Microsoft bullying letter :(
Niel J Humphreys
may be of interest to some people in uk.legal so...
Had a legal letter from MS flop on my doormat yesterday morning by Special
Delivery. They had an 'agent' make a test purchase of one of my EBay items
which was installed with a legit XP install with correct COA on the machine
(It passes both activation and Windows Cenuine Advantage online test).
However because their 'forensic testing' showed I did not use the original
restore CDs and neither did I supply them with the machine they are
threatening to sue me unless I pay them �2500 compensation. Also they are
basically saying that the COA (OEM Branded) was sold to the OEM for the
OEM's use only and I did not have the legal right to use the keycode on it
for the installation.
Obviously I may have to cave in to their bully boy tactics and cough up (We
all know what happened to Paul of IT Dealers when MS came knocking on his
door) but I will speak to them on Monday and see if I can talk them down as
I did sell the machine in good faith - though I realise ignorance is no
excuse etc. Expensive lesson, I never realised it was 'MS illegal' to sell a
machine without the original restore media or intact recovery partition.
However it looks like MS are recruiting people to do test purchases so watch
out anyone selling PCs or laptops. The delivery address for mine was in
Swindon, I can provide the full address for anyone's reference if you email
me direct.
Niel H
Snowdon Computers Ltd
Mike Harrison
wrote:
>Orignally posted in an IT newsgroup but it was mentioned in that thread this
>may be of interest to some people in uk.legal so...
>
>Had a legal letter from MS flop on my doormat yesterday morning by Special
>Delivery. They had an 'agent' make a test purchase of one of my EBay items
>which was installed with a legit XP install with correct COA on the machine
>(It passes both activation and Windows Cenuine Advantage online test).
>However because their 'forensic testing' showed I did not use the original
>restore CDs and neither did I supply them with the machine they are
>threatening to sue me unless I pay them �2500 compensation.
By checking correct COA and that it passes GA test you have excersised reasonable due diligence in
verifying that it is kosher.
..and how exactly could they possibly justify that amount? They have suffered no actual loss.
Can't see any court upholding that.
..and how exactly would they be able to show tha a machine which is now in their posession is
non-genuine without any doubt that they could have fiddled the results.
Sounds like scare tactics. Don't cave to these crooks.
Mike Harrison
>On Sun, 20 Dec 2009 09:17:54 -0000, "Niel J Humphreys" <ad...@sznzozwdzoznzczozmzpzuztzezrzs.co.uk>
>wrote:
>
>>Orignally posted in an IT newsgroup but it was mentioned in that thread this
>>may be of interest to some people in uk.legal so...
>>
>>Had a legal letter from MS flop on my doormat yesterday morning by Special
>>Delivery. They had an 'agent' make a test purchase of one of my EBay items
>>which was installed with a legit XP install with correct COA on the machine
>>(It passes both activation and Windows Cenuine Advantage online test).
>>However because their 'forensic testing' showed I did not use the original
>>restore CDs and neither did I supply them with the machine they are
>>threatening to sue me unless I pay them �2500 compensation.
Have you checked that it is actually a genuine letter and not a scam?
Even if from MS, the disproportionate amount could be seen as blackmail and should be reported.
Johannes Andersen
I do think it's a bid odd to sell a PC including OS but without restore media
or recovery partition. If I was a customer, I would certainly complain. Last PC
I bought was a laptop with Win98, so complete OS was on CD. Since then I build
my own PCs and installed OEM OS myself.
Phil Stovell
This sounds exactly like the Davenport Lyons scam a while back. The OP has
also stated that MS are asking him to divulge customer information, which
surely must breach the DPA. The most he could owe is the wholesale price
of copies of Windows, that is their only possible loss.
Steve Walker
> On Sun, 20 Dec 2009 09:17:54 -0000, "Niel J Humphreys"
>> Had a legal letter from MS flop on my doormat yesterday morning by
>> Special Delivery. They had an 'agent' make a test purchase of one of my
>> EBay items which was installed with a legit XP install with correct COA
>> on the machine (It passes both activation and Windows Cenuine Advantage
>> online test). However because their 'forensic testing' showed I did not
>> use the original restore CDs and neither did I supply them with the
>> machine they are threatening to sue me unless I pay them �2500
>> compensation.
>
> Sounds like scare tactics. Don't cave to these crooks.
Possibly correct, but nobody has the bankroll to withstand Micro$oft's
corporate/legal steamroller.
Mike Harrison
>Mike Harrison wrote:
>> On Sun, 20 Dec 2009 09:17:54 -0000, "Niel J Humphreys"
>
>>> Had a legal letter from MS flop on my doormat yesterday morning by
>>> Special Delivery. They had an 'agent' make a test purchase of one of my
>>> EBay items which was installed with a legit XP install with correct COA
>>> on the machine (It passes both activation and Windows Cenuine Advantage
>>> online test). However because their 'forensic testing' showed I did not
>>> use the original restore CDs and neither did I supply them with the
>>> machine they are threatening to sue me unless I pay them �2500
>>> compensation.
How exactly is not supplying original CDs with the machine a legal matter?
>> Sounds like scare tactics. Don't cave to these crooks.
>
>Possibly correct, but nobody has the bankroll to withstand Micro$oft's
>corporate/legal steamroller.
>
So you just cave in the face of bullying?
There are plenty of ways to fight this BS. Publicity for a start.
The Press love this sort of thing.
"Microsoft blackmailing innocent people" makes a good headline.
Gary Baldi
It's a bit of a grey-ish area (when it suits Microsoft).
You hear lots of stories about "it's not the physical media, it's the
COA that determines whether you're legally licensed".
But OEM equipment is a different puppy. If, for example, (and I'm not
suggesting this is what you've done!) you've installed an HP OEM OS
onto, say, a Dell and have entered the Dell key from the COA then yes
it'll validate, yes it'll pass WGA. But it's also equally likely that
doing so falls foul of MS's OEM licensing.
Even so, their claim for £2500 is bollocks. Any DJ would ask to see
proof that they've suffered that amount of financial loss.
Mike Harrison
..and of course the person selling the PC, especially if not the original owner, may well not be
bound by their licensing terms in the first place - how can anyone prove who clicked the 'I agree'
button?
Steve Walker
Not my place to speak for Niel, but he's a sole trader during a global
recession. I imagine his primary concern is with the survival of his
business at the least possible cost and inconvenience.
also see:
www.cornishserver.com/general-chat/940-itdealers-down-pan.html
Mike Ross
<ad...@sznzozwdzoznzczozmzpzuztzezrzs.co.uk> wrote:
>Orignally posted in an IT newsgroup but it was mentioned in that thread this
>may be of interest to some people in uk.legal so...
>
>Had a legal letter from MS flop on my doormat yesterday morning by Special
>Delivery. They had an 'agent' make a test purchase of one of my EBay items
>which was installed with a legit XP install with correct COA on the machine
>(It passes both activation and Windows Cenuine Advantage online test).
>However because their 'forensic testing' showed I did not use the original
>restore CDs and neither did I supply them with the machine they are
>threatening to sue me unless I pay them �2500 compensation.
Let them sue. Did you state the original restore CDs were included in the item
description? You didn't? Then they can get a horse: goods exactly as described.
>Also they are
>basically saying that the COA (OEM Branded) was sold to the OEM for the
>OEM's use only and I did not have the legal right to use the keycode on it
>for the installation.
Utter bollocks. It was sold with the machine. Are they saying that if your
machine goes titsup and you have to reinstall windoze, you can't use the COA
supplied with the machine, you have to buy a new copy from MS? Because only the
manufacturer is allowed to use that COA?
Sounds like a bunch of right chancers; round file. I would.
Mike
--
http://www.corestore.org
'As I walk along these shores
I am the history within'
Niel J Humphreys
news:7p6rjk...@mid.individual.net...
That just about sums it up. I am going to speak to them tomorrow and try and
talk them down as it was all done in genuine good faith and not a deliberate
attempt to do anything dodgy with their stuff. Hopefully the letter is just
worded to scare and when I speak to someone 'real' in a sensible manner I
may be able to appeal the 'fine'
--
Niel J Humphreys
news:73esi5d2l44udnkt3...@4ax.com...
> On Sun, 20 Dec 2009 09:17:54 -0000, "Niel J Humphreys"
> <ad...@sznzozwdzoznzczozmzpzuztzezrzs.co.uk> wrote:
>
>>Orignally posted in an IT newsgroup but it was mentioned in that thread
>>this
>>may be of interest to some people in uk.legal so...
>>
>>Had a legal letter from MS flop on my doormat yesterday morning by Special
>>Delivery. They had an 'agent' make a test purchase of one of my EBay items
>>which was installed with a legit XP install with correct COA on the
>>machine
>>(It passes both activation and Windows Cenuine Advantage online test).
