Can I sell an unused copy of XP x64?

A

Aelfgeft

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I'm in my last semester of college, and I was given an offer to buy a full copy of Windows XP Pro, so I leaped at it.

However, I was surprised to find that for my money, I had received both a full copy of XP Pro with SP2, AND a copy of XP x64!

Now, I've heard good and bad things about x64, so I think I'm gonna stay with XP Pro for a while till Vista shows its face.

My question: Can I legally sell the copy of x64 on someplace like EBay or the Buy/Sell forum here? I read an article not too long ago about Microsoft making some other college student's life hell for selling an UNOPENED copy of Windows XP that he never used but bought through the college.

The extra cash would help pay for my purchase, but not if I'm gonna have to deal with a legal hassle.
 
Wow, this shows how out of the loop I am. I thought XP-64 was still in beta.
 
It says student license on the CD, and the CD came only in a plastic sleeve with the CD key on a sticker on the back of the sleeve. Hasn't been used yet.
 
I believe that you are not supposed to resell that student copy.
 
Phoenix86 said:
Correct.
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Okay. Playing devil's advocate here:

Did he exchange money for the product? If yes, then first sale doctrine (i.e. basic consumer rights) goes into effect before any license agreement can be applied. Which takes precedent? Furthermore, if the software was never opened, how can he even know what his responsibilities or limitations are *as MS would wish them to be*?

Food for thought...
 
BobSutan said:
Okay. Playing devil's advocate here:

Did he exchange money for the product? If yes, then first sale doctrine (i.e. basic consumer rights) goes into effect before any license agreement can be applied. Which takes precedent? Furthermore, if the software was never opened, how can he even know what his responsibilities or limitations are *as MS would wish them to be*?

Food for thought...
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Right, should have said "according to MS".

I'm totally with you on the whole "how can you agree to a licnese you can see" aka "you open the box you agree to the license".

Seeing how this is a legal Q, does anyone know the case law behind this? I know several challenges were "coming up" in the court systems a while back (couple of years ago?).

However I don't think he wan't to be a "test" case either. ;)

edit: but then again, the original quote said "not supposed to" as opposed to "it's illegal". :p

edit2: Oh, and since it's already in my other browser window...
*puts Bob back in the loop*
 
Legally, you aren't buying the software itself. If that was the case you could do almost anything you wanted with it afterwards. You are actually buying a license to use the software.

The specific rules of an academic license EULA say that you cannot resell it, because it is linked to you directly. There really isn't any grey area at all concerning whether it is right for you to sell it or not. It isn't.

Whether you would get caught is different.
 
TheTMan said:
Legally, you aren't buying the software itself. If that was the case you could do almost anything you wanted with it afterwards. You are actually buying a license to use the software.

The specific rules of an academic license EULA say that you cannot resell it, because it is linked to you directly. There really isn't any grey area at all concerning whether it is right for you to sell it or not. It isn't.

Whether you would get caught is different.
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The argument is how can an agreement be binding if it is not presented until after sale? In the case of EULAs that are presented post sale, they're in direct conflict with US contract law (and common sense). In fact its actually spelled out that contracts, which EULAs pretent to be, are required to be exchanged for adequate consideration in order to be legally binding. Since its not presented until after sale you'd think a reasonable person would find it illegitimate and unbinding. Why more people don't see it this way is beyond me.

Contracts are promises that the law will enforce. The law provides remedies if a promise is breached or recognizes the performance of a promise as a duty. Contracts arise when a duty does or may come into existence, because of a promise made by one of the parties. To be legally binding as a contract, a promise must be exchanged for adequate consideration. Adequate consideration is a benefit or detriment which a party receives which reasonably and fairly induces them to make the promise/contract .
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To some the last line, "...which reasonable and fairly induces them to make the promise/contract", means you simply get a chance to review the contract you're entering into. But IMO this is the language the indicates the contract must be agreed upon before duty is paid. After all, any other way and what's the point since money would have changed hands? By then it'd be too late, you know? Case in point, notice that in this portion of the writeup they always mention present or future sale. Nowhere in there does it refer to sales in the past tense, which is the case of EULAs.

There's a ponit where the black and white letter of the law ends and common sense begins. Of course that's part of the problem with US law...far too often common sense doesn't go hand in hand with our laws.


In any event I'll shut up for now in order to keep this thread here, instead of the soapbox.
 
Don't the boxes have a cliff note's version of the eula on the box? If you bought an academic liscense or an oem liscense, aren't you offered a eula to read some time in the process? I know when i got my student license, there was a screen about what I could and couldn't do with it. I didn't read it, but it was there. If it is on the box, or is shown to you during the process of purchase (which i'm sure it is supposed to) then by making the purchase, you agree to the afformentioned EULA.
 
