The Mudcat Café TM
Thread #89102   Message #1679132
Posted By: JohnInKansas
26-Feb-06 - 06:37 AM
Thread Name: Tech: Microsoft rips us off again!
Subject: RE: Tech: Microsoft rips us off again!
Although I'll admit I haven't looked very hard, I havent' found anything much more specific than the article originally linked.

The great majority of copies of WinXP are sold preinstalled on a computer by OEM (Original Equipment Manufacturers) under an OEM license. Since WinXP was introduced, the OEM license has restricted the use of the WinXP OS to the machine with which it was sold. That particular software cannot be, and never could be, legally tranferred to another computer.

There have been reports of a few OEM builders who have attempted to, in essence, sell people a new machine via a pretense that the new machine was an "upgrade" to avoid providing a new OEM OS license. So far as I've heard, this was limited to a few "kitchen table" builders. No large companies were reported as being involved, but there are quite a few "tiny" ones.

Under the terms clearly stated in the OEM license, moving the OS to a "new machine" is clearly not permitted. Arguments about what constitutes "repair," or "upgrade" vs "new" have been fairly common, but unless it's a replacement with a like kind due to a component failure or other defect, declaring that a new motherboard with significantly enhanced capabilities constitutes making a new machine is not without some merit.

I haven't seen the EULA that comes with the open market WinXP that you can buy separately. Although I suspect it contains a similar restriction, that the OS can only be used on the first machine on which it is installed. It may contain language more similar to that for older Windows versions, which did permit moving the software to another machine. I would expect, however, that it takes the stance that installing WinXP on a machine "creates" a specific and unique computer, and the license is for use of the OS on that machine only. In effect, that interpretaton makes the person who installs the OS a "licensed (OEM) builder."

The OEM license probably meets the "backup rights" requirements of any jurisdiction I've heard of, since you can copy the installation CDs, or mirror the installation from a hard drive for backup purposes. The legal restriction in the license agreement that you can use the backup only to restore the system on the original machine most likely doesn't conflict with any "rights" laws of which I'm aware. Note: IANAL - this is not a "legal opinion."

So far as I can see, nothing has changed except to clearly and publicly state Microsoft's opinion on what constitutes "creating a new computer." I don't believe it's changed that opinion to anything different than what they have consistently asserted since WinXP was introduced.

Note: Nothing here should be taken as asserting that I like these rules; but they've been pretty clear for anyone not trying to bend them to the limit - provided that they've actually read the EULA.

John