Windows Vista's new spin on licensing


..and why it grates
— 12:21 AM on January 30, 2007

WE'VE HEARD ALL MANNER of tinfoil hattery about Windows Vista's schemes for copy protection, which have prompted the usual round of threats from the usual quarters about how Vista will usher in an OS apocalypse and techies will migrate en masse to Linux. The more realistic types are mostly talking about simply staying camped out with Windows XP for the time being while eying the MacOS world with some curiosity. I'm not onboard with the more paranoid visions of the Vista future, but I do think the uneasiness about Microsoft's plans for Vista has some warrant.

Part of the problem is that Microsoft has, for some time now, been moving slowly but intentionally toward a new model for consumer operating systems sales—one more like the software licensing practices of the corporate world, where licensing is clearly understood by all parties to be "permission to use" rather than any kind of ownership. The distinction here may be a fine one in theory, but it is easily spotted in practice. In the past, the average Joe "owned" a copy of Windows much like one owned a paperback book or an album on CD. There was a physical medium attached to this "ownership," and one could more or less do as one pleased with the OS, within the bounds of fair use rules. This model of ownership may have largely been an illusion with relation to Windows and other software, but it was a powerful one. Functionally, it worked for the market. Consumers accepted it easily, and Microsoft did little to discourage it.

In the world of corporate software licensing, by contrast, the terms of the license can be almost anything, because they are widely understood to be defined by contract. As a result, large software companies create and offer all sorts of varying licensing options to their corporate customers. These terms are often confusing, and licensing models (per seat, per connection, per year, etc.) tend to change with annoying frequency. The goal of such programs (and of the frequent changes) seems to be to extract as much money as possible from one's customers, and Microsoft has become a master of this game. Their sales reps exude a reptilian vibe, because sales pitches are often accompanied by an implied (or even overt) threat of a compliance audit or similar legal action, should the customer fail to buy into the terms on offer. Such veiled threats have bite even for scrupulous customers because the licensing terms are fluid, complex, and often ambiguous. If you don't believe it's this bad, ask any IT manager who's had to deal with it about Microsoft's Software Assurance pitch, and see what he says.

Microsoft has somewhat gently but persistently nudged consumers toward a similar licensing model in recent years, imposing ever more restrictions on consumer OS licenses and beginning to enforce them via mechanisms like software activation and Windows Genuine Advantage checks. By most accounts, MS is ratcheting up that enforcement for Windows Vista. Of course, these mechanisms serve the entirely legitimate purpose of limiting software piracy, but Microsoft is also using them to accomplish goals beyond the scope of keeping consumers honest. As with corporate software licenses, the primary end goal here seems to be to maximize revenues for Microsoft, but MS's moves have the unfortunate secondary effect of eroding the consumer's fair-use rights—or at least the very useful illusion of fair-use rights—in the process.

Take, for instance, the activation routine built into Vista, which will monitor hardware changes and prompt a user to reactivate his copy of Windows after certain key hardware components have changed. This mechanism is familiar to Windows XP users, but controversy over its role in Vista erupted when users became concerned that the proposed Vista retail license would prevent a user from transferring his copy of the OS from one PC to another more than once. Such a limitation would be frustrating in its own right, but it could become more onerous if enforced by a routine that keyed on hardware changes in the system, decided that an upgraded PC was essentially "new," and triggered a license expiration.

To its credit, Microsoft heard the outcry from PC enthusiasts on this issue and amended the terms of its retail Vista license to allow for multiple transfers. The fact that the outcry and revision were necessary still grates, of course. What remains to be seen is how this ostensibly more liberal license will be enforced by the Windows activation scheme. Will the PC enthusiast who decides to devote his evening to a hard drive upgrade be forced to spend an hour on hold waiting to plead with the outsourced call-center worker in Bangalore in order to get his PC re-activated after the change? He may have a legal right to use his OS license in this way, but the renewed emphasis on enforcement in Vista—and Microsoft's sometimes intentional policy of ambiguity about certain facets of its licensing regime—creates unease.

Assuming Microsoft does the right thing with regard to retail copies of Vista, transfer limitations remain in the OEM versions of the OS. For years now, PC enthusiasts have purchased OEM editions of Windows in order to get a nice discount off of the retail price of the OS. These versions of Windows typically have to be purchased along with PC hardware as a sort of assurance that the OS is intended for use by a system builder, but the last OEM copy of Windows XP that I ordered from online retailer Newegg automatically came with a 99-cent Molex splitter cable. Microsoft has officially frowned on the widespread sale of OEM software for some time, but it has also quite willingly enjoyed nice sales of OEM software to PC enthusiasts via outlets like Newegg. This tradition would appear to be continuing, since the 'egg is hawking OEM versions of the various Vista editions already. Trouble is, consumers who make this purchase and then upgrade their PCs substantially or transfer the OS to another system will technically be in violation of the license terms—and Microsoft may choose to bring the clamps down via activation enforcement at any point. Again, most elements of this situation are not really new, but they look different when viewed in the context of Microsoft's licensing enforcement trajectory with Vista.

Another avenue many consumers take in order to save money on Windows is buying an upgrade version. Since almost every PC owner also owns a copy of Windows, and since upgrade editions of Vista typically cost anywhere from a third to a half less than the retail versions, this would seem like a smart route to take. However, Microsoft has decided to prevent "clean" installations of the Windows Vista Home editions from upgrade DVDs. No longer will the installation routine simply ask the user to insert the CD with his previous version of the OS on it. The only way to install a Vista upgrade on one's PC will be to install Windows XP on the system, activate it, and then do an upgrade to Vista. Additionally, as one of our readers pointed out in our discussion of the topic, this requirement will create major headaches a few years down the road, when users have to deal with the WinXP F6 floppy routine to install storage drivers for newer devices that may not even be supported in Windows XP.

These measures push consumers in various ways toward Microsoft's apparent ultimate goals of selling a single Vista license for each PC sold and extracting as much money as possible from the consumer for that license. (Actually, those may be the penultimate goals, with the ultimate goal being ushering consumers into the same software-as-service model as the Software Assurance program does for corporations, but let's not get ahead of ourselves.) As my friend Andy pointed out to me recently, Microsoft could have created an activation/deactivation routine for moving copies of Windows from one PC to the next, much like Apple has done with its FairPlay scheme for iTunes, but it chose not to do so. Instead, Microsoft has gone down a path that restricts the user's options in ways that are less than desirable, in ways that involve inconvenience and a certain amount of ambiguity and unease for the consumer—just like its corporate software licensing practices do.

We don't yet know how Vista's licensing and activation schemes will work out in practice. One would hope for a measure of magnanimity from Microsoft toward consumers, since it enjoys what is essentially a monopoly on OS software for desktop PCs. By and large, consumers haven't chafed at the existence of that monopoly because it has provided them with a common computing platform at a reasonable cost without causing any major inconvenience. But if Redmond's newfound assertiveness shatters the illusion of a "fair use" space for Windows and consumers instead see the reptilian visage of an overeager industry tax collector behind it, they may not appreciate their new reality. 
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