Question A Discussion About Windows 10 Piracy On New System Builds (Linus Tech Tips Forums Seem To Endorse This)

jerubedo

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Hello everyone,

I'm posting here to discuss a situation that arose over on Linus Tech Tips' forums. On that forum there are constantly people recommending installing Windows 10 without a key and leaving it inactivated forever as a way to save money on their build. I created a post about how that is defined as piracy (please read below, that is the original post with many details and sources for why that is true). A moderator disagreed with my position and locked the thread, stating that it was okay to have Windows 10 perpetually inactive. So in my eyes, it seems they are promoting piracy over there. I've always considered Tom's users to be a little more level-headed so I'd like to know what all of your thoughts are on the matter. By the way, I should also mention that since the original post, I have reached out to Microsoft via tech support, and the gentleman I got on the phone did say that it is considered piracy, however they are currently not taking any action over it (which was never the argument to begin with). Anyway, here is the original post:




So I do hate to have to make this post, but I've seen countless people in this particular sub-forum recommend just running Windows 10 without getting a genuine key and activating in order to cut costs of the build. Unfortunately this is considered piracy. That may come across as surprising to a lot of you, and some of you might be ready to fight me on that with, "Microsoft is letting you do it, so it's not piracy." To those people I say please read on first, and after reading everything if you still have a concern feel free to follow up.

This is a topic near and dear to me as a senior programmer of many years. It is my job to know the ins and outs of everything software development from coding to distribution, both of which involve understanding piracy. For coding, it's, "How do we code to mitigate piracy? Do we use DRM? Do we do something else?" For distribution it's knowing local and global copyright laws and, "How do I distribute my software in a way that will promote as little piracy as possible."

First, the definition of piracy, as a baseline, from the two major dictionaries (Webster and Oxford):

Webster: "The unauthorized use of another's production, invention, or conception especially in infringement of a copyright." (source: https://www.merriam-webster.com/dictionary/piracy)

Oxford: "The unauthorized use or reproduction of another's work." (source: https://www.merriam-webster.com/dictionary/piracy)

So both of those basically boil down to: "The unauthorized use or reproduction of a copyrighted work."


Now, Windows 10 has an EULA (End User Licensing Agreement, basically a terms of service), which specifies what counts as authorized use. The following is a direct quote from the EULA:

"By accepting this agreement or using the software, you agree to all of these terms

5. Authorized Software and Activation. You are authorized to use this software only if you are properly licensed and the software has been properly activated with a genuine product key or by other authorized method." (source: https://www.microsoft.com/en-us/Useterms/Retail/Windows/10/UseTerms_Retail_Windows_10_English.htm)

Finally, Windows 10 is indeed copyrighted.

Now, putting this all together, running Windows 10 inactivated is unauthorized by Microsoft's own policy, and you've agreed to the terms since you are using the software (and you agreed to them when you installed as well), and is therefore piracy by definition since you are using a copyrighted work in an unauthorized fashion.

Some of you might say, "Wait, by this definition, isn't ANY breech in the EULA considered piracy since that constitutes unauthorized use?" No. The thing is once you've paid for a license you are actually protected by consumer rights (which varies from country to country, and even state to state in the case of the USA). A large portion of many EULAs are actually unenforceable in many countries. The one thing that is universally enforceable, though, is for a company (in this case Microsoft) to require that a license be used in order to use their software (i.e. The end user to pay for it!).

Another piece of critical information is that the official legal term for piracy is "criminal copyright infringement." Here's a few references (with sources of course):

from Wikipedia: "Software piracy (officially called copyright infringement of software) refers to..." (source: https://simple.wikipedia.org/wiki/Software_piracy)

From Cornell.edu: "Software Piracy is an act of copyright infringement, and is subject to civil and criminal penalties" (source: https://it.cornell.edu/copyright-infringement-software)

From Rain Minns Lawfirm: "The government has recently dramatically increased its efforts to prosecute what it labels as software piracy, which is considered a type of criminal copyright infringement. The most common primary charge for this is 17 U.S.C. § 506." (source: https://www.rainminnslaw.com/software_piracy.html)

Also from Rain Minns Lawfirm:
"Criminal Copyright Infringement (Software Piracy)

Criminal copyright infringement is outlined in 17 U.S.C. § 506. It states: “Any person who willfully infringes a copyright shall be punished as provided under section 2319 of title 18.” Depending upon which provision the government elects for its prosecution (or persecution!), below are generally the initial factors that the government must prove for all copyright infringement convictions:

  • There is a valid copyright.

