Microsoft: You Need Permission to Sell Our Software 628
IEEEmember writes "Microsoft has objected to the sale of bankrupt KMart's Bluelight.com Internet unit to United Online. Microsoft's objection to the sale is based on the non-transferability of software licenses protected by copyright law according to the Reuters story on Yahoo! News. This action by Microsoft should serve as a warning to any corporation that has a significant investment in Microsoft licenses. Dependency on Microsoft licenses may grant Microsoft the ability to veto your business decisions."
Licenses (Score:3, Funny)
Re:Licenses (Score:5, Interesting)
Re:Licenses (Score:3, Funny)
I can hear the IT sector scream from here: "OH GOD, NO
Hopefully followed shortly by the *crash* of the Web of Lies(tm).
US Court's opinion on a similar matter... (Score:5, Informative)
Reselling licensed software is no different than transfering ownership of a legally purchased music CD.
Last time I looked, second-hand record shops have been alive and well for decades.
US Court says buyers can unbundle EULA-covered software. [linuxjournal.com]
Also take a look at this very well argued thesis [willamette.edu] on the same issue. Same paper in HTML format [google.com]
Re:US Court's opinion on a similar matter... (Score:5, Informative)
Totally liquidate the company and distribute as much money as possible to the Creditors
or
Create a new company that can survive - to keep paying taxes, the Legal Fees, the Accountants, etc.
To that end, A Judge can accept or reject all types of third party claims - Like the one MS is presenting. If Microsoft prevails, the cash the Division would have to send MS would be a burden to the new company ( or whoever is buying the Unit ), so that's a ( to the Court ) Bad Idea. That $$$ could be used to Pay a Lawyer, Accountant, Back Taxes, or Court Fees.
The Court can declare that one of the assets of the Division is a partial share of the Existing MS License, which gets chopped off and handed to the Division - Part and Parcel of the other "intangible" assets the division gets from K-Mart. The Division gets a license _from the Court_ to keep using the software, and MS gets told to shut up and smile.
Or, the Court may say, refund K-Mart a pro-rata share of the money that represents the copies that are being xfered to the Division, So the Division can then buy a new site license.
MS won't like this.
The Bankruptcy Judge won't care.
Re:Licenses (Score:5, Insightful)
A license is a right to do something. You don't automatically have a right to sell your rights.
Do you have a driver's license? Can you sell me your drivers license (if I've lost mine?) You could sell me the piece of plastic it's printed on, but you would not be selling me the privlege to drive, and if I were pulled over the authorities would not allow me to use your drivers license to assert your privleges for myself.
(On the other hand, if all I needed was a piece of plastic to pick my teeth with, I could buy the plastic which represents your drivers license and use it as I see fit.)
The analogy to the sale of Microsoft products on Ebay fails only because (unlike the traffic cop) Microsoft has no effective way to tie the "License to Use" to a person (or a computer) and instead ties it to the media. Having the media allows you to "fool" the enforcement mechanism and assert a privlege to use the license in a way which (Microsoft claims) you do not have.
But that's where all the Passport, Palladium and .NET stuff comes in. Once they know that Mr. Ebay Seller's license number is tied to Mr. Ebay Seller's passport account, they can prevent Mr. Ebay Buyer from making use of the license he bought on Ebay. Mr. Buyer will instead have to buy a new license from Microsoft.
It makes me wonder; perhaps they already have that information and all the people who bought M$ software on Ebay (or obtained it through other license transfers) will one day wake up to find they can no longer use their license, and must buy a new one. Or the related question; if Microsoft asserted that my license key was registered to someone else, (and thus, I had no license) would I be able to prove they were wrong? Even if you bought the software legitimately, are you sure no one copied-down the license key before you received it?
Re:Licenses (Score:3, Interesting)
OTOH, I can sell or give away my licensed 'rights' to MS software. They even have established procedures to allow for the transfer. Remember the ruckus over donating computers to schools? MS contends that the entire computer package must be transfered, computer and all original license/media and any upgrade license/media. This method works for corporate and individual donations. The same applies for selling used computers.
They are now moving to registration codes, they don't seem to want to follow the precedent that they established.
Re:Licenses (Score:3, Informative)
Insane but true... (Score:3, Redundant)
Re:Insane but true... (Score:3, Insightful)
Re:Insane but true... (Score:5, Insightful)
Re:Insane but true... (Score:4, Insightful)
The whole idea is that you cannot pick up 10,000 cheap copies of Microsoft software when a company goes bankrupt, and then charge the full proce for it if you were reselling the MS products individually.
