More nonsense about Vista upgrades

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If you’ve fallen for the latest round of breathless posts about how you can save a lot of money by buying an upgrade version of Vista and using it for a clean install on new hardware, please go to ZDNet and read my latest post:

The Vista license "loophole" that isn’t

I wrote about this way back in February 2007, when the same sources issued the same breathless reports. Nothing has changed since then. If you qualify for an upgrade license, this technique allows you to do a clean install, legally. If you don’t qualify for an upgrade license, then doing a clean install with this technique is technically possible but violates the terms of the license agreement. That distinction seems to be lost on the folks who are dredging up this old story. So allow me to explain, again.

Short version: How you do the install (clean versus upgrade) is a completely separate issue from the license you purchase:

  • If you have a PC with an old version of Windows that qualifies for an upgrade, you can buy an upgrade version of Vista and do a clean install. Legally.
  • If you are setting up a new PC (or a virtual machine) that does not currently have a Windows license that qualifies for an upgrade, you need either a full retail license or an OEM copy. Although you can use an upgrade version to do a clean install in that circumstance, in that case you are violating the terms of the license agreement.

Why is this so hard for people to understand?

Published by Ed Bott

Published

18 thoughts on “More nonsense about Vista upgrades”

  1. It’s because of this type of irresponsible reporting from Scott Dunn and Brian Livingston that I let my subscription to WS lapse last year. Unfortunately, in a moment of weakness, I sent him a few bucks again earlier this year — and I regret it.

  2. Hi. I wonder if you have heard anything about the ongoing problems (in my case via Dell) with Vista SP1. There still seem to be certain drivers that have yet to be updated; even uninstalling them doesn’t trigger the SP1 update. I just thought you might be able to do some digging…

  4. Ed, perhaps people are remembering the previous times when that actually was the case : ie, the installation would tell you to get lost if it couldn’t find a previous version.

    Tough luck if this is what people believe, many believe that Windows IS computing so why the whining?

  6. WS can defend themselves, but given all of the effort that MS puts into activation and WGA, this does seem like a “loophole” to allow you to do a clean install from upgrade media. Your point about the licensing is a good one, regardless of how or what you install.

  7. Graham, you need to think a little deeper on this. How is MS supposed to stop this scenario from being used. Require an activated installation of a previous Windows version when you enter an upgrade product ID? Then how do I do an upgrade from Windows 2000 Professional to Windows Vista Business (a perfectly legal and common, in business, upgrade path)? Windows 2000 doesn’t use product activation.

    All of the scenarios for “enforcing” this theoretical restriction involve adding massive new functionality to Microsoft’s back-end activation servers. I would imagine someone looked at that and said, “No. We don’t need to do this. The risk is greater than the reward.”

  8. Sorry, I wasn’t really thinking of activation as the solution. I was thinking more of your comment on the “insert qualifying media” requirement from before. Is that not included with Vista (I do’t have an upgrade DVD)? If not, why not? I remember running into this problem with some version of Windows (I can’t remember which) or an old version of Office.
    Again, I agree with your comments on violating the license agreement, but I still think it’s odd that Microsoft would decide that the “risk is greater than the reward”.

  9. “If you have a PC with an old version of Windows that qualifies for an upgrade, you can buy an upgrade version of Vista and do a clean install. Legally.”

    I don’t understand the addition of the last word in the paragraph above. Do Microsoft write the laws now?

    Let’s face it, the EULA is a piece of gibberish you’re expected to agree to after Microsoft have taken your money, in which they tell you that if you don’t agree with their terms and conditions you have the option of returning the software, which as everyone knows is almost impossible to do, and why should you anyway, given that they’ve taken your money and now expect you to agree to all sorts of nonsensical and probably illegal conditions which you never got to read before you purchased.

    If Microsoft sell a product that’s designed to be an upgrade version, but which allows you to use it as a full version and you use it that way, where’s the law that says you’re not allowed to do it, and why would anyone take anything written in a EULA as nothing more than wishful thinking on the vendor’s part anyway? If you want to talk legalities, I’d bet the majority of that wishful thinking is probably more likely to be illegal than buying an upgrade copy of software and installing it as a full version is ever likely to be.

  10. Darren, when you buy software, you’re entering into a legal agreement. One company provides a product, under certain terms and conditions. You agree to those terms and conditions before you buy.

    Your arguments are completely off base. You CAN read the license agreement before you buy. It’s posted online and has been for years. You can also return the product if you don’t agree to the terms. Microsoft even has a numvber you can call to arrange for the return. You could look it up.

