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UK Judge Rules COA is Not Evidence of a License 296

Posted by Zonk from the need-more-than-that dept.
blane.bramble writes "In a ruling against a company selling counterfeit and genuine licenses, a UK judge seems to have ruled that the Certificate of Authenticity is not itself sufficient proof of license possession. This could have major ramifications for UK businesses that consider keeping the COA as proof of being licensed. The quote in question is 'Thus it can confer no license for the use of any Microsoft software by passing on the COA (certificate of authenticity), nor can the COA be evidence of, or itself confer, such a license'."
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UK Judge Rules COA is Not Evidence of a License More

UK Judge Rules COA is Not Evidence of a License

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  • Get lawyers on staff (Score:5, Funny)

    by Trigun ( 685027 ) <<xc.hta.eripmelive> <ta> <live>> on Friday July 07, 2006 @11:20AM (#15675656)
    And maybe a notary as well. Some videographers would help out for all those business deals.

    I think I'll go into the market of blood-filled pens. I think blood is still binding, but I am (thankfully) not a lawyer!

  • Out of Context? You screwed buddy (Score:5, Funny)

    by neonprimetime ( 528653 ) on Friday July 07, 2006 @11:21AM (#15675668)
    "I can do you an Office 2003 [Microsoft software] without a licence for eighty-five quid. The licensed version is one hundred and eighty-five quid. With the eighty-five quid one we're not lining Bill Gates's pocket. If he's installing it in a business or something he might want to do the licence. He might want to do it properly." Hill claimed that his remarks were taken out of context

    What? How possibly could this be taken out of context???? Unless of course you were saying something to the effect of "Well, if you want to get sued by Microsoft then I can do you an Office 2003 [Microsoft software] without a licence for eighty-five quid. The licensed version is one hundred and eighty-five quid. With the eighty-five quid one we're not lining Bill Gates's pocket. If he's installing it in a business or something he might want to do the licence. He might want to do it properly."

    • Re:Out of Context? You screwed buddy (Score:4, Insightful)

      by Anonymous Coward on Friday July 07, 2006 @11:48AM (#15675912)
      I assume by the "????" that you really, really want to know, but couldn't be arsed to read the next paragraph. When faced with significant cost or effort, most people are satisfied if they are at least obeying the spirit if not the letter of the law. If Microsoft has already been paid for a copy of software but the buyer cannot use it, should it then simply go to waste, or could it be passed on to someone else? (With the new buyer paying whatever was originally paid to MS to the original buyer of the software).

      No question that the letter of it is being broken in that MS has structured their EULAs and bulk purchase agreements in such a way as to restrict this, but this is different I would argue than flat out piracy or counterfitting.

      Have you ever purchased something expensive on a friend's Sam's Club card? Had a second rebate mailed to your friend's house for something you bought two of? Bought one of those "Do not sell Radio Promo CDs"?

      I'm not saying any of these things are right, but the context you can't seem to find is that this software was bought from MS (they got paid) and because they couldn't use it they then resold it to someone else (prohibited by MS). The selective quote by the salesperson makes it sound like what's going on is on the far side of wrong, but with context it seems to be one of those gray in between things instead. (Assuming what was related was true.)

      What Microsoft is doing here is taking legitimate software (they made it and they sold it) and by fiat converting it into pirated/counterfeit software solely by stint of how they have their EULA structured. The software hasn't been reproduced, isn't being used by multiple people, in fact the core of the argument rests on the fact that the software has been completely unused prior to the sale.
      • What Microsoft is doing here is taking legitimate software (they made it and they sold it) and by fiat converting it into pirated/counterfeit software solely by stint of how they have their EULA structured. The software hasn't been reproduced, isn't being used by multiple people, in fact the core of the argument rests on the fact that the software has been completely unused prior to the sale.

        I thought the EULA wasn't binding until agreed to. Until I install the software or break certain seals, I do in fact

        • Re:Out of Context? You screwed buddy (Score:4, Interesting)

          by CerebusUS ( 21051 ) on Friday July 07, 2006 @02:32PM (#15677848)
          I thought the EULA wasn't binding until agreed to. Until I install the software or break certain seals, I do in fact own that copy of the software, up until I agree that I don't via the EULA

          From the article:

          The defence argued that if a large organisation, such as a bank, bought a large number of computers and never used the bundled Microsoft software and sold on the licences, that a company such as Digital could sell those licences, for which Microsoft had already been paid.

          The judge rejected the argument. "The fallacy in the argument is that if the bank does not accept the EULA [licence] terms [by operating the software and agreeing the terms], it receives no licence. Thus it can confer no licence for the use of any Microsoft software by passing on the COA (certificate of authenticity), nor can the COA be evidence of, or itself confer, such a licence. Thus, provided that the licensing system is enforceable in law, the circumstances exemplified cannot give rise to a legitimate trade in COAs."