It's standard procedure in the software licensing business, and K-Mart was well aware of this when purchasing the license.
Re:Insane but true... (Score:3, Insightful)
Re:Insane but true... (Score:3, Insightful)
Re:Insane but true... (Score:3, Insightful)
No, I'm paying for the software itself. If I walk into Best Buy and purchase a copy of office and a copy of the latest Harry Potter book, I have bought the exact same rights to both. A EULA is no more enforcable than a seal over the book saying that if I broke it, I agree not to resell the book.
>You do not OWN the software.
Yes, I do. I own exactly one copy of the software to do with as copyright allows.
>You can only do what the license allows you to do. You cannot do anything you please.
Says who? Unless there is a signed contract somewhere, I retain *all* of the usual rights of a purchaser of a piece of copyrighted material.
>It is not like buying a book. You actually buy the book. Whereas, with software, you are merely licensing it.
I'm sure that software companies would like us to believe that, but it's simply not true. If I lay down my money and walk out of the store with something, I've bought it.
>Go pull out your EULA that came with the software that you just "licensed" (not bought!)
I don't care what the EULA says. I didn't agree to it before the purchase, so it's not a binding contract.
Re:Insane but true... (Score:5, Insightful)
Well MS certainly says you can't, but that doesn't mean that you're not legally allowed to. A corporation is under ZERO obligation to inform you of your rights or even to tell the truth about what you may or may not do in the license. It's somewhat like my the contract I signed as a condition of employment. Much of it is standard and reasonable, but a whole lot of it is completely unenforceable and would never stand up in court. It's just in there because the company figures that it will influence the behaviour of some.
I'm not saying that you ARE allowed to sell the MS software on a Dell under US law, but just because it's in a license doesn't make it so.
.
Re:Insane but true... (Score:3, Insightful)
If I did have the right to do X, but the license says I didn't, and their salespeople said I have to pay $Y extra for the right to do X, they'd be lying to me as an inducement to buy. Why isn't that fraud?
Re:Insane but true... NOT (Score:5, Informative)
It is important to remember that Bankruptcy Courts, unlike ordinary courts, are not required to attempt to enforce the will of the parties to a given contract. Rather, they are supposed to look through the contract and determine whether the terms, as written, create a fraudulent (or otherwise voidable) conveyance. Consider the following: I know I am going bankrupt, but I want to save my Ferrari. I agree to sell it to you for a dollar. You agree not to sell it to anyone else for a year and to sell it back to me in one year for 100 dollars. In return you get the use of the Ferrari. We sign the contract, title passes to you and I declare bankruptcy. A year later I have discharged my debts, I'm free and clear and I enforce my contractual right to buy back my Ferrari for $100. Right?
Wrong. Such a contract would be voided by a Bankruptcy Court and you'd have to give up the car. You'd probably even lose the dollar you paid. The car would become part of estate and would be sold. The money would be used to pay creditors. This is called fraudulent conveyance. It's pretty complicated (and dull) and I can't begin to give all necessary details here but what is interesting about this case is that a court will decide whether the material effect of a purchase of software if to transfer ownership or merely to create a license right, regardless of the language in the EULA.
IAAL, and my guess is the Court will punt on it and come up with other reasons to permit the transfer.
First sale doesn't apply? (Score:4, Interesting)
Re:First sale doesn't apply? (Score:5, Insightful)
First sale only applies in cases where it is not time/cost effective to litigate otherwise.
Unleash the hounds!
Fnord
Comment removed (Score:5, Informative)
Re:First sale doesn't apply? (Score:3, Insightful)
Re: (Score:3, Interesting)
It's *NICE* to have a BSA audit?!?!?! (Score:5, Interesting)
It's nice to get fucked up the ass by some private organization, acting as though it has the authority to execute a search warrant without probable cause, in order to determine if you have "boxes" (and licenses) to all your copies of Microsoft software? That's your idea of fun? When the BSA knocks on my office door, demanding their audit, I'll slam the door in their face. And when they buy a search warrant from some pliant judge, I'll gladly show them Linux installed on hundreds of desktops and servers. Seriously.
Frankly, given the management hassle involved with MS licensing, never mind the potential risks even if you're legit, you'd have to be an idiot to deploy Windows en masse given Microsoft's current licensing crackdown. I know many organizations who are ripping their MS server infrastructure out in preparation for a potential migration to desktop Linux should the situation get worse. MS is walking on thin ice here. JMO!