    Please point to the “nonsensical and probably illegal conditions” in the license agreement. If you want to have any credibility, you need to do more than just provide tired, ill-informed rants.

  11. Again, I agree with your comments on violating the license agreement, but I still think it’s odd that Microsoft would decide that the “risk is greater than the reward”.

    It’s probably more like the amount of work to close it off is not worth it against the number of people who may potentially try to use the loophole.

  12. Ed,
    When I buy software, how am I entering into a contract? Are documents signed at the point of sale? How do I agree to those terms and conditions before I buy when I don’t have the EULA shown to me until after I get the software home and try to install it? Please explain how that forms a legal contract.

    Whether the license agreement is posted online or not, and whether I can read that agreement before I buy or not, if I’m given no indication when buying the software that I’m obligated to read the agreement, which is probably buried in the bowels of Microsoft’s web site anyway, how is it relevant?

    For a contract to be “legal” as such, the terms of the contract need to be legal themselves and not take away any rights the consumer would otherwise enjoy or it wouldn’t stand up in court. A contract is, as far as I’m aware, an agreement negotiated between two parties. A category a EULA doesn’t seem to fit into. And then there’s the funny “we can change the terms of the agreement without notice to you and you also agree to those terms” clause…. ha, ha! If you want an example of where that’s been thrown out of court I’ll dig one up for you later.
    Here’s a couple of examples of a EULA not holding up in court, and you may want to do a Google for “The First Sale Doctrine”, a right which software vendors are attempting to take away from you by telling you, via a EULA you never agreed to before they took your money, that you’re only leasing their software. Well until the law tells me otherwise, that’s the first part of the EULA I ignore, even if you’re happy to accept it without question. And my view has also been held up in court.

    http://madisonian.net/archives/2005/04/05/limiting-software-licenses
    http://en.wikipedia.org/wiki/Softman_v._Adobe

    As for my view being a tired, ill-informed rant… well I don’t see any evidence of yours being anything to the contrary, but I’d not say so as bluntly to someone in an initial exchange, although I will say you wrote the title of the article well.
    Maybe you should also send a copy of your views along to the U.K.’s National Consumer Council and tell them where they’ve got it all wrong, as they seem to agree with me.
    http://www.cio.com/article/print/185903
    Could I also suggest that if you do so, as you first suggested I should while failing completely to do so yourself…. Maybe offer them some evidence which supports your views in order to give the impression you have some credibility and aren’t just writing an errr…. ill informed rant.

  13. Darren, you seem determined to turn this into a massive argument about some giant intellectual issue. I’m not interested in that discussion, thanks. I wrote about the difference between a full and upgrade license of one software product. I stand behind what I wrote.

  14. Ed,
    I had no desire to turn this into some “massive argument” and to be honest as an “intellectual issue” I don’t see it as being up there with quantum physics. I simply used the Comment box to write a comment on what you wrote… that in my opinion the EULA is just a non-binding piece of gibberish that as a general rule wouldn’t hold up in court.
    You told me I was completely off base and asked me to support my views which is simply what I did. I guess it’s just a pity you’re no longer “interested” enough to show me where I’ve got it wrong. Oh well…

  16. Darren, maybe an analogy would help. Imagine that this blog were about food, and I had just posted an item in which I recommended a gas grill over the George Foreman Grill for cooking steaks. You arrive, and launch into an impassioned argument about how eating meat is wrong, complete with links to leading vegetarian sites. That might be an interesting conversation under the right circumstances, but it is a conversation stopped under these circumstances.

    That’s pretty much what you did here.

    And no, I am not interested in getting into a debate about the legalities and moralities of software licensing in the comments section of my blog.

  17. A better analogy would be one along the lines of being able to buy a book in hard back or paper back. The hard back version is like any other book, but the paper back is cheaper… only when you get it home you discover the first page contains a EULA which says you’re not allowed to read it unless you already own the first book in the series, and for someone to then write in a blog saying that while you can still read it anyway, it’s not legal to do so.

    Someone writing a further comment saying that the EULA itself has no basis in law may, as you’re saying, may be somewhat of a new discussion, although it’s a discussion very relevant to the original one. What I didn’t say, is that it’s wrong to read books, nor did I post links to sites which explain that you shouldn’t read books because it stops you from exercising enough.

    I guess I’ll just have to wait until you post a comment on the legalities of EULAs, and we can debate the subject further than… 😉

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