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Can you use Windows 7 Home Premium for Commercial Use?

Dec 22nd, 2016 | By | Category: Software Licensing Audits

Microsoft Licensing Quandries – will someone please explain whether or not you can use Microsoft Windows Home for commercial business purposes?

EULA software audit law firm

 Introduction

 This is not legal advice, but since I cannot seem to get a straight answer on this from BSA counsel, I am posting this with the hopes that someone out there in the internet world can answer this simple question for me – is it legal to use Windows Home 7 Premium for business (“commercial”) purposes (other than for commercial hosting services), or does that violate the End User Licensing Agreement (“EULA”)?

If it violates the EULA, then the end user is in breach of contract (or possibly has committed copyright infringement depending upon the relevant facts of the case and the law).  This can create a problem if you are trying to negotiate the lowest settlement possible in a software audit investigation with the Software Alliance (BSA).

It has been the position of the BSA that Windows Home 7 CANNOT be used for business purposes, and that penalties should be paid, and the software should be deleted.  It is my position that “Home” is more for marketing purposes (ex. what is the difference between “Home” and “Personal” software, and are these terms used just to help end users make a purchasing decision.  This is not legal, do not rely on this.  These are just general discussion and opening this up for debate as many companies could be impacted by this interpretation.

Case hypothetical

Say you run a software company that started in the year 2000.  At that time, you had 10 computers in the company that you purchased from Best Buy, and these computers came pre-loaded with Microsoft Windows Home 7.  Best Buy knew you were buying these for your business, and even helped you pick the best one for you.  The charged your credit card (which incidentally used your corporate account with the name of the company “Superstar Software” all over it.  You keep the receipts in the hands of the IT guy, and its her job to keep them in a safe place “in case we are ever audited.”  Well, as the years go by, and after moving a few offices, and acquiring a  company or two along the way “Archies Architect Software” and “Dangerous Eddie Engineering Co.” and incorporate their computers into the mix.  The owners of these companies tell Superstar “yeah we paid for all this software we will just transfer it over to your company and as long as you use it per the license terms, you should be good. You don’t have all the receipts for all the new computers and that includes no dated purchase reciepts for Windows Home 7 which you picked up some more copies of, and the Office products you also acquired.

“Fast forward 20 years later, the BSA (Business Software Alliance) comes knocking with a “letter” demanding that you engage in a voluntary audit.  Wow, why did I get this letter you say?  The software is all good and licensed here, we are not software pirates.  But the IP lawyers for the Business Software Alliance say “yeah yeah we have heard all that before, just provide us with a detailed audit worksheet showing us every piece of software licensed on your company computers, servers, and laptops, and if you cannot provide that evidence, you are a software pirate and must pay us a ransom (er, I mean an “infringement fee”).

Upon turning over the results of the audit, it is learned that your are informed “ha ha, your Windows Home Premium Software (some of which you have proof for, and some of which you do not have proof for), is causing legal problems, and you going to have to pay infringement fees, and then delete the software, and then go buy new software after you pay us the fee we are demanding.   If none of this goes according to our plans, we may sue you in federal copyright court where your legal damages could be millions of dollars.”

“You ask what the problem is because you purchased and have receipts for the Windows Home 7.  Hark says the BSA collection lawyer – “the word HOME tells you all you need to know.”  It cannot be used for generating money.  You can only basically use it while surfing the internet on your software, or at least so goes the thought process.  You are infringers, and officers and directors can be held liable for your missing receipts and for also exceeding the scope of the licensing terms.  But isn’t that a breach of contract?  No, not to us it is not.  It is willful copyright infringement time to pay a 3X MSRP multiplier and hefty attorney fees if you want to resolve this case, and if you want the settlement “confidential” that could cost even more.”

“But is this a valid legal position, or is it bullying and crossing the line into being a software troll?  Well, to answer this question, I think you first need to understand what the terms of the MS Windows Home 7 license is.  If it is allowed for commercial business or profit purposes (maybe you work from home and make profits, is that prohibited)?  Again, you must turn to the terms of the license (see below).  I see no such prohibition against business use, and do not consider such uses to be an infringement of copyright, or a breach of contract.”

“Counsel for BSA are unwilling to even read the terms of the contract with me, instead telling me dice and offering me OTHER LICENSE EULA’s that don’t even deal with the product at hand. I balk and say I cannot tell my Client to delete all that software because Microsoft doesn’t want you using it for business, but they will not point to where exactly the commercial use prohibition is.  Now, I saw it on the ‘Home and Student” version which makes clear on their licensing database that this CANNOT be used for commercial purposes, nevertheless, my Client gets strong-armed which appears to be a breach of contract being induced by the BSA who interferring with the terms of an existing contract, and tortiously interferring with prospective economic advantage by taking up value time and money to purse this position which is threatening to put the small out of business (often run by foreign nationals just here to try to live the American Dream) if the demands are not made.”