--Maynard
Re: (Score:3, Interesting)
Without consensus ad idem, the contract is void (Score:3, Interesting)
All this said without a law degree or any experience practicing law. Correction(s) by real lawyers encouraged.
--Maynard
Re:Without consensus ad idem, the contract is void (Score:3, Funny)
Boy, I thought that contracts just happened to be confusing. I didn't know it was a formal requirement!
;)
Re:First sale doesn't apply? (Score:3, Informative)
Typically the most liberal license that microsoft gives goes along with their FPP (Full Package Product) licesnses. These are the ones you walk down to the store and buy off the shelf. The volume agreements restrict a few of the rights, mainly transferability. You still have liberal downgrade rights etc. The OEM licenses are the most restrictive. Until Windows XP came out you couldn't legally run a copy of WinNT 4.0 on a machine with an OEM Win2k license. The Windows XP OEM license does provide downgrade rights, but many of the other OEM licenses (Office for example) do not.
How do I know all this? Well after the company I work for was hit with a Microsoft audit about 2 years ago part of my job became keeping up to date on Microsoft's various licensing programs.
EULA's? (Score:2, Interesting)
Re:EULA's? (Score:5, Funny)
Yeah, except for the fact that one company is bankrupt and the other is Microsoft. Boy, bet that would be a fair fight.
So this is illegal? (Score:3, Interesting)
Comment removed (Score:5, Informative)
Re:So this is illegal? (Score:3, Informative)
What about merging companies? (Score:3, Interesting)
Let's say I've got a 500 person company, we've got a couple NT servers, workstations for the employees, etc etc...
If some company buys us, or we merge, do we have to replace all those? Even though we aren't a web operation, we use computers in our day-to-day activities....
IANAL, and IANAB (I am not a businessman)
Yet another reason to use free software...
Re:What about merging companies? (Score:4, Insightful)
Bluelight is part of K-Mart, K-Mart owns the licences for bluelight's computers, K-Mart can't sell the rights to those licenses when it sells Bluelight.
Yeah.
Re:What about merging companies? (Score:3, Informative)
You got it backwards. KMart set up Bluelight in an attempt to cash in on both the Net and their reputation ("Blue-light special on aisle 4!"), hence the name "Bluelight".
Question? (Score:4, Funny)
Does MS have a say in whether or not I can give my lil bro my old PC?
Yikes. (Score:5, Insightful)
If this stands, Microsoft has successfully become the deciding party in all major corporate mergers and aquisitions. Who is going to buy another sizable company knowing that they'll be forced to relicense all of their software?
Talk about extending your monopoly.
IMO, nobody at Microsoft believes that they will lose in the long run, and that's made them both overcomfortable and vulnerable. The more they tighten their graip, the more syste^H^H^H companies will slip through their fingers.
Re:Yikes. (Score:5, Insightful)
Re:Yikes. (Score:5, Insightful)
What this REALLY should do is emphasize how CORRECT the findings were by Judge Jackson against MS.
The REAL issue here is that MS is leveraging it's monopoly to HARM a competitor.
Blue Light is an ISP. One that is cheaper than MSN, therefore meaning that to stop it being sold means MS eliminates a competitor.
And it is a signal to all MS competitors: If you use ANY of our software (and almost all do), WE have a say in your business!
Hello? OpenSource? (Score:3, Insightful)
Why, YES! Yes it could!
Get OpenSource and the problem goes away! Gee, wasn't it Mr. Balmer who was bad-mouthing OpenSource? Small wonder, now we see the evil plan unfurl like a roll of used toilet paper.
Re:Yikes. (Score:3, Insightful)
IIRC there was a hospital in Scotland which got bitten by this kind of clause in proprietary software licences.
Which, in the end, is *very* good for the opensource community - we can transfer software all we want!
So long as people don't belive the FUD which gets thrown around about there being complex legal issues surrounding using open source software. Whilst drawing attention away from the ability of proprietary software licencing to complicate any kind of sale, merger or split of a corporate entity which uses software.
Need clarification... (Score:3, Insightful)
I'm confused. What is the problem with using a GPL'd binary? If I'm looking for an alternative to Word, I can use AbiWord or OpenOffice.org Writer. I don't to worry about licensing issues because I don't intend to modify the source.
The real strength in these products is when you can use the product WITHOUT needing the source. You get the 'free as in beer' part and you don't need to worry about the 'viral nature of the license' because you're not writing any code for it.
Re:Yikes. (Score:5, Insightful)
My best guess is that they will continue to happen, but its going to devalue deal for those who are selling off a business unit. For a company buying another, they factor in the assumed debt and cost of the acquisition, and they will look at it as an assumed debt.
