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MS disappears claim that Windows is legal requirement

But characteristically, misses a bit...

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Microsoft has backed away from its bizarre claim that it is a legal requirement that preinstalled operating systems remain with a machine for the life of the machine - but only slightly. The Register drew attention to this on Tuesday, and the Microsoft site spreading this disinformation was mysteriously updated on Wednesday.

We're far too modest to claim this as anything other than coincidence, but would like to draw the Redmond web morlocks' attention to the Q&A further down the page. If you're going to soften the wording at the top, it seems to us to make sense to change the rest too, so you don't confuse people. Prior to Wednesday's disappearing the site, headed A Guide to Accepting Donated Computers for Your School, read:

"If you feel it is in the best interest of your school to accept the donated PCs, make sure that the hardware donation includes the original operating system software. Keeping the operating system with the PC is not just a great benefit - it is a legal requirement."

Now, it reads:

"If you feel it is in the best interest of your school to accept the donated PCs, make sure you know the licensing guidelines. For instance, if the hardware donation is an original equipment manufacture machine, the pre-installed operating system license is only valid when used on the original machine for which it was first installed, so it's beneficial to leave it intact."

So a legal requirement has been downgraded to a mere benefit. The first of the Q&As however still goes as follows:

Q. Why should a donor include the operating system with their PC donation?
A. It is a legal requirement that pre-installed operating systems remain with a machine for the life of the machine. If a company or individual donates a machine to your school, it must be donated with the operating system that was installed on the PC.

As we pointed out on Tuesday, the nearest the MS EULA comes to saying this is in the clauses that specify that you're not allowed to sell the software without also selling the hardware. It doesn't say "you're not allowed to reassign the hardware without reassigning the software at the same time," and we quote our previous piece here for the benefit of all of you good people out there who emailed us saying it quite obviously meant that you're not allowed to reassign the hardware without reassigning the software as well. Just pay attention, OK?

We got quite a lot of mail about this piece, not all of it stating the bleedin' obvious, but a surprising amount from people willing to cut Microsoft slack over what the wording was supposed to mean, rather than what it said. Obviously Microsoft does not currently intend to prohibit OS upgrades, and equally obviously it does not currently intend to prohibit (impede, yes) people from installing Linux or A N Other OS on a machine that shipped with Windows. But those of you saying it just meant not that you had to keep the OS software on the machine, but that you had to keep the OS licensing material for that machine, were being far too nice to Microsoft.

You're agreeing with Microsoft's apparent interpretation of "The SOFTWARE PRODUCT is licensed with the HARDWARE as a single integrated product. The SOFTWARE PRODUCT may only be used with the HARDWARE as set forth in this EULA" as meaning it's a 'single integrated product which you are not allowed to break up.' This is an outrageous imposition that should be resisted. You can't, according to Microsoft's licences, unbundle the software from the machine and sell it separately (except in Germany), but if you don't want to use the software, what right has Microsoft to tell you you can't toss it and the licence along with it?

It is of course possible that the wording on the Microsoft web site was simply a maladroit misspeak which is now in the process of being corrected, but the possibility is diminished markedly by the distance the wording has got, and by the number of people who seem to believe it. We directed you to Bruce Buckelew's Tunney Act submission in the previous piece, and we're going to do it again. Buckelew's alleged Microsoft internal memo planning the web site, and apparently produced in mid-2000, states that it "will include clear messaging of the legal requirement that the original OS stay with the machine and that naked machines should not be accepted."

Microsoft in general may not believe it's a legal requirement, but its US Education Solutions Group quite clearly set out to convince US schools that it is, and there's a reasonable amount of evidence that they have been successful. CompuMentor tells us both that it's "working with Microsoft Corporation to help both consumers and nonprofits deal with old computer equipment in the most beneficial way for both society and the environment" and that it is "actually required by law to leave the operating system and current license loaded on a donated computer." Laramie County School District houses a PDF of a "donate flyer" which seems to have been produced by Microsoft for schools to give out to donors, and which uses the same wording as the web site. It may actually predate the web site, given that the URLs it includes seem largely out of date, but if one school district has misleading leaflets, we'd guess that many school districts have them.

Although the specific intent here was to convince schools that they should only accept donated PC if they had what would surely be a Microsoft OS on them, it doesn't seem to us that the Education Solutions Group is that far out of step with the rest of Microsoft. By making it more complicated and onerous to donate old computers, Microsoft depresses the recycling market (Buckelew provides much supporting evidence for this) and thus sells more new Windows licences. This is a general Microsoft ambition, and a desire specifically expressed in the Education Solutions Group documentation Buckelew reproduces.

Generally, Microsoft also wants to pitch Windows as a part of a "single integrated product" that you're not going to consider breaking apart, and it's surely going to be pushing the envelope of the terminology in future revs of its licensing documentation. The EULA for an Xbox, if such a thing exists, may prove instructive. Failing that, we could wait to see how tightly bound the OS gets to the Tablet PCs. ®

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