GregRo wrote:
> For the record after reading some of your post.
>
> Yes, I was talking about the Microsoft office that was an example.
> Which lead me to the case I mentioned below.
>
> That why my post is titled OEMs can be sold according to this site
>
>
> This affects all OEM not just Microsoft. Read the decision
>
> http://linuxjournal.com/article/5628
> If you find yourself paying for bundled proprietary software and don't
> actually install it, you can legally resell it no matter what the
> End-User License Agreement (EULA) says. That's what Judge Dean D.
> Pregerson wrote in his "Order Re: Application For Preliminary
> Injunction" in the case of Softman v. Adobe.
>
>
> Any OEM software can be resold legally if it has not been installed.
> Windows OEMs and all others.
>
>
> Greg Ro

That doesn't mean that a resller can sell OEM copies seperately. They
entered into an agreement with Microsoft. That case wouldn't apply to them.
It applies to an end user who has purchased a computer that has OEM software
with it that wasn't installed. That case is probably why Microsoft requires
OEMs to install Office. I'm only a layman so you should talk to lawyer for a
legal interpetation.

Kerry

GregRo wrote:
> Normally I would not get into this debate.
> People have asked for court cases as prove.
> According to this site. They have court cases as prove.
>
>
> (Sorry if duplicate post)
>
> On this page they claim their software is genuine and even give the
> Microsoft piracy address.
>
> http://www.edirectsoftware.com/produ...oduct_id=16230
>
>
> OEMs can be sold according to this site
> http://www.edirectsoftware.com/hologram.php
>
> [Is it legal to sell OEM / CD Only software?
>
> This is a great question, many of the software companies would like
> you to believe the answer is no and often attempt to scare customers
> by placing text on the CD that says, for example; For distribution
> with a new pc only or something to that effect, but rest assured it
> is in fact legal to purchase OEM software. The truth is that the First
> Sale Doctrine protects our right, as well as yours to sell OEM / CD
> Only software.
>
> Software companies have attempted to circumvent the first sale
> doctrine by creating elaborate licensing agreements, in which they
> claim that the software is not actually yours, but that you only
> licensed it. Several courts however have found it does in fact meet
> the criteria of a sale and therefore have upheld the first sale
> doctrine.]
>
>
> They have court cases to back up their claim.
> kurttrail and others were correct according to this site.
>
>
> Greg Ro
>
>


Well they're using very misleading references to court cases that have
absolutely no bearing on Microsoft's EULA (they're about Adobe and/or
Linux EULSa, instead), so I'm somewhat suspicious. However, otherwise,
everything looks legitimate.


--

Bruce Chambers

Help us help you:
http://dts-l.org/goodpost.htm
http://www.catb.org/~esr/faqs/smart-questions.html

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

> They have court cases to back up their claim

I've got a bridge I can sell you, too. A judge sold it to me.

GregRo wrote:
> Normally I would not get into this debate.
> People have asked for court cases as prove.
> According to this site. They have court cases as prove.
>
>
> (Sorry if duplicate post)
>
> On this page they claim their software is genuine and even give the
> Microsoft piracy address.
>
> http://www.edirectsoftware.com/produ...oduct_id=16230
>
>
> OEMs can be sold according to this site
> http://www.edirectsoftware.com/hologram.php
>
> [Is it legal to sell OEM / CD Only software?
>
> This is a great question, many of the software companies would like
> you to believe the answer is no and often attempt to scare customers
> by placing text on the CD that says, for example; For distribution
> with a new pc only or something to that effect, but rest assured it
> is in fact legal to purchase OEM software. The truth is that the First
> Sale Doctrine protects our right, as well as yours to sell OEM / CD
> Only software.
>
> Software companies have attempted to circumvent the first sale
> doctrine by creating elaborate licensing agreements, in which they
> claim that the software is not actually yours, but that you only
> licensed it. Several courts however have found it does in fact meet
> the criteria of a sale and therefore have upheld the first sale
> doctrine.]
>
>
> They have court cases to back up their claim.
> kurttrail and others were correct according to this site.
>
>
> Greg Ro

