M$ and One of its Partners are at War

This is great fun for me. One of the last barriers to the desktop space for GNU/Linux is the retail shelf space GNU/Linux gets. Now, M$ is actually suing one of its partners, Comet, a retailer of electronics. I don’t have details but according to Ars Technica, Comet sold recovery CDs to customers against M$’s wishes.

Let’s get this right. A consumer can produce a backup/restoration CD by running the software on the PC but M$ thinks it’s illegal for Comet to provide that as a service to consumers? I don’t think so. I expect the courts will laugh M$ out the front door. I expect other retailers will finally understand that M$ is a liability, not their friend. I expect more retailers will give shelf-space to GNU/Linux. It’s just the right way to do IT-retailing. I recommend they use Debian GNU/Linux. The huge repository of software and the package managing system, APT, make it easy for the end user to support his system.

“Statement in respect of Microsoft litigation
Wednesday 4th January 2012

We note that proceedings have been issued by Microsoft Corporation against Comet relating to the creation of recovery discs by Comet on behalf of its customers.

Comet has sought and received legal advice from leading counsel to support its view that the production of recovery discs did not infringe Microsoft’s intellectual property.

Comet firmly believes that it acted in the very best interests of its customers. It believes its customers had been adversely affected by the decision to stop supplying recovery discs with each new Microsoft Operating System based computer.

Accordingly Comet is satisfied that it has a good defence to the claim and will defend its position vigorously.”

Ask yourself, “Would Comet dare to go to court over this without a strong legal opinion from their lawyer?”. The traditional obsequious behaviour of M$’s clients is to fold promptly and send money, lots of it.

Thank you, M$, for promoting GNU/Linux. I appreciate it. 😉

UPDATE
The Register has more. 94K Vista and XP restoration CDs were involved. This could be as much about killing XP as protecting “IP”… I imagine discovery will be a hoot. Brits always enjoy it when the “Yanks” get their comeuppance.

About Robert Pogson

I am a retired teacher in Canada. I taught in the subject areas where I have worked for almost forty years: maths, physics, chemistry and computers. I love hunting, fishing, picking berries and mushrooms, too.
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7 Responses to M$ and One of its Partners are at War

  1. Clarence Moon says:

    This story is gaining a lot of traction. Ed Bott thinks that Comet is in the wrong:

    http://www.zdnet.com/blog/bott/lost-your-windows-discs-how-to-get-replacement-media-legally/4320?tag=nl.e539

    In any case, losing a replacement disk or COA is not the horror story that people have made it out to be.

  2. oiaohm says:

    20 dollars is about the general agreed fair price for one off disk production.

    They could have charged 20 dollar for sending the client a blank disk and the instructions as well.

    Clarence Moon the point here is comet was not selling to random people.

    What comet was doing would have been legal in the USA under DCMA acceptations they were proving a disc for possible maintenance so had been paid accordingly.

    Now if they provide a disk to someone without a license they are shot.

  3. Clarence Moon says:

    I am not a lawyer, as the phrase goes, Mr. Pogson, and I guess that if I were I would not be commenting on this at all. That being understood, I do go to the track and to the jai-alai fronton on occasion, and have some familiarity with picking a winner based on form, style, and past history.

    I think that it is not so likely that Microsoft is going to go off half-cocked (isn’t that a gun-nut term?) and mug the first guy to come into the park where they are lurking about, waiting for a victim. They surely took some notice of this commercial traffic in their copyrighted bits and bytes and came to a conclusion that Comet was fair game. I would be certain that they held more than one meeting of their managers and lawyers on this issue and acted with full belief that the law was on their side, regardless of what the lay person might think.

    When these things get to court, it is the technical arguments presented by the lawyers and weighed by the judge that decide the matter. The case is in the UK, as well, and their mileage may differ, too. I understand that they all wear powdered wigs while they work, too. That must be getting old by now.

    All things considered, I think that Microsoft is the A dog in a C race and is going to mop up the floor with Comet. Being bankrupt, though, I don’t know if they will be able to get their money back on this.

  4. Back-ups are OK for copyrighted software as far as I know. A back-up of the brand new system should be OK. What point of law do you find was broken? At the time the backup was made, Comet was the owner of the PC and had every right to make a backup with or without running the software. M$ does not get to make the law.

    An interpretation of Canadian copyright law:
    “the owner of copyright in a piece of computer software has the right to stop others from making copies of the software, or any substantial part of the software, whether the infringer makes the infringing copy by copying the software on to a floppy disk, hard disk, CD ROM, or by printing out a hard copy of the software.

    (The owner of an authorized and legitimate copy of a piece of software may reproduce a single copy of the software, for backup purposes, provided that the single backup copy is destroyed immediately once the person ceases to be the owner of the authorized copy of the software).”

    I doubt any court in Canada would convict a retailer for selling the backup to the buyer.

    In the USA:
    ” the DMCA extends protection to those who copy a program for maintenance, repair or backup as long as these copies are “destroyed in the event that continued possession of the computer program should cease to be rightful.”17 U.S.C. § 117”

    It would be hard to argue that there was any unjust enrichment. Retailers are entitled and welcome to assist customers. That’s just good customer relations and good business. In no other line of business would there be any question that a seller could not assist a buyer. Suppose a book-seller mails a copy of a book to a buyer and it is lost in the mails. Would anyone object to the book-seller sending a replacment? In that case the publisher would be paid a second royalty but there is no concept of a backup for hard copies. Software is different. It is normal best practice to have a backup because copies are so frequently damaged through use or misadventure.

    The only leg M$ has to stand on is whether or not Comet sold the backups at the time of sale of the PCs. I suspect they sold the backups at time of sale so M$ is wrong and shooting itself in the foot.

  5. Clarence Moon says:

    Yet another insipid comment by you, Mr. Oiaohm! Comet was illegally manufacturing CDs and selling them to customers who could make a legal version on their own computer by a couple of clicks of their mouse. How is prosecuting that an abuse of its customers by Microsoft?

    If Comet were to provide a service, they could send each customer a free, blank CD with instructions on where to click to make a restore disk and advice on how to safeguard it. Instead they fool them into spending some $20 or so for an illegal disk. Just another rip-off by a greedy merchant.

    Apparently the company is a disaster anyway, and is in bankruptcy and being given away to a caretaker company who might be able to save some of the pieces. It may be that the UK shoppers are more informed than Mr. Pogson gives them credit for and had already written off doing any more trade with such a shabby outfit.

    http://www.channelregister.co.uk/2011/11/09/comet_sold/

  6. oiaohm says:

    Clarence Moon hard drive failed with the restore image on you require re-installation disk.

    Say hello MS is now going to kick users in teeth with failed hard-drives.

  7. Clarence Moon says:

    It would seem to me that Comet’s intial response is to get a lawyer and protest the action and you cannot read too much into such activity. Microsoft, presumably, with buckets of money to spend on legions of lawyers is of the opinion that they are backing a winner. Time will tell, I say.

    How does this promote GNU/Linux? The customers of Comet are not being hassled, just Comet, who is in the position of having to explain just what gives them the right to participate in providing copies of copyrighted materials, for which they do not have ownership, to others. The user has no bother, so why should they care?

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