Clean install with Windows 7 upgrade media? Get the facts!

Clean install with Windows 7 upgrade media? Get the facts!

Summary: If you purchase a discounted upgrade edition of Windows 7, can you use it to perform a clean installation of the operating system on a PC that doesn't currently have Windows installed? The answer, it turns out, is really quite simple. I've broken down the license agreement and have specific answers for upgraders. If you own a Mac or plan to dual-boot, I've got the answers you need.


Special Report: Windows 7

Last week I complained about Microsoft's shoddy documentation of how its upgrade procedures are supposed to work. I'm delighted to report that I got a tremendous and immediate response from within Microsoft, offering assistance in my testing and also promising to clean up and expand their documentation. I spent most of the weekend working on a table that I'll publish later this week. I'm also testing various upgrade scenarios to see which ones work and which require a workaround.

Meanwhile, an argument that should have died ages ago has reared its head again. If you purchase a discounted upgrade edition of Windows 7, can you use it to perform a clean installation of the operating system on a PC that doesn't currently have Windows installed?

The answer is really simple. If you qualify for an upgrade license, then yes, you can use any number of workarounds to install the operating system legally. If you don't qualify for an upgrade license, then those same workarounds might technically succeed, but your license is not valid. Will you get away with it? Probably. But if you're running a business, you run the risk that an employee will turn you in to the Business Software Alliance, which could lead to an audit, civil charges, and eventually some stiff penalties.

Let me see if I can help uncomplicate things.

The overwhelming majority of PCs are sold with Windows preinstalled by an Original Equipment Manufacturer (OEM). The rules are in the license agreement that you see when you first turn on that PC. You can find any license agreement for Windows (retail or OEM) at the Microsoft Software License Terms page. If you read the retail and OEM license agreements, you will see that there is absolutely no requirement to install the software in a specific way. Here, for example, are the details from the OEM license agreement for Windows Vista Home Basic/Home Premium/Ultimate. I have used bold type to emphasize key terms.


Section 2: "The software license is permanently assigned to the device with which you acquired the software. That device is the 'licensed device.' A hardware partition is considered to be a separate device."

[In Windows 7, the language is slightly clearer: "The software license is permanently assigned to the computer with which the software is distributed. That computer is the 'licensed computer.'"]

Section 13: "To use upgrade software, you must first be licensed for the software that is eligible for the upgrade." [This identical language appears in Section 14 of the Windows 7 license.]

Section 14: "Proof of License:  If you acquired the software on a device, or on a disc or other media, a genuine Microsoft Certificate of Authenticity label with a genuine copy of the software identifies licensed software. To be valid, this label must be affixed to the device or appear on the manufacturer’s or installer’s packaging. If you receive the label separately, it is invalid. You should keep label on the device or the packaging that has the label on it to prove that you are licensed to use the software. If the device comes with more than one genuine Certificate of Authenticity label, you may use each version of the software identified on those labels." [This text appears in the Windows 7 license in Section 16, with the word "device" replaced by the word "computer."]

That sticker on the PC is the proof of your original full license, the one that qualifies you for the discounted upgrade to a new version. There is NO requirement in the license agreement or elsewhere that the qualifying software be installed first for the upgrade to be valid.

Finally, there's the question of what older Windows versions qualify for an upgrade to Windows 7. The answer is on the retail upgrade box: "All editions of Windows XP and Windows Vista qualify you to upgrade. … If you are upgrading from Windows XP, you will need to back up your files and settings, perform a clean install and then re-install your existing files, settings, and programs."

Here's a picture. Note that it specifically says "clean install," not "custom install."

So what are the rules? Let's break it down by some specific situations:

You originally purchased a PC with a copy of Windows XP or Windows Vista. You qualify for an upgrade on that specific PC. Any version of XP or Vista qualifies for an upgrade to any version of Windows 7. So if you bought a Dell in 2007 with Windows XP Home preinstalled, you can buy a retail upgrade of Windows XP Professional and install it on that PC. This is true even if along the way you wiped the hard disk clean and installed a beta of Windows 7. The license for Windows XP was permanently assigned to that machine when you first turned it on and accepted the license agreement. The fact that the original operating system isn't currently installed on the PC is irrelevant.

