Windows 7 OEM EULA Excludes Home Builds not for Resale
Windows 7 OEM EULA Excludes Home Builds not for Resale
Posted 11/15/2009 at 1:58pm
| by Justin Kerr
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Whenever we recommend a build list for new systems, we inevitably turn to Windows OEM editions for the OS. They are bit for bit just as powerful as their retail cousins, but may require a bit of telephone tag with Microsoft when upgrading and you were stuck with nobody to call if you need support. Overall the experience wasn't so bad given the discount, but an important, albeit subtle change in the Windows 7 EULA could permanently alter this recommendation. The specific clause found in prior OEM editions of Windows is as follows:
"OEM system builder software packs are intended for PC and server manufacturers or assemblers ONLY. They are not intended for distribution to end users. Unless the end user is actually assembling his/her own PC, in which case, that end user is considered a system builder as well."
As you can see from the above passage, prior versions clearly made allowance for those that assembled their own system, sadly, this is no longer the case in Windows 7. Assuming this isn't a mistake (and when do lawyers ever make mistakes), then Windows 7 OEM editions can legally only be installed on machines you intend to sell. I suppose you could always pawn off your new machine to a family member for a song, then politely ask them to return it, but Microsoft clearly wants to push more home users over to the retail edition.
You can still buy OEM editions as easily as before from online retailers such as Newegg, but if your moral compass points true north, you'll need to buy retail editions on new systems you aren't selling from now on. Will this stop you from using OEM editions?
(Image Credit: winsupersite.com)
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Bigzeezrom
August 10, 2010 at 8:01am
The license states that to distribute the software to a third party, you must be the system builder (point 2). But nowhere does it require you to distribute the software. What are listed under point 5 are further conditions of distribution. If I don't distribute the software, I don't have to adhere to the terms of the license that cover distribution.
While Microsoft deleted language that said a system builder and end user could be the same person, that doesn't change what the license says now. And Microsoft could have had any number of reasons for deleting that language besides preventing people who build their own computers from installing OEM versions. They could have intended, for example, that someone cannot build, use, and sell the same computer system.
Hamerlock
November 20, 2009 at 4:23pm
Most EULA's have holes, and this one has one you can drive a semi though. Under the definitions they do not define what a third party is. So you can build your Win 7 rig and write up a bill of sale to one of your kids (if you have any) to exchange one weeks allowance for one computer system. No kids, use your dog. Hell sell it to your next door neighbor for $.50 and have a written agreement that it stays at your house till they need it.
mdkplus
November 20, 2009 at 2:14am
EULA in MS's EULA stands for 'End User Loses Ass' which is what happens anytime anything Microsoft is purchased.
Elric
November 17, 2009 at 9:00am
I'm not a lawyer but my reading of the passage makes it sound like they are explicitly making a provision to allow home system builders to use the software just like an OEM. Which is of course the exact opposite of the premise of this alarmist article. Maybe you guys should have run the story by your own legal counsel before trying to make a stink?
Bassline29
November 18, 2009 at 3:51am
The passage that was posted does sound like that. You are correct. However, that was the passage, or clause, from the "prior OEM editions of Windows", not from Windows 7, which is the focus of the article. You'll get 'em next time.
Anywho, as far as I'm concerned, I build my own PCs and will continue to buy the OEM versions to operate their systems. Peace.
whelderwheels613
November 16, 2009 at 1:26pm
What really poeple should take from this article is that even if Microsoft should do such a thing, how do they know that your not a system builder? They don't, and they never will, so keep on buying your OEM copies all you want and have no fear on something uncontrollable.
alanmc76
November 16, 2009 at 8:41am
The way I read this, and I admit that I am not a lawyer, is this. I build my own machines and I use OEM software to do so. In this, I am the system builder and I am my own tech support and in full compliance with the EULA. I can even sell said machine to whoever I want and am still in full compliance.
The only way for me to get into trouble is if I buy the OEM from Newegg, then turn around and sell just the software to someone, or if I bout the OEM to upgrade a stock Dell, or HP machine.
Chill out. Sheesh.
_________________________________
-- "What am I, MacGyver? Fix it with what?"--
damicatz
November 16, 2009 at 7:11am
I cannot believe that people continue to put up with this BS from Microsoft.
Fortunately for me, I use Linux so I don't have to worry about this nonsense. I'm free to install my operating system on as many computers as I want for no cost.