          So, according to this judge, in the UK, if you don't agree to the licenses, you don't, in fact, own anything, even if you've paid for it.

          Kinda scary.
    • Why the hell would anyone pay eighty-five pounds for an unlicensed copy of anything?

      Do people really think that the box and the manuals and the stamped CDs really cost that much? If you're going to get "unlicensed" software, why not just pay someone a couple of bucks to dupe the CDs? That's effectively what you're getting; a set of installation media without any right to use the software that's on it.

      I bet if you called up Microsoft as a licensed user and said that your dog had eaten your media, that they p
      • I keep trying to explain this with Windows installation discs.

        "That's a pirate copy."
        "No it isn't."
        "Yes it is, you burnt that CD yourself."
        "Yes, and here's my MSDN licence key to use the software. Problem?"
        "... But it's illegal!"
    • "Among the evidence produced were transcripts of conversations which Microsoft claimed took place between a test purchaser, Kenneth Anderson, and Edward Hill"

      How were these transcripts obtained? Did either of the parties know they were being recorded. Did the test purchaser lead Edward Hill into making incriminating statements.

      Re:Out of Context? You screwed buddy

  • Now that is ridiculous (Score:5, Insightful)

    by drinkypoo ( 153816 ) <drink@hyperlogos.org> on Friday July 07, 2006 @11:22AM (#15675680) Homepage Journal

    But I guess it supports the idea that you don't buy software, you buy a license.

    I guess first sale law doesn't apply to software in the UK any more.

    The sad part is that aside from the receipt, with which microsoft (for example) might or might not give you a new code, the only important part of buying windows or other software is getting the COA with the reg code. The CD is utterly unimportant if all you bought was a license to use the software; you have a license, so you have a legal right to make backup copies. The CD that came in the package doesn't mean shit.

    Assuming you even got a CD...

    • All of this is set up so that a transactions can be conducted in a reletively free and secure manner. As a firm, I do not have to go to the MS main office and buy a license. I can in fact pop down to the corner software vendor and purchase a license. This license should have certain security features, and as long as I have something that any resonable person would consider a valid license, I as the consumer of the product should be protected. Now, perhaps the vendor has done something wrong, but not me.

    • It's a money grab (Score:5, Insightful)

      by Moraelin ( 679338 ) on Friday July 07, 2006 @12:55PM (#15676591) Journal
      Well, in a nutshell, MS has a nice cash-cow selling software twice, and tries to protect it. The scam is sorta like this:

      1. Thanks to MS anti-piracy lobbying and differential pricing, it's not even possible to buy a PC without Windows on it from a major OEM any more. Or not without paying for Windows anyway: see Dell's Linux PCs or PCs without an OS, that cost exactly as much or more than the same with Windows. (And if you managed to get one without an OS anyway, it would get added to BSA's piracy statistics anyway.) And

      2. Most corporations prefer to have a small numbers of standard configurations, to minimize support and training costs. Mom and pop shops may just leave whatever OS was on that PC, but for a corporation supporting 10,000 PCs or more, they prefer to install their version of Windows, Outlook, Office, etc, on each of them. So they buy a corporate version of all that stuff.

      The problem is that in the process that corporation has paid twice for Windows and maybe for a few other programs too. E.g., they bought 100 new Dell computers with Windows XP Home on them, and then went and installed their corporate Windows 2000 image on each of them. It paid for both.

      And this is just one of the many episodes where MS tries to defend its right to fleece them twice. It tried repeatedly to get it its way that you can't stop paying twice by either:

      1. just buying your computers without an OS, if you have your corporate license anyway. (Believe it or not, it actually went on record as saying that the corporate licenses were some sort of "upgrade" to the Windows OEM license bought with the computer, and hence illegal to install on a blank machine.)

      2. selling your unwanted and unused OEM licenses (Like the bank in TFA did. This is all that this BS about COA not proving purchase is: being told that, nope, you're not allowed to sell those unwanted OEM licenses that you were forced to buy.)

      It's a money grab. Plain and simple. It's fucking stupid to pay for an OS twice. (And it's even more fucking stupid to pay for an OS once when you don't use it: e.g., being unable to sell that Windows OEM license that came with the computer, when you really wanted to install Linux on it.) But for MS it's more money if they can keep forcing you to do just that.

      And as long as they can, they and the BSA will do all they can to prevent people from finding a way out of this stupidity.