>>However because their 'forensic testing' showed I did not use the original
>>restore CDs and neither did I supply them with the machine they are
>>threatening to sue me unless I pay them �2500 compensation.
>
> Let them sue. Did you state the original restore CDs were included in the
> item
> description? You didn't? Then they can get a horse: goods exactly as
> described.
No, by the terms of their licence anyone selling a pre installed MS O/S has
to also provide either restore CDs or an intact hidden restore partition on
the hard drive. This is what I genuinly didn't realise and what they are
hitting me for.
http://www.techsoup.org/mar/download/Refurbished_PC_Licensing_Guide.pdf
>>Also they are
>>basically saying that the COA (OEM Branded) was sold to the OEM for the
>>OEM's use only and I did not have the legal right to use the keycode on it
>>for the installation.
>
> Utter bollocks. It was sold with the machine. Are they saying that if your
> machine goes titsup and you have to reinstall windoze, you can't use the
> COA
> supplied with the machine, you have to buy a new copy from MS? Because
> only the
> manufacturer is allowed to use that COA?
Basically yes, the COA is only valid with the original restore media. If
there is a COA and you do not have the restore CDs then you have to buy a
new licence and OEM disc from MS.
Under EU law this is indeed bollocks but until someone can afford to defend
their corner in court against MS and set a legal precedent MS will continue
to flout EU laws - and probably will even if there is a precedent set.
Peter Parry
Indeed, and they are skilled at it. For example if they instigate any
case they will have it moved to the most expensive level of court they
can so that the level of costs they could be awarded is far greater
than any award would be. By doing so they make the risk of litigation
for the small defendant far too great.
You should also be aware that once on their radar they will continue
to make purchases or enquiries designed to determine if you are
contravening their ever changing licensing rules for many years.
Niel J Humphreys
news:uigsi51gobv9q4b98...@4ax.com...
Yes, fortunately the sale of complete laptops/PCs is a very small part of my
business and something I can easily drop off my portfolio without any
significant problems or loss of revenue. I may toy with either selling
laptops with blank hard drives so customers can put their own (probably
pirate) installations of Windows on them or else get some experience with
Ubuntu and maybe sell them with Linux installed instead.
Whatever happens I doubt very much I will be selling anything with MS
operating systems again, too many hoops and too much risk even when I
thought I was doing things properly. :(
Gary Baldi
<ad...@sznzozwdzoznzczozmzpzuztzezrzs.co.uk> wrote:
>
> Whatever happens I doubt very much I will be selling anything with MS
> operating systems again, too many hoops and too much risk even when I
>
> - Show quoted text -
Or stick to dealing in the two or three major players and make sure
you have the relevant OEM CDs for each of them.
For *most* of your buyers, *most* of the time youy were "doing things
properly"; they got a pc with an OS on it and a COA on the side of the
casing.
Everyone should be happy; Microsoft obviously have other ideas.
Culex (The Infamous Culex)
> On Sun, 20 Dec 2009 15:04:46 -0000, "Niel J Humphreys"
> <ad...@sznzozwdzoznzczozmzpzuztzezrzs.co.uk> wrote:
> >Under EU law this is indeed bollocks but until someone can afford to defend
> >their corner in court against MS and set a legal precedent MS will continue
> >to flout EU laws - and probably will even if there is a precedent set.
>
> Indeed, and they are skilled at it. For example if they instigate any
> case they will have it moved to the most expensive level of court they
> can so that the level of costs they could be awarded is far greater
> than any award would be. By doing so they make the risk of litigation
> for the small defendant far too great.
Isn't that abuse of process and, moreover, a breach of the defendant's
human rights not dissimilar to that of the McLibel case?
> You should also be aware that once on their radar they will continue
> to make purchases or enquiries designed to determine if you are
> contravening their ever changing licensing rules for many years.
In which case, he would surely have nothing to lose by publishing the
details of the turd(s) to whom he sold the computer and/or the shits
who wrote to him.
-- -
Culex -- the Infamous Culex
Fredxx
"Niel J Humphreys" <ad...@sznzozwdzoznzczozmzpzuztzezrzs.co.uk> wrote in
message news:hgleed$225r$1...@energise.enta.net...
I had a cursory look, but the important aspect is "provide". Have you at
any time refused to provide this media? Provide to me means "to make
available". Implying it can be provided later?
MS would have to prove loss, and I for one can't see any loss on their part.
They are not allowed to "fine". In fact our courts can't give punitive
damages like US courts.
Colin Wilson
> any time refused to provide this media? Provide to me means "to make
> available". Implying it can be provided later?
Just to echo Fredxx's point here, many manufacturers provide neither
install media or a recovery partition - and will apply a charge of ~
£40 to do so if needed at some point in the future.
It'd make an interesting argument in court that you should get a
refund of an amount of money equal to the cost of the OS for every
second-hand machine you sell WITHOUT windows on it that has a COA,
given that Microsoft are claiming a sum of money for a legit
installation using the same COA in these circumstances.
Mike Ross
<ad...@sznzozwdzoznzczozmzpzuztzezrzs.co.uk> wrote:
Did you agree to that license? ISTM that, even if it IS binding, it's only
binding on the *initial* licensee. Google 'first sale doctrine'.
>>>Also they are
>>>basically saying that the COA (OEM Branded) was sold to the OEM for the
>>>OEM's use only and I did not have the legal right to use the keycode on it
>>>for the installation.
>>
>> Utter bollocks. It was sold with the machine. Are they saying that if your
>> machine goes titsup and you have to reinstall windoze, you can't use the
>> COA
>> supplied with the machine, you have to buy a new copy from MS? Because
>> only the
>> manufacturer is allowed to use that COA?
>
>Basically yes, the COA is only valid with the original restore media. If
>there is a COA and you do not have the restore CDs then you have to buy a
>new licence and OEM disc from MS.
>
>Under EU law this is indeed bollocks but until someone can afford to defend
>their corner in court against MS and set a legal precedent MS will continue
>to flout EU laws - and probably will even if there is a precedent set.
The reverse; the chances of them actually taking it to court are negligible. The
last thing they want is a precedent against them. They're relying on people
deciding to settle out of court.
Mike Ross
Do NOT do that. If you DO, it'll be 'here lads, we have a live one!' and they'll
INCREASE their demands. Do not expect anything resembling 'sensible' behaviour
from them. Round file it, do nothing, say nothing, ignore it. Don't bite the
'hook'. Unless and until they actually issue a summons. That would be my advice.
Oh and I suggest you put the letter online where we can all read it.
Gary Baldi
<REMOVEEVERYTHINGBUTnewsgr...@phoenixbbsZEROSPAM.co.uk> wrote:
>
> Just to echo Fredxx's point here, many manufacturers provide neither
> install media or a recovery partition - and will apply a charge of ~
> £40 to do so if needed at some point in the future.
>
Dell went through a phase a couple of years ago where they did just
that; no restore partition, no OS media.
What they DID do was tweak the installation so that the opportunity
existed to create your own restore media via Windows menus. But this
was a one-off opportunity, once you'd done it, the menu option
disappeared.
Thankfully they saw sense and have reverted to a belts and braces
approach these days; you get a restore partition and the OS media.
Niel J Humphreys
That's all very well you saying from your position that but if and when they
do issue a summons and it goes to court I could (and probably will) lose and
end up having to pay untold � by way of their costs. I do not feel at this
time that the risk of ignoring it and hoping they will do nothing is worth
it, particularly as MS are known for going at these like a dog with a bone.
I realise this is exactly what MS want me to think but at the same time I am
no going to cave in totally, as mentioned previously by someone the letter
is tantamount to extortion and I will hint that I may be considering asking
the police to file criminal charges against the author of the letter.
> Oh and I suggest you put the letter online where we can all read it.
I faxed it to a friend's laptop last night and have asked him to email me
the file. When I get it I will upload it.
martin
>> I had a cursory look, but the important aspect is "provide". Have you at
>> any time refused to provide this media? Provide to me means "to make
>> available". Implying it can be provided later?
>
> Just to echo Fredxx's point here, many manufacturers provide neither
> install media or a recovery partition - and will apply a charge of ~
Do you have a cite for that? I've never come across one.
Niel J Humphreys
news:lpasi5ldtfs1jd2l8...@4ax.com...
> On Sun, 20 Dec 2009 13:03:10 -0000, "Steve Walker" <spam...@beeb.net>
> wrote:
>
>>Mike Harrison wrote:
>>> On Sun, 20 Dec 2009 09:17:54 -0000, "Niel J Humphreys"
>>
>>>> Had a legal letter from MS flop on my doormat yesterday morning by
>>>> Special Delivery. They had an 'agent' make a test purchase of one of my
>>>> EBay items which was installed with a legit XP install with correct COA
>>>> on the machine (It passes both activation and Windows Cenuine Advantage
>>>> online test). However because their 'forensic testing' showed I did not
>>>> use the original restore CDs and neither did I supply them with the
>>>> machine they are threatening to sue me unless I pay them �2500
>>>> compensation.