AntiHero
November 16, 2009 at 12:20am
I hope for Microsoft's sake that the wording was just off, because in the long run this will put microsoft in a stickier position than they would anticipate. Anyone who can install their own OS doesn't need "Help Topcis" or the phone support from Bombay, since they won't get any answers that will help them. The long run for this is that they want the retail edition to actually sell. Where i work, we don't even offer the retail edition, it's all OEM because the cost is about $50+ more for packaging and a 1 year warranty type deal, which in the long run isn't worth it because EVERYONE hates calling those call centers for whatever Microsoft has them doing it for, be it code activations to "tech support" to complaints. This is a disappointing prospect for Microsoft to take for many of the people who build our own machines. I prefer custom builds for cheaper costs and to get ONLY what i need/want out of my build. I don't want excess packaging. It's bad enough that i have a motherboard box, video card box, heatsink box, processor box, ram packaging, fan packaging, giant case box, power supply box, and tons of spare zip ties, and packaging for each item including static bags and other plastic bags, then foam and junk, and most people tend to keep it for a couple weeks at minimum until they're sure that everything works fine. I keep mine for about a month. Now i have to keep that stupid ass microsoft plastic box for a year, laying around on a shelf? Just for when i need a problem fixed, i do it myself with google.ca? Nah, i want my OEM, and I'll keep getting my OEM, or I'll go onto Linux for more than 60% of my desktop usage.
QUINTIX256
November 15, 2009 at 10:06pm
...as many suggested; This may just be a minor revision and doesn't fundamentally change the meaning...
but they specifically omitted "Unless the end user is actually assembling his/her own PC, in which case, that end user is considered a system builder as well." It's not like they rewrite the EULA from scratch. They edit the previous ones to deal with new contingencies and newly discovered loopholes. They also clean up the language to remove any possible ambiguity that might create loopholes.Adjust $100 1985 dollars for inflation and you get $200 in today's dollars. Obviousily Windows 7 is much more sophisticated than Windows 1. But still, Windows 1 did not include dos if I recall, so it would be the equivalent of an upgrade license, not a retail or oem license. A Windows 7 Home Premium upgrade cost $110.
I'm of course ignoring Buisness or Ultimate, but traditionally there where only two versions of windows back in the day... NT and not-NT; 98SE and 2000; xp home and xp pro; the concept of a "home basic" or an "ultimate" is fairly new, so the comparison between the price of a Windows 1.0 upgrade and 7 Home Premium upgrade is fair.
Just think about it. You give more to your telecom each year than you give to the developers at Microsoft. You give more to your utilities each year and spend more on clothes each year than you spend on microsoft products. Maybe it is time to pay a little more.
You can have your recession. I'm not participating.
aviaggio
November 15, 2009 at 6:46pm
I'm not sure you're all reading this right. The part in question states "to distribute the Software or Hardware in this Pack..." The key is the word distribute. They are saying that you cannot sell or give away the software without including a full computer system. But if you are using the OS for a system you are building yourself for yourself there is no intent to distribute anything.
Nowhere does it state, or even imply, that a system builder can't install the OS on a system they build for their own use. This section only prevents you from giving away (or selling) OEM copies of the OS without a complete computer system.
Also, as defined in the license, "distribute" is "...the point in time when a Customer System leaves your control." Again, if the system never leaves your control there is NO distribution, and therefore section #2 does not apply.
I don't think there is any problem here. Nothing to worry about.
Pinkyblister
November 15, 2009 at 6:18pm
As a recent buyer of a copy of XP SP3 as well as Win7, I hope that MS does not make it any more hassle for me. I continue to play around with Linux and if I get aggrevated too much I will swap for sure.
DavidWitteried
November 15, 2009 at 5:55pm
I don't understand what the issue is? According to the eula if you build your own computer you can use the OEM license as you "are considered to be a system builder." You just can't buy a copy if you didn't build the machine (e.g. a Linux netbook) you want to upgrade to Win 7.
fry
November 15, 2009 at 6:01pm
Read more carefully. The article quotes from previous Windows EULAs. Click the link for the Windows 7 EULA. It requires system builders to sell the systems they build "to third parties."
LordPyro
November 15, 2009 at 4:45pm
People should be happy they sell the oem's to begin with. People should stop complaining, Microsoft could simply just sell discounted copies to major manufacturers and leave it at that, not even give the option of the oem to system builders.
Some people just need to be happy with what they get and stfu
$30.00 Student Version FTW
nsvander
November 15, 2009 at 4:37pm
Havok,
Unless you intend to sell your machine then you are in violation of the new EULA, as they (MS) added this to the EULA now:
"2. Authorized Distribution and Acceptance. To distribute the Software or Hardware in this Pack, you must be a System Builder" and accept this license. “System Builder” means an original equipment manufacturer, an assembler, a refurbisher, or a software pre-installer that sells the Customer System(s) to a third party.
