The ethics of installing Windows Vista
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By Brian Livingston I reported on Feb. 1 that the upgrade version of Windows Vista accepts itself as a product it can upgrade over, and on Feb. 15 that Vista has a built-in command that allows you to extend its activation deadline from 30 days to 120 days. Those articles were very popular with readers — the Feb. 1 story garnered a reader rating of 4.49 out of 5, the highest score of any article the newsletter has ever published — but that doesn't mean that these reports aren't controversial. |
Support for revealing the secrets of Vista
Most of my readers thought it was highly interesting that Vista doesn't perform even the simplest test for a qualifying operating system before the upgrade version will install. Any running Windows OS, from NT 4.0 to Vista itself, will do. Vista's complete lack of any version-testing code makes it possible to clean-install the upgrade version of the new OS to a blank hard drive — a capability that Microsoft claimed it had deliberately eliminated from the product.
Reader Bill Tomlinson supplies some thoughts that are typical of readers who feel Vista's little-known clean-install features can be useful:
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"Just a few thoughts regarding the Vista 'workaround.'
"First, thank you very much for this article. After all, it will (eventually) save me a few bucks out of my pocket.
"Second, we all should give a round of applause to Microsoft for this coup. They'll be laughing the whole way to the bank. What a way to generate press on this, and what a way to get everyone to buy an 'upgrade' at only $250.00 [for Vista Ultimate]. Microsoft will only 'lose $100.00 or so' on the deal, right? ...
"Third, I don't agree with the 'upgrade' price in the first place. Especially since I can get an OS practically for free (Linux). In today's world, there really is no reason why I can't learn Linux, because it only means that I have to put in the same effort that I had to when I was learning Windows in the first place."
The only question is how high up the approval for this decision went. Did Microsoft executives intend to promote the "upgrade" price as a bargain over the "full" price, and one that almost anyone could use? I'll delve further into this question after the following reader's comment.
When does use of a product become stealing?
Some other readers questioned the ethics of clean-installing Windows Vista to a new hard drive, when Microsoft's End User License Agreement (EULA) doesn't allow this. Reader Gary Castro has a bone to pick with my Feb. 1 article:
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"I'm a little disturbed by Brian's article on the 'Vista Upgrade secret.'
He's not doing a very obvious job of condemning software piracy or misuse;
I get the feeling he is actually condoning it (as made apparent by the
'never pay full price' Feb. 1 headline).
Just because someone is able to install a software program doesn't make it legal to use — one has to also agree to the terms of the EULA, as written by the software provider. I'm no lawyer, but it seems to me it would be both illegal AND immoral for someone to buy and install an upgrade version of Vista if they somehow had a machine that was not upgrade-eligible (built their own machine, maybe?). That would be the same as buying the Student/Teacher version of Office 2003 (or 2007) without having the proper student or teacher in the household (or whatever restrictions the EULA mentions). The educational requirement is not restricted by hardware or software in any way; you just agree during the install process that you abide by the restrictions in the EULA. Would you feel comfortable recommending that everybody buy the Student/Teacher edition instead of an upgrade or full edition, even if they did not qualify for it ('never pay full price')? I hope not, and I don't see how the Vista situation is any different.
"The last paragraph in the Feb. 8 newsletter is just wrong and very disturbing — 'Vista's behavior of installing its upgrade version over any install of Vista looks more and more like a deliberate decision on Microsoft's part to make the install easy and less expensive than the full version of its software. The full version increasingly resembles the "golden casket" that undertakers routinely show to bereaved family members. No one expects the family to actually buy the gold-plated model, but it makes the other models seem less overpriced.' MS made this clean-install easy for the other very good and welcome reasons mentioned in the newsletter, not because there is never a reason to buy the full version. Personal integrity should count for something, especially among industry experts such as Brian.
"The article would have been much less disturbing if MS was lauded for making the clean-install easy to do, and there was no indication that you felt nobody should buy the full version.
"This situation seems to be another example of many people's odd belief that just because they bought software (or a music CD), they can do anything they want with it without regard to intellectual property rights asserted by the seller at or prior to the time of purchase or installation. If you don't agree to their terms, don't buy the product."
Understanding these principles is important. There's huge confusion in the press these days about consumers' rights to use products they've paid for.
The difference between piracy and fair use
Some readers wrote that, since I reported on how Vista allows itself to be clean-installed, I might as well encourage people to run red lights and rob the homes of people who leave their doors unlocked. That's far from what I condone, so let's clear a few things up.
• I definitely warned readers that a clean-install of Vista, or using the upgrade version of Vista to upgrade itself, could violate the Microsoft EULA. I never encouraged people to exploit these tricks for gain or do anything dishonest.
• "Software piracy" is the mass distribution and sale of unauthorized copies of programs. I loathe software pirates and think they should face jail time. (In some countries, however, there are no laws against software piracy.)
• "Fair use" is the catch-all term for the rights that a buyer of a copyrighted work has to make copies for his or her own personal use. For example, it's well established under the U.S. Copyright Act (and the laws of several other countries) that someone who buys a music recording has a right to make a copy to play in his car or elsewhere. Copying and "time-shifting" TV programs is another well-established example of fair use that is perfectly legal.