You just bought a brand-new Mac and you want to use Boot Camp to install Windows 7 on it. You do not qualify for an upgrade license. Apple didn't sell you a copy of Windows with your Mac, so there is no original Windows edition to qualify for an upgrade license. From a contractual point of view, you must purchase a full license to install in the Boot Camp partition.

You installed virtualization software on your PC or Mac and you want to run Windows 7 in a virtual machine. You do not qualify for an upgrade license. A virtual machine is considered a separate PC. In fact, Section 3(d) of the Windows 7 Professional license agreement makes this explicit: "Use with Virtualization Technologies. Instead of using the software directly on the licensed computer, you may install and use the software within only one virtual (or otherwise emulated) hardware system on the licensed computer." Because there is no previously licensed version of Windows XP or Vista in your newly created virtual machine, you do not qualify for an upgrade. The exception, of coufrse, is Windows XP Mode in Windows 7 Professional and higher.

You have Windows XP or Windows Vista on your current PC and you want to use Windows 7 on a separate partition as a dual-boot machine. You do not qualify for an upgrade license. Refer back to the previous wording in Section 2 about a hardware partition being a separate device. The Windows 7 license agreement covers this in Section 14: "Upon upgrade, this agreement takes the place of the agreement for the software you upgraded from. After you upgrade, you may no longer use the software you upgraded from."

You built your own PC from parts and you want to install Windows 7 on it. You do not qualify for an upgrade license. You need a full retail license. (You can also use a System Builder OEM license, but that's a separate issue I'll cover later.)

As I said earlier, this stuff is irrelevant to most people. If you buy a new PC with Windows on it from a legit dealer, you don't have to think twice about licensing. If you buy a retail upgrade and install it on your system that's currently running XP or Vista, you also have no hassles except those associated with upgrading.

The real people this information applies to are two groups: PC experts who support other PC users or want ultimate control over their own PCs, and people trying to get a bargain. For either group, it pays to understand the rules.

For more on the whole messy licensing issue, see What Microsoft won't tell you about Windows 7 licensing and Is it OK to use OEM Windows on your own PC? Don't ask Microsoft.

Topics: Hardware, Legal, Microsoft, Operating Systems, Software, Windows

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  • Unbelievable

    "Last week I complained about Microsoft?s shoddy documentation of how its upgrade procedures are supposed to work. I?m delighted to report that I got a tremendous and immediate response from within Microsoft, offering assistance in my testing and also promising to clean up and expand their documentation."

    So what exactly did all these Microsofties do in preparation for the W7 launch? Did W7 code receive the same attention to detail. Not encouraging at all. Somebody should get fired.
    • Win licensing is a mess ...

      I agree with you here Ed, but I'm left wondering one thing.

      If the licensing says that "there is absolutely no requirement to install the software in a specific way" and if the difference between retail and upgrade is down to the product key (and I agree with you that it is), why, technically, do users have to resort to workarounds like the double-install to put upgrade media on a clean system? Either it's allowable, or not. Why are users faced with a hurdle in order to exercise their rights?
      Adrian Kingsley-Hughes
      • Use case?

        Personally... I'm not sure I see what the fuss is about. What's the use case for installing an upgrade product key onto a completely clean machine? If you're buying an upgrade then it's assumed you already have a PC running Windows. You can do a clean install if you want, that's fine - the installer supports that (that's how XP users can use Upgrade discs). It just verifies during install that one of your disks / partitions already has a licensed copy of Windows.

        If your machine is completely void of any OS then it's arguable that you don't qualify for an upgrade. If there's an extremely specific case where this might possibly happen and you ARE properly licensed, it's so far beyond "niche" that's it's pretty silly to expect the packaging to acccount for it. If you get into this situation and the key doesn't work, I bet you can call support and get it straightened out. Either that, or you know what you're doing enough to not care about having to do some kind of workaround.

        Just my two cents.
        • OK, case example ...

          Hosed HD ... does happen ... often in fact.

          "If your machine is completely void of any OS then it's arguable that you don't qualify for an upgrade ... "

          Really? Where there written then?

