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Can you help me with my software licensing question?

If we are buying new or used Windows FPP (Retail), we make sure we keep the Media, EULA, Manual, and License. Microsoft had informed us that all of these materials were required for proper license compliance. However, what needs to be kept for an upgrade?

I ask because we are constantly adding new Win98 copies as Virtual Machines to our XP network (our old software requires it ... and yes, we're in the process of rewriting that software). It's becoming VERY difficult to find FPP Win98 SE, so we're considering just purchasing a bunch of Win 3.1 FPP (which are easier to find for some reason) and buying used Win98 SE Upgrades. Many of these upgrades just come with a disk and product key ... Microsoft won't tell us if this is sufficient for compliance since it's dealing with Win98, or if we need to find copies that come with the other material.

Any thoughts on What constitutes a "legal" or "in compliance" upgrade? Thanks.

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marked as duplicate by voretaq7 Feb 11 '12 at 4:18

This question has been asked before and already has an answer. If those answers do not fully address your question, please ask a new question.

I'm not a lawyer, but I would very strongly suggest that you speak to one. Unreasonable contract terms are unenforceable, but what constitutes "unreasonable" to a court may not be what you or I would call "unreasonable". Microsoft may be the experts on what their own contracts say, but they cannot be experts on what is enforceable. Bear in mind that a licence is an agreement between yourselves and Microsoft, not a piece of paper or other evidence - the question you are asking is "can I prove to a court's satisfaction that I really paid for a legitimate copy". Ask a lawyer – Richard Gadsden Nov 11 '09 at 17:41
up vote 2 down vote accepted

Wow, my sympathies....

It all sounds reasonable, but I can't tell you whether it will stand up to a BSA (Business Software Alliance) or MS Licensing Audit. Talk to your software resellers about your situation and see what they can offer, and talk to your organization's laywers.

My take, I am not a laywer

Since virtualization licensing only applies to Vista, you have to license each instance of windows 98 for each VM. So if you have FPP with valid COA's for both Windows 3.11 AND the Windows 98 upgrade that is probably compliant, and make sure that you have process to show that you've done what you can to verify that you're not buying pirated copies.

End of my take, still not a laywer

That being said it also seems like a lot of work and expense for something that could be covered under downgrade rights, and option that may make more sense in the long run if you will eventually upgrade anyway and if you have the right license agreements with MS.

Here are some of the license types that will provide downgrade rights to Windows 98 taken from the MS Downgrade Chart:

  • OEM Licenses with downgrade: Windows XP Pro, Vista Business, Vista Ultimate
  • Software Assurance: Provides downgrade rights to any type of license (OEM, FPP, or Volume Licensing)
  • Select and Open License: Full downgrade rights for license purchased through the agreement
  • FPP: No downgrade path (zip, zilch, nada, sorry*)

The downsides to the downgrade path is going to require extra hoops to jump through but it may give you a lot more flexibility....

*The sorry is mine and not expressed or implied by Microsoft Corporation or any of its agents or subsidiaries.

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I would recommend contacting Microsoft directly. Licensing, and Microsoft licensing especially, is a horribly complex area. To make matters worse, it's a constantly moving target. Not only is this a confused and confusing area at best, it can also depend on which part of the planet your are on.

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IANAL. Several years ago, a company I was involved in got legal letters from the BSA. The software involved was mostly but not exclusively Microsoft products. Probably involved around 150 computers. After some initial legal rangling, we provided an audit of what software was installed on our computers, and matched that up to invoices for the software. That made the BSA go away. No manuals, licenses, EULA or media ever came up and especially in today's age of electronic purchases, they seem silly to keep track of. We don't keep track of any of that stuff currently, but accounting keeps track of the invoices. I don't know enough about this subject to know the right way, but I'm providing one data point with the implied statistical validity.

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depends on whose doing the audit. I suspect if Microsoft can't find COAs you'll have some worrying to do. If you are buying the licenses from reputable retailers then the BSA should leave you alone. The BSA is essentially a protection racketeer. they are looking for easy ways to make money. As long as you have something to take to court that looks like it will hold up they'll leave you alone (in my experience). If microsoft decides you've try to make an end run around licensing they will fully enforce their rights and expect you to produce the correct documentation. Your safest approach is to buy vista with SA (which gives you downgrade rights). At that point they could care less what version of 98 you are running or where it came from.

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