Vista Mythbusters #8: That license isn't so bad, after all

Vista Mythbusters #8: That license isn't so bad, after all

Summary: According to some critics, the Windows Vista license is loaded with draconian restrictions. Some of the critics are making stuff up, literally, and others are selectively quoting from the actual license agreement.

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TOPICS: Windows
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Myth: The new end user license agreement (EULA) for Windows Vista is loaded with draconian restrictions, and you're not even allowed to troubleshoot bugs!

Reality: For the most part, the Vista license agreement is clearer than its predecessors, and many of the so-called restrictions in it are based on misunderstandings.

Lest anyone accuse me of raising a straw man argument, let me name some names and quote some quotes here.

Start with Cory Doctorow of the hugely popular Boing Boing, who seems like a really smart guy but who lapses into a Hulk-like rage when the name Microsoft comes up. Doctorow's November 3 post, Vista license improves, but still broken, contains this completely over-the-top statement:

When you unwrap your copy of Vista, you "agree" not to publish damning information about the OS -- benchmarks, security vulnerabilities -- except under terms dictated by Microsoft (and those terms can change at any time). ... This is a piece of software that comes with a gag order.

Uh, no, you don't, and no, it doesn't. First of all, the restriction refers to the .NET Framework components, not to Windows itself. The exact terms under dispute are in section 9 of the Windows Vista retail license agreement, which reads as follows:

MICROSOFT .NET BENCHMARK TESTING. The software includes one or more components of the .NET Framework 3.0 (“.NET Components”). You may conduct internal benchmark testing of those components. You may disclose the results of any benchmark test of those components, provided that you comply with the conditions set forth at http://go.microsoft.com/fwlink/?LinkID=66406.

And if you follow the link, you see that the conditions specify that you agree to publish enough results about your configuration so that the test results can be replicated and that you are to ensure that the application is tuned for best performance. Hardly unreasonable restrictions.

(This isn't the first time that Doctorow has picked up a rumor about Microsoft and published it as fact. A bogus July 2005 story about Microsoft and Claria remains uncorrected to this day.)

Anyway, Doctorow's statement that this license agreement prevents researchers from publishing details about security vulnerabilities in Windows Vista is laughably wrong. This clause is about performance (benchmark) testing of applications that use the .NET components. And, ironically, this restriction isn't new. The original license agreement for the .NET Framework (introduced in 2002) carries this restriction, which every Windows user agreed to when they installed an application that used these components. The difference is that in Windows Vista the .NET components are included with the operating system rather than as an add-on.

Next up is the normally perceptive Wendy Seltzer, who is actually a lawyer and who on October 19 published a widely circulated piece called "Forbidding Vistas: Windows licensing disserves the user," which included this paragraph:

Problem-solving prohibited. "You may not work around any technical limitations in the software." Microsoft might be referring to anticircumvention of technical protection measures here, but since it's often hard to tell the difference, from the user's perspective, between a TPM and a bug, this reads as a prohibition on user debugging and problem-solving. After all, down-rezzing HD content or refusing to allow users to copy quotes from an e-book don't strike most people as wanted features. Can you work around a document's failure to save properly?

Prof. Seltzer's quote from the license agreement is accurate but incomplete. Crucially, she left out the sentences just before this clause:

[Y]ou 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.

Now, I'm not a lawyer, so I will defer to Prof. Seltzer on legal interpretations. However, I am a Windows expert, and if this agreement were ever to end up in a courtroom, the lawyers would no doubt retain Windows experts (like me) to give testimony on what this particular clause means. My research would start at Microsoft's "Technical Limitations for Microsoft Products" webpage, which is indirectly linked from the license agreement. Even a quick reading of that page makes it pretty clear that this clause is about making sure that you don't hack a copy of one product so that it does what a more expensive product does. For instance, you can't hack Small Business Server to work around its limit of two physical CPUs and a maximum of 75 connections. If you want those capabilities, you have to pay up for Windows Server Standard Edition.

Read in this vein, it's clear that Vista's "technical limitations" include Home Basic's inability to use two physical CPUs, Home Premium's limit on three connections to Media Center extenders, and the maximum of 10 network connections for Ultimate edition. Trying to interpret this clause to prohibit problem-solving and troubleshooting stretches credibility to the point of paranoia.

There are other variations on this theme, but most come down to a fundamental fear that Microsoft's lawyers have loaded up the license agreement with little traps just waiting to be sprung on unsuspecting Windows users. That's silly. In fact, the one serious change that was in the original Vista license has already been changed, in direct response to howls of protest from would-be Vista users.

The real problem with Microsoft licensing is not the license agreement itself, which is notably easier to read in its Vista incarnation than in preceding versions. No, the source of most licensing woes is the sheer confusion of the entire licensing model, which puts incredible burdens on end users and business customers to discern esoteric differences between license types and to keep meticulous records. But that's a topic for another post.