"Alias" <aka@[notme]maskedandanonymous.org> wrote in message
news:enJl6jIEGHA.2672@TK2MSFTNGP10.phx.gbl...
> Vanguard wrote:
>>>
>>> Then how do you explain that generic OEMs are sold in Spain legally
>>> without any hardware to be tied to?
>>
>> Depends entirely on what is the actual contract that the OEM'er has with
>> Microsoft. Did you ever get to see their contract with Microsoft?
>
> Why would I want to see one? I am an end user and could care less. These
> aren't OEMers. These are retail computer stores, not HP or Dell. If you
> can understand Spanish, here are two of the largest:
>
> http://www.pcbox.com/inicio/default.asp?lan=es&cnt=es
>
> and
>
> http://www.appinformatica.com/
>
> Note that they list XP as "software", not "a licence to use software".
> Also note that they sell Office OEM.


Ah, now I remember you from past similar discussions. You didn't have any
proof or evidence back then, either, as to whether or not the Spain-based
seller actually had legal rights to obviate the terms of the license
contract. I'm pretty sure you can find lots of Indonesian sellers who don't
give a gnat's fart about anyone's licensing contract.

Although Spain supposedly is a signatory to the Berne Convention and
Universal Copyright Convention, apparently other countries are having
problems with Spain. See
http://www.eubusiness.com/Media/050713125643.vea8itjm.

I don't know if Microsoft alters the copies of the EULA for copies of its
software distributed in other countries, like Spain. Contract law may
differ in Spain. I thought Indonesia and maybe China were the prime sources
for major piracy but apparently Spain is an enemy, too; see
http://www.iipa.com/rbc/2004/2004SPEC301SPAIN.pdf and
http://www.iipa.com/rbc/2005/2005SPEC301Spain.pdf. So Spain is yet just
another troublesome country regarding piracy.

There is a country that is a big hit with pedophiles because there the legal
age of consent for male-female sex is just 12 years old. Obviously it is
not a country interested in abating pedophilia. This country would hardly
be one that you would hold up as a shining example of morality. The same
with Spain regarding how they sell software. A pedophile heads off to that
country for kiddie sex. A thief heads off to Spain to get pirated software.

(I didn't mention the country because I have no interest in helping
perverts. Also, I am not equating pedophilia perversion and crime with
software piracy. One deserves execution by public burning due the permanent
"affliction" of the diseased pervert while the thief deserves financial ruin
and, in addition, maybe some incarceration.)

"Kerry Brown" <kerry@kdbNOSPAMsys-tems.c*a*m> wrote in message
news:OJJ1EnIEGHA.644@TK2MSFTNGP09.phx.gbl...
>
> I have attended several Microsoft seminars on licensing. Here are some
> relevant portions of the current OEM agreement.

Does Microsoft make this information available online, or do I have to pay
big bucks to attend a seminar?

> "4. SOFTWARE DISTRIBUTION.
> 4.1 We grant you a nonexclusive right to distribute an individual software
> license only with a fully assembled
> computer system. A "fully assembled computer system" means a computer
> system consisting of at least a central processing unit, a motherboard, a
> hard drive, a power supply, and a case.
> 4.2 Each individual software license must be distributed pursuant to the
> end-user license agreement ("EULA")
> that accompanies the individual software license. Under the terms of the
> EULA, you are the licensor."

Yep, that would explain how the "qualifying hardware" becomes their entire
computer system. Definitions in the *end* user license are more vague. We
aren't an OEM so I've never really had a chance to see what OEM'ers have to
agree to. I do know that our end-user retail OEM copies are much more
pricey than the per-license cost for an OEM'er building complete hosts and
including Windows with them.

> "6. PREINSTALLATION REQUIREMENT. When you distribute an individual
> software license for a desktop operating system or application software,
> you must preinstall it on the fully assembled computer system’s hard drive
> using the OEM Preinstallation Kit ("OPK") provided in this package or
> otherwise made available by us. This preinstallation requirement does not
> apply to server software. For a list of available OPKs, information about
> using
> OEM preinstallation tools, OPK support and how to obtain OPKs, see
> www.microsoft.com/oem/sblicense/OPK.
> Preinstallation is limited to one copy of each individual software
> license. You may not copy or modify the OPK or
> OPK instructions. You may not distribute the OPK or OPK instructions to an
> end user."

Thanks for the link. I'll go do some more checking there.