          "it's so far beyond "niche" that's it's pretty silly to expect the packaging to acccount for it"

          I'm not talking packaging, I'm talking product key working with the OS. Fundamentally, what the end user is paying for.
          Adrian Kingsley-Hughes
          • Excuse me. Mr Writer

            What is meant by "Where there written then?"
          • Hosed HD = call support

            For most people, a dead hard drive means taking their computer to a store or RMA'ing it. Right?

            Maybe this isn't ideal for the tiny niche who build their own computers (then do an upgrade, then have a drive die) or who just replace the broken drive themselves... but I'll hazard a guess that a phone call to support during activation is all you'd need.

            I'm just surprised this is a big deal now. Isn't this how most upgrade software works? Heck, isn't this *more friendly* to these situations than other software upgrades (where "install the old version first" is the only solution)?

            I'm not saying this niche couldn't be better served... I'm just questioning the applicability of these concerns to the vast majority of upgrade purchasers and the level of inconvenience caused which seems minimal.

            Again, just my two cents.
          • Call to support won't help...

            When the DVD refuses to install, because the HD is blank...

            It would be a complete pain to have to install XP or Vista - especially if the drive is a SATA and XP refuses to recognise it, so you have to go and either make a slipstream CD or find a floppy disk and a floppy drive to allow XP to load the SATA driver to recognise the HD...

            I had that problem, when I made a legacy free PC back in 2004. I tried a USB floppy drive, from a friend, but XP found the driver, then reset the USB bus before loading it! Then complained the driver wasn't available.

            In the end, I went back the shop that sold me the PC and borrowed a floppy drive to install XP.

            I wouldn't want to go through that again, just so I can then install Windows 7 directly over it!

            RMA the hard drive? A 5 year old HD can't normally be RMAed, it just needs to be replaced...
          • I just installed Win 7 Home Premium on blank Hard Disk

            My fairly new system's hard disk just crashed, so I figuired why not put in a new hard disk and install Windows 7. Easy right? Maybe not. After installing a new blank drive and booting the system with the Win7 disk in the DVD drive it started to install like normal, went about 20 min. and then asked for the New Product key. I input the new product key and it told me that it was invalid. I re-typed the key several times and got the same message. No-where in the install process did it ask for an old "Product Key" or to put in a "Qualifying Product Disk" as other Upgrades have done. Now what?
            I grabed my XP recovery CD for this computer and installed the old XP OS on to my new drive. I installed the XP drivers for the MB, video, sound, and the nic. I thought this would give Win7 upgrade a place to start.
            I dropped in the Win7 dvd and rebooted.
            The upgrade went without a hitch after this.
            You need an OS on the Hard drive for it to work.
            You can't really do a "Cean install"
          • RE: OK, case example

            What constitutes a OEM machine? I have in the past added new graphics cards to a purchased system. Then a bit later had to replace the HD. Somewhere down the road the motherboard took a downward spiral.

            So no all that is left of this particular computer is the DVD and case. So I have to ask at what point is the system no longer a OEM system? Along those lines is it right to require a new license because the hardware failed?

            There should be a guideline somewhere, The point is I didn't use an upgrade media on a system that did not originaly have one. Am I responsible to purchase a new license because of hardware failures? That seems a bit over the top at least to me.
          • Typically the motherboard

            but I thought I read somewhere if you swapped out multiple parts at one time like a video card and sound card and hard drive at one time it could trip activation. In my experience it always has been the motherboard as the ultimate determining factor.
          • agreed but

            I agree, but in the past when I called MS support they gave me a new key because I had to replace the MB. There was never a question from them at the time as to whether that broke the OEM license stipulations.
          • The motherboard

            You can replace any hardware except the motherboard without affecting your license.

            The motherboard is the heart of the machine. If it breaks, you can get an identical (or equivalent) replacement from the manufacturer and the license is inteact. If you replace with an upgrade or the mfr will not supply an equivalent replacement (because you are out of warranty, for example), you need a new license.
            Ed Bott
          • Motherboard replacement

            The update notification bar stated that my motherboard BIOS should be updated or I should buy a new motherboard to match the CPU (Q6600). If I do this, how can I re-register Windows 7?
          • Motherboard replacement

            Windows takes notes on the hardware when it's first activated, and applies some secret formula to decide when there have been "too many changes" to your hardware. Just installing new drivers, new boards, overclocking the processor or flashing the BIOS can trip the wire. A new processor virtually guarantees a re-validation.

