Vista EULA: What's a Hack or a Work Around?

[Znod]

Hi Friends:

I found the following reasonable definition of "a hack," which would violate the Vista EULA, IMO, in Wikipedia (http://en.wikipedia.org/wiki/Hack_%28technology%29):

"A Hack is usually a technique used to subvert, misuse or subtly change a program, gadget or mechanism in such a way as to change, or add to, its functionality."

And, from the Merriam-Webster Dictionary (http://webster.com/dictionary/work-around) comes the following reasonable defintion of "a computer software work around:

"a plan or method to circumvent a problem (as in computer software) without eliminating it"

I am attaching a snip from the part of the Vista EULA that is pertinent to the conclusions I draw below. I emphasize that these conclusions pertain only to practices not specifically outlawed by the Vista EULA.

First, the snip indicates that one must "comply with any technical limitations of the software that only allow you to use it in certain ways." The snip also identifies nonexhaustively, IMO, three things that compliance disallows--referred to now as (1), (2), and (3), respectively. While I am not clear on what MS may have in mind when it spells out (1) and (3), it seems to me that neither would be possible without first doing (2) or otherwise altering Vista,

That is, without first doing (2) or otherwise altering Vista, how would I do (1)--"work around any technical limitations of the software?" In this regard, the software will either do what I want it to do, without doing (2) or otherwise altering Vista or not. If it will, then the software is not technically limited in regard to what I want it to do, and the Vista EULA would not be broken if I did it. Similarly, without first doing (2) or otherwise altering Vista, how would I do (3)--"use components of the software to run applications not running on the software?" In this case, a component of Vista will either run an application without doing (2) or otherwise altering Vista or not. If it will, then the component would be running an application that is "running on the software," and the Vista EULA would not be broken if I ran it.

Thus, my first conclusion is that, unless specifically outlawed, a procedure that does not do (2) or otherwise alters Vista does not violate the Vista EULA. Under this view, any hack, as defined above, is a EULA breaker if it does (2), otherwise alters Vista, or employs a procedure specifically outlawed by the Vista EULA. Similarly, any work around, as defined above, is a EULA breaker if it does (2), otherwise alters Vista, or employs a technique specifically outlawed by the Vista EULA.

My second conclusion is that there are procedures, which some might view initially to be Vista EULA breakers, that actually don't conflict with the Vista EULA. For example, many of us are familiar with one of the procedures for using a Vista upgrade disk to do a clean install of Vista. In this regard, my opinion is that use of these procedures is not specifically outlawed by the Vista EULA and neither requires one to do (2) or to otherwise alter Vista.

Admittedly, there is a gray area here. That is, MS provides instructions for using an upgrade disk. However, it falls short of saying that an upgrade disk can be used only consistently with its instructions--which would outlaw the upgrade disk/clean install procedure under the Vista EULA. Consistently, one well-known and well-respected Vista site, The Vista Forums, considers using such procedures to be acceptable and, AFAIK, has not been challenged by MS in this regard.

I welcome comments and counter arguments. I am working towards a way of saying when a procedure ought to be considered to be consistent (or inconsistent) with the Vista EULA (and EULAs in general). In other words, I am working towards definitions of legal (or debateably legal) hacks and work arounds.

Incidentally, your might want to search on "Vista EULA." You might be suprised about what some see to be the highly contentious legal aspects of the Vista EULA. Still, I am yet to see anyone deal with the issue I am dealing with specifically.

[CrowdAds]

[Znod]

Below are some reads concerning the Vista EULA and related legal issues. Note that some of the comments made iin the reads are clearly erroneous. Still, for the most part, the reads raise interesting legal issues about the Vista EULA.

"Vista's EULA Product Activation Worries";

"Surprises Inside Microsoft Vista's EULA";

"EULA La Vista, Baby";

"Windows Vista EULA: Is It That Bad?";

Licensing Changes to Windows Vista;

"Vista EULA restricts display to one person" (i.e., not serious);

"Forbidding Vistas: Windows licensing disserves the user";

"Dangerous Terms: A User's Guide to EULAs" (i.e., not Vista specific, but still pertinent); and

"More Vista EULA insanity".