>
> How exactly is not supplying original CDs with the machine a legal matter?
I have just been re-reading the letter and they quote 3 points of contention
which I believe I can reply to with rebuttals:
1 - The computer was installed with Win XP Pro, the installation of this
software product requires the use of a "Product Key"
2 - Our records indicate that the COA affised to the computer along with the
corresponding product key had been supplied to a third party for their use
exclusively. You are not authorised to use the COA or Product Key and your
use of them indicates a deliberate attempt to infringe Microsoft's
iltellectual property rights
3 - No Win XP recovery media was provided.
Now for 3 I can say I simply forgot to bundle them in the box and am more
than happy to send them if I'd been asked. (I do have original Dell restore
discs).
For 2 as I used original Dell discs they do not ask for a product key to be
entered during the install process so I did not actually use the COA or the
product key. Further more the 'built in' product key inprinted in the Dell
restore discs would not match the one on the COA but they seem to be
claiming their forensics say that it does from the way that is worded.
For 1 - again using original restore discs does not require the use of a
product key so this point is incorrect.
Ergo as long as I agree to ship the original restore discs then I have done
nothing wrong? Am I right?
Gary Baldi
<ad...@sznzozwdzoznzczozmzpzuztzezrzs.co.uk> wrote:
> "Mike Ross" <m...@corestore.org> wrote in message
>
> - Show quoted text -
No but at the same time you could ask them, by Recorded Delivery, to
itemise how they have arrived at the figure of £2,500 and mention
that, given that they seem to have plucked a random figure out of thin
air, you have grounds to believe that they are attempting to obtain
pecuniary advantage by deception?
All perfectly amicable stuff..........if they don't provide you with
the itemisation, it will only ever end up in the Small Claims Court
(because of the value of the claim) where costs aren't awarded and you
can ask for it to be struck out because they've failed to substantiate
their claim.
First grade legal stuff.
Adrian
happily, sounding much like they were saying:
> Ergo as long as I agree to ship the original restore discs then I have
> done nothing wrong? Am I right?
Sorry, you're selling Dell OEM copies of XP - without any hardware?
You really do need to read the licence agreement of the software you're
selling - you're slap bang in breach of it.
Adrian
were saying:
>> Ergo as long as I agree to ship the original restore discs then I have
>> done nothing wrong? Am I right?
> Sorry, you're selling Dell OEM copies of XP - without any hardware?
>
> You really do need to read the licence agreement of the software you're
> selling - you're slap bang in breach of it.
<re-reads>
Sorry, my bad. Ignore me.
Peter Parry
<tim.ri...@gmx.com> wrote:
>it will only ever end up in the Small Claims Court
>(because of the value of the claim) where costs aren't awarded
No it won't. Either party can ask for the case to be transferred to
another track where costs can be awarded and it seems this is exactly
what tends to happen.
Niel J Humphreys
news:1lpsi51d2gm9cto33...@4ax.com...
> Oh and I suggest you put the letter online where we can all read it.
Done
http://www.snowdoncomputers.co.uk/MS.pdf
--
Gary Baldi
> On Sun, 20 Dec 2009 10:28:33 -0800 (PST), Gary Baldi
>
> >it will only ever end up in the Small Claims Court
> >(because of the value of the claim) where costs aren't awarded
>
> No it won't. Either party can ask for the case to be transferred to
> another track where costs can be awarded and it seems this is exactly
> what tends to happen.
Nonsense; or maybe not, perhaps that's why there are so many legal fat
cats in this country?
Sue via the Small Claims Track and win £2500 or sue via some other
means and win.............£2500 plus £40k in legal fees?
Ahhh, now I am beginning to see why lawyers all drive expensive motors
and reside in expensve offices.
Time for someone to clip their wings, methinks.
Culex (The Infamous Culex)
<ad...@sznzozwdzoznzczozmzpzuztzezrzs.co.uk> wrote:
> "Mike Ross" <m...@corestore.org> wrote in message
>
> news:1lpsi51d2gm9cto33...@4ax.com...
>
>
>
>
>
> > On Sun, 20 Dec 2009 15:01:06 -0000, "Niel J Humphreys"
> > <ad...@sznzozwdzoznzczozmzpzuztzezrzs.co.uk> wrote:
>
> >>That just about sums it up. I am going to speak to them tomorrow and try
> >>and
> >>talk them down as it was all done in genuine good faith and not a
> >>deliberate
> >>attempt to do anything dodgy with their stuff. Hopefully the letter is
> >>just
> >>worded to scare and when I speak to someone 'real' in a sensible manner I
> >>may be able to appeal the 'fine'
>
> > Do NOT do that. If you DO, it'll be 'here lads, we have a live one!' and
> > they'll
> > INCREASE their demands. Do not expect anything resembling 'sensible'
> > behaviour
> > from them. Round file it, do nothing, say nothing, ignore it. Don't bite
> > the
> > 'hook'. Unless and until they actually issue a summons. That would be my
> > advice.
>
> That's all very well you saying from your position that but if and when they
> do issue a summons and it goes to court I could (and probably will) lose and
> end up having to pay untold £ by way of their costs.
IANAL, but it seems self evident that the only 'loss' that Micro$oft
could _prove_ they had sustained, even if their claim were to succeed,
would be the cost of one wholesale copy of their OS or the equivalent
licence fee.
So make them an offer of that much, in writing, in full and final
settlement of their claim; head the letter "Without prejudice".
If they were to reject that offer and try suing you for the grossly
excessive sum of 2500 GBP, pay into court what you had previously
offered. Even if they were to win their claim, they would not be
awarded the punitive damages demanded as only compensatory damages
would be given. As that sum had been paid into court by you, they'd be
left having to pay their own costs and also your assessed costs.
Assuming your MEP isn't either of the puddle-brained numb-nuts from
the BNP, you could try sending him a copy of the letter you received
and ask him (a) what he thinks of Micro$oft's antics and (b) if he can
raise the matter with any appropriate EU body. If there's one thing a
bully fears, it's a bigger and more powerful bully; Micro$oft has had
several run-ins with the EU and they've lost every time. Their
attempts to get round anti-competition laws didn't work and I have no
reason to believe they'd be any luckier with copyright law.
> I do not feel at this
> time that the risk of ignoring it and hoping they will do nothing is worth
> it, particularly as MS are known for going at these like a dog with a bone.
> I realise this is exactly what MS want me to think but at the same time I am
> no going to cave in totally, as mentioned previously by someone the letter
> is tantamount to extortion and I will hint that I may be considering asking
> the police to file criminal charges against the author of the letter.
Do not expect our useless plods to do anything more than to claim,
"It's a civil matter, sir."
Hence, such a hint won't work and will only make the buggers think
you'd be a pushover.
> > Oh and I suggest you put the letter online where we can all read it.
>
> I faxed it to a friend's laptop last night and have asked him to email me
> the file. When I get it I will upload it.
And send a copy to Mike Ross?
Culex (The Infamous Culex)
<ad...@sznzozwdzoznzczozmzpzuztzezrzs.co.uk> wrote:
> Orignally posted in an IT newsgroup but it was mentioned in that thread this
> may be of interest to some people in uk.legal so...
>
> Delivery. They had an 'agent' make a test purchase of one of my EBay items
> which was installed with a legit XP install with correct COA on the machine
One other thing - report the bastards to eBay for not having complied
with the eBay complaints procedure.
Mike Ross
That's where they fall over. They seem to be trying to say that they the license
for XP is not transferrable; the original purchaser is allowed to use the COA,
but you and any subsequent purchasers are not. This is BULLSHIT. Microsoft got
the riot act read to them in a German court years ago on this:
http://www.theregister.co.uk/2000/07/11/german_ruling_loosens_ms_lock/
Once again, first sale doctrine is your friend. Restrictive terms such as this
are only binding on the initial licensee of the software.
>Ergo as long as I agree to ship the original restore discs then I have done
>nothing wrong? Am I right?
I believe you are, yes. I don't think you're even contractually obliged to
supply restore disks.
Culex (The Infamous Culex)
<ad...@sznzozwdzoznzczozmzpzuztzezrzs.co.uk> wrote:
> "Mike Ross" <m...@corestore.org> wrote in message
> news:1lpsi51d2gm9cto33...@4ax.com...
>
> > Oh and I suggest you put the letter online where we can all read it.
>
> Donehttp://www.snowdoncomputers.co.uk/MS.pdf
And what utter rubbish it is!
To start with, Micro$oft seems unable to understand that suing a
company is not nearly the same as suing a person; whereas a company
may be dissolved and its assets sold to another company run by the
same people, such an option is not available to an individual person.
If the computer was sold by your company rather than by you
personally, their (specious?) claim is against your company rather
than you.
Then there is the assertion, "At the very least, Microsoft is entitled
to recover from you the costs which it incurred in purchasing these
products from you. These costs total £502.65 and include the sums paid
to you for the computer, and the cost of our investigation to date."
