Updated February 14, 2007
By Caroline Horton Rockafellow
Editor’s Note: Caroline Horton Rockafellow is a member of the Research Triangle Park law firm of Daniels Daniels & Verdonik, P.A.
RESEARCH TRIANGLE PARK—Prior to the recent launch of the Microsoft Vista product, there was an outcry from the technology community claiming that the Vista license was overly restrictive and provided for excessive monitoring of end-user systems.
Now that the product has launched, there is still concern that this license goes beyond the standard restrictions on software use.
To its credit, following the initial pre-launch outcry, Microsoft did make certain changes to its license agreement in an effort to address the community concerns. However, the question remains as to whether Microsoft is overly aggressive in its license terms and whether the terms are an appropriate way to protect the Microsoft business interests.
Who Reads a License Agreement Anyway?
How many times have you clicked through an end-user license agreement without even reading the document? Unfortunately, that is an all too common occurrence. The argument, of course, is that since you can’t negotiate the terms, and because you have already purchased the software, what is the point of reading the document anyway. People often believe that software license agreements are boiler plate documents with identical terms. If this were true, then it would not be so important to actually read the document before agreeing to its terms. However, that is not the case. Not only do software license agreements vary greatly from product to product, but they can include some onerous provisions that parties may want to seriously consider before consenting to the terms.
Restrictions on Movement
It is not at all uncommon for a software license agreement to require that an end-user install and use the software on only one computer at a time. It is also not uncommon to require that the software be removed from the original system when it is moved to the new system. In fact, these restrictions are currently included in the Microsoft XP license agreement. Accordingly, it would be reasonable for one to assume that the Vista license would include similar limitations. However, when the original version of the Vista license was released last fall, it included provisions that required the end-user to assign a single device to the software and limited any movement of that software to a one-time transfer.
While this is still the case for the Vista Anytime Upgrades, the single-movement restriction no longer applies to versions other than the upgrades. Microsoft changed the original language in response to complaints from the technology community that this restriction would unduly restrict the activities of users that build systems and move operating systems from one device to another. Quite honestly, this is not a significant issue for most of the computing public that purchases an operating system already installed on each new computer, but for the segment of the population that builds systems without the preinstalled operating systems, this could have resulted in a significant burden and significant additional costs. Fortunately, Microsoft did listen to these concerns and made the necessary changes to its Vista license agreement, but it will be interesting to see if these restrictions crop up in future releases or products.
Activation and Reactivation
Another issue that has raised some concerns is that fact that under the Vista license, each user is required to activate the software prior to use. During activation, “the software will send information about the software and the device (on which it is installed) to Microsoft.” It also appears that a single activation may not be sufficient and the changes to either the hardware or the software may require reactivation. Microsoft has included this feature in order to ensure that software is not pirated and that the user holds a legitimate copy. The concern raised by users is that this allows Microsoft to collect far too much information about its users and their systems. While sending information about systems may raise some privacy concerns, this is not an uncommon term in software license agreements and is certainly not unique to Vista.
Validation
Another concern relates to the validation procedure. The Vista license requires users of the software to consent to the periodic transmission of information that relates to the software and the hardware on which it is installed. Again, this validation process is meant to discourage pirated software. It also means, however, that any system with Vista installed on it will be monitored by Microsoft for compliance. While this certainly gives one the sense of Big Brother watching, it is again not an unusual term in software license agreements.
Defender
Another Big Brother issue relates to Microsoft’s right to go into a user’s computer and remove unwanted software. While Microsoft does have the ability to remove unwanted software through the Windows Defender anti-virus program installed on Vista, most anti-virus programs include this feature, and to the extent that users are concerned about Microsoft deleting programs that may not be so unwanted to the user, the user has the right to turn off the Windows Defender program. Of course, one would need to actually read the license agreement to know what the program may do and then to consider whether or not to opt out of this feature. This is just one more reason why it is critical to actually read the applicable license agreement.
Like all license agreements, the Microsoft Vista license agreement is not a boiler plate document. It includes terms that might be undesirable or unworkable for some users. Accordingly, as with all license agreements, users should carefully consider the terms and conditions prior to agreeing to the terms. It is clear that licensors are becoming more and more aggressive about including terms designed to protect against pirated software and provide the licensor with mechanisms to protect rights in software.
It is not unreasonable to assume that if left unchecked, licensors could get even more aggressive on terms and even go beyond what is generally considered to be reasonable and necessary. The only way to continue to make sure there is an appropriate balance between protecting the interests of licensors and the interests of users is for users to continue to carefully read and analyze all licenses and all license terms before entering into a license agreement. Both licensors and licensees must continue to remain diligent on this issue.
Daniels Daniels & Verdonik, P.A. has been serving the legal needs of entrepreneurial and high technology clients for more than 20 years. Caroline Horton Rockafellow concentrates her practice in the representation of entrepreneurial and technology-based business, focusing on corporate, technology and licensing matters. Questions or Comments can be sent to crockafellow@d2vlaw.com
Copyright 2012 by Capitol Broadcasting Company. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.
