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German ruling loosens MS lock on reselling of Windows

Does this mean MS OEM and licence agreements are illegal?

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Microsoft's ability to sell a whole new operating system with every PC that ships, and to block the growth of a secondary/secondhand OS market, has been checked slightly - in Germany. A German appeal court has ruled that Microsoft can't stop dealers selling software it intends should ship only with new PCs separately.

But the ruling may not be much of a precedent, even in Germany, and considering the way Microsoft's contractual arrangements with PC OEMs have been going recently, it possibly won't make too many waves. The court has so far issued a statement of its ruling, but won't be producing the justification for some weeks.

The particular case involved a dealer who'd been sued by Microsoft for selling unbundled OEM software for MS-DOS and Windows for Workgroups in 1997. By that time you'd reckon that WfWg was of approximately nil value to either Microsoft or the OEM, so pursuing the hapless dealer does seem a tad vindictive. But that's not the important bit.

The dealer may have got off simply because he didn't have a contractual relationship with Microsoft, but in that case OEMs wouldn't be significantly affected, because their OEM agreement would still prohibit them from selling on, say, that big stack of Win95 they never got around to shipping. Nor would it make it legal for end users to sell the software after they'd finmished with it, if this breached their EULA (End User Licence Agreement).

Actually, considering the nature of the agreements you generally 'sign' when you open the shrink-wrap or click in the box, it's puzzling how come any legal software makes it to the secondhand stores.

But from what the court said when delivering its verdict, the implications of the ruling seem rather wider. The court feels that you can only exercise your rights of authorship once, which presumably means that you can place restrictions on the initial sale, but not on secondary sales. If that's the case it possibly means it's legal for OEMs to sell on copies of Windows they've already paid for (or even to sell licences, without shrinkwrap), and it's certainly legal for you to sell your copy of Windows after you've finished playing with it. In Germany.

The fallout from this, even in Germany, is however substantially muted by a cunning plan Microsoft prepared earlier. How easy is it to buy a PC with an unlocked copy of Windows on delivery media that you could physically sell, these days?

Microsoft has of course been going over to bios-locked installations that will only run on a particular machine, and protected medialess delivery where the code is on the hard disk, and can't easily be shifted onto another machine either. So theoretically it's your right - in Germany - to sell your Windows on, but in practice it's physically impossible. Does that mean that it's OK to crack the locks, squirt the code onto a blank CD and sell it? Or even that Microsoft could be on the receiving end of a class action lawsuit on behalf of German Windows users who want to sell their Windows? We await the court's full ruling with some interest. ®

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