Re:Yikes. (Score:3)
Then the buyer can then decide if they want to take the time to change OS'es to a high priced alternative with no resale value.
Re:Yikes. (Score:4, Insightful)
Microsoft, on the other hand, is a monopoly. This makes it a different situation, despite what your natural instincts about economics tells you.
Taken WAY out of proportions, here (Score:3, Informative)
Software non-transferability license clauses are very typical. And MS is willing to defend them. It isn't "veto'ing your business decisions", its "slapping you on the wrist for not paying attention to the license".
And they call ME a troll...
Re:Taken WAY out of proportions, here (Score:5, Insightful)
This is scary stuff. Microsoft is essentially subverting governmental-style powers at this point. I wonder if we could get Bush to declare MS a threat to national (economic) security...
FUD (Score:4, Insightful)
Re:FUD (Score:3, Interesting)
On the other hand, Microsoft is objecting to the sale on the sole premise of possible lost future sales. If bluelight.com is sold, Microsoft thinks its new owner should have to pay for all new software licenses, even though K-Mart already bought licenses once.
Re:FUD (Score:3, Insightful)
"The licenses that debtors (Kmart) have of Microsoft's products are licenses of copyrighted materials and, therefore, may not be assumed or assigned with[out] Microsoft's consent,"
there are also some tax issues, but no one here gives a flying-fsck about that.
If KMart also sells off some of their Ford trucks, where would it be Ford's problem if the trucks were sold to someone else? Hell no.
The truth remains...Microsoft IS able to determine what someone does with their licenses AFTER PURCHASE and WITHOUT SO MUCH AS A SIGNATURE as far as resale and transfer, and there's fuck-all any of us can do about it, except not involve ourselves with them to being with. Right of first sale is cirlcing the drain right next to fair use and unrestricted use.
You may or MAY NOT transfer your copy of XP to your little brother if you get money for it. You MUST contact Microsoft and establish that the license can be transfered. Period.
Yes - we have a country full of lawbreakers.... they also go 70 in 65 zones, don't stop within 1 foot of the white line at stop signs, and (humor)tear the tags off of their matresses(/humor)
Just because you've BEEN doing it DOES NOT mean that its legal. Microsoft has decided that since there are more than likely multi-millions of dollars "worth" of MS software involved with this transaction, they are going to step in and assert their "rights".
Remember THAT during your next round of computer purchases, pointy-haired-boss-kissing-IT- director-of-Mega-Corp.
That's truth. Not FUD.
Re:FUD (Score:5, Insightful)
If the contract KMart and Ford signed when KMart leased a fleet of company vehicles stated that KMart could not sub-lease those vehicles to other companies, and that contract was upheld as legally valid, you're damn skippy that it would be Ford's problem.
Microsoft IS able to determine what someone does with their licenses AFTER PURCHASE and WITHOUT SO MUCH AS A SIGNATURE as far as resale and transfer
Bet your ass that there is a signature, made at the time of purchase, in a large corporate licensing contract like this one.
Bet your ass that the poor KMart executive who put his John Hancock on the form is probably in the middle of his exit interview right now.
Microsoft has decided that since there are more than likely multi-millions of dollars "worth" of MS software involved with this transaction, they are going to step in and assert their "rights".
And what's wrong with that? No, really, I want to know what the problem is when an entity attempts to defend rights which were granted to it by law.
Re:FUD (Score:5, Insightful)
Ahh but corperate wide licenses DO have a signature.
They are complete legal documents that are scouered over by corperate lawyers, revised, sent back and forth until they are acceptable and then SIGNED by both parties..
I know I recently had to shuttle around some software contracts for a simple little crappy app here... I finally gave up and forced the user to use a open source version that in the end is better anyways..
it is really good for your company to force the lawyers to hash over EVERY EULA and contract.. it forces the users to look at open / free version before fighting for 3 months for a stupid app that they really can live without anyways....
Out IT policy here has been "use FREE/OPen source first, closed with an EULA last." it was here before I started, and will be here a long time...
Re:FUD (Score:5, Informative)
No. You are bound ONLY by the terms of the EULA that shows up when the software is installed (or that's included with the box when you buy your computer.)
Read the license, understand its terms, and all will be well. The license is "permission" to make copies of the software--and if the license is voided, you no longer have permission and need to talk to MS all over again. (Or just buy a stock license.)
That's truth. Not FUD.