“Now is this fair?  Do I not have a right to insist that we understand the terms of the EULA, and if my Client is compliant, to continue to allow them to use the software without paying a settlement fee and the BSA attorney fees (which can range from $2,500=-$10,000)?  When I make these arguments, amazingly I am treated like the bad guy, and they are pushing us into a position where seeking declaratory relief and our attorney fees in federal court may be the only rational option available to my Clients who feel extremely bullied, and this cases also happens where there are simply “missing, lost, or mislaid receipts which cannot be dug up following years of running the business and years of mergers and acquisitions.  Is not having every receipts for every piece of software a crime? Does it make you are software pirate?  Should you have to destroy software you have legally acquired along the way because you don’t have receipts on hand, or dated confirmations, or other invoice evidence.   According to the BSA, its “hey too bad buddy, we need our money if you don’t have receipts, and whether  we agree with your EULA analysis or not.  You better settle the case or you cold really be in for it.  This is the general demeanor, and its not fair or objective at all and fails to take into account realities that people do lose receipts and they do acquire companies and their computers and they don’t always have all the paperwork.  In these cases, we call for fair treatment.”

Listen to Attorney Steve discuss “Lost receipts” in the software alliance and Autodesk cases

what evidence for autodesk audits

PODCAST:  Click on the picture above to hear a podcast on this legal topic.  If you like it share it with your friends.

Microsoft licensing terms – here is the entire EULA agreement I was able to find.  If you can tell me where this prohibits business use I will kindly adjust my thought process on this issue:

MICROSOFT SOFTWARE LICENSE TERMS

WINDOWS 7 HOME PREMIUM

These license terms are an agreement between Microsoft Corporation (or based on where you live, one of its affiliates) and you. Please read them. They apply to the software named above, which includes the media on which you received it, if any. Printed-paper license terms, which may come with the software, may replace or modify any on-screen license terms. The terms also apply to any Microsoft

· updates,
· supplements,

  • ·  Internet-based services, and
  • ·  support services
    for this software, unless other terms accompany those items. If so, those terms apply.By using the software, you accept these terms. If you do not accept them, do not use the software. Instead, return it to the retailer for a refund or credit. If you cannot obtain a refund there, contact Microsoft or the Microsoft affiliate serving your country for information about Microsoft’s refund policies. See www.microsoft.com/worldwide. In the United States and Canada, call (800) MICROSOFT or see www.microsoft.com/info/nareturns.htm.As described below, using the software also operates as your consent to the transmission of certain computer information during activation, validation and for Internet-based services.If you comply with these license terms, you have the rights below for each license you acquire.
  1. OVERVIEW.
    1. Software. The software includes desktop operating system software. This software does not include Windows Live services. Windows Live is a service available from Microsoft under a separate agreement.
    2. License Model. Subject to Section 2 (b) below, the software is licensed on a per copy per computer basis. A computer is a physical hardware system with an internal storage device capable of running the software. A hardware partition or blade is considered to be a separate computer.
  2. INSTALLATION AND USE RIGHTS.
    1. One Copy per Computer. Except as allowed in Section 2 (b) below, you may install one copyof the software on one computer. That computer is the “licensed computer.”
    2. Family Pack. If you are a “Qualified Family Pack User”, you may install one copy of the software marked as “Family Pack” on three computers in your household for use by people who reside there. Those computers are the “licensed computers” and are subject to these license terms. If you do not know whether you are a Qualified Family Pack User, visit go.microsoft.com/fwlink/?Linkid=141399 or contact the Microsoft affiliate serving your country.
    3. Licensed Computer. You may use the software on up to two processors on the licensed

computer at one time. Unless otherwise provided in these license terms, you may not use the software on any other computer.

  1. Number of Users. Unless otherwise provided in these license terms, only one user may use the software at a time.
  2. Alternative Versions. The software may include more than one version, such as 32-bit and 64-bit. You may install and use only one version at one time.

