I have previously written a writeup arguing that Microsoft's marketing strategy tacitly approves of the pirating of their software. Someone pointed out that Microsoft seems to put a lot of effort into anti-piracy features, for a company that at least marginally accepts piracy. While this may be true, I should also explain that if you expand "piracy" to include any violation of the Windows EULA, Microsoft must approve of piracy, since just about anyone using Windows has violated one of the terms of the EULA.
Software, especially Operating Systems is not just a collection of data. All software, currently, also is a legal contract. This is true of commercial software, and also true of Free and Open Source Software. Many people who use Windows use it regularly, not knowing that they are not just involved in an operation run by their computer, but are also running, under license, another entity's intellectual property. I am not a lawyer, and thus can not say with accuracy exactly what these contracts mean, but some aspects of the contract are obvious. When they are not, the end user should perhaps ask themselves why they have signed a legally binding contract they do not fully understand the terms of.
For reference, a copy of the Microsoft Windows XP Home Edition license can be found at
Different licenses may be different for different products.
One of the most basic rules of the license is you can only install it on to one computer. Even this, the most obvious and perhaps most fair rule, is broken frequently, sometimes by people who know it is illegal, and sometimes by people who figure "I have the disc! I can use it as much as I want". You may install Windows on one computer, and one computer only. Of course, this also raises some thorny issues. What, exactly, is a computer? If your computer is physically damaged, can you transfer the hard drive to another computer? That, at least, seems allowed, in Point 13 of the contract:
You may move the Software to a different Workstation Computer. After the transfer, you must completely remove the Software from the former Workstation Computer.
That example not withstanding, the Operating System is only installable on one computer.
You can give the software (which, of course, means a computer that the software has been installed on) away, once. And only once. Meaning that if you get a new computer, you could give your computer with Windows. If the recipient gets a new computer, he can not give away your computer. Apparently, it just sits around gathering dust. Unless, of course, he buys a new copy of Windows for it. Oh, and if you wish to give a way a copy of Windows, you must include (in Point 13 again):
This transfer must include all of the Software (including all component parts, the media and printed materials, any upgrades, this EULA, and, if applicable, the Certificate of Authenticity).
Meaning that if, for example, you gave a computer running Windows away to someone without including the manual, you and them are both in breach of contract.
Another interesting issue with this is the issue of ownership versus possession, an issue we will be raising in a moment some more. Suppose you give your computer to your sister, and she in turn gives it to her children. If it is in her household, is she in violation of her EULA? What if she gives it to her children when they go away to college? Does the computer have to be in the same house as the person who has signed the contract? The contract seems to be unclear on the matter.
So, if Windows is so hard to give away, can you loan it out? This seems to be rather clearly laid out:
5. NO RENTAL/COMMERCIAL HOSTING. You may not rent, lease, lend or provide commercial hosting services with the Software.
That is a NO there, in case you didn't catch that. This is probably a feature that is different on different versions of the operating system, since presumably there is businesses running Windows for commercial hosting. However, there is some other questions that go with the home version. Presumably there are copy shops that rent out computers for use. Some of the larger chains, like Kinkos, may have signed a contract specifically for this purpose. But for all the other copy shops that are charging a fee so people can use their computers, they are in violation of their contract. So, for that matter, are all those internet cafes.
And, so, for that matter, are home users who let other people use their software. Lending out usage of Windows to anyone but the contract signer is expressly forbidden in this pointof the contract. This does raise an issue of possession vs. ownership. I do not know the legal definition of the term "lend" as it is used in this statement. It could mean giving your laptop to someone to use. Or it could mean that you are letting your spouse play solitaire on your computer.
Some of you out there may still be on solid legal ground, if you live alone and never let anyone ever touch your computer. The next point, however, pretty much catches everyone who has ever used the internet:
1.3 Device Connections. You may permit a maximum of five (5) computers or other electronic devices (each a "Device") to connect to the Workstation Computer to utilize one or more of the following services of the Software: File Services, Print Services, Internet Information Services, and remote access (including connection sharing and telephony services). The five connection maximum includes any indirect connections made through "multiplexing" or other software or hardware which pools or aggregates connections. This five connection maximum does not apply to any other uses of the Software.
In this clause, certain things are in capitals, which may suggest that they are being used as proper nouns. "Internet Information Services" could be used to refer to Microsoft's IIS software, or it could just mean "any information service that uses the internet". Now, one of the problems with this is it seems to be talking about other computers utilizing the computer running Windows, a statement that seems to be based on the Client/Server model. The problem here is, the client/server model has very little actual technical meaning, let alone a legal meaning. For example, a Domain Name Server gives a client computer the ip addresses of URLs. But, switching things around, the client computer is giving the Domain Name Server URLs. It is serving information in its own way. Every minute you use the internet, you are contacting probably dozens of seperate computers, serving them data. This is perhaps not what was meant by this clause, but it is still a technically and legally viable formulation. In addition to that, many computers are serving up files, even as a home computer. A computer running any peer to peer program would run afoul of this.
In addition, in the license for XP professional, (which is now missing off of Microsoft.com, but is still on google cache, it was forbidden to:
you may not use the Product to permit any Device to use, access, display or run other executable software residing on the Workstation Computer,
Which, of course, would make it against the contract to use any internet application, since all of those are executables that a "Device" would be running on your computer. If you point your web browser to www.yahoo.com, the server at www.yahoo.com would be telling that web browser to run certain data on your computer.
Now, the question is, of course, what does all this mean? Over the years that people have been signing this EULA, there have been little to no examples of actual enforcement of the contract. Microsoft does not sue "Ma and Pa's Copy Shop" for renting out a computer for 10 cents a minute. Neither have they ever opened a case against someone for sending their computer away to their daughter at college, and forgetting the manual. Neither have they sued someone for running a filesharing program that is in contact with more than five computers. But, and this is the important part, they could. Although some of my interpretations are severe, they could all be inferred from the legal document that Microsoft has published, undoubtedly with the help of one of the largest legal departments of any corporation. Those provisions are in there for a reason. Personally, I think people should be aware of the contract they are signing, and should also be aware of the fact that "they never enforce stuff like that" are very famous last words.
But of course Microsoft on the whole is not going to enforce too much of the EULA. They are going to use it for people who get too free with the software, and use it in ways that they don't want to. On the whole, however, given that Microsoft depends on people both pirating their software and using it freely to keep up their market saturation, we can see that Microsoft is not going to enforce all the people who are "pirating" their software by violating their contract.