      And don't think that such lawsuits are the only thrust in that war. The BSA isn't just the enforcing arm, it's also a useful source of BS and FUD in that campaign. As I may have mentioned before, even if you did manage to establish your right to buy a PC without an OS, the BSA will write it as a PC running pirated software anyway. That's how they make their infamous statistics: pull an assumption of how many PCs should have also caused a sell of Software X, and anything lower than that is automatically piracy. So if your company bought 1000 PCs without Windows, Office, etc (e.g., because you're installing Linux and OpenOffice on them), it _will_ be written by the BSA as 1000 PCs that are running pirated software.

      Cue inflated statistics about rampant piracy and appeals to the governments and courts to give them more power.

  • Should have been a different ruling (Score:4, Insightful)

    by moorcito ( 529567 ) on Friday July 07, 2006 @11:22AM (#15675687) Homepage
    It would have been much better had the judge ruled that the EULA is not evidence of a license.

    • Unfortunately, he did exactly the opposite. From TFA:

      The judge rejected the argument. "The fallacy in the argument is that if the bank does not accept the EULA [licence] terms [by operating the software and agreeing the terms], it receives no licence.

      I'm not a lawyer, but it sounds disturbingly as though a High Court judge just ruled EULAs legally binding in the UK without even having the case go to court.

  • Trust no one? At all? (Score:3, Insightful)

    by zanderredux ( 564003 ) * on Friday July 07, 2006 @11:23AM (#15675696)
    So, someone decided that, because contracts can be counterfeit, they cannot be trusted at all and therefore are legally void?

    How in the world you can prove legality of anything, then?

    What about the money in your wallet? Should it automatically lose its legal tender status just because some bills can be counterfeit?

  • Uh, so what's left? (Score:5, Insightful)

    by jandrese ( 485 ) <kensama@vt.edu> on Friday July 07, 2006 @11:23AM (#15675697) Homepage Journal
    If the certificate is not enough proof of your ownership of a license to run a particular piece of software, what is? The original recipt? I mean if the BSA raids my office and the certificates are not good enough, then we're totally boned, since it's the only thing Microsoft has ever given us to prove that we are legally running our software. If we fail to prove that we're legally running the software, the fines would be in the hundreds of millions of dollars given the number of OS installs we have on the desktops here.

    While I don't think MS would want to alienate their customer base, but if they wanted to they could really turn that ruling into a money factory.

    • Re:Uh, so what's left? (Score:5, Insightful)

      by Mr. Underbridge ( 666784 ) on Friday July 07, 2006 @11:32AM (#15675767)
      While I don't think MS would want to alienate their customer base,

      Why would they stop now?

    • Dump Microsoft (Score:5, Interesting)

      by Attaturk ( 695988 ) on Friday July 07, 2006 @11:39AM (#15675833) Homepage
      I'm not trolling - we're in the same boat. We still have a few MS machines in our company but we've been slowly getting rid of them over the last couple of years. With Vista, Windows Genuine "Advantage" etc., MS licensing paranoia etc. it's pretty self-evident that simply owning Microsoft licenses is an increasing risk - not to mention added burden on your IT team. Dump them. The alternatives are there and it's definitely worth it, if only to be free from the yoke of oppression. ;-)

      • Re:Dump Microsoft (Score:3, Interesting)

        by drooling-dog ( 189103 )
        At some point public companies that subject themselves to what has become unnecessary expense and legal exposure will have to explain to their shareholders why they continue to do so. Certainly there will be cases where the transition costs are prohibitive, but that's no reason not to be looking into it.

      • Re:Dump Microsoft (Score:5, Interesting)

        by cyber-dragon.net ( 899244 ) on Friday July 07, 2006 @01:45PM (#15677167)
        We are in the same situation at my company. Management did an analysis of risk and TCO of running windows, which thanks to me included probability of getting sued by Microsoft, security etc and decided it was not a good business decision to stay with them. And yes, I gave a fair an impartial analysis and was realistic about training and maintenance times caused by the switch. Over the last year we have been slowly replacing all computers with either Linux for engineers or Macs for execs. Well, some of the engineers wanted Macs after the first couple came in too.

        Bottom line... we have dropped IT costs in just machines and setup time by about 20k a year, and we are not a large company. It used to take one person an afternoon to set up two windows machines since they had to wipe and re-install to get rid of all the pre-installed crap. Then run bandwidth intensive updates, install and update virus software etc. We could not use an image as the hardware was always just enough different it did not work, but even if we did it would not reduce the time much as a lot if it is updates which need to be monitored.

        With Linux we have an image we copy from CD onto the machine which has everything pre-done and bam, one machine out the door in 20-30 minutes (10 of which was getting it out of the box).

        The Macs are just as easy... the only thing we install is Office (necessary evil for execs, they MUST have their powerpoint) and that is done via copying a folder and inputting a key. No complicated process. Hell it even picks up our wireless network during install (gigabit landline reserved for engineers) and considers it a native interface rather than a hack like Windows.

