Recently, I became aware of some outrageous claims made by Microsoft in a British court. The claims are older, only the judgment is recent. Some short notes on the matter.

The Reg, on November 14: UK tribunal says reselling Microsoft licenses is A-OK — Windows giant disagrees and plans to appeal.

Microsoft’s attempt to claim that its software can’t be resold has hit a wall at the UK Competition Appeal Tribunal, which decided that Office having clipart does not mean customers can’t sell their licenses on.

The judgment follows UK reseller ValueLicensing lodging a 2021 claim against the Windows giant over clauses in contracts allegedly aimed at stopping customers from reselling perpetual licenses. The Derby-based reseller sued Microsoft for £270 million in damages over claims of lost business.

The dispute rumbled back and forth until Microsoft made a surprising pivot. Instead of denying wrongdoing, Microsoft argued that reselling perpetual licenses infringed its copyright. It also claimed that the practice of companies selling only a portion of their licenses was not permitted.

The Competition Appeal Tribunal pondered the software giant’s claims and disagreed. According to the judgment, there was nothing preventing the subdivision and resale of Windows and Office licenses acquired under Microsoft’s Enterprise Agreements, nor was there anything wrong with the resale of licenses.

More info, from October 20: Tribunal wonders if Microsoft has found a legal hero after pivot to copyright gambit.

Microsoft, naturally, denies the alleged wrongdoing and earlier this year bit back with an argument that reselling perpetual licenses was, in fact, infringing its copyright.

According to ValueLicensing, reselling a perpetual license is perfectly legal. The company is relying on a European ruling in the UsedSoft case, which found that used software licenses could be sold. Microsoft, on the other hand, asserted that Office is not covered by the Software Directive, but by the Copyright and Information Society Directive. The latter covers creative works, and because Office has resources like icons, fonts, and help files, Microsoft argues Office qualifies as a creative work.

Baffling, eh? Let’s see what readers had to say.

From the comments to the Oct. 20 article:

“Is Office an artistic work”

No, it is not.

An artist is an individual who takes care of his artistic vision and strives to improve himself from one work to the next.

Borkzilla doesn’t care about improving itself, and claiming that icons have colors does not make Redmond a painter.

I would really like to be a judge just to throw out this case with extreme prejudice.

Re: “Is Office an artistic work”

If a majority of customers bought the office suite to get specific tasks done and not because they are art lovers it should be straight forward for a court to decide if that product is a tool or a work of art.

Re: “Is Office an artistic work”

From my perspective, it shouldn’t matter. Yes, Office is and should be copyrighted. Yet, I can sell a book which is mostly the copyrighted content when I want, and I should be able to sell my license as long as I no longer use it, therefore transferring it rather than trying to duplicate it, and I have not signed an agreement saying I won’t. If Microsoft wants me not to, they can put it in an agreement which prohibits me from using that power which they apply to subsequent purchases with clear warnings that they have done so at the point of sale, and their problem is solved. Laws don’t build that for them for their convenience, nor can they write that agreement and apply it retroactively.

Red herring?

Sounds like a bit of a red herring to me?

They are not distributing the copyrighted works, they are reselling the license codes which provide access to said works. (unless you deem license codes copyrightable, which opens a whole new can of worms…)

Also, isn’t there existing case law for this? I’m fairly certain that you’re allowed to resell (access to) copyrighted works like music and books as well in most (if not all) European countries, assuming you do not make copies or sell it multiple times.

I’m unsure about reselling individual licenses which are part of a volume licensing plan, there’s a lot of variables there and I’m not a legal professional by a long shot.

Re: Red herring?

That was my thought exactly. AFAIK the application, code, artistic bits and all can be downloaded from Microsoft with no restrictions. It only does something allegedly useful when the licence code is added o it. They must be getting desperate.

Re: Copyright covers books?