> I understand that in certain cases for very large OEMs this agreement may
> be slightly different but I have been assured by a Microsoft licensing
> specialist that the essence is the same. OEM Offiice product cannot be
> sold without installing it on a system. Once it is sold to the end user
> (your $7M lab) Microsoft may make a seperate agreement with you.

Our Unix admin in our QA group was the one that dealt with the licenses. I
did have to call Microsoft (which took several calls and getting bounced
around) to find out if our intentions were okay with Microsoft. I didn't
want just to tech support jockey saying it was okay and had to find some
mid-management rep to okay our intentions, but they weren't going to let me
bother their legal department about it.

> In your post you refer to "Microsoft-branded retail OEM version of
> Windows"

I meant that the CDs were Microsoft branded (i.e., they say Microsoft) and
are not vendor-specific versions where the vendor manufactured their own
installation/recover/restoration CD with the vendor's label on it, or that
it was, for example, some Dell bastardized installation which installs a
setup of software that is different (more limited, other fluff software)
than the one you get with the Microsoft-branded CD. Just because the OEM
says it is Windows doesn't mean it is exactly the same Windows that
Microsoft itself distributes.

> There is no retail OEM version of Windows and the OP was not about OEM
> Windows in any case.

Huh? So why is "OEM" in the Subject header of the OP? Sounded like he was
asking about OEM versions.

Thanks for the info. Looks like some more reading for me. Any links to
what might be a boilerplate OEM contract from Microsoft? I'll dig around a
bit over at the OEM System Builder site that you provided. We don't build
our hosts for redistribution but a buddy of mine is thinking of building
some hosts for Point-Of-Sale that have Windows running on them.

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It available as a PDF online. I posted it many times in the past.

See this for a link
http://66.102.7.104/search?q=cache:N...=en&lr=lang_en

--
--------------------------------------------------------------------------------------------------
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http://margokingston.typepad.com/har....html#comments
=================================================
"Vanguard" <vanguard.code@comcastNIX.net> wrote in message news:u00twePEGHA.3068@TK2MSFTNGP10.phx.gbl...
> "Kerry Brown" <kerry@kdbNOSPAMsys-tems.c*a*m> wrote in message
> news:OJJ1EnIEGHA.644@TK2MSFTNGP09.phx.gbl...
>>
>> I have attended several Microsoft seminars on licensing. Here are some
>> relevant portions of the current OEM agreement.
>
> Does Microsoft make this information available online, or do I have to pay
> big bucks to attend a seminar?
>
>> "4. SOFTWARE DISTRIBUTION.
>> 4.1 We grant you a nonexclusive right to distribute an individual software
>> license only with a fully assembled
>> computer system. A "fully assembled computer system" means a computer
>> system consisting of at least a central processing unit, a motherboard, a
>> hard drive, a power supply, and a case.
>> 4.2 Each individual software license must be distributed pursuant to the
>> end-user license agreement ("EULA")
>> that accompanies the individual software license. Under the terms of the
>> EULA, you are the licensor."
>
> Yep, that would explain how the "qualifying hardware" becomes their entire
> computer system. Definitions in the *end* user license are more vague. We
> aren't an OEM so I've never really had a chance to see what OEM'ers have to
> agree to. I do know that our end-user retail OEM copies are much more
> pricey than the per-license cost for an OEM'er building complete hosts and
> including Windows with them.
>
>> "6. PREINSTALLATION REQUIREMENT. When you distribute an individual
>> software license for a desktop operating system or application software,
>> you must preinstall it on the fully assembled computer system’s hard drive
>> using the OEM Preinstallation Kit ("OPK") provided in this package or
>> otherwise made available by us. This preinstallation requirement does not
>> apply to server software. For a list of available OPKs, information about
>> using
>> OEM preinstallation tools, OPK support and how to obtain OPKs, see
>> www.microsoft.com/oem/sblicense/OPK.
>> Preinstallation is limited to one copy of each individual software
>> license. You may not copy or modify the OPK or
>> OPK instructions. You may not distribute the OPK or OPK instructions to an
>> end user."
>
> Thanks for the link. I'll go do some more checking there.
>
>> I understand that in certain cases for very large OEMs this agreement may
>> be slightly different but I have been assured by a Microsoft licensing
>> specialist that the essence is the same. OEM Offiice product cannot be
>> sold without installing it on a system. Once it is sold to the end user
>> (your $7M lab) Microsoft may make a seperate agreement with you.
>
> Our Unix admin in our QA group was the one that dealt with the licenses. I
> did have to call Microsoft (which took several calls and getting bounced
> around) to find out if our intentions were okay with Microsoft. I didn't
> want just to tech support jockey saying it was okay and had to find some
> mid-management rep to okay our intentions, but they weren't going to let me
> bother their legal department about it.
>
>> In your post you refer to "Microsoft-branded retail OEM version of
>> Windows"
>
> I meant that the CDs were Microsoft branded (i.e., they say Microsoft) and
> are not vendor-specific versions where the vendor manufactured their own
> installation/recover/restoration CD with the vendor's label on it, or that
> it was, for example, some Dell bastardized installation which installs a
> setup of software that is different (more limited, other fluff software)
> than the one you get with the Microsoft-branded CD. Just because the OEM
> says it is Windows doesn't mean it is exactly the same Windows that
> Microsoft itself distributes.
>
>> There is no retail OEM version of Windows and the OP was not about OEM
>> Windows in any case.
>
> Huh? So why is "OEM" in the Subject header of the OP? Sounded like he was
> asking about OEM versions.
>
> Thanks for the info. Looks like some more reading for me. Any links to
> what might be a boilerplate OEM contract from Microsoft? I'll dig around a
> bit over at the OEM System Builder site that you provided. We don't build
> our hosts for redistribution but a buddy of mine is thinking of building
> some hosts for Point-Of-Sale that have Windows running on them.
>
> --
> __________________________________________________ _____
> ** Post replies to the newsgroup. Share with others. **
> For e-mail, remove "NIX" and append "#VC811" to Subject.
> __________________________________________________ _____
>