That assertion is plainly ridiculous, as it would exceed any losses
they could lawfully claim to have suffered.
Mike Ross
Mike Ross has a copy stashed on his PC, just in case the buggers from MS don't
like having their methods exposed. Wikileaks might be a good place to put it.
Culex (The Infamous Culex)
> On Sun, 20 Dec 2009 18:25:38 -0000, "Niel J Humphreys"
> >which I believe I can reply to with rebuttals:
>
> >1 - The computer was installed with Win XP Pro, the installation of this
> >software product requires the use of a "Product Key"
> >2 - Our records indicate that the COA affised to the computer along with the
> >corresponding product key had been supplied to a third party for their use
> >exclusively. You are not authorised to use the COA or Product Key and your
> >use of them indicates a deliberate attempt to infringe Microsoft's
> >iltellectual property rights
>
> That's where they fall over. They seem to be trying to say that they the license
> for XP is not transferrable; the original purchaser is allowed to use the COA,
> but you and any subsequent purchasers are not. This is BULLSHIT. Microsoft got
> the riot act read to them in a German court years ago on this:
>
> http://www.theregister.co.uk/2000/07/11/german_ruling_loosens_ms_lock/
>
> Once again, first sale doctrine is your friend. Restrictive terms such as this
> are only binding on the initial licensee of the software.
Indeed - such arrant nonsense belongs solely in fairy tales and the
works of J.K. Rowling, where it is used to support some fatuous claim
by the goblins of Gringott's Bank to the (goblin made) sword of Owain
Griffindor.
Imagine, if you will, a painter making a claim for damages on the
basis that a work of art he had created had been sold on the basis
that only the original purchaser had a non-transferable licence to
see, view, behold or otherwise to benefit, materially, mentally or
spiritually, from that work and that any subsequent owner must either
lock it away in a sealed case and return it to the painter, or else
purchase another viewing licence.
Do you suppose such a claim would succeed in any way other than
providing much mirth and merriment in court?
vomica@nowhere.con nux vomica
"Culex (The Infamous Culex)" <the....@googlemail.com> wrote in message
news:8b20d312-e2c6-49cc...@m16g2000yqc.googlegroups.com...
Well, if the painter got the purchaser of the work to sign a written
agreement to that [or any other] effect or effectively agree to these terms
of sale - then YES!
Caveat emptor!
<nux vomica>
Norman Wells
You have been accused of infringing either copyright or trade marks of
Microsoft. Unless you have _copied_ any software of Microsoft, which I
understand you haven't, then there can be no question of copyright
infringement. Unless you have offered something of Microsoft, branded as
such or as Windows, which is not genuine Microsoft product, which I
understand you haven't, then there can be no trade mark infringement either.
I think you can therefore validly deny any copyright or trade mark
infringement.
If you have done anything illegal, it is by breaching any conditions of sale
that Microsoft have thought fit to try and impose on the original purchase
of the software. I don't know if you've done that, nor if such conditions
would be valid if challenged, but in any event it is not copyright
infringement or trade mark infringement, but a matter of breach of contract.
It seems to me that they are therefore barking up the wrong tree.
> Now for 3 I can say I simply forgot to bundle them in the box and am
> more than happy to send them if I'd been asked. (I do have original
> Dell restore discs).
I think that's totally irrelevant. You cannot be required to supply
anything.
> For 2 as I used original Dell discs they do not ask for a product key
> to be entered during the install process so I did not actually use
> the COA or the product key. Further more the 'built in' product key
> inprinted in the Dell restore discs would not match the one on the
> COA but they seem to be claiming their forensics say that it does
> from the way that is worded.
> For 1 - again using original restore discs does not require the use
> of a product key so this point is incorrect.
>
> Ergo as long as I agree to ship the original restore discs then I
> have done nothing wrong? Am I right?
I don't think you even have to do that.
Your choice is either to ignore their letter, in which case you take the
chance that they will sue, or you reply saying their case is fatally flawed,
again taking the chance they will sue anyway. I don't think they know the
law, so it's unlikely they'll actually pay any rational attention to any
response you make, so I'd be inclined to go for the former. If they do sue,
at least a lawyer will be involved who will set out a case that can be
understood.
Mike Harrison
>Mike Harrison wrote:
>> On Sun, 20 Dec 2009 13:03:10 -0000, "Steve Walker" <spam...@beeb.net>
>>> Mike Harrison wrote:
>>>> Sounds like scare tactics. Don't cave to these crooks.
>>>
>>> Possibly correct, but nobody has the bankroll to withstand Micro$oft's
>>> corporate/legal steamroller.
>>
>> So you just cave in the face of bullying?
>> There are plenty of ways to fight this BS. Publicity for a start.
>> The Press love this sort of thing.
>> "Microsoft blackmailing innocent people" makes a good headline.
>
>Not my place to speak for Niel, but he's a sole trader during a global
>recession. I imagine his primary concern is with the survival of his
>business at the least possible cost and inconvenience.
>
>also see:
>www.cornishserver.com/general-chat/940-itdealers-down-pan.html
>
>
>
>
Easy enough to phoenix a company.
Mike Harrison
wrote:
Not to mention leaving appropriate ebay feedback warning that the member is a MS troll
Mike Harrison
wrote:
>"Steve Walker" <spam...@beeb.net> wrote in message
>news:7p6rjk...@mid.individual.net...
>> Mike Harrison wrote:
>>> On Sun, 20 Dec 2009 13:03:10 -0000, "Steve Walker" <spam...@beeb.net>
>>>> Mike Harrison wrote:
>>>>> Sounds like scare tactics. Don't cave to these crooks.
>>>>
>>>> Possibly correct, but nobody has the bankroll to withstand Micro$oft's
>>>> corporate/legal steamroller.
>>>
>>> So you just cave in the face of bullying?
>>> There are plenty of ways to fight this BS. Publicity for a start.
>>> The Press love this sort of thing.
>>> "Microsoft blackmailing innocent people" makes a good headline.
>>
>> Not my place to speak for Niel, but he's a sole trader during a global
>> recession. I imagine his primary concern is with the survival of his
>> business at the least possible cost and inconvenience.
>>
>> also see:
>> www.cornishserver.com/general-chat/940-itdealers-down-pan.html
>
>
>That just about sums it up. I am going to speak to them tomorrow and try and
>talk them down as it was all done in genuine good faith and not a deliberate
>attempt to do anything dodgy with their stuff. Hopefully the letter is just
>worded to scare and when I speak to someone 'real' in a sensible manner I
>may be able to appeal the 'fine'
Record the call. Don't tell them you are doing it.
Under no circumstances admit ANYTHING
Mike Harrison
wrote:
>"Mike Ross" <mi...@corestore.org> wrote in message
Now send a link to Slashdot, The Register etc.
They even ADMIT their losses are only about �500
Mike Harrison
But are not bound by it if you are not the original purchaser.
It's a license agreement, not the law. Unless you explicitly agreed to it, it has no effect.
Mike Harrison
But the agreement could ONLY affect the original purchaser, not any subsequent ones.
Mike Harrison
wrote:
And add to any future listings :
"Employees or agents for Microsoft are expressly forbidden to bid on this item.
The purchase of any item by or on behalf of Microsoft signifies agreement to indemnify the seller
against any and all action, including a correspondance handling fee of �100 per item for any letters
received."
..or similar.
Colin Wilson
> > install media or a recovery partition - and will apply a charge of ~
> Do you have a cite for that? I've never come across one.
IIRC it's standard practice for quite a few - with costs ranging from
reasonable to stupid. IIRC Medion and budget brands used by C*met etc
used to ask for a higher figure than most, but don't quote me on that
:-}
Fredxx
But now they are a PC better off, as well as an OEM version of XP. So their
loss is not even that.
Their complaint really centres on the COA, rather than the media. In fact I
would be tempted to reply and ask for this replacement media, if only so you
can pass onto their agent!
I suppose I would also look at the terms and conditions associated with the
original licence, if that is possible.
How did you describe the PC in eBay? Did you "offer" to install Windows XP
Prof?
If you did offer, all I would say is I had this PC on the shelf which fitted
the requirement and all you were doing is passing on the PC with a COA
associated with it. You can explain that you did not "manufacture" the PC,
and that you have others, without a COA which you could have supplied as an
alternative if the customer did not require Windows to be installed.
martin
>>> Just to echo Fredxx's point here, many manufacturers provide neither
>>> install media or a recovery partition - and will apply a charge of ~
>> Do you have a cite for that? I've never come across one.
>
> IIRC it's standard practice for quite a few - with costs ranging from
> reasonable to stupid. IIRC Medion and budget brands used by C*met etc
> used to ask for a higher figure than most, but don't quote me on that
> :-}
I'm a system builder and my agreement states I have to supply
installation media or a recovery partition from which the customer can
build his own set of media.
