David said:
By proof, I meant the EC directive which says that when purchasing
software, the license which goes with the software is not
enforceable. Or, one which suggests having an EULA which says "this
gets installed on one device and not transferred" is not enforceable.
Why, for example, does the part of the OEM EULA which says 'you
cannot transfer the license to another device' become unenforceable,
but the bit which says 'may not install this on multiple machines
simultaneously' is enforceable?
If one part is unfair, surely the other part is unfair too!
Why shouldn't I be able to install Vista on my home PC and my work
PC? I only use 1 machine at once (either at work or at home, not
both). Surely that's an unfair restriction! If I'm allowed to
uninstall the software and re-install on another machine (ie. only
have 1 copy installed at once), then that's functionally no different
to only using 1 machine at once - it just takes longer!
I know that under UK law (Unfair Terms in Consumer Contracts
Regulations 1999) unfair contract terms to consumers are not binding.
This does not apply for businesses. However, only a court can decide
if a term is unfair. So if no one has ever taken it to court, then
the term is deemed to be fair.
Reading through the Office of Fair Trading's website on unfair
contract terms, the sort of things in the EULA appear fair. You
accept a reduction in rights (ie. ability to transfer the OS to
another machine) for a reduction in price. It's standard and fair
contract terms. You pay less, you get less. You pay more, you get
more.
The sorts of things which are unfair contract terms are things like,
ability for the supplier to arbitrarily increase costs without
warning or ability to cancel, or requiring 3 months cancellation
notice, binding the user to terms not supplied before purchase.
Read through the documents on the OFT site, including their 'examples
of unfair terms' document.
As it stands, I've not seen anything unfair with the restriction on
OEM software to not be transferred to another machine, provided that
you get a reduction in price because of it - which you do - a
signficant one!
D
IANAL, however I would hazard a guess that Microsoft have never tested
this in any of the EU courts because it could and would be argued that
the software was purchased to run on one machine only, originally
installed by the OEM, who subsequently upgraded that machine completely
but the pc remained an upgraded original and therefore to restrict the
purchaser of the software such that it could not be used on the
upgraded machine would be an unfair restriction of trade.
There is a reputable UK second-user hardware supplier who, at one time,
was selling unused XP Pro stickers to the trade at UKP35 each. We're
not talking a large operation, he probably had only 50 or so for sale,
but Microsoft contacted him and threatened to sue unless he withdrew
the stickers. Given that Microsoft seem to be happy to threaten court
action for such a small-scale operation you have to ask yourself why
they do not take the same action with OEM's who are using the original
OEM software on heavily upgraded pc's... they must be aware of this
happening, since just about every OEM who deals with sme's are doing
this. I would hazard a guess that it's because they know their action
would fail in law. ymmv, but I would argue that upgrading a pc by
installing a new mobo/cpu/hard drive/memory and installing the original
legally-purchased o/s would not be deemed to be unfair under EU law,
and therefore any case brought by the licensor would fail, since the
software was not being used on more than one machine. Since I have
never had problems reactivating XP when this has been done, and I know
of no OEM who has has had any such problem I would suspect that
Microsoft are accepting such an interpretation and therefore taking no
action.