If publishers had their way, each book “purchase” would be a non-transferable license to read said book rather than ownership of a physical copy; in other words, e-books. For the moment, of course, you can still buy physical media, until someone invents a way to cryptographically lock a paper book.

That argument is insane

It doesn’t matter whether a book is a textbook, manual, fiction, non-fiction, comics or artbook, I can still sell it.

Paintings are resold all the time, as are DVDs and Blu-rays.

The only real limitation is that I usually cannot keep a copy if I sell the original.

Now, from the comments to the more recent one:

Re: Common sense prevails?

Whether it’s legal or not depends very much on your legal system. In general, in Europe you have extensive rights to digital products – even copyrighted ones, which is why it’s both legal to make a backup copy or resell something.

In America, licences can be much more restrictive and American companies (and many American courts) think that their interpretation of the law is universal.

“Volume licensing” deals were such a scam that Microsoft fought tooth and nail to keep them as “commercial secrets”. The idea behind the discount was not only to encourage volume purchasing but ensure that every machine came with Windows™. Anti-competitive – for a long time it was part of the agreement that other operating system could not be installed as well – and anti-consumer: you paid for the licence even if you didn’t want to use it but were not allowed to resell it. What’s not to like?

Re: Common sense prevails?

From what I can see from my European country, a Dell Pro Max 16 in its basic configuration would be 1,370€ with Windows, 1,252€ without (i.e with Ubuntu). So an 8.6% discount.

Is it worth bothering? It’s up to you.

Re: Common sense prevails?

A new digital Windows 11 Pro Licence is £9.99 to Joe Public on a reputable ‘keys’ site.

Even at the non-discounted tax inclusive price of £49.99 it’s cheaper than the €118 Dell are charging based on your example.

€118 may be ‘parking change’ to you, but that’s a significant amount of money to most people and corporate.

Re: Common sense prevails?

The resales are precisely from the volume licences that Microsoft keeps trying to prevent. The great unwashed, if they have the temerity to buy a machine that doesn’t come with Windows installed, should be forced to pay a premium.

Re: Common sense prevails?

The demand for Windowsless machines was so low (either through apathy or lack of knowledge) that it wasn’t worth manufacturers and retailers taking the extra expense to provide something that few people would take advantage of.

It should never have been “extra expense”.

To not ship a license costs less than to ship a license, and they already have enough SKUs to make the “no Windows option” just another line item.

Copyright?

The notion that copyright on fonts and icons makes reselling illegal has always been nonsense and MS knows it.

If it were illegal then so would selling a second hand book (obviously copyright) or anything at all that featured any unique and/or distinguishing features, like Lego or even a particular brand of car – what would stop BMW saying you can’t resell one if it’s cars because it happens to have a copyrighted BMW badge on the front? It would be a ridiculous situation.

Re: Copyright?

The “Copyright” bullshit pivot was such an idiotic move. What the hell were they thinking? Proper head meeting desk moment.

Re: Copyright?

what would stop BMW saying you can’t resell one if it’s cars because it happens to have a copyrighted BMW badge on the front?

I think the MS argument was more akin to BMW saying you can’t resell the BMW you purchased because the tyres carry the copyrighted Pirelli logo.

Re: Copyright?

Tesla are already claiming you can’t sell on extra software features you bought on your Tesla when you sell it

The copyright art claim is obviously MSFT lawyers trying to get around that the case law on all this was settled in the 90s with IIRC Autodesk licenses.

Re: Copyright?

This becomes a bit of a circular argument.

The reason we have icons is because they are supposed to be blindingly obvious to the end user, which means that they will have seen them extensively before. Easy examples are the waste bin, floppy disk icon, nuclear symbol, a CD-ROM drive, the MIL light on your car, etc.

Imagine if they tried this copyright stuff with things like road signs, which are ingrained into everyone’s brain.

