Survival Guide to Microsoft Windows Vista Licensing

If you are considering adopting Windows Vista in your business, you may want to have your lawyer examine the license to see if it conflicts with any of your existing contracts. Dan Shearer explains why:

Contracts common in certain industries cut across the Vista licence.

The Vista licence embodies technical surprises that may contradict your clients’ existing contracts:

* Vista has the right in the licence to automatically disable the computer based on Microsoft’s belief of licence validity (§5 c) or opinion of installed software (§6). Service availability guarantees, especially in safety-critical industries, might be broken if your client knowingly deploys software that a third party can disable at any time. Experience with Windows XP shows that validly licensed computers are often mistakenly flagged as invalid; the difference is that Vista shuts down.
* The Vista licence restricts what software a user may be run when Vista is running under a virtual machine, e.g. media viewing or disk encryption (§3 f). Organisations who are required to implement secure desktops often use virtual machines to isolate the network from potential risks. The user does not see the virtual machine, so to them there is no difference between the circumstances in which it is legal to view media or encrypt files and those where it is prohibited.

The Vista licence requires particular kinds of information disclosure that may contradict existing contracts. Contracts in some sectors commonly prohibit activity that tends to release identifying details, or runs counter to laws governing sectors such as gene research, military manufacturing or medical diagnosis. The Vista licence may trigger problems in such contracts, because every Vista computer is tracked (§4, §5 a & b, §7 a) as follows:

* In space, by the explicit and implicit geographic data listed in the Vista licence
* In time, by the explicit and implicit temporal data listed in the Vista licence
* By software installed, both Vista itself and other applications, as described in the licence
* By the licensing entity, whose identity is not disclosed (Microsoft or it’s representatives)
* When the user launches certain kinds of software for the first time, as described in the licence

According to the licence (§7 b) this data is held on an unspecified number of databases held by unspecified companies. The exception is Activation data, which is possibly limited to Microsoft (§4).

If your client has existing contracts that bear on the known level of risk to confidentiality (eg terms such as “where reasonable possibility exists”) there may be issues relating to this data in when matched against other data Microsoft is known to gather.

This other data is gathered through Microsoft’s online search activities, through partnerships with online web tracking companies such as doubleclick.net, and via the data legally collected from users running application programs that Microsoft also sells. This other data is already accessible by Microsoft for hundreds of millions of individuals, almost certainly including your clients and their employees, customers and associates.

While on the one hand it would be a breach of the Vista licence to do this data matching (§5 b, §7 a), the amount of effort involved would be small, as would the chances of knowing it had occurred. Because the barrier is so low (a “reasonable possibility”) simple mistakes inside Microsoft could lead to the data matching taking place without Microsoft even noticing.