I go for supplying a set of media. I know years ago some companies took
the piss by charging extra for installation media, but that should have
all stopped as far as I was aware
Smurf
> Orignally posted in an IT newsgroup but it was mentioned in that
> thread this may be of interest to some people in uk.legal so...
>
> Had a legal letter from MS flop on my doormat yesterday morning by
> Special Delivery. They had an 'agent' make a test purchase of one of
> my EBay items which was installed with a legit XP install with
> Cenuine Advantage online test). However because their 'forensic
> testing' showed I did not use the original restore CDs and neither
> did I supply them with the machine they are threatening to sue me
> that the COA (OEM Branded) was sold to the OEM for the OEM's use only
> and I did not have the legal right to use the keycode on it for the
> installation.
I believe it is only possible to sue for actual damage, not punatitive...
Smurf
The loss for that single investigation is �500. They want to go through the
company accounts, and no doubt apply the full retail purchase price against
the xp pro licenses he has been selling installed on his machine, even on a
small scale that could add up quite quickly and thus i understand the OP
nervousness and willing to settle.
MS make me so angry, they are so many people and companies out there selling
machines with pirated software, and they focus in on this person that is
using legitimate license, which microsoft has already being paid for. Its
like J K Rowling deciding she want an extra fiver from your mate, because
you have passed latest harry potter book to him after you finished reading
it.
Alex Heney
<mi...@whitewing.co.uk> wrote:
>On Sun, 20 Dec 2009 13:03:10 -0000, "Steve Walker" <spam...@beeb.net> wrote:
>
>>Mike Harrison wrote:
>>> On Sun, 20 Dec 2009 09:17:54 -0000, "Niel J Humphreys"
>>
>>>> Had a legal letter from MS flop on my doormat yesterday morning by
>>>> Special Delivery. They had an 'agent' make a test purchase of one of my
>>>> EBay items which was installed with a legit XP install with correct COA
>>>> on the machine (It passes both activation and Windows Cenuine Advantage
>>>> online test). However because their 'forensic testing' showed I did not
>>>> use the original restore CDs and neither did I supply them with the
>>>> machine they are threatening to sue me unless I pay them �2500
>>>> compensation.
>
>How exactly is not supplying original CDs with the machine a legal matter?
>
If that is the terms of the licence under which they are supplied,
then he is in breach of the licence (and therefore of copyright) if he
does not follow those terms.
The amount they are claiming does seem excessive, although I imagine
it is based on the number of machines he has sold through ebay, not
just on that specific machine.
--
Alex Heney, Global Villager
Money is the root of all evil; everyone needs roots!
To reply by email, my address is alexATheneyDOTplusDOTcom
Mike Harrison
>On Sun, 20 Dec 2009 13:53:14 +0000, Mike Harrison
><mi...@whitewing.co.uk> wrote:
>
>>On Sun, 20 Dec 2009 13:03:10 -0000, "Steve Walker" <spam...@beeb.net> wrote:
>>
>>>Mike Harrison wrote:
>>>> On Sun, 20 Dec 2009 09:17:54 -0000, "Niel J Humphreys"
>>>
>>>>> Had a legal letter from MS flop on my doormat yesterday morning by
>>>>> Special Delivery. They had an 'agent' make a test purchase of one of my
>>>>> EBay items which was installed with a legit XP install with correct COA
>>>>> on the machine (It passes both activation and Windows Cenuine Advantage
>>>>> online test). However because their 'forensic testing' showed I did not
>>>>> use the original restore CDs and neither did I supply them with the
>>>>> machine they are threatening to sue me unless I pay them �2500
>>>>> compensation.
>>
>>How exactly is not supplying original CDs with the machine a legal matter?
>>
>
>If that is the terms of the licence under which they are supplied,
>then he is in breach of the licence (and therefore of copyright) if he
>does not follow those terms.
Only if it can be shown he agreed to the terms of the license.
Niel J Humphreys
news:hgmc1v$j2k$1...@news.eternal-september.org...
>
> "Mike Harrison" <mi...@whitewing.co.uk> wrote in message
> news:krati55vmkf7rtjfc...@4ax.com...
>> On Sun, 20 Dec 2009 18:51:51 -0000, "Niel J Humphreys"
>> <ad...@sznzozwdzoznzczozmzpzuztzezrzs.co.uk>
>> wrote:
>>
>>>"Mike Ross" <mi...@corestore.org> wrote in message
>>>news:1lpsi51d2gm9cto33...@4ax.com...
>>>> Oh and I suggest you put the letter online where we can all read it.
>>>
>>>Done
>>>http://www.snowdoncomputers.co.uk/MS.pdf
>>
>> Now send a link to Slashdot, The Register etc.
>>
>> They even ADMIT their losses are only about �500
>>
>
> But now they are a PC better off, as well as an OEM version of XP. So
> their loss is not even that.
>
> Their complaint really centres on the COA, rather than the media. In fact
> I would be tempted to reply and ask for this replacement media, if only so
> you can pass onto their agent!
>
> I suppose I would also look at the terms and conditions associated with
> the original licence, if that is possible.
>
> How did you describe the PC in eBay? Did you "offer" to install Windows
> XP Prof?
No, I advertised it as pre-installed with licence which it was (from an
original Dell restore CD), this is the listing in question
http://cgi.ebay.co.uk/ws/eBayISAPI.dll?ViewItem&item=330376069376
As has been pointed out to me you can not actually see the licence in the
photos as it was stuck on the top/rear of the tower which is probably what
made the MS agent interested in the listing.
Niel H
mike scott
I like it.
But there's the other point that's not been covered. MS have demanded
(with menaces!) that personal information - copies of invoices,
addresses, etc - be divulged to them contrary to the DPA. The OP has no
right to do this; I assume only a court could order it. IANAL, but does
this not put MS themselves in breach of some law?
--
Mike Scott (unet2 <at> [deletethis] scottsonline.org.uk)
Harlow Essex England
Niel J Humphreys
news:hBFXm.17378$Ym4....@text.news.virginmedia.com...
Apparently not:
Section 35 of the Data Protection Act 1998
(2) Personal data are exempt from the non-disclosure provisions where
the disclosure is necessary-
(a) for the purpose of, or in connection with, any legal proceedings
(including prospective legal proceedings), or (b) for the purpose of
obtaining legal advice, or is otherwise necessary for the purposes of
establishing, exercising or defending legal rights."
martin
> No, I advertised it as pre-installed with licence which it was (from an
> original Dell restore CD), this is the listing in question
> http://cgi.ebay.co.uk/ws/eBayISAPI.dll?ViewItem&item=330376069376
> As has been pointed out to me you can not actually see the licence in the
> photos as it was stuck on the top/rear of the tower which is probably what
> made the MS agent interested in the listing.
That makes things a lot clearer actually. I'd tell 'em to stuff it.
Which Office did you supply with with it?
> Niel H
>
>
Niel J Humphreys
news:4b2f3c1d$0$2484$db0f...@news.zen.co.uk...
Open Office, I had no licence for MS Office so am specific to always only
install the correct legal software on anything I sell.
martin
Right, I wondered if it was Office that they were really whinging about.
The only thing I can think now is that the corporate body you got the
PCs from used their own media/images to reinstall the PCs and not the
one supplied from Dell (it's what I use to do to avoid all the junk Dell
ship with their build). That should put the person you bought them off
under MS spotlight though, not you.
>
>
nimbu...@yahoo.co.uk
<ad...@sznzozwdzoznzczozmzpzuztzezrzs.co.uk> wrote:
> "Mike Ross" <m...@corestore.org> wrote in message
>
> news:1lpsi51d2gm9cto33...@4ax.com...
>
>
>
>
>
> > On Sun, 20 Dec 2009 15:01:06 -0000, "Niel J Humphreys"
> > <ad...@sznzozwdzoznzczozmzpzuztzezrzs.co.uk> wrote:
>
> >>That just about sums it up. I am going to speak to them tomorrow and try
> >>and
> >>talk them down as it was all done in genuine good faith and not a
> >>deliberate
> >>attempt to do anything dodgy with their stuff. Hopefully the letter is
> >>just
> >>worded to scare and when I speak to someone 'real' in a sensible manner I
> >>may be able to appeal the 'fine'
>
> > they'll
> > INCREASE their demands. Do not expect anything resembling 'sensible'
> > behaviour
> > from them. Round file it, do nothing, say nothing, ignore it. Don't bite
> > the
> > 'hook'. Unless and until they actually issue a summons. That would be my
> > advice.
>
> That's all very well you saying from your position that but if and when they
> do issue a summons and it goes to court I could (and probably will) lose and
> end up having to pay untold £ by way of their costs. I do not feel at this
> time that the risk of ignoring it and hoping they will do nothing is worth
> it, particularly as MS are known for going at these like a dog with a bone.
