Vista - A EULA issue regarding the Daily Tech installation workaround

You are if you use it to violate a provision in the EULA. Just because you
can do it doesn't make it OK if the EULA prohibits the RESULT of the
workaround. The EULA does not have to prohibit a proceedure if the RESULT
of that procedure is already prohibited.

"Breaker" wrote in message
news:avk3s2leh2o02e4blrnr1sh9fr7kgncqht@4ax.com...
> On Wed, 31 Jan 2007 22:05:07 -0700, "Colin Barnhorst"
> <colinbarharst@msn.com> wrote:
>
>>The Vista EULA states:
>>
>>"8. SCOPE OF LICENSE. The software is licensed, not sold. This agreement
>>only gives you some
>>rights to use the software. Microsoft reserves all other rights. Unless
>>applicable law gives you
>>more rights despite this limitation, you may use the software only as
>>expressly permitted in this
>>agreement. In doing so, you must comply with any technical limitations in
>>the software that only
>>allow you to use it in certain ways. For more information, see
>>http://www.microsoft.com/licensing/userights. You may not
>>· work around any technical limitations in the software;
>>(snip)
>>
>>The procedure in the DT article may be covered by this provision. At the
>>very least, I would check with MS to see if does before recommending it to
>>others.
>>
>>Now, guys, fire away.
>
>
> Don't see any problem at all with this. The functionality to do the
> clean install work around is built into the Setup.exe program which
> comes with the Official MS version of Vista. This means it was
> released by MS and that they know that this functionality exists. You
> are not bypassing any technical limitations if you simply know about a
> non-published function that is built into the program.

On Fri, 02 Feb 2007 02:21:17 -0700, Colin Barnhorst wrote:
>
> It is a workaround because elsewhere in the EULA the user is prohibited from
> continuing to use the operating system that qualified for
> upgrade/replacement.

And nothing I wrote contradicts that. I know you can't use the OS that was
the upgrade, what I want to do is have a CLEAN install of Vista.

Even the mentioned clean install path is not really a clean install. It's
really a shame that MS went this route, it increases the amount of time
that we have to spend upgrading clients workstations.


--
Leythos
spam999free@rrohio.com (remove 999 for proper email address)

Then I guess I will be breaking the EULA according to you. No sweat
off my brow. I qualify for the upgrade because I own a legal Full
version of XP Pro. If I want to install Vista clean and the
functionality is built into the setup to do so, then I will use that
functionality without any problem on my mind at all.

In my thinking though (And in the thinking of a lot of other people I
am sure) I will not be doing anything wrong at all.

On Fri, 2 Feb 2007 02:44:13 -0700, "Colin Barnhorst"
<colinbarharst@msn.com> wrote:

>You are if you use it to violate a provision in the EULA. Just because you
>can do it doesn't make it OK if the EULA prohibits the RESULT of the
>workaround. The EULA does not have to prohibit a proceedure if the RESULT
>of that procedure is already prohibited.
>
>"Breaker" wrote in message
>news:avk3s2leh2o02e4blrnr1sh9fr7kgncqht@4ax.com...
>> On Wed, 31 Jan 2007 22:05:07 -0700, "Colin Barnhorst"
>> <colinbarharst@msn.com> wrote:
>>
>>>The Vista EULA states:
>>>
>>>"8. SCOPE OF LICENSE. The software is licensed, not sold. This agreement
>>>only gives you some
>>>rights to use the software. Microsoft reserves all other rights. Unless
>>>applicable law gives you
>>>more rights despite this limitation, you may use the software only as
>>>expressly permitted in this
>>>agreement. In doing so, you must comply with any technical limitations in
>>>the software that only
>>>allow you to use it in certain ways. For more information, see
>>>http://www.microsoft.com/licensing/userights. You may not
>>>· work around any technical limitations in the software;
>>>(snip)
>>>
>>>The procedure in the DT article may be covered by this provision. At the
>>>very least, I would check with MS to see if does before recommending it to
>>>others.
>>>
>>>Now, guys, fire away.
>>
>>
>> Don't see any problem at all with this. The functionality to do the
>> clean install work around is built into the Setup.exe program which
>> comes with the Official MS version of Vista. This means it was
>> released by MS and that they know that this functionality exists. You
>> are not bypassing any technical limitations if you simply know about a
>> non-published function that is built into the program.

You only own the license. You do not own the software and have no legal
right to modify it or use it beyond the scope of the license. That is up
front in the EULA.

