Seeking Answers

Trying To Understand

Believe it or not, the whole thing sounds pretty unclear and contradictory to me. First, if the agreement is between the OEM and me, who is Microsoft to say what we can and cannot agree on? For instance, I’ve called up Dell and other OEM’s, both local and remote, to discuss the issue. I’ve even called Microsoft numerous times to go over the details and what they really mean. In almost every single case, the answers I got were different from one another.

After all of those hours of research, there were some areas of agreement. For instance, there was a general consensus that the definition for the term “Hardware” is up to each OEM. Therefore, each OEM is free to bundle the software any which way they choose. The “Hardware” might be defined by one OEM as an entire computer, for instance. Or, another OEM may decide that the license is tied to the primary boot drive instead. Some vendors simplify things further, by stating that the license is actually tied to a bundle consisting of a genuine Microsoft mouse, the manual for the mouse and the disk and license for the software. As you can see, the thing is getting messy from the very start.

Gray Areas

There are a number of areas of conflict and disagreement concerning the language and enforceability of EULA’s. They are often so general and so vague that they end up yielding more questions than answers. How so? For example, let’s assume that you buy a system from Dell with bundled software and you decide to upgrade the machine. Is the software tied to the entire machine or a particular piece of hardware? You call up Dell and they tell you that you are good to go and still legal. What if you end up replacing the hard drive, video card and CD-ROM drives at the same time? Are you still legal? Dell says yes. What if you decide to move all of your new parts to a new case with a 300 watt power supply that happens not to be a Dell case? Do you still have rights to use the software? After all, the only thing original in the case was the floppy drive and the cables, and all you did was move those components to a case that could handle the load. What would the answer be then?

By upgrading your system, you are only doing what any reasonable owner may do, right? Therefore, there is a “Reasonable Person” standard that may apply. If you replace every part in the system except the case and Dell tells you that you are still legal, would a reasonable person infer that the software license was tied to the case? Then, if the case was damaged and needed to be replaced, would you lose your rights to use the software? A reasonable person might assume not, since you replaced a defective component. What if you had been told that the software was tied to the hard drive, and the hard drive physically failed. Would you have the right to replace it with a third party hard drive and still use the software? What if your software came on a “restore disk” instead of a separated copy? Would the fact that none of the internal components match the system or component serial numbers matter when it came to your rights to use the software?

The courts have been examining some of these questions, and have recently leaned towards the consumer in many of these instances. Some have said that if Microsoft wishes to limit the software to specific hardware, then they must detail which exact hardware and what rights consumers have should that hardware be replaced, either by necessity due to failure, or due to advances in hardware capabilities and the desire of the individual to remain current. Others have stated that if the agreement is specified by Microsoft as being between the OEM and the consumer, then they have no rights of enforcement concerning the consumer, but must instead go through the OEM to correct misunderstandings. Yet others have indicated that Microsoft has no rights to summarily terminate the license at all. A recent case actually stated that consumers can reasonably assume that any software they purchase in a forced system bundle will be bound not by the OEM license, but a typical retail license, because after all, they are purchasing a true retail product, of which the software is just a portion. As you can see, it is still a very murky and difficult situation to get a handle on, and the fact that most of the talking is being done by Microsoft and OEM’s does not benefit the consumer in the least.