3. ADDITIONAL LICENSING REQUIREMENTS AND/OR USE RIGHTS.

  1. Multiplexing. Hardware or software you use to
    • ·  pool connections, or
    • ·  reduce the number of devices or users that directly access or use the software(sometimes referred to as “multiplexing” or “pooling”), does not reduce the number of licenses you need.
  2. Font Components. While the software is running, you may use its fonts to display and print content. You may only
    • ·  embed fonts in content as permitted by the embedding restrictions in the fonts; and
    • ·  temporarily download them to a printer or other output device to print content.
  3. Icons, images and sounds. While the software is running, you may use but not share its icons, images, sounds, and media. The sample images, sounds and media provided with the software are for your non-commercial use only.
  4. Use with Virtualization Technologies. Instead of using the software directly on the licensed computer, you may install and use the software within only one virtual (or otherwise emulated) hardware system on the licensed computer. When used in a virtualized environment, content protected by digital rights management technology, BitLocker or any full volume disk drive encryption technology may not be as secure as protected content not in a virtualized environment. You should comply with all domestic and international laws that apply to such protected content.
  5. Device Connections. You may allow up to 20 other devices to access software installed on the licensed computer to use only File Services, Print Services, Internet Information Services and Internet Connection Sharing and Telephony Services.
  6. Remote Access Technologies. You may remotely access and use the software installed on the licensed computer from another computer to share a session using Remote Assistance or similar technologies. A “session” means the experience of interacting with the software, directly or indirectly, through any combination of input, output and display peripherals.
  7. Media Center Extender. You may have five Media Center Extender Sessions (or other software or devices which provide similar functionality for a similar purpose) running at the same time to display the software user interface or content on other displays or devices.
  8. Electronic Programming Guide. If the software includes access to an electronic programming

guide service that displays customized television listings, a separate service agreement applies to the service. If you do not agree to the terms of the service agreement, you may continue to use the software, but you will not be able to use the electronic programming guide service. The service may contain advertising content and related data, which are received and stored by the software. The service is not available in all areas. Please consult the software information for instructions on accessing the service agreement.

  1. Related Media Information. If you request related media information as part of your playback experience, the data provided to you may not be in your local language. Some countries or regions have laws and regulations which may restrict or limit your ability to access certain types of content.
  2. Worldwide Use of the Media Center. Media Center is not designed for use in every country. For example, although the Media Center information may refer to certain features such as an electronic programming guide or provide information on how to configure a TV tuner, these features may not work in your area. Please refer to the Media Center information for a list of features that may not work in your area.
  1. MANDATORY ACTIVATION.Activation associates the use of the software with a specific computer. During activation, the software will send information about the software and the computer to Microsoft. This information includes the version, language and product key of the software, the Internet protocol address of the computer, and information derived from the hardware configuration of the computer. For more information, see go.microsoft.com/fwlink/?Linkid=104609. By using the software, you consent to the transmission of this information. If properly licensed, you have the right to use the version of the software installed during the installation process up to the time permitted for activation. Unless the software is activated, you have no right to use the software after the time permitted for activation. This is to prevent its unlicensed use. You are not permitted to bypass or circumvent activation. If the computer is connected to the Internet, the software may automatically connect to Microsoft for activation. You can also activate the software manually by Internet or telephone. If you do so, Internet and telephone service charges may apply. Some changes to your computer components or the software may require you to reactivate the software. The software will remind you to activate it until you do.
  2. VALIDATION.
    1. Validation verifies that the software has been activated and is properly licensed. It also verifies that no unauthorized changes have been made to the validation, licensing, or activation functions of the software. Validation may also check for certain malicious or unauthorized software related to such unauthorized changes. A validation check confirming that you are properly licensed permits you to continue to use the software, certain features of the software or to obtain additional benefits. You are not permitted to circumvent validation. This is to prevent unlicensed use of the software. For more information, see go.microsoft.com/fwlink/?Linkid=104610.
    2. The software will from time to time perform a validation check of the software. The check may be initiated by the software or Microsoft. To enable the activation function and validation checks, the software may from time to time require updates or additional downloads of the validation, licensing or activation functions of the software. The updates or downloads are required for the proper functioning of the software and may be downloaded and installed without further notice to you. During or after a validation check, the software may send information about the software, the computer and the results of the validation check to Microsoft. This information includes, for

example, the version and product key of the software, any unauthorized changes made to the validation, licensing or activation functions of the software, any related malicious or unauthorized software found and the Internet protocol address of the computer. Microsoft does not use the information to identify or contact you. By using the software, you consent to the transmission of this information. For more information about validation and what is sent during or after a validation check, see go.microsoft.com/fwlink/?Linkid=104611.

c. If, after a validation check, the software is found to be counterfeit, improperly licensed, a non-genuine Windows product, or include unauthorized changes, the functionality and experience of using the software will be affected, for example:

Microsoft may

  • ·  repair the software, remove, quarantine or disable any unauthorized changes that may interfere with the proper use of the software, including circumvention of the activation or validation functions of the software, or
  • ·  check and remove malicious or unauthorized software known to be related to such unauthorized changes, or
  • ·  provide notices that the software is improperly licensed or a non-genuine Windows product and you may
  • ·  receive reminders to obtain a properly licensed copy of the software, or
  • ·  need to follow Microsoft’s instructions to be licensed to use the software and reactivate, and you may not be able to
  • ·  use or continue to use the software or some of the features of the software, or
  • ·  obtain certain updates or upgrades from Microsoft

d. You may only obtain updates or upgrades for the software from Microsoft or authorized sources. For more information on obtaining updates from authorized sources see go.microsoft.com/fwlink/?Linkid=104612.