Let's look at the statement:
" No - this is an attempt to pass on the truth. You are obfuscating the point of the story - Microsoft is FINALLY pointing out that your software licenses are THEIR property, not yours."
Sounds like FUD to me. The SOFTWARE is MS's property, but the LICENSE is whomever paid money for it. If you get a "license" that the person who originally aqquired it is not allowed to transfer, then you don't have permission.
You are guilty of spreading FUD, the same as someone who claims that code compiled with gcc needs to be GPL'd is. MS cannot surprise you with unforseen terms--not unless there's a "MS may modify this" clause in the license.
Re:FUD (Score:5, Insightful)
I agree. KMart got what they paid for. They wanted licenses for a proprietary software product and that is what they got. It's not like there aren't alternatives.
Just one more reason why the Free part of "Free Software" is so important. KMart has spent a great deal of money developing a software product (their website) and now they can't sell it because they based their work on Microsoft's intellectual property.
Re:FUD (Score:5, Insightful)
It's dangerous to dismiss a major monopoly with a history of illegally abusing its position as just another company.
This particular instance might not be such a big deal, but the prescident it establishes should make the blood of anyone who relies on business for their livelyhood (aka, just about all of us) run cold.
The applications of this sort of thing extend way beyond K-Mart. Essentially, MS is reserving the right to decide who can transfer licenses and who cannot. This is life or death stuff, especially for any company which develops software for Windows (again, this is most development houses -- they can't escape to Linux even if it were a viable desktop replacement, which it's not).
So, in the future, all your business decisions would be "Is this good for us?" followed immediately by "Will this piss off Bill Gates?" -- this would seem to "discourage" anyone from competing with MS in any sector, esp. competition from startups (most successful startups end up being bought, after all; investors would not want to see the possibility of this eliminated).
Be afraid.
Re:FUD (Score:3, Informative)
Why do you say it's not a viable desktop replacement? It might need a bit of technical support for a few days
Linux isn't a viable desktop OS for neophytes without any support group. I'll agree with that, but that's a far different statement than your blanket assertion. For most companies, all it would take is a decision and a week or two. And you probably wouldn't move everyone. Moving 97% should suffice.
(Of course, if this starts happening seriously, the Open Office site will need more bandwidth...)
How so? (Score:2, Redundant)
Damn't! Only *I* may make typos!!! (Score:2)
"The licenses that debtors (Kmart) have of Microsoft's products are licenses of copyrighted materials and, therefore, may not be assumed or assigned with Microsoft's consent," said Microsoft.
That statment is confusing as hell to me. It's got to be "without" doesn't it?
Re:Damn't! Only *I* may make typos!!! (Score:3, Informative)
Seth
Sounds fishy to me.. (Score:5, Insightful)
A good warning to people to actually pay attention to what these travesties actually say.
When my former employer went belly-up they sold licenses as they were assets of the company. What Microsoft is, in act, doing is making their software a non-asset, consumed immediately and utterly worthless beyond that. That's a pretty piss-poor business plan, for both parties.
Re:Sounds fishy to me.. (Score:5, Funny)
*rimshot*
Poor KMart (Score:5, Funny)
Now Target's making a bid for power, and Wal-Mart is scurrying. KMart is left in the dust. (By the way, at Target, I notice an unusually large proportion of highly attractive women. Could Target be hiring cute 'mystery shoppers' kind of like the 'leaners' hawking cellphones at bars?)
So now Microsoft gets in on the beating. It's just dismal.
Re:Poor KMart (Score:3, Informative)
Surprise, it IS French... French Canadian. It's what's left of the old Hudson Bay Trading Co. And although I'm not pretentious enough to use the French pronunciation (living as I do in the great state of Flarda) I have in fact seen Target execs pronounce it as "tar-JAY" in interviews.
Re:Poor KMart (Score:3, Informative)
Target is a subsidiary of what used to be the Dayton-Hudson Corporation (now Target, Inc., since the child process is way more successful than the parent process), which was created by the merger of Dayton's, a Minneapolis based family-owned department store and Hudson's, a Detroit-based family-owned department store. The Hudson family in Detroit has little or nothing to do with Hudson Bay Trading Co. I love how facts get distorted when people remember a word or two and make up a story to go along with what they remember.
Now, "The Bay", a retail chain in Canada may in fact have something to do with the Hudson's Bay Co.
Left Hand meet Right Hand (Score:5, Insightful)
Now Microsoft is saying that normal licenses can't be transfered because the software is copyrighted?