  • There was an infringement of that copyright.

  • The infringement was willful.

  • The infringing items were not “first sales.” (Note: Some courts do not require this fourth item.)" (same source)
Now, you may ask, "Well, then why is Microsoft allowing users to just use the OS perpetually without any consequences except for the watermark and the inability to customize some parts of the desktop?"

That is indeed a good question: the answer is actually piracy mitigation. It's a technique that has been proven to work. WinRAR is pretty famous for doing this. The premise is that you tell people that they need to buy a valid license, but you don't stop them from using the application in its full glory. This gets consumers away from the mindset of, "Oh they are a bunch of greedy a-holes that just want to take our hard earned money. It's highway robbery!" It brings them to the mindset of, "Oh hey, these guys aren't so bad." This brings them a good reputation, and news that the software is pretty good spreads via word of mouth. A lot of people feel more inclined to pay under this kind of a setup, and for those who don't they are still potentially spreading news about the software by word of mouth, which puts the software in the hands of even more users (and more potential paying customers). Getting Windows 10 out to as many users as possible is a big goal of Microsoft right now as well, which is another reason for this strategy. They want Windows 10 to have the biggest possible market share (they want to get people off of Windows 7, 8, and even Xp). The rumored reason for this is so that Microsoft can then have targeted paid features which will be advertised to the largest possible audience if they have a huge market share.


A follow-up question is "Why does the Windows 10 installer have the option to install without a product key? The verbiage they use is 'I don't have a product key.'"

Another good question. "I don't have a product key" doesn't mean, "I don't have one and never will." It just means, "I don't have one right now." That option is there for convenience and to be user friendly. It could be the case that you don't have the key handy. Maybe it's sitting in an email and you need to install the OS first to get into that email to get a key. Maybe you ordered a physical copy of Windows 10 and it's coming in the mail so you don't have it yet. That option is for one of serval hundred circumstances. In this case they give you a nice grace period of 30 days, after which the watermark shows up and you're in piracy territory. If it's just the case that you went over that 30 days because you forgot to plug your key in, it's fine, just do it now. The real issue comes into play when you have no intentions of ever actually activating. Now you're in full blown piracy territory.


Another comment I hear a lot is: "Well, if Microsoft is making it that easy to steal their OS then it just doesn't feel like piracy." Well, feel like it or not, it is. That comment is kind of like saying, "Because a store doesn't have a security system or guard at the exit, it's okay to steal products off their shelves because they are making it so easy."

Now, I'm not saying that pirating Windows 10 is the end of the world. If you're doing it, likely no one is going to break down your door and arrest you. Microsoft isn't sending out armies of lawyers to go after individuals. But by the same token, this is a reputatble tech forum where a lot of people come for advice about what to build. To be telling them to essentially pirate software to save a few bucks is not a good thing, especially when they might not have even thought about doing so before hearing from these forums. Of course this too is also a part of their piracy mitigation technique.


Just in case I haven't linked enough things yet here's one more bonus thing:


Linus recently did a video a video about "Why he pirates Windows 10." So even he calls it piracy. Linus is an expert in the tech field (some of you may argue that) and his words have weight. He also asks in the video description about whether or not he could be sued by Microsoft for this piracy. Note, however that Linus' case is special. He DOES have product keys that he's purchased and is just running into the activation issue because of swapping hardware too often. This is a MUCH more gray area and at the very least it is morally defendable.


View: https://www.youtube.com/watch?v=M3bezYerYxQ
 
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jerubedo

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What did Linus mean when he said those $20 grey market Win10 licenses were never intended for North American markets? Why would they be so much cheaper elsewhere? Am I being soaked because I'm a North American?
Yeah, Microsoft does issue keys to other countries for a lot cheaper. The reason is because in those particular countries almost everyone is pirating Windows (mostly because of the lack of money. For some people in these countries a product key may be as much as a whole week's salary), so in an effort to make some money instead of no money, Microsoft offers it at a steep discount.
 

doolittle

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Bottom line, installing win10 without a license key is only a violation of the EULA. Since there is no written agreement or contract between the vast majority of home users and microsoft, it is completely unenforceable no matter what you call it. Not to mention, MS wants win10 to be installed on as many PCs as possible, so the "blind eye" is very much intentional just to gain marketshare.
 
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My take on this whole thing is that it is indeed software piracy no matter how you spin it.