TheTMan said:
Don't the boxes have a cliff note's version of the eula on the box? If you bought an academic liscense or an oem liscense, aren't you offered a eula to read some time in the process? I know when i got my student license, there was a screen about what I could and couldn't do with it. I didn't read it, but it was there. If it is on the box, or is shown to you during the process of purchase (which i'm sure it is supposed to) then by making the purchase, you agree to the afformentioned EULA.
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Go to any software store, look at all their software. Do you see a EULA?

Cliff notes of a contract?!? ;)

The whole EULA=contract argument is very weak. I mean imagine buying a car with a 5 year 60K warranty. Then after you pay for it, they tell you "oh, that warranty only covers paint". You'd be upset, no? Now imagine they also said you can't return the vehicle.

This is kinda what happens when you don't want to agree to the EULA because of terms you didn't know about.

Lots of people are upset they can't install XP OEM on more than one PC, but one of the main limitations of OEM, which you don't see until after you buy it. Of course that document is also available on-line if you want to read it before hand, but that's not an excuse to the procedure of how a contract works.

The basic, logical, common sense requirement is that both parties have at least read the document prior to agreeing to it. This is why I wanted to know if anyone has the case law behind this, I know it was being challenged.

edit: maybe we should take the discussion to this thread.
 
Actually, there is no EULA supplied with the package. It was just a cardboard envelope with some bubble wrap and the two CDs in sleeves.

On another note, since these are going for around 100 bucks, say I was to trade it for a gig of ram or something with a value of 100 bucks instead of taking cash...wouldn't that be legal since it's not technically a sale?
 
Aelfgeft said:
Actually, there is no EULA supplied with the package. It was just a cardboard envelope with some bubble wrap and the two CDs in sleeves.

On another note, since these are going for around 100 bucks, say I was to trade it for a gig of ram or something with a value of 100 bucks instead of taking cash...wouldn't that be legal since it's not technically a sale?
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[lawyer]You can be sued for anything, it's just a matter of wether it's worth it and successfull.[/lawyer]

I wouldn't want to argue that position in the courts. You are taking something with and associated cash value, however baterting often skates by some laws.

edit: The EULA comes up during the install, may not be an actual piece of paper.
 
If it comes up during install, and he hasn't unsealed the package yet, he can't have agreed with it. Not having agreed with it, how does it apply to him?
 
HHunt said:
If it comes up during install, and he hasn't unsealed the package yet, he can't have agreed with it. Not having agreed with it, how does it apply to him?
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That's the jist behind Bob's argument, which I agree with. Basically you can't, and when you decide not to agree with it, well it's already opened, so you own it now.

Catch-22.
 
Well, depending on how your copy is marked, you may be allowed to sell it for what you paid. Here are some EULA snippets:

4. TRANSFER—...Transfer to Third Party. The initial user of the Product may make a one-time transfer of the Product to another end user. The transfer has to include all component parts, media, printed materials, this EULA, and if applicable, the Certificate of authenticity. The transfer may not be an indirect transfer, such as a consignment. Prior to the transfer, the end user receiving the transferred Product must agree to all the EULA terms...
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Says you may do a one-time transfer and does not exclude receiving money in the transfer.

8. NOT FOR RESALE SOFTWARE. Product identified as “Not for Resale” or “NFR,” may not be resold, transferred or used for any purpose other than demonstration, test or evaluation.
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Make sure your package does not have these labels on it.

9. ACADEMIC EDITION SOFTWARE. To use Product identified as “Academic Edition” or “AE,” you must be a “Qualified Educational User.” For qualification-related questions, please contact the Microsoft Sales Information Center/One Microsoft Way/Redmond, WA 98052-6399 or the Microsoft subsidiary serving your country.
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You have to verify that the person receiving the package from you is a qualified educational user...i.e. another student.

One thing to keep in mind if you do decide to transfer it...you may not receive more than you initially paid for it. I know when I was in school until a few months back we got our software for free through the department's MSDN subscription. If we downloaded something we could give it to another student but for no money. Through the university we could buy academic editions of XP for 15USD so if we were to sell it it could only be to another student and for no more than the 15USD we paid.

One more thing regarding the EULA...it is readily available on Microsoft's website without having to purchase software.
 
[Common Sense]You probably don't want to sell anything media-related - particularly student software. Essentially student software at discounted prices is available because schools and MS subsidize the costs. As such, you really haven't paid full price, and therefore do not have the right to sell the software, or to make profit from using it. It is for ACADEMIC USE ONLY.[/Common Sense]
 
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