It was my understanding that a license was an asset. You owned it and you could transfer it. Something isn't sitting right with me here. There must be more to the story that's being left out. (Yea, I know, Microsoft is the Evil Empire. However, I still think there's more than meets the eye going on here.)
Re:Left Hand meet Right Hand (Score:3, Insightful)
Yeah there is. People are looking at their licenses for XP/2000/ME and assuming KMart has the exact same license. They compare Kmart selling a division to giving their little brother their old PII. This is just not the case.
You and almost everyone else is reading too much into the story trying to find a conspiracy that doesn't exist. Try reading the article from the point of view of who the article's intended audience is. (Note: The article's intended audience was not the anti-Microsoft crowd.)
Microsoft =~ /satan/? (Score:5, Insightful)
This is probably the same reason Microsoft is objecting, with a business that large it's hard to keep track of all of your clients and what exactly they have from you. Would you allow a company to sell 10,000 licenses for software that you had given them on the basis that they were maintaining a multi-million dollar support contract with you? I don't think so, and though it would be up to the company to make sure the support contracts were upheld, this would only be the case if they were notified of this dependency and paperwork was filed, etc.
Microsoft may very well be in the right in saying "Hey, you should tell us what of our intellectual property you're selling before you sell it."
Doesn't make any bloody sense (Score:5, Interesting)
Re:Doesn't make any bloody sense (Score:5, Insightful)
If Bluelight owns the licenses then it's a non-issue - they own the license, they're being sold, and the computers are moving with them. There is no transferal of license.
If, however, K-Mart owns the licenses then it's a question of tranferrence - now K-Mart is selling a business unit and a bunch of computers which are not owned by the business unit. That's legally shaky, at least if you follow the EULA.
There may be a bigger question of whether or not the EULA is enforceable, but I suspect MS's lawyers will ensure that that question never comes up. If it does, expect them to drop the case suddenly.
The End Is New! (Score:4, Funny)
!!!!!!!WARNING!!!!!!!
Sorry this post has ended due to the fact it's author is now rocking himself back and forth sucking on the collar of his shirt mumbling
"Ticky Tack, Ticky Tack, Lawyers Coming, Give Me That! Got No Job, Got No Life, Got no Money, got No Wife!"
Nothing to do with EULAs (Score:5, Insightful)
Not Just MS (Score:4, Insightful)
What if their plans included "a bunch of Dell computers" or "some unspecified number of RedHat and IBM support contracts". The same thing would probably happen. Given the state of corporate accounting, it wouldn't surprise me to see spreadsheet entries that specify "a truckload of stuff" worth "a lot of money". MS (or any company) can't afford to let stuff like this slide. Otherwise Bluelight could claim to have more than what they really have, and since it was an uncontested public statement a judge would ask "why didn't you contest this earlier" if MS later complained about fraudulent licenses.
You guys are missing it... (Score:4, Informative)
A lot of software is sold on a "Pay me $X per year to use our software" agreement, and along with that you get support, new versions, etc. Microsoft is moving to that model over the old "Pay us $X everytime you upgrade" model. Too many businesses electing to simply just not pay to upgrade their windows versions when the old ones work.
Microsoft wants to know who it is licensing its software to, and maybe also prevent its licenses from being transferred to another party (and thus preventing the sale of new licenses to that party). It's no different than your landlord not letting you sublet your apartment to anyone without their permission.
Re: sublets (Score:4, Informative)
When you lease an apartment, you owe payments until the end of the lease. You're also accepting responsibility for any damage to the apartment.
When you sublet it, you're asking the landlord to accept a lot more risk of late payments, damage to this unit or others, even damage to the reputation of the complex (e.g., because the guy you sublet it to is dealing out of it). They may not want the hassles, or may not feel that you have the resources to compensate you if the worst comes to pass. That's why they want to have a say in who you sublet the apartment to.
In contrast, Microsoft really isn't out anything here except the possibility of new sales. K-Mart isn't getting a rebate on the purchase price of its software, or obligated to continue paying for support contracts (assuming it's soon in bankruptcy and a court is invalidating ongoing contracts.)
Cray and UNICOS (Score:4, Interesting)
This kind of thing keeps the price of systems on ebay down, and would prevent some company based on UNICOS (weather analysis, etc.) from being sold. While this kind of action is deplorable, it isn't new.
Don't worry (Score:3, Interesting)
It has no legal precedence, and most importantly, no common sense whatsoever. Microsoft is just trying to use the crooked US justice system to make a quick grab for the assets of an $80 million company, though chances are it will be only the lawyers who win anything.
