM EULA does not make any such distinction. Others
have said that one could successfully argue that it's the PC's case that
is the deciding component, as that is where one is instructed to affix
the OEM CoA label w/Product Key. Again, the EULA does *not*
specifically define any single component as the computer. Licensed
Microsoft Systems Builders, who are allowed to distribute OEM licenses
with computers they build and sell, are _contractually_ obligated to
"define" the computer as the motherboard, but this limitation/definition
can't be applied to the end user until the EULA is re-written.
Microsoft has, to date, been very careful _not_ publicly to define
when an incrementally upgraded computer ceases to be the original
computer. The closest I've ever seen a Microsoft employee come to this
definition (in a public forum) is to tell the person making the inquiry
to consult the PC's manufacturer. As the OEM license's support is
solely the responsibility of said manufacturer, they should determine
what sort of hardware changes to allow before the warranty and support
agreements are voided. To paraphrase: An incrementally upgraded
computer ceases to be the original computer, as pertains to the OEM
EULA, only when the *OEM* says it's a different computer. If you've
built the system yourself, and used a generic OEM CD, then _you_ are the
"OEM," and _you_ get to decide when you'll no longer support your product.
However, you're contemplating simultaneously replacing every single
component, but one. Perhaps a lawyer (like Bill Clinton, for example)
could sufficiently parse the English language to get away with calling
that an "upgrade," but I really don't think that such a claim would pass
the proverbial "reasonable person" test. The "man on the street" would
not say "You've upgraded your computer;" instead, he'd say "You've moved
the hard drive into a new computer."
3) I quote from your writing: "You may permanently transfer all of your
rights under this EULA only as part of a permanent sale or transfer of the
HARDWARE...."
Not really my writing, but a direct quote from the WinXP OEM EULA...
So, again, if I keep monitor, keyboard, mouse, .....
The above external components would probably be irrelevant to the
discussion.
.... floppy, ZIP
drive from the current hardware etc. but not say base unit with motherboard
have I transferred HARDWARE?
So, besides the hard drive, you're also going to be taking internal
diskette and zip drives from the current computer and installing them
into the new system? This further muddies the water, but does it the
overall action seem to be more of an upgrade....
I am assuming of course that, at the end of
this "transfer", there would be only ONE computer with ONE OS.
Which is, after all, Microsoft's primary concern.
--
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