[Znod]

Below I emphasize a commentary by Annalee Newitz that applies to (2) as discussed in my first post on this thread. In "Dangerous Terms: A User's Guide to EULAs", she says, in regard to anti-reverse-engineering clauses, such as (2), that:

"These kinds of anti-reverse-engineering clauses – which are incredibly common – seek to undermine the lawfulness of many types of reverse-engineering, ... and thus wind up discouraging innovation, creativity, and exploration.

Section 4 of the Windows XP Home Edition EULA14 manages to acknowledge federal copyright law while nevertheless trying to impress upon consumers that they really shouldn't reverse-engineer anyway:

'LIMITATIONS ON REVERSE ENGINEERING, DECOMPILATION, AND DISASSEMBLY. You may not reverse engineer, decompile, or disassemble the Software, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.

Here, Microsoft has expressly nodded to fair use protections for reverse-engineering, but unless those reading the EULA are familiar with how 'such activity' is 'permitted by applicable law,' they are likely to get the impression that most kinds of tinkering are unlawful."

I am emphasising this commentary to make it clear that reverse engineering is legal in some cases. Additionally, law supercedes any EULA if there is a conflict between the two. In this regard, Ms Newitz mentions the "fair use protections for reverse-engineering." Without being specific, the law and related court decisions tend to support the "fair-use doctrine" in the context of the reverse engineering of computer software.

[felix8406]

Maybe I'm making excuses, but there are some issues where customers are forced to violate the EULA. For instance, when purchasing and downloading Vista from Marketplace, you get to download, install and even burn the files to DVD, but there's no option to create a bootable Vista DVD. You can order a DVD though and pay shipping and handling, but what's the point of purchasing Vista through Marketplace and not being able to, legally, create a bootable DVD?

[Znod]

I think that you raise an interesting issue--something a step beyond my thoughts above. The question is when is an MS customer justified in breaking the Vista EULA. From the perspective of perfect honesty, which is a desideratum, one would never knowingly break the EULA.

My perhaps imperfect view is that doing so is debatably justified at least if MS (1) does not treat one consistently with legalities, its own EULA, or other customers; (2) does something that is totally FUBAR (e.g., the now remedied case where MS prevented certain older files from being opened after the installaton of SP3 for Office 2003); (3) does not come up with a fix for a Vista issue/problem that reasonably would not be expected to exist on a timely basis; or (4) fouls things up so badly that a genuine Vista installation is judged to be illegitimate. I know that my first attempt at identifying cases where one would be justified in breaking the Vista EULA isn't likely to cover all possibilities.

In this regard, anyone interested, how about giving examples of cases where Vista EULA breaking might be justified, I'll think about them, try to figure out if they fit into my above classes, and revise my classes when it seems desirable. Please understand that one treads a slippery slope when trying to argue that someone did something so "bad" that the other is justified in doing something less "bad." I think that the only cases where this sort of argument might be made even somewhat reasonably is in cases of illegal or unethical behavior by MS. And, unfortunately, whether something is illegal or unethical, often is virtually impossible to determine satisfactorily. But, I say ties go to the customer.

[felix8406]

Is it legal to use an utility like TweakVI to "tweak" Vista once installed? Also, is it legal to use VLite to create a bootable DVD from the files downloaded from Microsoft MarkePlace?

[Znod]

I tried TweakVI once and didn't like it because it did things I did not authorize. Regardless, by the criteria I listed in my first post, I don't think TweakVI would be a EULA breaker because the use of such progrmas is not specifically outlawed by the Vista EULA and such programs do not do (2) or otherwise alter Vista. I have to go now, but I'll get back to you on the second issue when I return home. Thanks for raising these issues.