        Now instead of spending 80% of my day troubleshooting Windows I spend maybe 15% on maintenance tasks and the rest adding value to the company by implementing new things like the VOIP phones that we can use thanks to the network not having so much unnecessary traffic on it, which incidentally is going to save us another $5k a year or so while we pay for the hardware and $10k a year after.

        All made possible by dumping Microsoft Windows XP.
    • All else being equal, I wonder if this will turn more companies to Linux-BSD-whatever/OpenOffice. I mean, Microsoft/BSA seems to be your worst enemy right now even if you have real licenses so why even bother with pay-for software if it's not absolutely mandatory?

      BTW, what proves a real license right now if not the CoA? A CD doesn't prove it either anymore (or so I read) in some cases so I assume this ruling will be effective in stopping the transfer of second hand licenses period (legal wise). And for t

    • What do you show the auditors? (Score:5, Insightful)

      by dunstan ( 97493 ) <dvavasour@i e e . o rg> on Friday July 07, 2006 @11:49AM (#15675924) Homepage
      This could have very far reaching implications: it has just raised the bar for corporate users in proving that they have no outstanding financial liability for software licensing. So before a company can have its books signed off, it must either prove the software licensing or go and buy new ones.

      It complicates the issue of licence management for a great many businesses, providing another incentive for using libre software instead.
      • There is a very big difference between software licenses and software entitlements. Just becuase you purchased a piece of software in the past, does not mean that you are legally entitled to use it in the present. Buying upgrades may supercede your rights to use lower versions, failure to pay maintenance may invalidate your entitlements, etc. The way to determine what you are entitled to use today is to comb through your software purchase records with the goal of aggregating all of that data into a singl
        • Just becuase you purchased a piece of software in the past, does not mean that you are legally entitled to use it in the present.


          The key word is purchased, not leased. Can you explain to me how purchasing a piece of software does not legally entitle me to use it into eternity?

          The rest of your post really makes it sound like the mafia == BSA.

  • interesting (Score:2, Insightful)

    by sum.zero ( 807087 )
    eula's are not valid in many parts of the usa, so how exactly are you supposed to acquire your license from ms in these states?

    sum.zero
    • In 1996 a federal court found that a shrink wrap license is an enforceable software license [bitlaw.com]. Have some states passed legislation since then rendering them invalid?

      (I'm not trying to be a PITA, I actually want to know.)
      • No, the grandparent poster is suffering from a common myth.

        EULA's are, indeed, enforceable throughout the U.S. There maybe a provision here or there that a judge might have a quibble with, but on the whole there's no reason to think that the EULA would be found invalid.

        Yet Another Reason to Avoid Microsoft Software.

      • Re:interesting (Score:3, Insightful)

        by Alsee ( 515537 )
        In 1996 a federal court found that a shrink wrap license is an enforceable software license.

        And 5 years later we have SoftMan Products Co. v. Adobe Systems Inc. 2001 [wikipedia.org] stating that buying a box of software in fact gives you ownership of that copy, and that no EULA exists unless you in fact assent to be bound by that contract. Note the key letter A in EULA for agreement. If there is no agreement then there is no EULA and you are not bound by any of its terms. And of course that also means that you receive noth

  • Implicit sadness (Score:5, Interesting)

    by Sparr0 ( 451780 ) <sparr0@gmail.com> on Friday July 07, 2006 @11:28AM (#15675738) Homepage Journal
    The real problem here is that this judge, if the quote is truly from a judge, implicitly acknowledges the concept of a license to use software, a right that is not (under US and UK copyright law) the copyright holder's to license.

    • Re:Implicit sadness (Score:2, Informative)

      by saphena ( 322272 )
      The concept of a Licence to Use is firmly, unquestionably, established both in UK and US legal jurisdictions and is the basis on which ALL software is licensed including under the GPL.

      That is what you buy when you buy software from anyone, the Right to Use the software. The obvious exception to this rule would be if you purchased the Copyright itself.

      • Re:Implicit sadness (Score:5, Informative)

        by roystgnr ( 4015 ) <roy&stogners,org> on Friday July 07, 2006 @12:21PM (#15676244) Homepage
        That is what you buy when you buy software from anyone, the Right to Use the software.

        No, you buy a copy of the software. The right to use that copy is implicit; nowhere does copyright law restrict that right to copyright holders, and it's as fundamental as the right to read a legally purchased copy of a book. Software companies originally tried to use a "you can't use our software without making a copy in RAM, so you need a license!" argument, but in the USA at least that was made explicitly legal in Title 17 a. 1. 117.