> I realise this is exactly what MS want me to think but at the same time I am
> no going to cave in totally, as mentioned previously by someone the letter
> is tantamount to extortion and I will hint that I may be considering asking
> the police to file criminal charges against the author of the letter.
>
> > Oh and I suggest you put the letter online where we can all read it.
>
What would be their response if you said that if they sue you will put
your business into administration before it comes to court and they
would therefore be flogging a dead horse
If you were a limited company I wonder if this would work?
HTH
The Todal
> On Dec 20, 6:37 pm, Peter Parry <pe...@wpp.ltd.uk> wrote:
>> On Sun, 20 Dec 2009 10:28:33 -0800 (PST), Gary Baldi
>>
>> <tim.richa...@gmx.com> wrote:
>>> it will only ever end up in the Small Claims Court
>>> (because of the value of the claim) where costs aren't awarded
>>
>> No it won't. Either party can ask for the case to be transferred to
>> another track where costs can be awarded and it seems this is exactly
>> what tends to happen.
>
> Nonsense; or maybe not, perhaps that's why there are so many legal fat
> cats in this country?
>
> Sue via the Small Claims Track and win �2500 or sue via some other
> means and win.............�2500 plus �40k in legal fees?
>
> Ahhh, now I am beginning to see why lawyers all drive expensive motors
> and reside in expensve offices.
>
> Time for someone to clip their wings, methinks.
There is no particular reason to think the costs would be enormous, but I
agree the case would probably not be heard under the small claims procedure
and costs would therefore be claimed by the victor. Might be only a few
thousand, depending on how long the case goes on for.
In the OP's position I would want to check precisely what section of what
statute they rely upon. Or whether it is a breach of contract. Was the
letter from Microsoft in the USA or in the UK? No solicitors instructed
yet? I think the following options would be worth considering:
a) go to an intellectual property lawyer for advice. That would be several
hundred pounds.
b) ask Microsoft for more particulars of the breach of contract / breach of
statute, if it hasn 't been set out clearly
c) ignore the demand until there is a solicitors' letter.
d) apologise profusely, plead poverty and offer two hundred quid.
The Todal
>> On Sun, 20 Dec 2009 09:17:54 -0000, "Niel J Humphreys"
>> <ad...@sznzozwdzoznzczozmzpzuztzezrzs.co.uk> wrote:
>>
>>> Orignally posted in an IT newsgroup but it was mentioned in that
>>> thread this
>>> may be of interest to some people in uk.legal so...
>>>
>>> Had a legal letter from MS flop on my doormat yesterday morning by
>>> Special Delivery. They had an 'agent' make a test purchase of one
>>> of my EBay items which was installed with a legit XP install with
>>> correct COA on the machine
>>> test). However because their 'forensic testing' showed I did not
>>> use the original restore CDs and neither did I supply them with the
>>> machine they are threatening to sue me unless I pay them �2500
>>> compensation.
>>
>> in the item
>> description? You didn't? Then they can get a horse: goods exactly as
>> described.
>
> No, by the terms of their licence anyone selling a pre installed MS
> O/S has to also provide either restore CDs or an intact hidden
> restore partition on the hard drive. This is what I genuinly didn't
> realise and what they are hitting me for.
>
> http://www.techsoup.org/mar/download/Refurbished_PC_Licensing_Guide.pdf
I think there may be scope for telling them that whilst you do not agree
that you have breached copyright and you do not concede that you are bound
by the terms of a "licence" issued to the original buyer of the computer,
you agree not to do it again, and will sign undertakings provided there is
no admission in those undertakings that you have been in breach of
copyright.
The point is - as I understand it - you haven't supplied counterfeit
software. You have sold a computer with its original licensed software on
it, but have failed to supply the restore disks. That presumably makes it
possible for an unlawful copy of the sofware to be installed on another
computer by the person who still has the restore disks. Yes?
On that basis, I find it difficult to believe that a court would have much
sympathy with them, but it is true to say that they could bolster their case
by forcing you to disclose all your records showing how often you have done
the same thing. And you would then have to decide whether to resist the
application (and pay lawyers, and risk a costs order against you) or comply
(and pay their costs for that).
The only case report I have found is this - and it is a more serious case
than yours.
Microsoft Corp v Plato Technology Ltd
P supplied five counterfeit sets of M's computer software to enquiry agents
employed by M. P had purchased the software from an established customer and
denied all knowledge of the infringement. M instituted proceedings seeking
the normal wide ranging interlocutory relief to prevent further trade mark
infringements and passing off. P applied to strike out the claim and M cross
applied for summary judgment. The judge found that the infringements were
inadvertent and comparatively minor and declined to grant the full relief
sought. M appealed, contending that there was a well established general
principle that, once infringement had been established, a claimant was
entitled as a matter of course to a final injunction in the standard format
restraining all future infringement.
Held, dismissing the appeal, that there was no absolute rule prescribing the
extent and nature of the relief appropriate in intellectual property cases
and the court had an inherent discretion to alter the remedy according to
the particular circumstances. The appellate court had no jurisdiction to
interfere with a discretionary decision that the instant case fell into an
exceptional category justifying a departure from the standard form of
relief.
Court: (CA (Civ Div)) Court of Appeal (Civil Division)
Judge: Nourse, L.J.; Mantell, L.J.; Mance, L.J.
Judgment date: July 15, 1999
The Todal
They could apply to the court for an order requiring you to disclose your
records. But I think they would have to show that you are already in breach
of copyright. If their entire case is founded upon your failure to send
restore media to the customer (restore media that you say you have and can
send) then their case would appear to be ill-founded.
It might still be prudent to agree to send the restore media in any future
sales and to any customers who contact you and say they have not been sent
their restore media.
I think it would be unwise to ignore the letter. If replying by letter you
could usefully add "I reserve the right to bring this letter to the
attention of the court on the issue of costs".
Mike Harrison
Dodgy companies do it all the time - usually after a judgement, so the claimant pays out for the
case then can't recover anything
Mike Harrison
e) just send them the original discs
Making _some_ reasonable effort to resolve it would be seen favorably if it came to court. (e) would
seem to address their primary claim, and weaken any potential case they may try to bring.
Mike Harrison
Quoting this back to MS might let them know you are not a push-over & may make them back off.
Niel J Humphreys
not know) after someone who read the letter online test phoned his number
and left 'a suitable message' on his voicemail as they assumed it was a scam
when his office phone diverted to his mobile voicemail. He thought it was me
who left the message (not sure what was said in the message and hope it
wasn't too insulting). He explained his office phone was on divert to his
mobile and has satisifed me this is not a hoax.
He is calling me back in a couple of hours when he gets back to his office
and has my file in front of me but has already indicated that the �2500 is
quite negotiable depending on the severity (or not in my case) of the
infraction and he will discuss it more in depth with me later. I'll keep the
group updated but it looks like for my own peace of mind I will settle as I
have not had much sleep over the weekend for worrying about this. :(
The Todal
I think the main thing is to reassure them that (a) you have the recovery
media and can send it to the purchaser (b) it hasn't happened in the past,
or at least, the most you've done is not send the recovery media (c) you
definitely won't do it again.
On that basis they might be persuaded to waive any payment. I don't agree
that they are automatically entitled to their five hundred quid
investigation fee or that they are necessarily entitled to any damages if
the extent of the complaint is that you failed to supply recovery media
which you in fact have, so that nobody else could make illegitimate use of
them.
You need to put something in writing at some stage, so that you can if
necessary show it to the court as proof that you have been reasonable and
have acted in good faith. Unless they are prepared to drop it and not pursue
a compensation claim, that is.
The Todal
I'm sure they will be aware of it. There are dangers in quoting case law at
them as it might give the impression that you have studied ways of evading
copyright law.
Mike Harrison
wrote:
>Update - the guy just phoned me on my mobile (where he got that from I do
I would be very wary of discussing this by phone.
It is easy to accidentally admit something you shouldn't.
I'd suggest you insist on email.
If you do discuss by phone, record it. You can bet that they will.
martin
Agreed
martin
Todal, I've been following this with some interest because it's often a
case of "there but for the grace of the FSM ...".
Do you mind explain what is your reasoning for saying he should supply
the media (which of course he might not even have).
As I understand it so far: He bought (presumably) some 2nd hand PCs.
Stripped out Office etc. Put on Open Office. Flogged them off one at a
time on eBay.
Does he have to abide by any MS licencing agreements at all? He might
not even have the installation media (I think he said he has it, but
let's skip over that for now and pretend he doesn't). Surely it's up to
the person who agreed with the MS terms to comply with them, not someone
just buying a bunch of 2nd hand PCs scanning for viruses and trojans and
shipping them on.
Instead of negotiating why can't he just tell MS to take a hike and have
then show explicitly where he personally is in breach of the licence? Do
you see what I'm getting at?
Tim Jackson
> There is no particular reason to think the costs would be enormous, but I
> agree the case would probably not be heard under the small claims procedure
> and costs would therefore be claimed by the victor.