Microsoft's "product activation" schemes, whether for Windows XP or Vista, have never been aimed at stopping mass software piracy. I reported in InfoWorld Magazine on Oct. 10, 2001, that Microsoft had built into XP a small text file, Wpa.dbl, that allowed pirates to build and sell thousands of working PCs with XP fully activated. (Vista has a different feature with a similar effect, as I'll disclose in a future newsletter.)
Instead, product activation has always been designed to make fair use difficult for average PC owners. For example, a traveling salesman might wish to install Windows on a PC in his home office and install another copy on a laptop to use in his car. This is exactly the same as buying a music CD and then making a copy to play on the road. Under the fair-use provisions of copyright law, this is perfectly legal. Product activation is primarly intended to prevent this kind of personal copying, not mass piracy.
Since making a copy for personal use isn't prohibited by copyright law — in fact, in several countries it's specifically permitted — Microsoft and other software companies have promoted the idea that fair use is illegal because it violates the End User License Agreement. Microsoft and other big players spend enormous sums to build up case law that EULAs, which are never signed by consumers, have the same force as law.
I hate to burst the bubble of some of my friends in the software industry, but it's quite unsettled whether consumers clicking "OK" to verbiage in a scrolling window has the same enforceability as a written signature on a contract. Under Windows XP's activation scheme, a consumer can install XP on a different machine, and activate each copy, approximately every six months. (I most recently wrote about this fact on June 29, 2006.) I've never heard of a single case in which a court of law found an individual "guilty" of this kind of double use. I don't believe a court ever will.
When I rent a power tool, or I pay for dinner with a credit card, I'm required to put my signature on a piece of paper. The tool shop won't let me take the gizmo, and the restaurant won't let me walk out the door, without me physically signing a rental contract or an agreement to observe my card's payment policies.
These transactions involve far smaller dollar amounts than buying, say, Vista Home Premium for 100 bucks. Several software companies that sell high-value products do require signed agreements. But Microsoft long ago decided not to require a signed form when consumers purchase Windows, say, in a retail store. Knowing that copyright law specifically permits some copying for personal use, the Redmond company decided it would make more money by skipping a signed contract and tolerating some double usage.
Corporations that sign a Volume Licensing Agreement with Microsoft are in a completely different situation. They get discount pricing and are duty-bound to obey any restrictions they agreed to in writing.
Click-wrap "agreements," by contrast, are another matter. Courts have ruled again and again, in other contexts, that objectionable provisions of take-it-or-leave-it contracts are simply unenforceable. All we can say for sure is that some clauses in a EULA may be enforceable and others may not be.
As I've stated above, I've never encouraged anyone to exploit weaknesses in Windows for piracy or to cheat a software publisher out of its due. All of the copies of Windows in my office are duly paid for.
As an ethical journalist, however, it's my responsibility to report to you when Windows acts in ways that are sharply different from how its publisher says it will act. I'll never post a method to release a zero-day virus or any other harmful exploit. But when Windows has a function that's clearly been programmed in by its in-house developers specifically to be used by consumers, I've going to find it and tell you about it.
It's not me who's violating Microsoft's EULA. Microsoft's in-house Vista development team made deliberate decisions to violate the company's EULA. Here are some examples:
• Upgrade vs. full edition. Microsoft states that the upgrade version of Vista will only install over a qualifying, previous version of Windows. But the Vista development team deliberately omitted any test in Vista's setup.exe program to look for qualifying products. The decision of the team, as documented in e-mails that I quoted from in my Feb. 8 story, was to ignore the requirements of the EULA.
• Clean-install vs. upgrade only. Microsoft states that the upgrade version of Vista will only install over a running copy of Windows. But the Vista development team decided that Vista should be able to install to an empty hard drive, once again ignoring the EULA.
• 30-day deadline vs. 120 days. Microsoft states that a retail copy of Vista must be activated by contacting Redmond's servers within 30 days of installation. But the Vista development team inserted a command-line program, as I described in my Feb. 15 story, that any novice can use to extend the deadline to 120 days, in violation of the EULA.
The Vista development team isn't stupid. I believe that these features were built into Vista only after the developers got them approved by higher executives. The rationale would be that Microsoft would sell more copies of Vista if the software allowed more flexibility than the EULA supposedly permitted. I've asked Microsoft officials for an explanation, but I haven't received one yet.
To be sure, Microsoft can easily disprove my theory. The software maker can simply indicate which of its developers were dismissed for inserting these functions into Vista without authorization. I haven't heard of anyone being terminated, so I believe my argument is a strong one.
Is clean-installing Vista a fully supported and permitted use of the product for individuals who first bought XP and then bought Vista? Or is it like a widely tolerated misdemeanor, such as crossing the street when the Don't Walk sign is blinking? Or is it more like a serious felony, such as monopoly restraint of trade?
I believe this is a healthy debate for us to have. I honor those who have differing opinions and who've shared them with me.
I can promise you this: you'll have even more to talk about when I reveal in the coming weeks some additional features that I've found in Windows Vista! Thanks for your support.
Brian Livingston is editorial director of WindowsSecrets.com and the co-author of Windows Vista Secrets and 10 other books.
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