  1. POTENTIALLY UNWANTED SOFTWARE. If turned on, Windows Defender will search your computer for “spyware,” “adware” and other potentially unwanted software. If it finds potentially unwanted software, the software will ask you if you want to ignore, disable (quarantine) or remove it. Any potentially unwanted software rated “high” or “severe,” will automatically be removed after scanning unless you change the default setting. Removing or disabling potentially unwanted software may result in
    • ·  other software on your computer ceasing to work, or
    • ·  your breaching a license to use other software on your computer.By using this software, it is possible that you will also remove or disable software that is not potentially unwanted software.
  2. INTERNET-BASED SERVICES. Microsoft provides Internet-based services with the software. It

may change or cancel them at any time.

a. Consent for Internet-Based Services. The software features described below and in the Windows 7 Privacy Statement connect to Microsoft or service provider computer systems over the Internet. In some cases, you will not receive a separate notice when they connect. In some cases, you may switch off these features or not use them. For more information about these features, see the Windows 7 Privacy Statement at go.microsoft.com/fwlink/?linkid=104604. By using these features, you consent to the transmission of this information. Microsoft does not use the information to identify or contact you.

Computer Information. The following features use Internet protocols, which send to the appropriate systems computer information, such as your Internet protocol address, the type of operating system, browser and name and version of the software you are using, and the language code of the computer where you installed the software. Microsoft uses this information to make the Internet-based services available to you.

  • ·  Plug and Play and Plug and Play Extensions. You may connect new hardware to your computer, either directly or over a network. Your computer may not have the drivers needed to communicate with that hardware. If so, the update feature of the software can obtain the correct driver from Microsoft and install it on your computer. An administrator can disable this update feature.
  • ·  Windows Update. To enable the proper functioning of the Windows Update service in the software (if you use it), updates or downloads to the Windows Update service will be required from time to time and downloaded and installed without further notice to you.
  • ·  Web Content Features. Features in the software can retrieve related content from Microsoft and provide it to you. Examples of these features are clip art, templates, online training, online assistance and Appshelp. You may choose not to use these web content features.
  • ·  Digital Certificates. The software uses digital certificates. These digital certificates confirm the identity of Internet users sending X.509 standard encrypted information. They also can be used to digitally sign files and macros, to verify the integrity and origin of the file contents. The software retrieves certificates and updates certificate revocation lists over the Internet, when available.
  • ·  Auto Root Update. The Auto Root Update feature updates the list of trusted certificate authorities. You can switch off the Auto Root Update feature.
  • ·  Windows Media Digital Rights Management. Content owners use Windows Media digital rights management technology (WMDRM) to protect their intellectual property, including copyrights. This software and third party software use WMDRM to play and copy WMDRM-protected content. If the software fails to protect the content, content owners may ask Microsoft to revoke the software’s ability to use WMDRM to play or copy protected content. Revocation does not affect other content. When you download licenses for protected content, you agree that Microsoft may include a revocation list with the licenses. Content owners may require you to upgrade WMDRM to access their content. Microsoft software that includes WMDRM will ask for your consent prior to the upgrade. If you decline an upgrade, you will not be able to access content that requires the upgrade. You may switch off WMDRM features that access the Internet. When these features are off, you can still play content for which you have a valid license.
  • ·  Windows Media Player. When you use Windows Media Player, it checks with Microsoft for
  • ·  compatible online music services in your region; and
  • ·  new versions of the player.
    For more information, go to go.microsoft.com/fwlink/?Linkid=104605.
  • ·  Malicious Software Removal. During setup, if you select “Get important updates for installation”, the software may check and remove certain malware from your computer. “Malware” is malicious software. If the software runs, it will remove the Malware listed and updated at www.support.microsoft.com/?kbid=890830. During a Malware check, a report will be sent to Microsoft with specific information about Malware detected, errors, and other information about your computer. This information is used to improve the software and other Microsoft products and services. No information included in these reports will be used to identify or contact you. You may disable the software’s reporting functionality by following the instructions found at www.support.microsoft.com/?kbid=890830. For more information, read the Windows Malicious Software Removal Tool privacy statement at go.microsoft.com/fwlink/?LinkId=113995.
  • ·  Network Awareness. This feature determines whether a system is connected to a network by either passive monitoring of network traffic or active DNS or HTTP queries. The query only transfers standard TCP/IP or DNS information for routing purposes. You can switch off the active query feature through a registry setting.
  • ·  Windows Time Service. This service synchronizes with time.windows.com once a week to provide your computer with the correct time. You can turn this feature off or choose your preferred time source within the Date and Time Control Panel applet. The connection uses standard NTP protocol.
  • ·  IPv6 Network Address Translation (NAT) Traversal service (Teredo). This feature helps existing home Internet gateway devices transition to IPv6. IPv6 is next generation Internet protocol. It helps enable end-to-end connectivity often needed by peer-to-peer applications. To do so, each time you start up the software the Teredo client service will attempt to locate a public Teredo Internet service. It does so by sending a query over the Internet. This query only transfers standard Domain Name Service information to determine if your computer is connected to the Internet and can locate a public Teredo service. If you
    • ·  use an application that needs IPv6 connectivity or
    • ·  configure your firewall to always enable IPv6 connectivityby default standard Internet Protocol information will be sent to the Teredo service at Microsoft at regular intervals. No other information is sent to Microsoft. You can change this default to use non-Microsoft servers. You can also switch off this feature using a command line utility named “netsh”.
  • ·  Accelerators. When you click on or move your mouse over an Accelerator in Internet Explorer, any of the following may be sent to the service provider:
    • ·  the title and full web address or URL of the current webpage,
    • ·  standard computer information, and
    • ·  any content you have selected.