If a copyright claim is involved, it would automatically be on the
multi-track, not the small claims track. And it would be heard in the
Chancery Division of the High Court or in one of the larger county
courts which has a Chancery District Registry. Or in the Patents County
Court.
See the Civil Procedure Rules, Part 63, and the corresponding Practice
Direction:
Rules 63.1(3) and 63.13
Practice Direction 63 paragraph 16.1
All linked from
http://www.justice.gov.uk/civil/procrules_fin/menus/rules.htm#part61
However, I note that the OP is planning to negotiate instead, which has
got to be the right answer.
--
Tim Jackson
ne...@timjackson.invalid
(Change '.invalid' to '.plus.com' to reply direct)
Adrian
saying:
> Do you mind explain what is your reasoning for saying he should supply
> the media (which of course he might not even have).
Because the OEM licence agreement for Windows requires the media to be
supplied.
> Does he have to abide by any MS licencing agreements at all?
Of course. EVERY user & supplier of MS (or, indeed, any other) software
has to abide by licencing agreements. If you cease to do so, the licence
is void, and you cannot continue to use or supply the software legally.
It doesn't matter whether the machine is "new", "used" or whatever. It's
a grey area, in any case. If I buy a PC from a distributor, configure it
and install other software, then resell it on to my customer, is that
machine still "new" or is it "used"?
Niel J Humphreys
news:MPG.2599755e8...@text.usenet.plus.net...
Interesting that, the MS guy on the phone this morning told me my two
options were to settle or allow them to sue me in the Small Claims Court (he
specifically mentioned small claims).......
--
Mike Harrison
>martin <use...@etiqa.co.uk> gurgled happily, sounding much like they were
>saying:
>
>> Do you mind explain what is your reasoning for saying he should supply
>> the media (which of course he might not even have).
>
>Because the OEM licence agreement for Windows requires the media to be
>supplied.
>
>> Does he have to abide by any MS licencing agreements at all?
>
>Of course. EVERY user & supplier of MS (or, indeed, any other) software
>has to abide by licencing agreements. If you cease to do so, the licence
>is void, and you cannot continue to use or supply the software legally.
How exactly is a second user bound by a license on software on a machine he bought?
Any voiding that may result is the end-user's problem, or the original purchaser's, not the
reseller's
Mike Harrison
wrote:
>"Tim Jackson" <ne...@timjackson.invalid> wrote in message
"Please find enclosed recovery discs in full and final settlement"
>or allow them to sue me in the Small Claims Court (he
>specifically mentioned small claims).......
"Allow them to sue..." ?
cobble
> Orignally posted in an IT newsgroup but it was mentioned in that thread
> this may be of interest to some people in uk.legal so...
>
> Had a legal letter from MS
[snip]
I once worked for a company that was using pirated versions of MS
Office. We were going compliant with licences, so we wanted to remove it.
Attempts to un-install failed because we did not have original discs.
I email MS asking for advice. They declined to help, saying they only
provided support to customers. Me telling them that we were attempting
to remove pirate softs to provide clean base allowing us to install legit
MS products didn't change their stance.
tl:dr - you will not get reasonable response from them.
cobble
> He is calling me back in a couple of hours when he gets back to his
> office and has my file in front of me but has already indicated that the
> £2500 is quite negotiable depending on the severity (or not in my case)
> of the infraction and he will discuss it more in depth with me later.
> I'll keep the group updated but it looks like for my own peace of mind I
> will settle as I have not had much sleep over the weekend for worrying
> about this. :(
Copyright infringement in the course of trading is a criminal matter.
Why did you think it was acceptable?
Adrian
they were saying:
>>> Does he have to abide by any MS licencing agreements at all?
>>Of course. EVERY user & supplier of MS (or, indeed, any other) software
>>has to abide by licencing agreements. If you cease to do so, the licence
>>is void, and you cannot continue to use or supply the software legally.
> How exactly is a second user bound by a license on software on a machine
> he bought?
Simple. Don't like the agreement, don't use the software.
> Any voiding that may result is the end-user's problem, or the original
> purchaser's, not the reseller's
Rubbish. It's the problem of anybody who uses the software, and the
problem of anybody who sells the software. End of.
The Todal
"Niel J Humphreys" <ad...@sznzozwdzoznzczozmzpzuztzezrzs.co.uk> wrote in
message news:hgnpel$2lit$1...@energise.enta.net...
Sounds very promising. It sounds as if he doesn't really want to take it
further because he believes it would be on the small claims track (there is
no small claims court as such) which would mean a complete waste of
Microsoft money.
Mike Ross
wrote:
>On Dec 20, 3:49�pm, "Niel J Humphreys"
><ad...@sznzozwdzoznzczozmzpzuztzezrzs.co.uk> wrote:
>>
>> Whatever happens I doubt very much I will be selling anything with MS
>> operating systems again, too many hoops and too much risk even when I
>> thought I was doing things properly. :(- Hide quoted text -
>>
>> - Show quoted text -
>
>Or stick to dealing in the two or three major players and make sure
>you have the relevant OEM CDs for each of them.
Consider what microsoft are saying; read their letter carefully. They are saying
that, even if the OP had purchased the PC, complete with recovery CDs, from the
original owner, to use *personally*, not to resell, they would not be entitled
to install windoze on it. In fact, depending on how you read 'use the COA' it
could even be considered to mean that the OP was not entitled to USE windoze on
the machine. Read:
"2 - Our records indicate that the COA affised to the computer along with the
corresponding product key had been supplied to a third party for their use
exclusively. You are not authorised to use the COA or Product Key and your
use of them indicates a deliberate attempt to infringe Microsoft's
iltellectual property rights"
That's MS saying that it's illegal to supply a secondhand PC with a 'clean'
windoze reinstalled on it, unless you purchase a new copy of windoze.
Effectively, it's saying you can't supply secondhand copies of windoze even with
the machine they were originally sold with!
And... "supplied to a third party for their use exclusively" - where is that
written? What chance did the OP have to know that, before MS claimed it in their
letter? Was it written on the COA? It's unenforceable under doctrine of first
sale, and it's certainly unenforceable if the OP wasn't adequately notified of
MS's claim of exclusivity.
Mike
--
http://www.corestore.org
'As I walk along these shores
I am the history within'
Mike Harrison
>Mike Harrison <mi...@whitewing.co.uk> gurgled happily, sounding much like
>they were saying:
>
>>>> Does he have to abide by any MS licencing agreements at all?
>
>>>Of course. EVERY user & supplier of MS (or, indeed, any other) software
>>>has to abide by licencing agreements. If you cease to do so, the licence
>>>is void, and you cannot continue to use or supply the software legally.
>
>> How exactly is a second user bound by a license on software on a machine
>> he bought?
>
>Simple. Don't like the agreement, don't use the software.
The second user (reseller) is not necessarily using it, and has not necessarily agreed to the terms
of any license.
Even if you did use it, if it was originally installed by someone else you will not have explicitly
agreed to the license.
A license is effectively a contract - no agreement = no contract.
John Turner
"Mike Harrison" wrote
> Not to mention leaving appropriate ebay feedback warning that the member
> is a MS troll
Have you tried leaving negative or neutral feedback as a seller these days?
eBay simply don't give you that option. Even trying to leave a hidden
message in positive feedback may mean eBay will jump on you from a great
height.
In any event the chances are that any such MS troll would have a number of
different eBay accounts, as it might raise suspicion if they only boughts
PCs or laptops.
John.
Mike Ross
<snip>
>As I understand it so far: He bought (presumably) some 2nd hand PCs.
>Stripped out Office etc. Put on Open Office. Flogged them off one at a
>time on eBay.
No - he wiped the hard disk and *re-installed* windoze, from the restore CDs, to
give his customer a completely fresh start. This is crucial; MS are claiming
that he wasn't entitled to re-install windoze; only the original purchaser of
the machine was entitled to do that, and when the OP did it, he infringed
copyright. That is MS's primary claim; the OP 'forgetting' to supply restore CDs
is just a makeweight. It's a bullshit claim - see below.
>Does he have to abide by any MS licencing agreements at all? He might
>not even have the installation media (I think he said he has it, but
>let's skip over that for now and pretend he doesn't). Surely it's up to
>the person who agreed with the MS terms to comply with them, not someone
>just buying a bunch of 2nd hand PCs scanning for viruses and trojans and
>shipping them on.
He doesn't have to comply with restrictive 'no resale' clauses of the licensing
conditions. If those conditions *were* ever valid (which I doubt) they were
nullified since MS's first sale rights were exhausted when the system was sold;
they can't be enforced against any subsequent purchasers. The only *possible*
claim MS might have is against the first owner of the system, for selling the
system to the OP complete with the COA, if that was against *their* licensing
agreement.