        Of course, this is assuming that you walk into a store, pick out some software, hand them some money, and don't sign anything except a credit card receipt. If you buy anything by specifically agreeing to a license beforehand, then certainly the license terms apply.
      • The GPL version 2 has absolutely nothing to do with use of software. It is only concerned with copying, and you are under no obligation to accept the licence if you do not distribute the software. This allows abuse such as modifying the software and then only providing it as a web service, so it is technically not distributed, which is one of the problems the GPL version 3 will correct.
      • Says who? Can you cite any precedent? I will start you off, from Softman v Adobe:

        The Court finds that the circumstances surrounding the transaction strongly suggests that the transaction is in fact a sale rather than a license. For example, the purchaser commonly obtains a single copy of the software, with documentation, for a single price, which the purchaser pays at the time of the transaction, and which constitutes the entire payment for the "license." The license runs for an indefinite term without pr

  • Boiling down my understanding (Score:5, Interesting)

    by hanshotfirst ( 851936 ) on Friday July 07, 2006 @11:36AM (#15675805)
    The defence argued that if a large organisation, such as a bank, bought a large number of computers and never used the bundled Microsoft software and sold on the licences, that a company such as Digital could sell those licences, for which Microsoft had already been paid.

    The judge rejected the argument. "The fallacy in the argument is that if the bank does not accept the EULA [licence] terms [by operating the software and agreeing the terms], it receives no licence. Thus it can confer no licence for the use of any Microsoft software by passing on the COA (certificate of authenticity), nor can the COA be evidence of, or itself confer, such a licence. Thus, provided that the licensing system is enforceable in law, the circumstances exemplified cannot give rise to a legitimate trade in COAs."

    I'm trying to get my head around this ruling. On one hand it makes sense, on the other hand it doesn't. My question: if the bank receives no license because it paid money but didn't accept the EULA, then what did it receive for the money it paid?
    Possible answers I can come up with:
    1. The bank bought a computer, and chose not to use some software bundled with it, the same as if I "bought" Norton Antivirus with a new computer but never used it because I choose to use AVG. Dell won't refund to me their cost of the Norton software just because I don't choose to use it. Arguable, but not overly evil.
    2. The bank bought a computer which was probably loaded with an OEM "only for sale with a new computer" license for Windows. The license should travel with the hardware, then. Arguable, moderately evil because of the whole "only with a computer" distinction.
    3. ???
    4. The judge got it wrong, and the bank should be able to sell the unused license the same as if they bought too many office chairs and sold the ones they never used. Non-evil, but IANAL.
    Thoughts?

    • Option #1 is Correct (Score:3, Insightful)

      by mpapet ( 761907 )
      They bought a computer, or maybe a software bundle that included an EULA to which they did not agree. That implies they do not have the right to transfer the license they did not agree to and therefore did not own.

      I believe the intention is to elminate the ability to transfer -any- license, even the one you have when you agree to MS's EULA. Thereby increasing consumption of new OS licenses.

      This is the logical step forward in a society that fully embraces capitalism. Microsoft/RIAA corporations own the co

      • I believe the intention is to elminate the ability to transfer -any- license, even the one you have when you agree to MS's EULA. Thereby increasing consumption of new OS licenses. This is the logical step forward in a society that fully embraces capitalism. Microsoft/RIAA corporations own the content and allows you to use it temporarily and that's it.

        It's really a stretch to call this "capitalism" at work. True capitalists want less government regulation. Copyright exists only because of government regu

  • Thus it can confer no license for the use of any Microsoft software by passing on the COA (certificate of authenticity), nor can the COA be evidence of, or itself confer, such a license

    And it also says:

    there are circumstances in which disused or unwanted volume licences for some Microsoft software can be transferred; but this trade must be compliant with Microsoft's own transfer terms and conditions

    Rrrright. So, somebody, please, educate us, what _can_ be an evidence of us properly using our legitim
  • This ruling was made in another country, therefore it does not have much standing in the United States. Supreme Court Justice Kennedy likes to use international opinion in his rulings (see Roper v. Simmons and Lawrence v. Texas) but one decision in one case across the pond is no reason for American businesses to fear that they will be sued for their legally purchased software.
    • You can bet your bottom dollar that they'll be trying it here next. Whether they get a similar
      ruling over here or not remains to be seen, but just because it's not happened yet over here
      doesn't mean it won't.

  • What about using paper currency? (Score:5, Interesting)

    by rdmiller3 ( 29465 ) on Friday July 07, 2006 @11:44AM (#15675874) Journal

    Instead of reinventing the wheel, companies could use an existing "certificate" with built-in anti-counterfeit measures... common paper currency.

    For example...