If you use an Accelerator provided by Microsoft, use of the information sent is subject to the Microsoft Online Privacy Statement. This statement is available at go.microsoft.com/fwlink/?linkid=31493. If you use an Accelerator provided by a third party, use of the information sent will be subject to the third party’s privacy practices.

  • ·  Search Suggestions Service. In Internet Explorer, when you type a search query in the Instant Search box or type a question mark (?) before your search term in the Address bar, you will see search suggestions as you type (if supported by your search provider). Everything you type in the Instant Search box or in the Address bar when preceded by a question mark (?) is sent to your search provider as you type. Also, when you press Enter or click the Search button, the text in the Instant Search box or Address bar is sent to the search provider. If you use a Microsoft search provider, use of the information sent is subject to the Microsoft Online Privacy Statement. This statement is available at go.microsoft.com/fwlink/?linkid=31493. If you use a third-party search provider, use of the information sent will be subject to the third party’s privacy practices. You can turn search suggestions off at any time. To do so, use Manage Add-ons under the Tools button in Internet Explorer. For more information about the search suggestions service, see go.microsoft.com/fwlink/?linkid=128106.
  • ·  Consent to Update Infrared Emitter/Receiver. The software may contain technology to ensure proper functioning of the infrared emitter/receiver device shipped with certain Media Center-based products. You agree that the software may update the firmware of this device.
  • ·  Media Center Online Promotions. If you use Media Center features of the software to access Internet-based content or other Internet-based services, such services may obtain the following information from the software to enable you to receive, accept and use certain promotional offers:
    • ·  certain computer information, such as your Internet protocol address, the type of operating system and browser you are using, and the name and version of the software you are using,
    • ·  the requested content, and
    • ·  the language code of the computer where you installed the software.Your use of the Media Center features to connect to those services serves as your consent to the collection and use of such information.
  1. Use of Information. Microsoft may use the computer information, accelerator information, search suggestions information, error reports, and Malware reports to improve our software and services. We may also share it with others, such as hardware and software vendors. They may use the information to improve how their products run with Microsoft software.
  2. Misuse of Internet-based Services. You may not use these services in any way that could harm them or impair anyone else’s use of them. You may not use the services to try to gain unauthorized access to any service, data, account or network by any means.

8. SCOPE OF LICENSE. The software is licensed, not sold. This agreement only gives you some rights to use the features included in the software edition you licensed. Microsoft reserves all other rights. Unless applicable law gives you more rights despite this limitation, you may use the software only as expressly permitted in this agreement. In doing so, you must comply with any technical limitations in the software that only allow you to use it in certain ways. You may not