Mike Ross
>Niel J Humphreys wrote:
>
>> No, I advertised it as pre-installed with licence which it was (from an
>> original Dell restore CD), this is the listing in question
>> http://cgi.ebay.co.uk/ws/eBayISAPI.dll?ViewItem&item=330376069376
>> As has been pointed out to me you can not actually see the licence in the
>> photos as it was stuck on the top/rear of the tower which is probably what
>> made the MS agent interested in the listing.
>
>That makes things a lot clearer actually. I'd tell 'em to stuff it.
>Which Office did you supply with with it?
Quite. The OP states clearly that no restore CDs will be supplied so I don't see
MS have any complaints against him there.
martin
> On Mon, 21 Dec 2009 12:01:25 +0000, martin <use...@etiqa.co.uk> wrote:
>
> <snip>
>
>> As I understand it so far: He bought (presumably) some 2nd hand PCs.
>> Stripped out Office etc. Put on Open Office. Flogged them off one at a
>> time on eBay.
>
> No - he wiped the hard disk and *re-installed* windoze, from the restore CDs, to
> give his customer a completely fresh start.
Gotcha. I really did try to read the thread fully but I think I got a
bit lost somewhere. Now it makes a lot more sense to me what MS are
claiming and wanting. Thanks for pointing that out.
Mike Ross
>Mike Harrison <mi...@whitewing.co.uk> gurgled happily, sounding much like
>they were saying:
>
>>>> Does he have to abide by any MS licencing agreements at all?
>
>>>Of course. EVERY user & supplier of MS (or, indeed, any other) software
>>>has to abide by licencing agreements. If you cease to do so, the licence
>>>is void, and you cannot continue to use or supply the software legally.
>
>> How exactly is a second user bound by a license on software on a machine
>> he bought?
>
>Simple. Don't like the agreement, don't use the software.
*sigh*
Google 'first sale doctrine'. Restrictive clauses in the agreement may not be
valid at all, and certainly may only be binding on the *original* purchaser of
the software.
>> Any voiding that may result is the end-user's problem, or the original
>> purchaser's, not the reseller's
>
>Rubbish. It's the problem of anybody who uses the software, and the
>problem of anybody who sells the software. End of.
Not if the only person who voided an agreement was the original purchaser. Then
it's their problem, nothing to do with subsequent purchasers.
Adrian
were saying:
>>>>> Does he have to abide by any MS licencing agreements at all?
>>>>Of course. EVERY user & supplier of MS (or, indeed, any other)
>>>>software has to abide by licencing agreements. If you cease to do so,
>>>>the licence is void, and you cannot continue to use or supply the
>>>>software legally.
>>> How exactly is a second user bound by a license on software on a
>>> machine he bought?
>>Simple. Don't like the agreement, don't use the software.
> *sigh*
>
> Google 'first sale doctrine'. Restrictive clauses in the agreement may
> not be valid at all, and certainly may only be binding on the *original*
> purchaser of the software.
I repeat. Who IS that "first user"?
A nice shiny new Tosh laptop was delivered to my office this morning. We
are currently getting it set up, ready for a customer of ours to give to
his mother as her Christmas present.
By your reckoning, the only people involved in that whole chain to be
bound my MS licencing would be us. And, after today, we'll never see that
machine again.
AlanG
>martin <use...@etiqa.co.uk> gurgled happily, sounding much like they were
>saying:
>
>> Do you mind explain what is your reasoning for saying he should supply
>> the media (which of course he might not even have).
>
>Because the OEM licence agreement for Windows requires the media to be
>supplied.
>
>> Does he have to abide by any MS licencing agreements at all?
>
>Of course. EVERY user & supplier of MS (or, indeed, any other) software
>has to abide by licencing agreements.
Can you point to case law where that includes second hand equipment?
> If you cease to do so, the licence
>is void, and you cannot continue to use or supply the software legally.
>
>It doesn't matter whether the machine is "new", "used" or whatever. It's
>a grey area, in any case.
Indeed it is a grey area which is why you should not be making any
firm declarations.
>If I buy a PC from a distributor, configure it
>and install other software, then resell it on to my customer, is that
>machine still "new" or is it "used"?
Are you selling it as a used machine?
Adrian
saying:
>>If I buy a PC from a distributor, configure it and install other
>>software, then resell it on to my customer, is that machine still "new"
>>or is it "used"?
> Are you selling it as a used machine?
I'm not specifying "new" or "used".
If the seller's claims as to previous use were remotely relevant as a get-
out for software licencing, then it would be straightforward to sell
machines with unlicenced software - merely claim it was "used".
Mike Harrison
Correct.
The only person bound is whoever clicks "I agree", or anyone agrees to terms of sale which convey
obligations under the license.
People seem to be confusing provisions of copyright law and additional restrictions imposed by the
license.
The license is effectively a contract with MS. People don't become parties to that contract unless
they explicity agree to do so.
AlanG
>AlanG <inv...@invalid.net> gurgled happily, sounding much like they were
>saying:
>
>>>If I buy a PC from a distributor, configure it and install other
>>>software, then resell it on to my customer, is that machine still "new"
>>>or is it "used"?
>
>> Are you selling it as a used machine?
>
>I'm not specifying "new" or "used".
In that case the presumption will be that the machine is new
>
>If the seller's claims as to previous use were remotely relevant as a get-
>out for software licencing, then it would be straightforward to sell
>machines with unlicenced software - merely claim it was "used".
That's correct
Adrian
saying:
>>>>If I buy a PC from a distributor, configure it and install other
>>>>software, then resell it on to my customer, is that machine still
>>>>"new" or is it "used"?
>>> Are you selling it as a used machine?
>>I'm not specifying "new" or "used".
> In that case the presumption will be that the machine is new
Even though it clearly isn't "unused", and even though the tickboxes have
been ticked, and the software installation process completed?
So where does this all-important dividing line get unequivocally drawn?
>>If the seller's claims as to previous use were remotely relevant as a
>>get- out for software licencing, then it would be straightforward to
>>sell machines with unlicenced software - merely claim it was "used".
> That's correct
Gotcha.
Mick Hunt
"Colin Wilson" <REMOVEEVERYTHI...@phoenixbbsZEROSPAM.co.uk> wrote
in message news:MPG.2598bfa33...@news.eternal-september.org...
> > Just to echo Fredxx's point here, many manufacturers provide neither
> > install media or a recovery partition - and will apply a charge of ~
> > ￜ40 to do so if needed at some point in the future.
> Do you have a cite for that? I've never come across one.
IIRC it's standard practice for quite a few - with costs ranging from
reasonable to stupid. IIRC Medion and budget brands used by C*met etc
used to ask for a higher figure than most, but don't quote me on that
:-}
Advent, Medion, E-PC, all those carp PC World types
Adrian
they were saying:
>> > Just to echo Fredxx's point here, many manufacturers provide neither
>> > install media or a recovery partition - and will apply a charge of ~
>> > £40 to do so if needed at some point in the future.
>> Do you have a cite for that? I've never come across one.
> IIRC it's standard practice for quite a few - with costs ranging from
> reasonable to stupid. IIRC Medion and budget brands used by C*met etc
> used to ask for a higher figure than most, but don't quote me on that
For the physical media, yes. But there will certainly be a recovery
partition - or the option to create recovery CDs - on the machine.
'course, a recovery partition is sod-all use if the disk fails.
Oh, look. Thread-merge... <grin>
Niel J Humphreys
message news:hgnk99$2dhe$1...@energise.enta.net...
> Update - the guy just phoned me on my mobile (where he got that from I do
> not know) after someone who read the letter online test phoned his number
> and left 'a suitable message' on his voicemail as they assumed it was a
> scam when his office phone diverted to his mobile voicemail. He thought it
> was me who left the message (not sure what was said in the message and
> hope it wasn't too insulting). He explained his office phone was on divert
> to his mobile and has satisifed me this is not a hoax.
>
> and has my file in front of me but has already indicated that the �2500 is
> quite negotiable depending on the severity (or not in my case) of the
> infraction and he will discuss it more in depth with me later. I'll keep
> the group updated but it looks like for my own peace of mind I will settle
> as I have not had much sleep over the weekend for worrying about this. :(
Final update, a mutually agreeable settlement the details of which I can not
divulge due to a confideniality clause.
martin
> Final update, a mutually agreeable settlement the details of which I can not
> divulge due to a confideniality clause.
Well done
>
>
Mike Harrison
wrote:
Obviously you didn't have to pay 2.5K as you wouldn't have had to make an agreement
No details, but generalities would be nice,
e.g. did you agree to pay anything?
ZZ
news:69avi59n2qk6atb9u...@4ax.com...
I would say that would have been obvious, did you really expect MS to just
walk away giving him a slap on the wrist after an initial �2500 claim?
Likely is that they were willing to settle at a lower amount and he was told
not to divulge any details so as not to give the impression to any potential
naughty people that MS are prepared to bend from their policies and fines.