Edit: On the second issue you raise, I have a guestion or so. If a customer does what you mention, then would he or she be aware that Vista could not be installed via just the downloads before downloading? Also, would he or she be presented with information specifically outlawing the VLite procedure you mentioned or procedures of this type speaking generically? I say there is no problem with the procedure you mentioned provided that the answers to both questions is no.

[felix8406]

Originally Posted by Znod

On the second issue you raise, I have a question or so. If a customer does what you mention, then would he or she be aware that Vista could not be installed via just the downloads before downloading? Also, would he or she be presented with information specifically outlawing the VLite procedure you mentioned or procedures of this type speaking generically?

Concerning your first question, "no comprendo". Don't understand your question. The answer to the second question is no.

Just so we are in the same thought; When one purchase Vista to download through the Microsoft Marketplace, you are purchasing an upgrade copy. You download the files to the drive root directory, i.e. "C" drive, click the .exe file and it creates a Vista folder with all the files included with the DVD. You can copy those files to a DVD and install Vista within Windows, but cannot boot the PC with the DVD because it's not bootable.

However, you can, with third party intervention, create a bootable DVD. There are various utilities available and VLite happens to be one of them. It's not a pirated copy because the person who downloads the files and create the bootable DVD will still be using the product key they purchased from Microsoft Marketplace to install their edition of Vista. They can always order a free DVD from Microsoft, but must pay shipping and handling and must wait for the DVD to arrive.

[Znod]

Ah, now I see. I wasn't thinking. I though that you meant, from earlier, that the individual would have to order a DVD in order to install--which wouldn't make much sense. So, my first question is a throw away. And, now back to the issue.

I believe that you said earlier that the individual, having purchased the upgrade, has the right to order a disk. I guess the disk would be an upgrade disk, right??? As mentioned earlier, I don't think that clean installing from an upgrade disk is a EULA breaker. Consistently I don't think that the VLite procedure is a EULA breaker--for the reasons mentioned earlier--(1) no specific EULA prohibition and not doing (2) from my first post or otherwise modifying Vista and (2) the clean install from an upgrade disk is not a EULA breaker (IMO). In this regard, MS is not being denied revenue from selling a disk for $15 plus postage since there is no specific EULA prohibition.

Keep in mind that I am just voicing opinions that have a "legal" flavor. I can't actually say, of course, whether something would be "legal" from the perspective of a lawsuit.

[felix8406]

You get the DVD free of charge, not $15.00, but the individual must pay P&H. Also, it cannot be considered an upgrade disc, as that is determined by the product key, which it is included as part of the download. Additionally, though the individual may try clean installing from the created disc, one may just want to have the disc just in case there's an issue that may require booting from the disc.

The big question is, why doesn't Microsoft provide all files necessary to create a bootable DVD?

[Znod]

I don't know why MS wouldn't provide all necessary for a bootable DVD. But, your additional information, to me, just strengthens the case for the VLite type of procedure being a non-EULA breaker.

[felix8406]

I don't know the answer either, but I meant my question to be more of a statement. If Microsoft is not supplying the user with the ability to create a bootable disc, they must have a reason. And, if they didn't include the boot option, then will adding the additional file be a violation?

I don't believe it is, but could it be considered a hack by someone? Or maybe a walk around?

A hack or a walk-around?...that is the question.

[Znod]

Yes, I think many would consider the procedure to be a EULA breaking hack or work around. But, of course, what I am doing is trying to make reasonable arguments that many such procedures are not necessarily EULA breakers unless found to be so via legal procedures. In this regard, unless daz requires otherwise, my tendency will be to not frown on the discussion and recommendation of such procedures to help others (as opposed to using them for profit-seeking purposes). And, not that this observation should be a determinant of anything, but I doubt that MS is the least bit interested in pursuing the use of the sorts of procedures that I am talking about legally. For one thing, the use of such procedures does not cost MS anything but trivial amounts at most.

[felix8406]

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