Is it legal to resell used retail Microsoft software?

[Arkaign]

I was under the impression that :

(1)- OEM software cannot be resold after installation under any circumstance, even by a Microsoft reseller.

(2)- You can privately resell used Microsoft Retail products as long as you have uninstalled/deleted the product from the previous unit.

I am curious, as I was following these guidelines, and attempting to sell three retail products that have not been in use for over a year (system died), and as the system in question has been replaced with a Vista Home Premium x64 notebook, it would seem to qualify to be resold to someone who wants it.

Any ideas/links? There are heaps of these types of sales on Ebay (private seller / used retail software), and one would think that if Microsoft frowned on this, they would just shut it down, as they shut down sales of used OEM copies.

Thanks!

[corkyg]

AFAIK, your #2 proposition is generally correct. To really ice it, you could call Microsoft and have them unregister any of your previous installations.

[mechBgon]

Consult the EULAs for the specifics. In general:

1) an OEM software license can be transfered with the hardware it's "married to." In the case of Windows, the transfer has to include the COA, which is supposed to be adhered to the chassis.

2) a retail software license can be transfered as you please, just don't keep using it afterwards or retain copies of it.

[philosofool]

Originally posted by: Arkaign
I was under the impression that :

(1)- OEM software cannot be resold after installation under any circumstance, even by a Microsoft reseller.

(2)- You can privately resell used Microsoft Retail products as long as you have uninstalled/deleted the product from the previous unit.

I am curious, as I was following these guidelines, and attempting to sell three retail products that have not been in use for over a year (system died), and as the system in question has been replaced with a Vista Home Premium x64 notebook, it would seem to qualify to be resold to someone who wants it.

Any ideas/links? There are heaps of these types of sales on Ebay (private seller / used retail software), and one would think that if Microsoft frowned on this, they would just shut it down, as they shut down sales of used OEM copies.

Thanks!

As a minor technical point, not every aspect of ELUAs has been tested in courts. These things are basically a new invention and are not legally identical to other contracts. So what the ELUA "allows" and what the law will allow are probably different. I for one would find it somewhat surprising if MS could do a damned thing legally about reselling an OEM version of their OS, provided that you weren't violating copy right by keeping a copy or running that one on another computer. What they might be able to do is make it hard to install it on a new computer, but that's not the same thing as making it illegal. And they aren't obligated to offer support. What the ELUA forbids is basically the equivalent of allowing Ford to sell you a car and then forbidding you from selling the transmission if you want to. (Look at it this way: if you bought a computer from Dell, Dell would not be able to stop you from taking it apart and selling all the parts on eBay individually. Why should the OS be any different from the rest? Because it's not a physical object in the same way? SFW?)

On the other hand, the judges and representatives who make our laws are not smart about these things. They are mostly old people who don't understand computers very well, so when a Microsoft lobbyist or lawyer tells them something blatantly untrue ("It's a form of software piracy") they're likely to believe that and make laws that favor microsoft rather than consumers.

In regard to (1), it doesn't even make sense to talk about a Microsoft reseller "reselling" a software license. Microsoft can freely make those licenses whenever they want, so a prohibition on their "reselling" certain licenses doesn't even make sense, since it costs them the exact same amount as making a new one. The law just doesn't recognize any such thing as violating an agreement with one's self.

[brxndxn]

Originally posted by: philosofool

As a minor technical point, not every aspect of ELUAs has been tested in courts. These things are basically a new invention and are not legally identical to other contracts. So what the ELUA "allows" and what the law will allow are probably different. I for one would find it somewhat surprising if MS could do a damned thing legally about reselling an OEM version of their OS, provided that you weren't violating copy right by keeping a copy or running that one on another computer. What they might be able to do is make it hard to install it on a new computer, but that's not the same thing as making it illegal. And they aren't obligated to offer support. What the ELUA forbids is basically the equivalent of allowing Ford to sell you a car and then forbidding you from selling the transmission if you want to. (Look at it this way: if you bought a computer from Dell, Dell would not be able to stop you from taking it apart and selling all the parts on eBay individually. Why should the OS be any different from the rest? Because it's not a physical object in the same way? SFW?)

On the other hand, the judges and representatives who make our laws are not smart about these things. They are mostly old people who don't understand computers very well, so when a Microsoft lobbyist or lawyer tells them something blatantly untrue ("It's a form of software piracy") they're likely to believe that and make laws that favor microsoft rather than consumers.

In regard to (1), it doesn't even make sense to talk about a Microsoft reseller "reselling" a software license. Microsoft can freely make those licenses whenever they want, so a prohibition on their "reselling" certain licenses doesn't even make sense, since it costs them the exact same amount as making a new one. The law just doesn't recognize any such thing as violating an agreement with one's self.

I'm impressed with the amount of reason in this post.. More people need to understand this. It is in Microsoft's best interest to claim that anything they don't want you to do is illegal.. If Microsoft could convince you to buy 10 copies of Windows in order to be 'legal', they would try..