Here's a link to a pdf of the System Builder license. I don't think you need
a password to access this download. I just tried it with Firefox which
strangely enough usually can't access anything on the MS OEM site :-)

http://oem.microsoft.com/downloads/p...SB_License.pdf

Kerry

Vanguard wrote:
> "Kerry Brown" <kerry@kdbNOSPAMsys-tems.c*a*m> wrote in message
> news:OJJ1EnIEGHA.644@TK2MSFTNGP09.phx.gbl...
>>
>> I have attended several Microsoft seminars on licensing. Here are
>> some relevant portions of the current OEM agreement.
>
> Does Microsoft make this information available online, or do I have
> to pay big bucks to attend a seminar?

The seminars are free to Microsoft partners. I don't know if they do public
seminars. You'd have to talk to Microsoft.

>
>> "4. SOFTWARE DISTRIBUTION.
>> 4.1 We grant you a nonexclusive right to distribute an individual
>> software license only with a fully assembled
>> computer system. A "fully assembled computer system" means a computer
>> system consisting of at least a central processing unit, a
>> motherboard, a hard drive, a power supply, and a case.
>> 4.2 Each individual software license must be distributed pursuant to
>> the end-user license agreement ("EULA")
>> that accompanies the individual software license. Under the terms of
>> the EULA, you are the licensor."
>
> Yep, that would explain how the "qualifying hardware" becomes their
> entire computer system. Definitions in the *end* user license are
> more vague. We aren't an OEM so I've never really had a chance to
> see what OEM'ers have to agree to. I do know that our end-user
> retail OEM copies are much more pricey than the per-license cost for
> an OEM'er building complete hosts and including Windows with them.
>

That's called markup and is how retailers make a living.