DBsantos77
November 15, 2009 at 4:36pm
Meh, there's virtually NO way to monitor this as far as I know, till then, OEM for the win.
OEM<Retail
-Santos
Havok
November 15, 2009 at 3:57pm
I'm like the Engineer. I build things. Including my PC.
"Unless the end user is actually assembling his/her own PC, in which case, that end user is considered a system builder as well. "
I build my own PC's, I get to use OEM copies. Simple as that.
CLICK.
nekollx
November 16, 2009 at 10:04am
non-issue
"Unless the end user is actually assembling his/her own PC,"
------------------------------
Coming soon to Lulu.com --Tokusatsu Heroes--
Five teenagers, one alien ghost, a robot, and the fate of the world.
JohnP
November 15, 2009 at 3:35pm
There is actually two things going on here. One the buying of the OEM software and the other is the REACTIVATION of the software. Since I build all of my own computers I have no problem with buying an OEM license. Once I have it installed, who in MS could possibly tell that I have not purchased a custom built rig (which I have!). Reactivation is then easily done with a phone call to India.
The usual practice of buying the OEM license has been to ship a cable or cheap mouse with the disk. Companies have been doing this for 15 years at least.
MS can put whatever they want into the wording but they will have a hell of a time enforcing it.
win7fanboi
November 16, 2009 at 9:02am
point isn't if M$ will enforce it or even wants to enforce it... but that when you agree to the EULA and you are not a reseller you are commiting a crime... they won't enforce it if it means a backlash but they can and thats messed up. If OEM copies are sold to the end users then the provision clause should be kept in the EULA.
Plus the OEM copies help them tout the "copies sold" #.
LVmonkey
November 15, 2009 at 3:33pm
It's like they are encouraging us to nab a torrented version (which also has the side benefit of not giving us upgrade or even patching/wga issues. Hell, then we don't even have to type in the key...)
JustCofox
November 15, 2009 at 2:29pm
I am an OEM reseller, that sells custom built computers. Microsoft prints directly on the OEM packaging that the OEM version is only to be sold with "complete computer systems".. or something to that effect.
The whole point behind the OEM was to keep cost down so partners can compete against big box stores. not for end users to save a few bucks. Serious who ever contacts microsoft as an end user. But as a Partner I speak with them on a weekly/monthly basis. And as an Actonpak/ technet partner i pay for it.
What i dont understand is how Newegg even qualifies to sell OEM versions of windows and office in the first place, they are not OEM builders, infact they get the merchandise from the same vendors I do. Just at better discounts.
mdkplus
November 20, 2009 at 2:10am
Microsoft is all about the money. How much did your partnership cost you? I pay for the same technet subscription every year, am not a partner, and probably can still buy the OEM's as cheaply as you can, and so can my bro who doesn't have a technet subscription.... MS only chums with the big daddys, we will never be able to compete with them. They see to that
nsvander
November 15, 2009 at 2:39pm
Newegg is allowed to sell this because they do sell barebones systems, also if you try to purchase one of the OEM versions they are usually tied to buying a piece of hardware, (ie harddrive, motherboard, cpu). With out the purchase of the hardware you cannot get the OEM software.
bloodgain
November 15, 2009 at 11:12pm
Not true at all. That is supposedly "required", but since Newegg doesn't try to screw its customers over with that baloney, you don't have to buy anything but the software. A few weeks before Win7 came out, I bought a copy of Vista Business from Newegg to get my rig up and running and install the free upgrade later. I bought all the parts ahead of time, so I didn't buy anything but the OEM copy of Vista.
sgmcenroe
November 15, 2009 at 2:14pm
I have been piecing together a new system for the past few weeks, and I purchased an OEM OS copy, as I did for my last machine four years ago. Now I read this. You couldn't have mentioned it a week ago ;-(
I am wondering if I am now out $100+ or if I should try using one of the cracks mentioned in the previous entry?
SEALBoy
November 15, 2009 at 3:06pm
It will work just fine, Microsoft doesn't know if you sold your system or not.
I also agree this is BS. If you're really worried about violating the EULA, sell it to your brother for $5 and then buy him lunch the next day.
DBsantos77
November 15, 2009 at 4:38pm
LOL! Love the $5 idea, frickin genius.
WAIT, in Microsoft's EULA does it state how much you have to sell the machine for? Lol
-Santos
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