The Vista License: Is Big Brother Watching?
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RESEARCH TRIANGLE PARK—Prior to the recent launch of the Microsoft Vista product, there was an outcry from the technology community claiming that the Vista license was overly restrictive and provided for excessive monitoring of end-user systems.
Now that the product has launched, there is still concern that this license goes beyond the standard restrictions on software use.
To its credit, following the initial pre-launch outcry, Microsoft did make certain changes to its license agreement in an effort to address the community concerns. However, the question remains as to whether Microsoft is overly aggressive in its license terms and whether the terms are an appropriate way to protect the Microsoft business interests.
Who Reads a License Agreement Anyway?
How many times have you clicked through an end-user license agreement without even reading the document? Unfortunately, that is an all too common occurrence. The argument, of course, is that since you can’t negotiate the terms, and because you have already purchased the software, what is the point of reading the document anyway. People often believe that software license agreements are boiler plate documents with identical terms. If this were true, then it would not be so important to actually read the document before agreeing to its terms. However, that is not the case. Not only do software license agreements vary greatly from product to product, but they can include some onerous provisions that parties may want to seriously consider before consenting to the terms.
Restrictions on Movement
It is not at all uncommon for a software license agreement to require that an end-user install and use the software on only one computer at a time. It is also not uncommon to require that the software be removed from the original system when it is moved to the new system. In fact, these restrictions are currently included in the Microsoft XP license agreement. Accordingly, it would be reasonable for one to assume that the Vista license would include similar limitations. However, when the original version of the Vista license was released last fall, it included provisions that required the end-user to assign a single device to the software and limited any movement of that software to a one-time transfer.
While this is still the case for the Vista Anytime Upgrades, the single-movement restriction no longer applies to versions other than the upgrades. Microsoft changed the original language in response to complaints from the technology community that this restriction would unduly restrict the activities of users that build systems and move operating systems from one device to another. Quite honestly, this is not a significant issue for most of the computing public that purchases an operating system already installed on each new computer, but for the segment of the population that builds systems without the preinstalled operating systems, this could have resulted in a significant burden and significant additional costs. Fortunately, Microsoft did listen to these concerns and made the necessary changes to its Vista license agreement, but it will be interesting to see if these restrictions crop up in future releases or products.
Activation and Reactivation
Another issue that has raised some concerns is that fact that under the Vista license, each user is required to activate the software prior to use. During activation, “the software will send information about the software and the device (on which it is installed) to Microsoft.” It also appears that a single activation may not be sufficient and the changes to either the hardware or the software may require reactivation. Microsoft has included this feature in order to ensure that software is not pirated and that the user holds a legitimate copy. The concern raised by users is that this allows Microsoft to collect far too much information about its users and their systems. While sending information about systems may raise some privacy concerns, this is not an uncommon term in software license agreements and is certainly not unique to Vista.
Validation
Another concern relates to the validation procedure. The Vista license requires users of the software to consent to the periodic transmission of information that relates to the software and the hardware on which it is installed. Again, this validation process is meant to discourage pirated software. It also means, however, that any system with Vista installed on it will be monitored by Microsoft for compliance. While this certainly gives one the sense of Big Brother watching, it is again not an unusual term in software license agreements.
Defender
Another Big Brother issue relates to Microsoft’s right to go into a user’s computer and remove unwanted software. While Microsoft does have the ability to remove unwanted software through the Windows Defender anti-virus program installed on Vista, most anti-virus programs include this feature, and to the extent that users are concerned about Microsoft deleting programs that may not be so unwanted to the user, the user has the right to turn off the Windows Defender program. Of course, one would need to actually read the license agreement to know what the program may do and then to consider whether or not to opt out of this feature. This is just one more reason why it is critical to actually read the applicable license agreement.
Like all license agreements, the Microsoft Vista license agreement is not a boiler plate document. It includes terms that might be undesirable or unworkable for some users. Accordingly, as with all license agreements, users should carefully consider the terms and conditions prior to agreeing to the terms. It is clear that licensors are becoming more and more aggressive about including terms designed to protect against pirated software and provide the licensor with mechanisms to protect rights in software.
It is not unreasonable to assume that if left unchecked, licensors could get even more aggressive on terms and even go beyond what is generally considered to be reasonable and necessary. The only way to continue to make sure there is an appropriate balance between protecting the interests of licensors and the interests of users is for users to continue to carefully read and analyze all licenses and all license terms before entering into a license agreement. Both licensors and licensees must continue to remain diligent on this issue.
Daniels Daniels & Verdonik, P.A. has been serving the legal needs of entrepreneurial and high technology clients for more than 20 years. Caroline Horton Rockafellow concentrates her practice in the representation of entrepreneurial and technology-based business, focusing on corporate, technology and licensing matters. Questions or Comments can be sent to crockafellow@d2vlaw.com
Copyright 2012 by Capitol Broadcasting Company. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.
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