For the introduction to this series, see Vista Mythbusters #1. For all posts in this series, see this page.

Topic: Windows

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  • Thanks Ed for clearting that up

    But it still doesn't convince me that I shouldn't be very concerned about the WGA extensions in Vista and its "kill switch" capabilities. Given the large number of false positives in XP and the fact that MS software protection plan can stomp on my ability to access my data, I can't trust Vista to run or store my critical data.

    I don't care about how the EULA is not so "real bad" after all. I am not intersted in claims that it will be all right and I will never need to worry about "false positives regarding my license status or virus and malware exploits that may indeed target this very same feature. It's just not worth the risk, yet.

    That's right, I have qualified my position but that "yet" is an awfully long way out in time. In the meantime, I have installed Fedora 6 and VMware and have found a very livable path forward.

    We'll wait and see about Vista from the sidelines as most any business professional obviously will.

    Thanks again for the clarifications.
    msolgeek
    • Concerns

      I have to agree. After the MS announcement to the change to the licensing, my top concern, and still is to this day, is the WGA functionality in Vista.

      Until I can see verification that it will work as advertised (advertised by MS) I will stick with XP Pro on my work pc's or look harder at Linux.

      Thanks Ed for touching back on this issue.
      dkunzman@...
      • RE: Concerns

        >>>..stick with XP Pro on my work pc's or look
        harder at Linux...<<<

        Switching to Linux is a lot easier today than
        when we did it in the late '90s. While the
        rewards will definitely be worth it, it is not an
        undertaking to be gone into lightly. It will work
        well for many companies, and for others not so
        well. There are to many variables, both known
        and unknown, for anyone to make a blanket
        statement that you should or should not switch.
        Even if you determine that you should or want to
        or will, there will be numerous pitfalls and
        other obstacles. Of course the good news is that
        each obstacle will only have to be met once, for
        once a problem is solved, it stays solved.Either
        way, have fun and happy computing!
        joe6pack_z
  • Re: Vista Mythbusters

    [i]"...the conditions specify that you agree to publish enough results about your configuration so that the test results can be replicated and that you are to [u]ensure that the application is tuned for best performance[/u]. Hardly unreasonable restrictions."[/i]

    I am not a Windows expert but I imagine that "tuned for best performance" may mean tuned for worst performance of other, critical software. I imagine that "tuned for best performance" is not likely to be encountered in real world settings very often.

    Sounds to me like someone can't benchmark .NET in the real world.


    :)
    none none
    • No, that's not what it means

      Did you actually follow the links? This is actually a perfect example of what I'm talking about: finding the worst possible interpretation and running with it. The "performance tuning" referred to in the documentation is specifically designed to help customers get the most out of the products in the real world.
      Ed Bott
      • Language is important

        I think there are problems with any contract when you have to read other documents to understand what is meant by the specific language within the original contract. Not sure how a court of law would interpret this--oh, it says the following, but what we really meant was something else...
        tic swayback
        • I am not a lawyer...

          But my understanding is that in this case the interpretation would be in favor of the party that did not write the contract.

          The links to external documents are right there in the agreement itself and are available for inspection at any time. Doing it this way allows Microsoft to provide clearer explanations of some terms without having to make the agreement itself twice as long.

          I understand how people can see this as a way for Microsoft to sneak in changes to the license agreement, but their behavior over time strongly suggests this is not the motivation. IMO, this is not a gotcha.
          Ed Bott
          • Links

            ---The links to external documents are right there in the agreement itself and are available for inspection at any time---

            The obvious question (and please don't take this as an accusation that MS is trying to pull a fast one here):
            If someone writes a contract with terms that are explained in external links, can't that someone change what is written in those links at any time?
            tic swayback
          • Yes, they can be changed

            However, there will be a record of the change assuming that one person printed out or otherwise saved the terms at the time of agreement. And remember, the agreement is based on the terms that were presented at the time I accepted it. So whatever the terms were as published when I clicked OK to install, that's what applies. If they change it later, then that only applies to me if I execute a new agreement.

            Because the link is in the agreement, I can always go and check it when I execute this agreement on a new PC, and if anything has changed, I'll get to decide whether I want to accept that license term or stick with my old version or switch to another hardware platform. I don't see anything nefarious here. These terms used to clutter up the main license agreement even though they apply to very few people. Now they're separated.
            Ed Bott
          • Some Windows Updates

            Require you to accept a new terms and agreements; it is up to you the user to read the terms and agreements.

            Also it is no different then a credit card company that can change the agreement at any time it sees fit without your knowledge.

            Even though I get a new copy of the agreement in the mail, it is still up to me to read and understand them. You and you alone are responsible for your actions or lack there of.

            Example: ?Really your honor I did not know that a red light meant stop. I didn?t know I had to have a license to drive a car. No one told me. Some one should have?