Resale of volume licences

“there was nothing preventing the subdivision and resale of Windows and Office licenses acquired under Microsoft’s Enterprise Agreements”

I suspect resellers are going to have to maintain good records of sales to confirm that they have only sold the same number of individual licenses as were in the original volume licence.

This also raises an issue: multiple users will have legitimately purchased the same licence key. The only way you have to confirm your ownership is your receipt bearing the licence key(s) you have purchased and been allocated by the reseller.

Obviously, common sense and Microsoft’s lawyers are not living in the same universe.

But can one expect common sense and decency from such people?

OK, so why are so many people still using Windows, apart from the usual reasons? (Vendor lock-in; computers sold with Windows; familiarity; the fragmentation and chaos that exists in the Linux world; etc.)

I will tell you why I will never use anything made or designed by Apple: because they’re even worse! (Not to mention that you have to use their hardware, which is a worse vendor lock-in, akin to what I’d expect in North Korea, not in the “free world”!)

I’ll quote from an older comment of mine:

In my opinion, in those times, Microsoft was almost “the good guy” in comparison to Apple.

For a first example, read the “1985-10 GEM must be phased out” section. Apple considered that DR GEM Desktop was infringing on Apple’s user interface patents. Why? It had overlapping windows! So GEM 2 had no overlapping windows anymore.

Read then “1985-11 Apple allows Microsoft to use its technology”: under the pressure that “Microsoft will not provide any software for Macintosh (including very popular Microsoft Excel) if Apple insists on attacking Windows,” Apple agreed that Windows may use its “technology” (there’s absolutely no technology if it’s just a visual metaphor!), but only “as long as there were no overlapping windows and a trashcan icon.”

Of course, Windows 2.0 introduced, err, overlapping windows. Fucking predatory Apple went mad: “1988-03 Apple files a lawsuit against Microsoft for patent violation in Windows 2.” The legal battle ended with “P.S. 1989-07 Apple vs Microsoft lawsuit starts to look like a losing case for Apple”:

Microsoft has put money on Windows 3.0, but it was not out of the woods yet due to Apple’s lawsuit. Thankfully, in 1989, the court decided that 179 out of the 189 copyrighted elements had been licensed to Microsoft in the Windows 1.0 agreement.

The remaining ten?
● A1 overlapping windows in front of a muted background;
● A8 windows appearing partly on and off screen;
● B1 top overlapping window displayed as the active window;
● B2 window brought to top of stack when mouse clicked;
● D1 gray outline of window dragged along with cursor when mouse pressed on window’s title bar;
● D2 window dragged to a new position when the mouse is released after dragging the window’s outline;
● D3 newly exposed areas on screen are redisplayed after the window is moved;
● G4 icon may be moved to any part of screen by dragging along with cursor when user presses mouse on icon;
● G5 display of icons on screen behind any open windows;
● G6 icon’s title displayed beneath icon.

In support of its contention that seven of the ten remaining visual displays (A1, A8, B1, B2, D1, D2, D3) are licensed, Microsoft has submitted a videotape, Exhibit H, which shows that each of the seven visual displays appeared in the 1985 version of Microsoft Excel. — Apple Computer Inc. v. Microsoft Corp., 759 F. Supp. 1444

A society in which such visual concepts are patentable is a completely broken one. And that society is called the United States of America. Such lawsuits made me be tolerant towards Microsoft (until Windows 8 happened) and to nurture an endless hatred towards Apple. Remember when Apple sued Samsung in April 2011 because Samsung’s devices, including their rectangular shape with rounded corners and a frontal button, “infringed on Apple’s design patents”? Shitheads.

Here’s a longer list that still only list a small part of those 189 copyrighted elements that “belonged” to Apple. How about this one? “Use of a special discard folder for deleting objects, and asking a user for confirmation when the user attempts to place an application program in the discard folder.” Wow! How could anyone dare to use such a magnificent invention that required Apple years of studies and development? For the idea, not for the code implementing it. We’re lucky that such patents expired and could not be renewed!

Over and out.