  • ·  work around any technical limitations in the software;
  • ·  reverse engineer, decompile or disassemble the software, except and only to the extent that applicable law expressly permits, despite this limitation;
  • ·  use components of the software to run applications not running on the software;
  • ·  make more copies of the software than specified in this agreement or allowed by applicable law, despite this limitation;
  • ·  publish the software for others to copy;
  • ·  rent, lease or lend the software; or
  • ·  use the software for commercial software hosting services.
  1. MICROSOFT .NET BENCHMARK TESTING. The software includes one or more components of the .NET Framework (“.NET Components”). You may conduct internal benchmark testing of those components. You may disclose the results of any benchmark test of those components, provided that you comply with the conditions set forth at go.microsoft.com/fwlink/?LinkID=66406. Notwithstanding any other agreement you may have with Microsoft, if you disclose such benchmark test results, Microsoft shall have the right to disclose the results of benchmark tests it conducts of your products that compete with the applicable .NET Component, provided it complies with the same conditions set forth at go.microsoft.com/fwlink/?LinkID=66406.
  2. BACKUP COPY.
    1. Media. If you acquired the software on a disc or other media, you may make one backup copyof the media. You may use it only to reinstall the software on the licensed computer.
    2. Electronic Download. If you purchased and downloaded the software online, you may make one copy of the software on a disc or other media in order to install the software on a computer. You may also use it to reinstall the software on the licensed computer.
  3. DOCUMENTATION. Any person that has valid access to your computer or internal network may copy and use the documentation for your internal, reference purposes.

12. NOT FOR RESALE SOFTWARE. You may not sell software marked as “NFR” or “Not for Resale.”

13. ACADEMIC EDITION SOFTWARE. You must be a “Qualified Educational User” to use software marked as “Academic Edition” or “AE.” If you do not know whether you are a Qualified Educational User, visit www.microsoft.com/education or contact the Microsoft affiliate serving your country.

14. GEOGRAPHIC RESTRICTIONS. If the software is marked as requiring activation in a specific geographic region, then you are only permitted to activate this software in the geographic region indicated on the software packaging. You may not be able to activate the software outside of that region. For further information on geographic restrictions, visit go.microsoft.com/fwlink/?LinkId=141397.

15. UPGRADES. To use upgrade software, you must first be licensed for the software that is eligible for the upgrade. Upon upgrade, this agreement takes the place of the agreement for the software you upgraded from. After you upgrade, you may no longer use the software you upgraded from.

  1. PROOF OF LICENSE.
    1. Genuine Proof of License. If you acquired the software on a disc or other media, your proof of license is the genuine Microsoft certificate of authenticity label with the accompanying genuine product key, and your proof of purchase. If you purchased and downloaded the software online, your proof of license is the genuine Microsoft product key for the software which you received with your purchase, and your proof of purchase from an authorized electronic supplier of genuine Microsoft software. Proof of purchase may be subject to verification by your merchant’s records.
    2. Windows Anytime Upgrade License. If you upgrade the software using Windows Anytime Upgrade, your proof of license is the proof of license for the software you upgraded from, your Windows Anytime Upgrade product key and your proof of purchase. Proof of purchase may be subject to verification by your merchant’s records.
    3. To identify genuine Microsoft software, see www.howtotell.com.
  2. TRANSFER TO ANOTHER COMPUTER.
    1. Software Other than Windows Anytime Upgrade. You may transfer the software and install it on another computer for your use. That computer becomes the licensed computer. You may not do so to share this license between computers.
    2. Windows Anytime Upgrade Software. You may transfer the software and install it on another computer, but only if the license terms of the software you upgraded from allows you to do so. That computer becomes the licensed computer. You may not do so to share this license between computers.
  3. TRANSFER TO A THIRD PARTY.
    1. Software Other Than Windows Anytime Upgrade. The first user of the software may make a one time transfer of the software and this agreement, by transferring the original media, the certificate of authenticity, the product key and the proof of purchase directly to a third party. The first user must remove the software before transferring it separately from the computer. The first user may not retain any copies of the software.
    2. Windows Anytime Upgrade Software. You may transfer the software directly to a third party only with the licensed computer. You may not keep any copies of the software or any earlier edition.
    3. Other Requirements. Before any permitted transfer, the other party must agree that this agreement applies to the transfer and use of the software.
  4. NOTICE ABOUT THE H.264/AVC VISUAL STANDARD, THE VC-1 VIDEO STANDARD, THE MPEG-4 VISUAL STANDARD AND THE MPEG-2 VIDEO STANDARD. This software includes H.264/AVC, VC-1, MPEG-4 Part 2, and MPEG-2 visual compression technology. MPEG LA, L.L.C. requires this notice:THIS PRODUCT IS LICENSED UNDER THE AVC, THE VC-1, THE MPEG-4 PART 2 VISUAL, AND THE MPEG-2 VIDEO PATENT PORTFOLIO LICENSES FOR THE PERSONAL AND NON-COMMERCIAL USE OF A CONSUMER TO (i) ENCODE VIDEO IN COMPLIANCE WITH THE ABOVE STANDARDS (“VIDEO STANDARDS”) AND/OR (ii) DECODE AVC, VC-1, MPEG-4 PART 2 AND MPEG-2 VIDEO THAT WAS ENCODED BY A CONSUMER ENGAGED IN A PERSONAL AND NON-COMMERICAL ACTIVITY AND/OR WAS OBTAINED FROM A VIDEO PROVIDER LICENSED TO PROVIDE SUCH VIDEO. NO LICENSE IS GRANTED OR SHALL BE IMPLIED FOR ANY OTHER USE. ADDITIONAL INFORMATION MAY BE

OBTAINED FROM MPEG LA, L.L.C. SEE WWW.MPEGLA.COM.