            In practice, MS doesn't ask what board or processor you've installed. You call, they take your word for it that you replaced the CPU or whatever, and they give you a new activation key. (I imagine you can do this only two or three times ... but who knows?) So, although the official policy is harsh, in reality they cut you a lot of slack. You could probably replace all of the guts inside the case, and still get Windows re-activated. This seems fair to me -- it's not as if the original installation was still running on another machine.
        • Examples provided by MSFT senior exec

          Read the comments in this post from Global Partner Experience Lead Eric Ligman:

          Reader comment:
          Consider: two years ago you bought a new Dell with Windows XP Pro preinstalled. Yesterday, you bought a Vista Business upgrade for the same system. But: you would prefer to do a fresh install rather than upgrade. This is both 1) legitimate, and 2) permitted, isn't it? You did, after all, buy XP Pro and then the Vista Business upgrade, the latter giving you the right to run Vista Business on the system you previously ran XP Pro on, yes?

          Eric answers:

          @ Fredrik - Yes, if you have the full Windows XP Pro license and then purchase the Windows Vista Business Upgrade for that PC, you can choose to do a full install from the Vista disk vs. performing an in-place upgrade install. This is why we have this on the disk.

          And still later in that comment thread, another read comments:

          I own 2 copies of Vista Ultimate, the first one of which I purchased as an Upgrade. I can tell you this: after being FORCED to install my copy of XP first, after I had already formatted my computer not knowing that Vista required an OS to be installed, I WAS INFURIATED! I had very little time left that day due to grad school and was prepared to return my copy to the store I bought it at, and would have FOUGHT THEM UNTIL THEY TOOK IT BACK... else I would have canceled payment on my credit card.

          THE ONLY THING THAT SAVED MY PURCHASE WAS THE FACT THAT THE WORK AROUND EXISTS. AND EVEN STILL, I am not happy that you have to install it twice to do this.

          To which Eric replies:

          @ Josh - You mentioned you have a previous Windows O/S license that you are upgrading from. As such, using the upgrade to do your install is fine since you own a qualifying license to upgrade from. My comments on it not being legal are for those who do not own the previous version license first.

          Shall I go on?
          Ed Bott
          • Ed, can you do a clean install from Vista like you can from XP?

            I know somebody who has Vista on their machine already and would like to pick the Custom option and do a clean install using the upgrade version.

            Does the upgrade detect the version of Vista first, then allow you to format & erase the HD to prepare for Win7? In effect a clean install like from XP?

            He already has his data files removed so he doesn't care if his Vista OS is fully erased or not. There's no programs or anything or anything on there he wants to save.
            Wintel BSOD
          • That's how I did it.

            I had Vista Business 64-bit on the machine and got my W7 Pro 64-bit upgrade on Friday last week (free upgrade because the laptop was purchased in July).

            Booted off the DVD, selected custom, selected reformat partition, installed.

            The grey area is what happens if you erase the HD before starting the upgrade, or your HD trashes itself and you need to do a clean install with nothing on the drive...

            Hopefully Ed's chart later this week will sort that out.
          • Well what I'm wondering is...

            ...if Win7 auto-detects that Vista installation [b]FIRST[/b] before it then starts formatting & erasing the HD getting ready for the Win7 installation. If that's the case (and I assume that's the way it's done with an upgrade from XP), then everything's cool. Right?
            Wintel BSOD
          • @UAC nanny screen

            That is what I assume. It checks that the installed version is elligable (Home->Home, Business/Ultimate->Pro, 32-Bit->32-Bit or 64-bit->64-bit), then reformats the drive and installs a clean copy.
          • @UAC nanny screen

            Oops, just seen the reply from Ed... It only needs to check the version compatibility side of it for an in-place upgrade, so I would assume that, at most, it is checking to see if Vista or XP is installed on the disk.