Off the Beat: Bruce Byfield's Blog

If you need to renew your dedication to free software -- if you ever find yourself wondering if your support of open source is worth the effort -- find a copy of the Windows 7 End User License Agreement (EULA). You will immediately stop taking software freedom for granted.

Yes, I realize that reading EULAs is as exciting as watching a progress bar during a download. But the effort is illuminating, especially if, like me, you have fallen out of touch with proprietary licenses. As I found out last week, using the Windows Ultimate edition while preparing a couple of articles for Linux Pro Magazine about compatibility, the EULA goes far beyond the straightforward restrictions in the licenses of a few years ago. The result is about as far away from the GNU General Public License as you could imagine.

I'm not talking here about the expected restrictions of a proprietary license. If you don't expect such a license to allow you to install it on only one machine at a time, or to limit its use to one user at a time, then you're simply naive (although I do recall some Adobe licenses that allow installation on multiple machines, so long as only one machine is used at a time). The same goes for restrictions on reverse engineering and the number of backup copies you can make. Such limitations are standard with proprietary licenses.

I can even see extensions of these limitations. For instance, should you have 32 and 64 bit versions of Windows, then logically you should be able to only use one at a time. And by the same proprietary logic, a virtualization install should count as a separate install. From my free software perspective, I may not like the limitations, but I understand the reasoning behind them.

Other limitations strike me as absurd and arbitrary. Go look for yourself if you don't believe me, but the EULA actually limits you to running it with two processors, and a maximum of twenty other devices. Even more surprisingly, remote access is limited to "the single primary user." Other users require a separate license on the machine from which the remote access is made. How, I wonder, do you determine the primary user?

Taking control of your machine

Where the EULA really starts to get objectionable is during activation and validation. The need to acquiesce to these demands once is annoying enough. However, to add further injury to insult, Microsoft reserves the right to make additional activation and validation checks, and to activate the installation automatically. Moreover, "some changes to your computer components or the software may require you to reactivate the software." In other words, users should be ready to repeatedly establish that they are using Windows 7 legitimately.

At the same time that you agree to these intrusions, you also authorize Microsoft to collect information about your machine. Although the EULA mentions that this information may include your IP Address "and information derived from the hardware configuration of your computer," it does not pretend to give you a complete list of what information may be collected, referring you instead to a web site -- as though, in the middle of installation, most users are going to have an Internet connection.

True, the EULA does promise that "Microsoft does not use the information to identify or contact you." But that information is strangely uncomforting without a complete list of what is collected. And add it to the fact that the EULA also states -- near the end, where your attention may be flagging -- that "We may also share it with others, such as hardware and software vendors," you do not have to be very cynical to consider this collection of information a gross violation of privacy. At the very least, the ability to opt out would be reassuring.

Then, just to make matters worse, should the validation check detect "certain malicious or unauthorized software" or the availability of updates, Microsoft has the right to make changes to your configuration without asking for your consent. If your computer fails the check, then Microsoft can cripple Windows or prevent updates.

Windows Defender acts in a similar way by default. The EULA also informs you that updates "will be required from time to time and downloaded without further notice to you."

No doubt this Big Brotherly behavior is meant for your own good. The trouble is, it makes no allowances for the fact that you might be cautious about applying an update immediately, given Microsoft's past record, or want to preserve the state of your system because of some testing or coding that you are doing. Nor does Microsoft do more than warn you that such changes "may stop other software working" or "cause you to breach another license."

In fact, the EULA makes clear that, should you run into problems, your compensation is limited to the cost of the software and does not cover "indirect or incidental damages" -- even if "Microsoft knew or should have known about the possibility of damage." In other words, Microsoft can do what it chooses with your computer, and is not responsible for any problems that it might cause.

The main direction of the EULA is expressed under "Scope of the License," when it states that "the software is licensed, not sold. This agreement only gives you some rights." This statement is reinforced by reminders such as "you are not permitted to circumvent activation" and "you are not permitted to circumvent validation." Who is in control is never in doubt -- and, just in case I haven't made it clear, it isn't the user.

Unenforceable and unacceptable provisions

My first reaction to this license is that it does nothing to give Microsoft the control it so desperately wants. If anything, it does precisely the opposite. Several of its provision are essentially unenforceable, such as the statement that you can "use but not share its icons, images, sounds, and media" or that you cannot use Windows 7 to crack someone else's machine.

Just as a law that cannot be enforced encourages contempt for the law, so an unenforceable EULA encourages contempt for the whole idea of software licenses. At the most, it provides a means to prosecute people when they have attracted the attention of Microsoft's legal counsels. Otherwise, I can imagine that, for certain minds, the Windows 7 EULA probably encourages violations of its own clauses.

My second reaction is to wonder in bewilderment, "Why would anyone ever agree to such a license?" The answer, I suppose is that most people don't. Some people simply pirate the software. Others, while honest, are in a hurry to install or too bored or intimidated to read the EULA, so they never know what they are getting into. Still, I wonder how users would react if they realized that they have less rights in Windows 7 than in any piece of personal property and that, in fact, they don't own it at all.

Personally, my reaction was revulsion. I never have thought much of a EULA that you cannot agree to until you open the software, but this EULA sinks to depths I never anticipated -- and, in doing so, suggests a desperate attempt to stay in control in the face of overwhelming odds. If these are the measures that Microsoft has to take to protect its business model, then the triumph of free software can't be far away.

Meanwhile, when I finished my investigations, I deleted Windows 7 and returned to the sanity of free software with a profound sigh of relief.

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