20. THIRD PARTY PROGRAMS. The software contains third party programs. The license terms with those programs apply to your use of them.

21. EXPORT RESTRICTIONS. The software is subject to United States export laws and regulations. You must comply with all domestic and international export laws and regulations that apply to the software. These laws include restrictions on destinations, end users and end use. For additional information, see www.microsoft.com/exporting.

22. SUPPORT SERVICES. Microsoft provides support services for the software as described at www.support.microsoft.com/common/international.aspx. If you are using software that is not properly licensed, you will not be entitled to receive support services.

23. ENTIRE AGREEMENT. This agreement (including the warranty below), additional terms (including any printed-paper license terms that accompany the software and may modify or replace some or all of these terms), and the terms for supplements, updates, Internet-based services and support services that you use, are the entire agreement for the software and support services.

  1. APPLICABLE LAW.
    1. United States. If you acquired the software in the United States, Washington state law governs the interpretation of this agreement and applies to claims for breach of it, regardless of conflict of laws principles. The laws of the state where you live govern all other claims, including claims under state consumer protection laws, unfair competition laws, and in tort.
    2. Outside the United States. If you acquired the software in any other country, the laws of that country apply.
  2. LEGAL EFFECT. This agreement describes certain legal rights. You may have other rights under the laws of your state or country. You may also have rights with respect to the party from whom you acquired the software. This agreement does not change your rights under the laws of your state or country if the laws of your state or country do not permit it to do so.
  3. LIMITATION ON AND EXCLUSION OF DAMAGES. You can recover from Microsoft and its suppliers only direct damages up to the amount you paid for the software. You cannot recover any other damages, including consequential, lost profits, special, indirect or incidental damages.This limitation applies to
    • ·  anything related to the software, services, content (including code) on third party Internet sites, or third party programs; and
    • ·  claims for breach of contract, breach of warranty, guarantee or condition, strict liability, negligence, or other tort to the extent permitted by applicable law.It also applies even if
    • ·  repair, replacement or a refund for the software does not fully compensate you for any losses; or
    • ·  Microsoft knew or should have known about the possibility of the damages.
      Some states do not allow the exclusion or limitation of incidental or consequential damages, so the

above limitation or exclusion may not apply to you. They also may not apply to you because your country may not allow the exclusion or limitation of incidental, consequential or other damages.

************************************************************************* ******

LIMITED WARRANTY

  1. LIMITED WARRANTY. If you follow the instructions and the software is properly licensed, the software will perform substantially as described in the Microsoft materials that you receive in or with the software.
  2. TERM OF WARRANTY; WARRANTY RECIPIENT; LENGTH OF ANY IMPLIED WARRANTIES. The limited warranty covers the software for one year after acquired by the first user. If you receive supplements, updates, or replacement software during that year, they will be covered for the remainder of the warranty or 30 days, whichever is longer. If the first user transfers the software, the remainder of the warranty will apply to the recipient.To the extent permitted by law, any implied warranties, guarantees or conditions last only during the term of the limited warranty. Some states do not allow limitations on how long an implied warranty lasts, so these limitations may not apply to you. They also might not apply to you because some countries may not allow limitations on how long an implied warranty, guarantee or condition lasts.
  3. EXCLUSIONS FROM WARRANTY. This warranty does not cover problems caused by your acts (or failures to act), the acts of others, or events beyond Microsoft’s reasonable control.
  4. REMEDY FOR BREACH OF WARRANTY. Microsoft will repair or replace the software at no charge. If Microsoft cannot repair or replace it, Microsoft will refund the amount shown on your receipt for the software. It will also repair or replace supplements, updates and replacement software at no charge. If Microsoft cannot repair or replace them, it will refund the amount you paid for them, if any. You must uninstall the software and return any media and other associated materials to Microsoft with proof of purchase to obtain a refund. These are your only remedies for breach of the limited warranty.
  5. CONSUMER RIGHTS NOT AFFECTED. You may have additional consumer rights under your local laws, which this agreement cannot change.
  6. WARRANTY PROCEDURES. You need proof of purchase for warranty service.
    1. United States and Canada. For warranty service or information about how to obtain a refundfor software acquired in the United States and Canada, contact Microsoft at
      • ·  (800) MICROSOFT;
      • ·  Microsoft Customer Service and Support, One Microsoft Way, Redmond, WA 98052-6399; or
      • ·  visit www.microsoft.com/info/nareturns.htm.
    2. Europe, Middle East and Africa. If you acquired the software in Europe, the Middle East or Africa, Microsoft Ireland Operations Limited makes this limited warranty. To make a claim under this warranty, you should contact either

· Microsoft Ireland Operations Limited, Customer Care Centre, Atrium Building Block B, Carmanhall Road, Sandyford Industrial Estate, Dublin 18, Ireland; or

· the Microsoft affiliate serving your country (see www.microsoft.com/worldwide).