>> "6. PREINSTALLATION REQUIREMENT. When you distribute an individual
>> software license for a desktop operating system or application
>> software, you must preinstall it on the fully assembled computer
>> system’s hard drive using the OEM Preinstallation Kit ("OPK")
>> provided in this package or otherwise made available by us. This
>> preinstallation requirement does not apply to server software. For a
>> list of available OPKs, information about using
>> OEM preinstallation tools, OPK support and how to obtain OPKs, see
>> www.microsoft.com/oem/sblicense/OPK.
>> Preinstallation is limited to one copy of each individual software
>> license. You may not copy or modify the OPK or
>> OPK instructions. You may not distribute the OPK or OPK instructions
>> to an end user."
>
> Thanks for the link. I'll go do some more checking there.
>
>> I understand that in certain cases for very large OEMs this
>> agreement may be slightly different but I have been assured by a
>> Microsoft licensing specialist that the essence is the same. OEM
>> Offiice product cannot be sold without installing it on a system.
>> Once it is sold to the end user (your $7M lab) Microsoft may make a
>> seperate agreement with you.
>
> Our Unix admin in our QA group was the one that dealt with the
> licenses. I did have to call Microsoft (which took several calls and
> getting bounced around) to find out if our intentions were okay with
> Microsoft. I didn't want just to tech support jockey saying it was
> okay and had to find some mid-management rep to okay our intentions,
> but they weren't going to let me bother their legal department about
> it.
>> In your post you refer to "Microsoft-branded retail OEM version of
>> Windows"
>
> I meant that the CDs were Microsoft branded (i.e., they say
> Microsoft) and are not vendor-specific versions where the vendor
> manufactured their own installation/recover/restoration CD with the
> vendor's label on it, or that it was, for example, some Dell
> bastardized installation which installs a setup of software that is
> different (more limited, other fluff software) than the one you get
> with the Microsoft-branded CD. Just because the OEM says it is
> Windows doesn't mean it is exactly the same Windows that Microsoft
> itself distributes.
>> There is no retail OEM version of Windows and the OP was not about
>> OEM Windows in any case.
>
> Huh? So why is "OEM" in the Subject header of the OP? Sounded like
> he was asking about OEM versions.

Some retailers sell OEM versions of Office. This does not mean that OEM
versions were ever intended for retail sale. Although they are the same as
the retail versions of Office regarding using the program they are not same
regarding support. Microsoft provides no support to the end user for OEM
software. Support is from the OEM.

>
> Thanks for the info. Looks like some more reading for me. Any links
> to what might be a boilerplate OEM contract from Microsoft? I'll dig
> around a bit over at the OEM System Builder site that you provided. We
> don't build our hosts for redistribution but a buddy of mine is
> thinking of building some hosts for Point-Of-Sale that have Windows
> running on them.

Tell him to start here.

http://oem.microsoft.com

There are advantages to being an OEM partner no matter how small you are. It
may be cheaper to buy the software from a non-approved distributor but in
the long run you are better of with the support of Microsoft with the
partner program.

Kerry

"Opinicus" <gezgin@spamcop.net> wrote in message
news:11rlk5lrou0c110@news.supernews.com...
> "Vanguard" <vanguard.code@comcastNIX.net> wrote
>
>>>> can buy it with a power cord. The license is tied to that qualifying
>>>> hardware. The EULA never states that the qualifying hardware's license
>>>> gets
>
>> It is tied to the qualifying hardware. Read the EULA. Mine says:
>
>> "The term "COMPUTER" as used herein shall mean the HARDWARE, if the
>> HARDWARE is a single computer system, or shall mean the computer system
>> with which the HARDWARE operates, if the HARDWARE is a computer system
>> component."
>
> I draw your attention to the words "computer" (as a single computer
> system) and to the phrase "the computer system with which the hardware
> operates, if the hardware is computer system component".

Yep, which means the license remains tied to the hardware within the
computer in which it operates. There is nothing that says the license is
usurped by that computer from the computer system component.

"Installation and Use. Except as otherwise expressly provided in this EULA,
you may install, use, access, display and run only one (1) copy of the
SOFTWARE on the COMPUTER."

Okay, so move the power cord to the other host and now that "computer system
component" is operating within THAT computer. In legal documents that I've
seen, there must be an assumption clause that states that something assumes
something else.

> An OEM version is tied to the FIRST COMPUTER that it's installed on.

On searching my *end* user license, the only place that I can find mention
of "first" is:

"The license rights granted under this EULA are limited to the *first*
thirty (30) days after you *first* run the SOFTWARE unless you supply
information required to activate your licensed copy in the manner described
during the setup sequence (unless Manufacturer has activated for you)."

> MS have waffled a lot on the issue of OEM licenses but they've always been
> consistent on one point: An OEM license is tied to the +first computer+
> that it's installed on.