The reviewers and websites are backing this crap just to stay popular and or stop issues, which in my opinion is complete crap. Some are getting paid to support it, sponsored and or adds etc and that's even worse.

Supporting theft is wrong period.

I am not surprised however that this is being advocated in this day and age.

Linus does not pirate software, he does have all the OS media and licenses, that's Original Microsoft disks with legal licenses .
 
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popatim

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My take on is that it is very easily enforced; as MS has done many times in the past for Windows (& the present in other products); so their lack of enforcement constitutes approval.

My guess is that they want as many users 'stuck with 10' as possible when they change to a subscription service. No Key = No way to get out of paying the monthly fee.
 
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g-unit1111

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U geeks are so binary, yes or no, no gray area.

I kinda like the "Microsoft wants everybody to install W10..." so lets help them eh. You wanna split hairs, go for it. I wanna keep mine.
Well it's not so much of a gray area as it is breaking the law or not. We try, and have been trying to enforce the actual rules as stated by the Microsoft EULA. Where you do get into the gray area was perfectly spelled out in the OP:

So I do hate to have to make this post, but I've seen countless people in this particular sub-forum recommend just running Windows 10 without getting a genuine key and activating in order to cut costs of the build. Unfortunately this is considered piracy.
The thing is that you can run Windows without being activated as long as you understand that there's certain features that are disabled without buying an official key. If it is considered piracy then it is by the legal sense, but that's only if it's enforced in court. A private business like Microsoft can dictate and interpret their own rules as to what constitutes as piracy or not.

The other gray area is buying keys from a 3rd party like eBay and other auction sites. The reason why we actively discourage that is because these keys were almost 100% guaranteed to be stolen. They come from places like universities and large corporations that use Enterprise versions where they generate thousands of keys and the unused ones get lost. Well, that's where they end up. And if someone tries to sell you $20 insurance on a $15 product (that they don't technically own), shouldn't that be an automatic red flag that it's bogus? That's kind of where we draw the line.
 
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jerubedo

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Bottom line, installing win10 without a license key is only a violation of the EULA. Since there is no written agreement or contract between the vast majority of home users and microsoft, it is completely unenforceable no matter what you call it. Not to mention, MS wants win10 to be installed on as many PCs as possible, so the "blind eye" is very much intentional just to gain marketshare.
I do agree that Microsoft is turning a blind eye for market share (as stated in my OP). However, just because there is no written agreement between a home user and Microsoft, doesn't mean that it can't count as piracy. That would be like saying me taking a product off a shelf at store doesn't constitute as stealing because I didn't have a written contract with that store.
 

jerubedo

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If it is considered piracy then it is by the legal sense, but that's only if it's enforced in court. A private business like Microsoft can dictate and interpret their own rules as to what constitutes as piracy or not.
Yep, I agree with that 100%, that it is piracy in a legal sense but not necessarily viewed that way by the company. In this case it still breaks the EULA (causing it to be unauthorized use, which by definition makes it piracy). But does Microsoft view it that way? Well, I called up Microsoft for a statement from a tech, and they stated in pretty much these exact words, "Yes, we do consider it piracy but at this time we are not taking any action against it." That's pretty much the equivalent of saying, "Meh, it is technically, but not really." Although it is still a yes.

The thing is that you can run Windows without being activated as long as you understand that there's certain features that are disabled without buying an official key.
Not according to the EULA unfortunately. There's no clause there that states you may use Windows 10 without activating. The only thing they state, on all versions, is "You are authorized to use this software only if you are properly licensed and the software has been properly activated with a genuine product key or by other authorized method."
 
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Regardless, if using un-activated Win10 (but crack-free) is legal or not,
at the moment, those who left Win10 unactivated are basically using Win10 under Microsoft's mercy, as this may change anytime.
Even I am very curious about how long does Microsoft want to allow this practice.

I am sure, that Microsoft is 100% aware of this and Microsoft is only pretending not to look.
If I understood correctly, Microsoft wants at the moment to push Win10 to as many users as possible incl. tolerating those unactivated copies for the time being.
 