3. Outside United States, Canada, Europe, Middle East and Africa. If you acquired the software outside the United States, Canada, Europe, the Middle East and Africa, contact the Microsoft affiliate serving your country (see www.microsoft.com/worldwide).

  1. NO OTHER WARRANTIES. The limited warranty is the only direct warranty from Microsoft. Microsoft gives no other express warranties, guarantees or conditions. Where allowed by your local laws, Microsoft excludes implied warranties of merchantability, fitness for a particular purpose and non-infringement. If your local laws give you any implied warranties, guarantees or conditions, despite this exclusion, your remedies are described in the Remedy for Breach of Warranty clause above, to the extent permitted by your local laws.
  2. LIMITATION ON AND EXCLUSION OF DAMAGES FOR BREACH OF WARRANTY. The Limitation on and Exclusion of Damages clause above applies to breaches of this limited warranty.This warranty gives you specific legal rights, and you may also have other rights which vary from state to state. You may also have other rights which vary from country to country.

Here is a copy of the EULA for Office “Home and Student” version [Not the clear prohibition against commercial use]

As you can see, this DOES clearly spell out that you cannot use Windows Home and Student” for business purposes.  If Microsoft wanted to be clear that no commercial use is not allowed for Windows Home 7, all they had to do was use the exact same language in the Windows Home 7 as they did in the Home and Student.  Home and Student is abundantly clear:

First, here is a license tool fro MS that you can use to pull EULA terms.  When I search for Office Home and Student 2010 here is what I get:

.MILITARY APPRECIATION SOFTWARE. You must be a “Qualified Military User” to license software marked as “Military Appreciation” edition. To be a Qualified Military User, in the United States of America, you must be an authorized patron of the Armed Services Exchanges in accordance with applicable U.S. Federal statutes and regulations. The software is not licensed for use in any commercial, non-profit, or revenue-generating activities. If the software is marked as “Military Appreciation” edition, you may only transfer this software in accordance with military exchange service policies and regulations.”

 This seems to be the clear choice for anti-business use of software but this provision is not set forth in the EULA above. As such, Microsoft must not have indented that limitation in the Windows Home 7 software.  So if this is true, perhaps the software trolls are not willing to have an honest intellectual debate about the role of the EULA in settlement agreements.

Bulletin Board comments on related topics regarding commercial use of MS products

  1.  Can you use Windows XP for home use?

What to do if you are faced with a software audit?

Don’t panic.  Lawyer up.  Call us to discuss your legal rights and defenses and let me make the best possible choice as to which IP law firm is going to defend you.  Of course, we are baised, but we believe we are clearly the best choice based on both service, quality of service, and costs to get the job done.

Contact a Microsoft licensing defense law firm

If you need help understanding the terms of a Microsoft, Adobe, Siemens, CNC Mastercam | Adobe |SIIA or other EULA licensing agreement, including Oracle, IBM< and Quest, call to speak with our software lawyer.  We can be reached at (877) 276-5084.  We offer law flat rate legal fees for most cases, and tenacious legal defense.  Check out our federal court experience and Client Avvo reviews.

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We are a business and civil litigation firm with a focus on copyright infringement cases involving illegal movie downloads (torrent cases such as London Has Fallen and Malibu Media defense), software audits (ex. Microsoft audits, SPLA, Autodesk audit notification letter, Siemens PLM defense, SIIA, Adobe and Business Software Alliance defense) and other software vendors threatening piracy and infringement. We also handle cases involving internet law, anti-SLAPP, media law, right of publicity, trademarks & domain name infringement, and we have a niche practice area handling California BRE licensing disputes, accusations, subpoena response, statement of issues and investigations. We have offices in San Francisco, Beverly Hills, Newport Beach, San Diego & Phoenix, Arizona and accept federal copyright and trademark cases nationwide. All content on our website is general legal information only and not a substitute for legal advice, and should not be relied upon. Decisions to hire counsel should not be based on advertising alone. Blogs, videos and podcasts are authored by Steve Vondran, Esq. unless otherwise noted. We can be reached at (877) 276-5084.

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