[RebateMonger]

As noted, Microsoft publishes their End-User-Licensing-Agreements with their operating systems. The Agreements state that Retail software can be freely sold. OEM software can only be sold with the hardware that was "married" to it when it was first installed. That's why Retail-version MS software can be freely sold on eBay and why OEM-version MS software raises complaints from Microsoft.

From a pragmatic point of view, casual discussion of the "legality" of these agreements is fun but doesn't change anything. MS has a lot of money and a lot of lawyers. If MS chooses to sue a person or a company for license violations, MS usually wins in the end. As far as I know, even in Europe, which has appeared to be critical of Microsoft's "monopolistic practices", MS' licensing rules still stand.

Personally, I find Microsoft's licensing rules very vague, almost amateurish. But they still read the same that they've read for a LONG time. So I guess they are working, for MS at least. And, "right" or not, I'd hate to be on the defense side of a MS-initiated lawsuit.

[mechBgon]

Originally posted by: philosofool

As a minor technical point, not every aspect of ELUAs has been tested in courts. These things are basically a new invention and are not legally identical to other contracts. So what the ELUA "allows" and what the law will allow are probably different. I for one would find it somewhat surprising if MS could do a damned thing legally about reselling an OEM version of their OS, provided that you weren't violating copy right by keeping a copy or running that one on another computer. What they might be able to do is make it hard to install it on a new computer, but that's not the same thing as making it illegal. And they aren't obligated to offer support. What the ELUA forbids is basically the equivalent of allowing Ford to sell you a car and then forbidding you from selling the transmission if you want to. (Look at it this way: if you bought a computer from Dell, Dell would not be able to stop you from taking it apart and selling all the parts on eBay individually. Why should the OS be any different from the rest? Because it's not a physical object in the same way? SFW?)

On the other hand, the judges and representatives who make our laws are not smart about these things. They are mostly old people who don't understand computers very well, so when a Microsoft lobbyist or lawyer tells them something blatantly untrue ("It's a form of software piracy") they're likely to believe that and make laws that favor microsoft rather than consumers.

In regard to (1), it doesn't even make sense to talk about a Microsoft reseller "reselling" a software license. Microsoft can freely make those licenses whenever they want, so a prohibition on their "reselling" certain licenses doesn't even make sense, since it costs them the exact same amount as making a new one. The law just doesn't recognize any such thing as violating an agreement with one's self.

edit: oops, /me has avatar confusion nevar mind!

[Modelworks]

It is against Ebay rules to sell oem software only ebay doesn't police it , usually someone has to report it.

The following items are restricted or prohibited because they would potentially infringe on intellectual property rights.

Software including academic software, beta Software, OEM software

If you want to buy software legit know what you are buying before you do. A good example is Autodesk software. If you see any used copies of autodesk software anywhere do not buy them. Autodesk does not allow registering or activating of used software or the sale of it.

[RebateMonger]

Originally posted by: Modelworks
If you want to buy software legit know what you are buying before you do. A good example is Autodesk software. If you see any used copies of autodesk software anywhere do not buy them. Autodesk does not allow registering or activating of used software or the sale of it.

Yeah, there's a ton of OEM software out there, not only Microsoft's, that isn't supposed to be sold unless it's attached to the original PC that it came with.

"OEM" Photoshop versions, for instance, are sometimes sold on eBay. If you read Adobe's web site, you'll find that Adobe does not sell OEM software except to hardware vendors, and Adobe says that any OEM software for sale is against their licensing terms.

[VirtualLarry]

Originally posted by: RebateMonger
Yeah, there's a ton of OEM software out there, not only Microsoft's, that isn't supposed to be sold unless it's attached to the original PC that it came with.

"OEM" Photoshop versions, for instance, are sometimes sold on eBay. If you read Adobe's web site, you'll find that Adobe does not sell OEM software except to hardware vendors, and Adobe says that any OEM software for sale is against their licensing terms.

It's important to note that "against their licensing terms" is not the same thing as "illegal".

There's something called the right of first sale doctrine, that applies to producers of copyrighted works. It basically says that they only have rights over the first sale of their copyrighted work, and after that, it enters the free market and they lose control over it.

[RebateMonger]

Originally posted by: VirtualLarry
It's important to note that "against their licensing terms" is not the same thing as "illegal".

Almost all of this stuff involves contract law and civil lawsuits rather than criminal law,, so I never use the term "illegal".

There's something called the right of first sale doctrine, that applies to producers of copyrighted works. It basically says that they only have rights over the first sale of their copyrighted work, and after that, it enters the free market and they lose control over it.

Wikipedia: First Sale Doctrine

Software makers insist that software is licensed, not sold, and claim that "First Sale Doctrine" doesn't apply. Lawsuits have had mixed results.

[Modelworks]

Originally posted by: VirtualLarry

It's important to note that "against their licensing terms" is not the same thing as "illegal".

There's something called the right of first sale doctrine, that applies to producers of copyrighted works. It basically says that they only have rights over the first sale of their copyrighted work, and after that, it enters the free market and they lose control over it.

The problem is with companies like Autodesk they will not activate the software for anyone but the original owner. So if you buy it used you still can't use it.