"Breaker" wrote in message
news:s4f6s25p51o5qsc9s4bunqhg5kvbhmffsa@4ax.com...
> Then I guess I will be breaking the EULA according to you. No sweat
> off my brow. I qualify for the upgrade because I own a legal Full
> version of XP Pro. If I want to install Vista clean and the
> functionality is built into the setup to do so, then I will use that
> functionality without any problem on my mind at all.
>
> In my thinking though (And in the thinking of a lot of other people I
> am sure) I will not be doing anything wrong at all.
>
> On Fri, 2 Feb 2007 02:44:13 -0700, "Colin Barnhorst"
> <colinbarharst@msn.com> wrote:
>
>>You are if you use it to violate a provision in the EULA. Just because
>>you
>>can do it doesn't make it OK if the EULA prohibits the RESULT of the
>>workaround. The EULA does not have to prohibit a proceedure if the RESULT
>>of that procedure is already prohibited.
>>
>>"Breaker" wrote in message
>>news:avk3s2leh2o02e4blrnr1sh9fr7kgncqht@4ax.com...
>>> On Wed, 31 Jan 2007 22:05:07 -0700, "Colin Barnhorst"
>>> <colinbarharst@msn.com> wrote:
>>>
>>>>The Vista EULA states:
>>>>
>>>>"8. SCOPE OF LICENSE. The software is licensed, not sold. This agreement
>>>>only gives you some
>>>>rights to use the software. Microsoft reserves all other rights. Unless
>>>>applicable law gives you
>>>>more rights despite this limitation, you may use the software only as
>>>>expressly permitted in this
>>>>agreement. In doing so, you must comply with any technical limitations
>>>>in
>>>>the software that only
>>>>allow you to use it in certain ways. For more information, see
>>>>http://www.microsoft.com/licensing/userights. You may not
>>>>· work around any technical limitations in the software;
>>>>(snip)
>>>>
>>>>The procedure in the DT article may be covered by this provision. At
>>>>the
>>>>very least, I would check with MS to see if does before recommending it
>>>>to
>>>>others.
>>>>
>>>>Now, guys, fire away.
>>>
>>>
>>> Don't see any problem at all with this. The functionality to do the
>>> clean install work around is built into the Setup.exe program which
>>> comes with the Official MS version of Vista. This means it was
>>> released by MS and that they know that this functionality exists. You
>>> are not bypassing any technical limitations if you simply know about a
>>> non-published function that is built into the program.

On Fri, 02 Feb 2007 21:51:00 -0700, Colin Barnhorst wrote:

> You only own the license. You do not own the software and have no legal
> right to modify it or use it beyond the scope of the license. That is up
> front in the EULA.

Here we go again:

: http://en.wikipedia.org/wiki/First_Sale_Doctrine
:
: The first-sale doctrine as it relates to computer software is an area
: of legal confusion. Software publishers claim the first-sale doctrine
: does not apply because software is licensed, not sold, under the terms
: of an End User License Agreement (EULA). The courts have issued
: contrary decisions regarding the first-sale rights of consumers. Bauer
: & Cie. v. O'Donnell and Bobbs-Merrill Co. v. Straus are two US Supreme
: Court cases that deal with copyright holders trying to enforce terms
: beyond the scope of copyright and patent, by calling it a license. Many
: state courts have also ruled that a sale of software is indeed a sale
: of goods under the Uniform Commercial Code (UCC) at the point where
: funds are exchanged for the physical copy of the software. The licensed
: and not sold argument is held mostly in the 8th and 7th Circuits while
: other circuits tend to support the opposite, thus leading to
: conflicting court opinions such as seen in the 3rd Circuit Step-Saver
: Data Systems, Inc. v. Wyse Technology and fifth circuit Vault Corp. v.
: Quaid Software as opposed to the 8th Circuit Blizzard v. BNETD
: (Davidson & Associates v. Internet Gateway Inc (2004)), which have not
: been resolved by the Supreme Court
:
: Federal district courts in California and Texas have issued decisions
: applying the doctrine of first sale for bundled computer software in
: Softman v. Adobe (2001) and Novell, Inc. v. CPU Distrib., Inc. (2000)
: even if the software contains an EULA prohibiting resale. In the
: Softman case, after purchasing bundled software (A box containing many
: programs that are also available individually) from Adobe Systems,
: Softman unbundled it and then resold the component programs. The court
: ruled that Softman could resell the bundled software, no matter what
: the EULA stipulates, because Softman had never assented to the EULA.
: Specifically, the ruling decreed that software purchases be treated as
: sales transactions, rather than explicit license agreements. In other
: words, the court ruling argued that California consumers should have
: the same rights they would enjoy under existing copyright legislation
: when buying a CD or a book.
:
: In a more recent case involving software EULA's and first-sale rights
: Davidson & Associates v. Internet Gateway Inc (2004)[1], the US
: District Court for the Eastern District of Missouri issued a ruling
: which appears to contradict the position of the district courts in
: California and Texas. The first sale reasoning of the Softman court was
: challenged, with the court ruling "The first sale doctrine is only
: triggered by an actual sale. Accordingly, a copyright owner does not
: forfeit his right of distribution by entering into a licensing
: agreement." In addition, the court found the plaintiff's EULA, which
: prohibited resale, was binding on the defendants because "The
: defendants .. expressly consented to the terms of the EULA and Terms of
: Use by clicking 'I Agree' and 'Agree.'" This runs counter to Softman v.
: Adobe. The difference in these rulings has yet to be resolved by a
: higher court.

This confusion is just in the US. Some European (and other) countries are
quite explicit that a software license isn't legally binding on the
consumer unless it is presented to the consumer in full before money
changes hands. That doesn't mean you give them a URL, it means they get to
see and read the actual license in the store and without being made to go
through some big hassle to obtain it.

And no, you can't override the consumer protections granted by these laws
with a EULA. Otherwise the law itself would be meaningless. How
can a lemon law be effective if car dealers can just require you to agree
in writing to give up the protection of that law before they'll sell you a
car?