    To complete your registration, label an ordinary envelope,
    "WidgiCorp SuperApp Registration". Then choose a [US]$1.00 bill
    and enter the full serial number from that bill: _________________
    Press the "Register Now" button to send the serial number.

    Put this bill into the envelope and store it with your copy of
    the license agreement. This serial number will be added to a
    publicly accessible list of registrations so that posession of
    this bill will prove that you have licensed this software.

    And there you have a counterfeit-resistant, anonymous, verifiable proof of registration.

  • Comment removed (Score:4, Insightful)

    by account_deleted ( 4530225 ) on Friday July 07, 2006 @11:45AM (#15675888)
    Comment removed based on user account deletion

  • OEM preinstalled software (Score:3, Interesting)

    by roman_mir ( 125474 ) on Friday July 07, 2006 @11:47AM (#15675910) Homepage Journal
    So my Dell laptop came with WinXP preinstalled and on the bottom of the laptop there is this certificate of authenticity and there is nothing else. Does it mean I am actually not allowed to run the preinstalled WinXP on this machine legally?
    • That depends. Are you in the UK, where this ruling occurred?

      All kidding aside, it looks like this ruling would keep people in the UK from peeling that label off the laptop and transferring it to someone else.

      My old Thinkpad has a Windows 98 license key on the bottom. It looks like this ruling would prevent me from, for example, installing that copy of Windows 98 on a PC for my sister and giving it to her. It might even prevent me from installing that license in a copy of Parallels running on my Mac, or u

  • It's always been this way in the US (Score:3, Informative)

    by Kevinv ( 21462 ) <.kevin. .at. .vanhaaren.net.> on Friday July 07, 2006 @11:53AM (#15675961) Homepage
    This has always been the case in the US. You need a receipt of purchase to prove licensing, not a COA or the original box or the CDs. Proof of purchase only.

    • Well, that's fucking stupid (Score:5, Insightful)

      by Moraelin ( 679338 ) on Friday July 07, 2006 @01:35PM (#15677021) Journal
      This has always been the case in the US. You need a receipt of purchase to prove licensing, not a COA or the original box or the CDs. Proof of purchase only.


      So let me get this straight...

      I've made a point to buy all software I use, if buying a license or CD is even possible. So, yes, even the SuSE Linux 10.0 that I'm writing this on is bought and I have the CDs and manual next to me. (Hey, lip service is cheap. I prefer to vote for OSS with my wallet.) I also have bought a copy of Windows for each of my two computers, because I do play games a lot. At any rate, I have the COAs and CDs and everything. I also have these three bookcases full of games I've bought. With original case, CD, manual, whatever. I've also bought all music I'm listening to, and I can show you an original CD for any MP3 you might find on my hard drive.

      So now you're telling me that someone could come and say that in the eyes of the law I'm a bigger pirate than Blackbeard? Just because I didn't keep the receipts from EBGames and whatnot? That someone could look at all those hundreds of games in their original cases and all, and count them _all_ as pirated software?

      Nothing personal, and please understand that my anger isn't directed at _you_, but I find that bloody stupid and offensive. Essentially then the US is calling me a pirate and a thief, in spite of my efforts to be a honest lawful gamer, and in spite of the ample evidence to the contrary. I find it utterly insulting.

      Whatever happened to innocent until proven guilty, ffs? It seems to me like the current attitude is basically the exact opposite: you're by default a pirate, and from there it's your uphill battle to prove yourself innocent. And, oh, let's also make it nearly impossible to prove that. You may have the original CD, the box, the manual, the certificate of authenticity and everything else that a sane person would have guessed would be enough, but if you can't find the receipt you're a thief anyway. I mean, seriously, wtf?

      And what next? Should I expect that my washing machine or TV also count as stolen, because I threw away the receipts once they got out of warranty? Should I start keeping the receipts for the groceries I buy, or be considered a thief that lived on stolen food for the last decade? WTF?

    • Something interesting about this... (Score:4, Insightful)

      by cr0sh ( 43134 ) on Friday July 07, 2006 @01:55PM (#15677315) Homepage
      In America, the receipt of purchase is also meant to prove ownership of physical items purchased, in addition to "proof of licensing". Where this gets "interesting" (and most people have no clue about it) is when it comes to automobiles. Do you have the receipt of purchase for your automobile?


      Most likely, you don't. What you probably have, if you have anything, is receipt of purchase from the dealer - not the receipt of purchase from the manufacturer. This document is known as the "Manufacturer's Statement of Origin" (MSO).