            SLAM!!! You go to jail for failing to read the laws of the land.
            BroGnorik
          • Yes, they can, but it would be hazardous to do so.

            Of course with any document that is not in your possession it can be altered buy anyone who's hands it is in, that much is obvious. The question is will the alteration of such a document be effective in altering the license contract?

            In virtually every case any alteration of such a document that is part of a licensing contract will void the licensing agreement if the alteration is not agreed to by the parties involved. This of course could be made into a situation where MS would be required to 'purchase back' the software if they insisted on unilaterally altering the licensing agreement in a material way.

            Simply saying that MS demands you accept the fact that they may alter the licensing agreement at their discretion in order to use the software, will never be able to require that the purchaser continue with the altered licensing agreement.

            An argument may be made that the altered agreement differs materially from the original agreement and has rendered the software unusable for the original purposes sought and therefore MS has failed to supply what was originally promised in the first licensing agreement and owes at least some sort of pro-rated refund on the software purchase cost.

            At any rate, for MS to start altering web based documents relating to licensing schemes in ways that materially alter the very nature of the licensing agreement could create more problems in many different ways for MS then it might solve and you can be quite sure it would not be an area they would enter into casually.
            Cayble
        • Re: Language is important

          [i]I think there are problems with any contract when you have to read other documents to understand what is meant by the specific language within the original contract.[/i]

          Right. What did the other documents say when you agreed to the EULA? What do they say now?

          On second thought it's kind of irrelevant because MS can change the terms of the contract itself, much less the documents to which it refers.


          :)
          none none
          • The myth I didn't include

            But should, now:

            "On second thought it's kind of irrelevant because MS can change the terms of the contract itself, much less the documents to which it refers."

            Please tell me where in the license agreement it says Microsoft can change the terms at their pleasure.

            (It doesn't.)
            Ed Bott
          • Ed, all you to do is look for

            the first Vista Service Pack. Then the EULA can be changed at MS's will and they probably will take the time to press their lawyers for new language. In fact, I believe that some patches have invoked license changes too.

            Homw many times have had to agree to new EULAs for XP? I know it was at least once and it's not over yet is it?
            msolgeek
          • Your tinfoil hat is on too tight

            (NT)
            Ed Bott
          • Thanks for the snappy comeback

            but that does not change my point in the least. Are you trying to tell me that you never had to agree to a revised EULA while using Windows Update?

            I know I have and your insults can't change that.
            msolgeek
          • No significant changes in SP EULAs

            As far as I can remember. When a license is attached it generally adds supplemental terms to the EULA that cover whatever new features it includes. WGA, Windows Media Player, and IE7 all had supplemental EULAs IIRC. I can't remember any substantive changes meing made to the base license terms by a Service Pack.
            Ed Bott
          • Re: No significant changes in SP EULAs

            [i]I can't remember any substantive changes meing made to the base license terms by a Service Pack.[/i]

            This gem made it's way into the EULA via a service pack:

            "You agree that in order to protect the integrity of content and software protected by digital rights management ('Secure Content'), Microsoft may provide security related updates to the OS Components that will be automatically downloaded onto your computer. [u]These security related updates may disable your ability to copy and/or play Secure Content and use other software on your computer[/u]."

            You know, Ed, if I can cut to the chase, the differences between us is you think EULAs are OK and I don't. It doesn't matter "when was the last time MS enforced thus and such" because if you've agreed to a EULA you just shouldn't be breaking it. And you definitely shouldn't need a lawyer at your side to help you navigate the terms.

            Bruce Williams was my favorite radio host for a while. He hosted basically an open line talk show. As soon as a caller mentioned a contract - any contract - they signed Bruce would interrupt and ask, "Did your lawyer look at it first?"

            I don't need that headache, especially when there there just as good or better alternatives out there.


            :)
            none none
          • Fine, but...

            If you really believe that all EULAs are evil, then you should have quit at the very first sentence. The premise of the two articles I quoted (and several others that I didn't include) is that the Vista EULA has become more draconian.

            If you adopt the notion that the EULA itself is flawed, then you must think these two people are foolish for trying to discern shades of gray between evil and evil.

            My point is that this EULA is in some ways better than and in most cases no different from its XP predecessor.
            Ed Bott
          • Alternatives none none? Never heard of them.

            I know there are good alternatives for some people who have particular needs and interests but there is no alternative for most people who need and want what Windows has and can do.

            I do not have an Apple computer, I am not going to lay out the big bucks for an Apple computer so I cannot run OSX, so it is not an alternative. I have a copy of Linux SUSE which I used for awhile in the past and rather liked, but Linux is not even close to a replacement for Windows, it wont run any of my old software, it wont play any of the games I have, it too often requires I use command lines and Linux is just simply still a little "clunky" compared to XP so it is not an alternative for most people.

            So while you may have alternatives available that work for you, 90%+ of the computing public do not have any alternative.
            Cayble