If Microsoft does win, the Supreme Court would have their say -- and if Microsoft takes over the Supreme Court, then we're doomed in so many other ways that open revolt is our only choice.
Had a similar experience at work... (Score:4, Informative)
This week we received an email stating that unless we can convince the IT people that we have a specific need for Microsoft Access, it will be removed from all PCs belonging to the old company.
Why? Our site license for Access didn't transfer when we were bought.
Is GPL better? (Score:4, Interesting)
But...
What if I decide to sell my company? The software I've developed is certainly an integral part of the value of my company. Would GPL require me to publish all of the modified source code if I sell the company?
Re:Is GPL better? (Score:4, Informative)
No. You don't even have to hand it over to the new owners if you don't want them to have it, unless, of course, you are letting them use the binaries.
The source and binaries accompany each other under the GPL, or at least they are both availble. Unless you are selling your company to the general public, you don't have to release your code to the general public.
I wouldn't be happening if... (Score:3, Interesting)
IMHO...Microsoft wouldn't be pushing this if Bluelight.com and United Online were textile companies. They are Internet Service Providers and as such, direct competitors of MSN. Microsoft is on a 300M push of MSN now, so they need to disrupt its competition.
Companies change hands all of the time. Have you heard about this happening before? I haven't and suspect that you haven't as well. So, what's he real motivation? I say it is to help MSN by preventing the sale.
Later,
-Slashdot Junky
Telecom companies would LOVE a clause like this (Score:5, Interesting)
I'm sure the telcos would just LOVE to include a "cannot resell" clause to equipment purchases, but they can't (can you just imagine some of the other clauses they'd eventually have to put in, "this router cannot be used in the illegal transfer of data, as defined by the DCMA"). Why should MS (or any other software company for that matter) be able to restrict the sale and transfer of licenses, so long as the original owners have no copies remaining? They're no more deserving of assured profit via new product purchases than the telcos are.
From your fascist friends at Microsoft Licensing (Score:5, Funny)
I zee...this is all well and good, but I do not zee your PAPERS. You must have the proper papers! Vere are your papers!? Don't wait for ze phone delay--answer me now!!!
What really gets me... (Score:3, Interesting)
Is the nerve that they have to say this. Basically, what they're claiming is that even thought Kmart paid for the licenses, it can't resell them without Microsoft's consent. This has nothing to do with a EULA - Kmart is not the end user. What Microsoft is asserting is that buying something from Microsoft no longer entitles you to the rights of ownership.
The real reason why this is important is because this was a software sale, not a license. Microsoft sold Kmart the licenses. Unlike most users of Windows, which merely license the code, KMart bought licenses with the explicit purpose of redestribution, and now Microsoft is claiming that Kmart cannot sell what it legally owns, because of copyright restrictions. But Microsoft didn't license the software, they sold it as a commodity. So copyright shouldn't apply.
Re:What really gets me... (Score:3, Insightful)
Whether or not KMart licensed the software or bought shrink-wrapped copies is not mentioned in the article, nor is it the fundamental issue. The real issue I have is with the statement "...products are licenses of copyrighted materials and, therefore, may not be assumed or assigned with Microsoft's consent." This quote tends to suggest that Microsoft believes that they still have the right to control the sale of their software not because of the license agreement, but rather because they own the copyright on it. Microsoft says nothing of compliance with the license agreement, instead focusing on copyright law. According to first sale doctrine, the copyright holder is only entitled to compensation from the first sale of a copyrighted work; it appears as if Microsoft believes they are entitled to compensation for every sale of their software.
When I was a young whipper-snapper..... (Score:5, Funny)
Let's hope Rep. Zoe Lofgren gets her way. (Score:4, Informative)
This can't possibly be true... (Score:3, Insightful)
So, they're holding up an $8.4 million dollar transaction over a transfer of licenses worth, what, $10,000? Less?? Someone's priorities are screwed up here - KMart should just throw those licenses on the floor.
Update: KMart moves to dismiss (Score:4, Informative)
It sounds like Kmart and Microsoft agree about what Kmart can or cannot do with the licenses and that it was merely a case of KMart not specifying that the licenses being talked about were not part of the sale.
Right of First Sale (Score:3, Interesting)
The same holds for K-Mart. They own the software licenses, they have the right to sell their license to anyone, and I am confident the court will hold as such.
I wonder how this reflects on the "donated PC"? (Score:5, Interesting)
For MS to warn people against accepting free hardware without the software would seem to be encouraging piracy somehow wouldn't it? After all, MS clearly does not respect license transfers. So in the end, MS has been telling people to require non-transferable licenses and to operate these donated PCs illegally.