      Most people "purchase" their vehicles through a dealer, via a loan or credit. A payment schedule is set up, a down payment is made, and the new "owner" drives off with the vehicle and a dealer "receipt". The MSO (among other documents) is transferred to the Motor Vehicle Department of the owner's state of residence. When the loan is paid off, the owner may get a copy of the MSO sent to him, but more likely he just gets a note and/or receipt saying the loan is paid in full. The state still has the original MSO. The dealer receipt is not valid proof of ownership of the vehicle - only the MSO is. If you don't have the MSO, and the state does, guess who really owns your vehicle?

      The only way (that I know of) to get the MSO of a vehicle is to buy the vehicle directly from the manufacturer, and not the dealer. You can pay cash, credit, or have a private loan to do this, but you will need a trailer to move the vehicle, since it isn't licensed in any way. Actually, this is somewhat false - in theory, you can drive it, without insurance or a license, under the doctrine of "Right to Travel" - but you must have that MSO with you to have any chance of beating this in court when you are hauled in.

      As far as I have been able to research, this is all true. It is simply way more obscure than even the whole FIJA (fully informed jury) issue. "Right to Travel" is yet another one of those areas of law which make judges and the states seethe at the mere mention of it, because it is a Constitutionally protected sovereign right of a free man who owns property. At a certain level, it removes control of the state from an otherwise law-abiding person. This angers the state, but they are (currently) unable to do anything about it.

      What has been done about it is a nearly institutionalized form of slavery of perpetual indebtedness of citizens via "easy credit" and loans, among other measures (such as the separation of selling mineral rights from property rights, for instance). If a man does not actually own his own property - is he really free, or is he merely another form of a slave?

      Licenses, DRM, the DMCA, etc - it is all a part of a very real pattern to control the populace via removal of property ownership rights. Unfortunately, most of the citizens - er, consumers - are playing right along. It is even at a point now where people look at you strangely when you tell them you are paying off your credit, or you use cash, etc - a form of peer pressure to conform to economic slavery. You are suspected if you don't play along, or if you play differently (such as by "living within your means" instead of racking up credit debt). These are sad times we Americans live in - what is pathetic is that most people aren't even aware of what is happenning, and nearly ostracize you if you so much as suggest it...

      • What you probably have, if you have anything, is receipt of purchase from the dealer - not the receipt of purchase from the manufacturer.

        And? When I buy a book I get a receipt of purchase from Barnes & Noble, not from O'Reilly and Associates.

        This document is known as the "Manufacturer's Statement of Origin" (MSO).

        The MSO is not a receipt of purchase. It's exactly what it claims to be, a statement of origin. "This car came directly from us." It's essentially a title to the vehicle.

        When title

  • "The judge rejected the argument. "The fallacy in the argument is that if the bank does not accept the EULA [licence] terms [by operating the software and agreeing the terms], it receives no licence. Thus it can confer no licence for the use of any Microsoft software by passing on the COA (certificate of authenticity), nor can the COA be evidence of, or itself confer, such a licence. Thus, provided that the licensing system is enforceable in law, the circumstances exemplified cannot give rise to a legitimat

  • Microsoft will use the terms that it sees fit. (Score:3, Interesting)

    by jbossvi ( 946552 ) on Friday July 07, 2006 @11:55AM (#15675980)
    For those who can't see this coming:
    BSA comes to your business for a audit.
    -You have COA? we will need to see the receipts.
    -You have receipts? we will affidavits from all persons who clicked the EULA.
    -You have COA, receipts, EULA's? we will need to see the CD's.
    -etc.etc.etc.
    repeat till you fail their never ending requirements of Proof of Purchase/Ownership/Bloodletting.

  • Unwanted volume licences (Score:4, Informative)

    by Curmudgeonlyoldbloke ( 850482 ) on Friday July 07, 2006 @11:56AM (#15675984)
    I'm not sure that the statement at the end

    > ... unwanted volume licences for some Microsoft software can be transferred; but this trade must be compliant
    > with Microsoft's own transfer terms and conditions.

    is entirely correct - it's a "feature" of UK insolvency laws. See here:

    http://news.com.com/Secondhand+Microsoft+software+ goes+on+sale/2100-1012_3-5944617.html [com.com]

    http://www.openfree.org/opinion/?p=31 [openfree.org]

  • ...and the ONLY proof that I would get of a license is that piece of paper. MS actively discourages manufacturers sending out CDs. So that can't be used as proof. The reciept? How many people keep those forever. Besides, I ordered it online, so the only reciept would be the packing slip. The sticker on the side of the case? Well, if the sticker on the paper with a bunch of legalease isn't enough, why would it being on a painted piece of sheet metal be enough?
    • I wish there was a way I could get a "legal" copy of Xp for my compaq. The default image contains spyware and bloatware that is mostly uninstalled but not totally. It pisses me off.

      I tried calling compaq and talked to Mike with a heavy Indian accent who spoke no english who said it was piracy and refused to ship the cd's.