Assumptions (where you assume some meaning or made an inference versus the
legal definition of assumption) is not enforceable by law. Anything more
concrete regarding legal contractual obligations which actually state that
the license gets assumed away from the hardware with which is was purchased
or that there is a "first use" fixation?

About the only statement that comes close to your "first use" fixation is:

"Transfer. THIS LICENSE MAY NOT BE SHARED, TRANSFERRED TO OR USED
CONCURRENTLY ON DIFFERENT COMPUTERS."

Only if it were clear that the "computer" could actually *assume* the
license away from the "computer system component" (i.e., qualifying
hardware) would then the *transfer* not be allowed between computers. If
the "computer" never assumes the license away from the qualifying hardware,
there was no transfer. This statement is also unclear in that expansion or
distribution of the clauses means that each applies only in regards to
"concurrently on different computers". Well, if you move the qualifying
hardware to function within a different "computer" then this statement is
not applicable because there are no *concurrent* instantiation of the same
license on different computers. There is just the one instantiation of the
license under one "computer" in which the system hardware component
operates.

When reading about Windows XP activation, you see statements like
(http://www.microsoft.com/technet/pro...xpactiv.mspx):

"Every single piece of hardware could be changed on a PC with SLP and no
reactivation would be required — even the motherboard could be replaced as
long as the replacement motherboard was original equipment manufactured by
the OEM and retained the proper BIOS. In the unlikely scenario that the BIOS
information does not match, the PC would need to be activated within 30 days
by contacting the Microsoft activation center via the Internet or telephone
call — just as in a retail scenario."

Well, obviously the activation is not limiting you to the same motherboard.
If Microsoft were attempting to actually enforce their EULA and demanded
that the motherboard be exactly the same and have the same firmware string
in the BIOS then activation wouldn't work if the motherboard brand and/or
model got changed.

"This means that if your PC is pre-activated in the factory using the SLP
pre-activation method, all the components in the PC could be swapped,
including the motherboard, so long as the replacement motherboard was
genuine and from the OEM with the proper BIOS."

Fortunately I've never been stuck or stupid enough to buy pre-built
computers. I have had to use pre-builts but then I wasn't the one having to
administer them. Apparently users that buy pre-builts must get a near exact
match of the motherboard when replacing it. Since I build my own (and we
built our own in the lab), were were the OEM so, yeah, it was a genuine OEM
part (we were the OEM). To us, yeah, it's proper because, yeah, it works.
That's as good a definition of "proper" as any other which apparently we get
to decide since it is not defined.

The definitions and licenses seems to have a lot of looseness in them and
that is probably intentional. Microsoft wants to protect their assets but
they also want to sell their products.

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Vanguard wrote:

> "Alias" <aka@[notme]maskedandanonymous.org> wrote in message
> news:enJl6jIEGHA.2672@TK2MSFTNGP10.phx.gbl...
>
>> Vanguard wrote:
>>
>>>>
>>>> Then how do you explain that generic OEMs are sold in Spain legally
>>>> without any hardware to be tied to?
>>>
>>>
>>> Depends entirely on what is the actual contract that the OEM'er has
>>> with Microsoft. Did you ever get to see their contract with Microsoft?
>>
>>
>> Why would I want to see one? I am an end user and could care less.
>> These aren't OEMers. These are retail computer stores, not HP or Dell.
>> If you can understand Spanish, here are two of the largest:
>>
>> http://www.pcbox.com/inicio/default.asp?lan=es&cnt=es
>>
>> and
>>
>> http://www.appinformatica.com/
>>
>> Note that they list XP as "software", not "a licence to use software".
>> Also note that they sell Office OEM.
>
>
>
> Ah, now I remember you from past similar discussions. You didn't have
> any proof or evidence back then, either, as to whether or not the
> Spain-based seller actually had legal rights to obviate the terms of the
> license contract.

You're a moron. I gave you two urls of the biggests computer stores
chains in Spain that sell OEM software and you give me links to music
and video/dvd piracy. These stores are completely legal and they get
their OEMs from Microsoft who has offices in Spain. I was not pointing
you to the music, videos, dvds, etc. sold on the street. So, if these
computer stores are pirates, Microsoft is too.

Snip irrevelent drivel.

--
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