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g-unit1111

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Yep, I agree with that 100%, that it is piracy in a legal sense but not necessarily viewed that way by the company. In this case it still breaks the EULA (causing it to be unauthorized use, which by definition makes it piracy). But does Microsoft view it that way? Well, I called up Microsoft for a statement from a tech, and they stated in pretty much these exact words, "Yes, we do consider it piracy but at this time we are not taking any action against it." That's pretty much the equivalent of saying, "Meh, it is technically, but not really." Although it is still a yes.
That's interesting that they view it that way. But like I said Microsoft is a private business and they do get to dictate what constitutes as piracy and what doesn't. Much like we have a TOS here, Apple has their own TOS, every software vendor has one as well. They probably don't have the time and/or resources to be the software police and there's probably enough cases out there that even if they did start cracking down on it, it could take years, decades even and it would probably cost them a lot of money.
 

clutchc

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As I remember, Microsoft allowed Win7 to be used free also. Albeit, with the ever-present nag screen and water mark (after 30 days). Back before they discontinued it, Microsofte's Digital River was where you'd go to get a download for "trial". I really don't see any difference vis-à-vis Win 10, except the nag screen/water mark has been replaced with crippling the features..
 

doolittle

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I do agree that Microsoft is turning a blind eye for market share (as stated in my OP). However, just because there is no written agreement between a home user and Microsoft, doesn't mean that it can't count as piracy.
Apologies you misunderstood, I was saying MS can not take any legal action against the consumer for any EULA violations (regardless of what you call it, piracy, theft, etc) without a signed, written contract. Correct me if I am mistaken, but I believe the click-through agreement does not count as one. Disclaimer, IANAL however you may agree that contract law and copyright law do need to co-exist.
That would be like saying me taking a product off a shelf at store doesn't constitute as stealing because I didn't have a written contract with that store.
I would say, this is a perfect example of why physical goods and virtual goods are not analogous. A more appropriate scenario, the shelf is out in public for anyone to take the product as they please - and should you decide to use it, you agree to get a license in good faith.
As I remember, Microsoft allowed Win7 to be used free also. Albeit, with the ever-present nag screen and water mark (after 30 days). Back before they discontinued it, Microsofte's Digital River was where you'd go to get a download for "trial". I really don't see any difference vis-à-vis Win 10, except the nag screen/water mark has been replaced with crippling the features..
Excellent point, I think the better question to ask MS is why they are actually reducing the restrictions that were required for Win7? Would absolutely uncover more truth than accusing system builders of supporting piracy and theft by simply using the product as intended. Only way to fix this, is for MS to make it impossible to install and run win10 without a valid activation. Which would be sad, since I often donate old working PCs with a fresh install of Win10 home on it and pretty much rely on them getting a valid activation key one way or another when they can afford it. One thing for sure, once MS "fixes" the win10 installation "problem" it might just give Linux a bit more visibility on used PCs if nowhere else.
 
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I'm going to ask you a simple question:
shouldn't Windows be free? I'm a user there (LukeSavenije if you want to contact me there) and i think it's bs to ask 200 dollars for it, so i pirate, i recommend others to pirate or go gray, and i won't stop with that. Canonical has shown it's possible to make it free and ask money for courses and business support. i think microsoft should do the same.


i think I've said enough
 
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DSzymborski

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Clickwrap agreements are legally binding agreements, though there are more "ifs" involved, just like with other unilateral contracts. For example, in Specht v. Netscape the shrinkwrap contract was found defective because Netscape did not give reasonable notice that there was a contract to end users.

But on a general level (and it goes for the EU too), clickwrap agreements are enforceable contracts. Not all contracts need to be even written to be valid. If I tell you I will buy your broken lawnmower for $75 and you say OK, all the elements of a contract are there: offer, acceptance, consideration, mutuality of obligation. Now, proving you agreed to sell your lawnmower may be more difficult as an oral contract, but it's still a binding contract.

As long as both parties are competent and it isn't a specific contract that requires it to be written (and that doesn't generally mean that written has to be physical printing on a piece of paper with your signature made in ink), that's a contract.
 
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Any EULA or indeed any contract is subject to local laws and regulations so no private company like MS can enforce anything and would have to modify EULA or contract to suit those laws and regulations or it's not valid.
For instance, in some (if not all) of EU countries, OEM installation has to be transferable to another machine and MS has no right to sanction it.
 

USAFRet

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I'm going to ask you a simple question:
shouldn't Windows be free? I'm a user there (LukeSavenije if you want to contact me there) and i think it's bs to ask 200 dollars for it, so i pirate, i recommend others to pirate or go gray, and i won't stop with that. Canonical has shown it's possible to make it free and ask money for courses and business support. i think microsoft should do the same.


i think I've said enough
Conversely, why should it be free?
It takes significant resources to build and support it.

Should that new shiny game you want to play also be free?

Do you show up at your job every day and work for free?
 

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