Preinstalled Windows: AARGH! I can't get it off!

It's illegal, claims Redmond

If a PC shipped with Windows preinstalled, can you remove the OS and install Linux instead? Well, no, according to Microsoft. A somewhat obscure Microsoft site aimed at helping schools deal with donated computers flatly states: "It is a legal requirement that pre-installed operating systems remain with a machine for the life of the machine."

If this is intended to mean what it says, then Microsoft is effectively treating the hardware and the software as a single, integrated package that you're not allowed to break up. If the statement is applied without qualification, then you're in breach of your licence agreement (and/or some bizarre law they've sneaked past us) if you vape Windows and put something else on instead, or if (as do many major companies) you buy a bunch of PCs with one MS installed and then install another. Put this together with Microsoft's campaigns against Naked PCs,* which make it fairly tricky to buy PCs without Windows on them because they 'fuel piracy,' and we're tottering on the brink of the age of compulsory Windows.

But ease up on the paranoia - this is a picture of the world as Microsoft would like it to be, rather than the one that exists now (we hope). Microsoft has certainly had some considerable success in convincing schools that it is a legal requirement, to the extent that some of them simply parrot the Microsoft web site (here, for example, is Puyallup School District's take), but it doesn't seem obvious that it's even a Microsoft licensing requirement, far less a legal one.

According to the Win2k EULA (End User License Agreement, the one we had handiest), "The SOFTWARE PRODUCT is licensed with the HARDWARE as a single integrated product. The SOFTWARE PRODUCT may only be used with the HARDWARE as set forth in this EULA." That, to our reading, is the closest Microsoft comes to the alleged legal requirement, so you'd have to stretch it to mean 'single integrated product which you are not allowed to break up.' Anyone who can afford lawyers is going to dispute this, of course, but can school districts and recycling charities afford lawyers? So go figure. Even people who can afford lawyers, indeed, will consider the cost of being audited and probably fall into line, because the more lawyers you can afford, the more auditable Microsoft software you're likely to have.

The EULA also says: "Software Product Transfer. You may permanently transfer all of your rights under this EULA only as part of a permanent sale or transfer of the HARDWARE, provided you retain no copies, you transfer all of the SOFTWARE PRODUCT (including all component parts, the media and printed materials, any upgrades, this EULA and, if applicable, the Certificate(s) of Authenticity), and the recipient agrees to the terms of this EULA. If the SOFTWARE PRODUCT is an upgrade, any transfer must also include all prior versions of the SOFTWARE PRODUCT."

The intent of both of these, and indeed what they more or less say, is that you're not allowed to sell the software without also selling the hardware, rather than you're not allowed to reassign the hardware without reassigning the software at the same time.

That however is neither here nor there from the school's point of view. Even schools who haven't just been whacked with a massive software audit will understand from Microsoft's helpful explanations that messing around with machines with no OS, or more likely without absolutely clear title to the MS OS they're running, is not a good idea. Having established that the PC has got to come with the OS it shipped with, Microsoft then goes on to explain how you make sure it's got a valid OS.

The machine should include: "All copies of the software on original disk or CD, including back-up and/or recovery materials; Manuals and printed materials; End-User License Agreement; Certificate(s) of Authenticity." And "If the donor cannot provide this documentation, it is recommended that you decline the donated PC(s)."

Out in the real world it is absurd to expect companies giving PCs to charity to be able to find all of the documentation three years down the line, never mind dig it out and hand it over as well. So it'd be simpler for them just to hand over the machine as a Naked PC, then the school could... Ah yes, but it is "a legal requirement that..." Catch 22.

A Tunney Act submission to the DoJ that we'd missed until now covers this area in some considerable detail. Bruce Buckelew, a retired computer professional running computer reuse facilities for Oakland schools, is at the sharp end of this one and argues: "The administration of the EULA for MS Windows 95 and Windows 98 attempts to obsolete millions of perfectly good computers by preventing the use of MS Windows products EVENTHOUGH THESE PRODUCTS HAVE BEEN PAID FOR. The effect on schools, non profits and the poor, not to mention the environment, is devastating."

Most recyclers, he says, "want to lay low and not take MS on," which is of course a perfectly prudent point of view. His organisation gets donated computers, then finds itself buying and installing new software even when it's "pretty sure" the software on the machine is licensed already. He also points out that it's difficult and more expensive to source older operating software that will actually run on older machines, because Microsoft pushes its new software, which won't.

Buckelew reproduces what he claims is an internal Microsoft memo, from the Microsoft Education Solutions Group, which seems to give a little background to the setting up of the web site. "This [i.e. the web site] will include clear messaging of the legal requirement that the original OS stay with the machine and that naked machines should not be accepted." A "simple online license transfer tool" is mooted, but beware, this: " Allows us to capture customer data from those donating PCs and transferring the OS licenses that can be audited later."

And curiously, in among the proposed FAQs, we have something that indicates that the reality isn't anything as terrifying for schools as Microsoft makes out:

"Q. What if the donor can't find the backup CDs, End-User License Agreement, end-user manual and the COA? Can they still donate the PC and operating system?

ANSWER: Yes, but the donor needs to sign a letter stating they are unable to find the original paperwork and software. Here is a sample proof of license letter that is available to download. The organization's information needs to be filled in and included with the donated machines. This letter will serve as proof of license for the school or nonprofit."

So actually if you've lost all of the proof you can still donate the machine just by filling in the form, and then the school's OK. But we bet you're going to get an audit if you make a habit of it, or it's a reasonable number of PCs. Safer landfilling them, right? ®

* Don't bother telling us the links don't work. They'll surely have nailed them all by now.

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