    • Um, no. You are fine if you buy a computer from an authorized reseller. Dell is authorized by Microsoft to sell OEM licensed systems. Want to resell Microsoft software? Check out oem.microsoft.com [microsoft.com]. Selling used computers has been grey market for years because of Microsoft's OEM license.

      MS actively discourages manufacturers sending out CDs.

      Um, no. Just the opposite in fact. Only the largest resellers are allowed to resell Microsoft software without a holographic CD. The only reason they can is because

  • SGI has been this way (Score:3, Informative)

    by Stonent1 ( 594886 ) <stonentNO@SPAMstonent.pointclark.net> on Friday July 07, 2006 @12:28PM (#15676317) Journal
    For much of their stuff, they consider that a license is invalidated by "transferring" it to another user and you'll have to repurchase it again, even if you have all the media. I found that out when trying to get some SGI software off Ebay.
  • What ever happened to the old "you can't prove a negative"?

    Seems to me in most matters legal, the burden is on the plaintif to prove the defendant did something. Said defendant is innocent until proven guilty, and need not testify on his own behalf... for or against himself.

    Lawyer: You are not licensed.
    User: Prove it.
    Lawyer: We have no record of you having purchased a license.
    User: I can't help it if you have shotty book-keeping.

    etc.

  • Judge: interesting statements (Score:3, Interesting)

    by MobyDisk ( 75490 ) on Friday July 07, 2006 @12:45PM (#15676482) Homepage
    The judge made some very interesting statements in this judgement:


    if the bank does not accept the EULA [licence] terms [by operating the software and agreeing the terms], it receives no licence.
    That is interesting. The judge is saying that if the buyer does not agree to the EULA (even if they don't disagree with it -- if they just never install or use the software) that the license vanishes into nowhere. The company does not get a refund, nor do they get the license. That is pretty bizarre.


    Thus, provided that the licensing system is enforceable in law, the circumstances exemplified cannot give rise to a legitimate trade in COAs
    Whooahhh hold on...!!! So the judge made the ruling under the assumption that the licensing system is enforcable. But he doesn't state that it is enforcable. It sounds like he just told the defendants to claim that the licensing system isn't valid. That is also odd, since the defendent thought they were working within the system, and they weren't interested in challenging it. And the judge wasn ruling about how a system works, but hinting that the system isn't valid. Sounds like he should have let it go to trial.

    • I've seen similar things. The judge is obliged to assume certain things, like the validity of the licensing scheme, unless one party or the other questions them. My bet is that the defendants here tried arguing within the assumptions of the EULA terms. In that case they'll lose. What they probably didn't do is argue that they never need to get to the EULA terms, they got a license from the actual purchase under the standard laws of commerce, that that license and contract of sale exist independently of the

  • What IS evidence of a licence? (Score:3, Insightful)

    by Sloppy ( 14984 ) on Friday July 07, 2006 @01:58PM (#15677370) Homepage Journal
    The judge rejected the argument. "The fallacy in the argument is that if the bank does not accept the EULA [licence] terms [by operating the software and agreeing the terms], it receives no licence. Thus it can confer no licence for the use of any Microsoft software by passing on the COA (certificate of authenticity), nor can the COA be evidence of, or itself confer, such a licence. Thus, provided that the licensing system is enforceable in law, the circumstances exemplified cannot give rise to a legitimate trade in COAs."

    One of the funny things about EULAs, is that there never is any direct evidence of a license. The copyright holder never has any evidence (i.e. a signed contract) that the user agreed to the terms. The user's only evidence, is a piece of paper which doesn't even say to whom the license has been granted, so they really don't have any serious proof either.

    EULAs are a nearly invisible contract that one side never consents to, and neither side can proove exists.

    So while this case appears to be a win for Microsoft, I think this is a double-edged sword. EULAs were already pretty shady, and now a judge has gone on the record, saying that the COA is not proof of a license. This is another nail in the coffin of all EULAs' appearance of legitimacy.

    In fact, there are circumstances in which disused or unwanted volume licences for some Microsoft software can be transferred; but this trade must be compliant with Microsoft's own transfer terms and conditions.

    I also think it's hilarious that a bank can't transfer a license but a retail software store can. Neither party is Microsoft, neither party has a direct relationship or contract with Microsoft, neither party even breaks a seal with a sticker on it that says "by breaking this seal, you agree to..." and neither party clicks on a "by clicking on 'install' you agree to.." button. And yet they also (in addition to the end user) are bound by a contract that they have never even seen? EULAs are so cheesy and fake-looking, that I can't believe anyone takes them seriously. Wake up, judges. If fake contracts can be applied to people without their knowledge, how do you know I'm not going to make up a contract and apply it you you?

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