Makes ya wonder doesn't it?
Oh No - Software Not an Asset! (Score:5, Insightful)
Microsoft has hereby succeeded in defining software as a service instead of an asset, which is what they've been trying to move towards all along because it represents a more lucrative revenue model than selling something that can be used and used and used until you get decide you want something more.
It will be interesting to see how this plays out in the long term.
Fundamentally there's no reason why a bunch of instructions on a hard disk cannot be used a whole heckuva a lot more than till the next upgrade cycle. Neither is there any good reason I can see why it can't simply sold outright to someone else that wants to use it. Of course, when Palladium and hardware locking becomes tighter, time-bombed software will make it easier for this model to be enforced. Meanwhile, there's growing quantities and quality of free software that can be run AS MUCH AS YOU LIKE!This will mean that many current businesses may be severely overvalued. Their true worth in sale will be much less if critical parts of their infrastructure are not transferable.
You think Qwest's recent $4e10 write-down of its networks is large? How much have businesses invested in Microsoft software?
There was a fairly well-known case (Score:3, Informative)
Objections over 25 desktop and 1 server license? (Score:4, Interesting)
All this over 25 licenses? Who cares about 25 licenses? This isn't even worth the "evil lawyers" fees?
There has got to be more to this story. Maybe Microsoft legal just sends out a boilerplate document and objects to any and all Chapter 11 filings. I'd like to know more about this story if anyone has more details.
Stories like this are great to save in my file and drag out for the next Open Source vs. Proprietary Software license debate.
Parasite Rule: Don't Kill The Host (Score:3, Insightful)
1) It's almost always overpriced.
2) It generally is oversold and doesn't deliver.
3) There's no consumer recourse if it doesn't work.
4) The license "agreement" is usually total unfair to the customer.
Say what you will, but why do I want to pay too much for broken software that doesn't do what it's supposed to do that ties me up with strings like Gulliver? This is just another example where KMART/BLUELIGHT/Whoever:
1) Paid too much for their software
2) It was oversold
3) It underdelivered
4) The license is hosing the buyer
Enough already. Don't these people know the number one rule for a parasite is not to kill the host!?
$G
Re:Oh Boo Hoo... (Score:3, Interesting)
Seriously, when an organisation is being sold as a unit, the vendors' interest in any icensed stuff is part and parcel of the deal, and transferable, just as any other property rights - Microsoft is just trying to do its' usual bullshit.
Re:Cock gobblers (Score:4, Interesting)
Imagine the revenue MS would have recieved if they forced the HP/Compaq merger to purchase all new licenses because they can't be transfered.
MS has 96% market penetration in desktop OS. There is no room to grow that business, unless they can force a legal requirement on businesses to buy more licenses in certain situations. They are obviously trying to "grow" their business.
Re:Two Words (Score:3, Insightful)
You obviously don't know what monopolies and anti-trust actions are all about. Although this kind of situation is unlikely to stack up evidence against Microsoft (because other companies have similar licensing policies), you need to realize that the very fact that Microsoft has a monopoly prevents businesses from being able to choose more license-friendly alternatives.
Try this comparable situation to understand better. Say that you live in an area where one company has a total monopoly on heating oil, gas, electricity and HVAC equipment. You get ready to sell your house, and the giant power-monopoly tells you that the furnace, hot water heater, supply lines, storage tanks and ductwork can't be considered part of the sale, based on the contract you had to sign if you wanted heat and power in your house. They also put an unreasonable price tag on "transferring" these assets to another owner.
My guess is that with Blue-light, there weren't lawyers reading all of the software EULAs. They probably just clicked "accept" like everybody else. What choice did they really have?
Re:Talk about beating a dead horse! (Score:3, Insightful)
Remember, MS owns MSN, an ISP.
If BlueLight gets sold, it's possible whomever it is sold to will become a competitor to MSN. We all know how much MS likes competition...
This is MS bringing out their 200-ton anti-competition stompy-foot to kick a tiny competitor while it's down.
Re:Mountain out of a mole hill? (Score:4, Insightful)
Thing is, KMart isn't selling the licenses. It's selling bluelight.com, the entity which licensed the software. It seems to me that the licenses should, under conventional law, remain with the entity that holds them when it's sold to someone else. For the licenses to stay with KMart, bluelight.com would have to transfer the licenses to KMart.
MS may have made a mistake pulling this during a bankruptcy proceeding where the judge has a lot of leeway in saying "This is the way it'll be.".