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#21
Combative? I guess it comes across that way in the written form, but I mean this as more "discussive", if that's a word.
It's just that the EULA is indeed a valid and legally binding contract, and has been upheld in the past (see Microsoft v Harmony for an example from the vendor in question). The argument against this is the "first sale doctrine", which argues that software is not licensed, but sold. However, licensed and not sold as it pertains to software was the confusion area (mostly on resale, not lending, but the same would likely apply), and earlier court cases (like US v Wise) have been overturned and are still pending (original ruling in favor of redist/sharing, but overturned and pending further trial) or Vernor v Autodesk (software is indeed licensed, not sold). So while there are still specific cases still under legal review (in a lot of places), unless the law explicitly starts defining software copyright (or the US Supreme Court rules one way or the other on one of these cases, assuming one even makes it there) different form the Computer Software Act of 1990, it still stands as of now that indeed in 49 of 50 states (minus Texas, as Novell v CPU hasn't been overturned there) that software is licensed, not sold, and EULAs do apply if you explicitly agree to them (which a Windows install does explicitly make you agree to before you can use the software during OOBE or setup - there's a legal reason for this, as you can see). The major stumbling point with any court case is still that Computer Software Act of 1990, which is explicit in it's limitation on computer software purchases and licensing. This particular act does specifically opt-out computer software programs from first-sale doctrine law, and make it a violation of a licensing agreement that does not explicitly allow "acts of rental, lease, or lending, or by any other act or practice in the nature of rental, lease, or lending unless authorized by the owners of the copyright, with an exemption for non-profit educational institutions and non-profit libraries." That's the sticking point right there - until that act is somehow obsoleted, overturned, or invalidated, it's likely the courts are going to continue to side with the licensor if they're following legal precedent and written law.
Given that contacting Microsoft or the OEM will net you installation media for a legally-purchased license or machine (as the case may be), that is still the best way to get media if you don't need it right this second. If you do, however, the Computer Software Act that caused this problem in the first place does *explicitly exempt* libraries from this limitation - so if you have a local library, and are not a for-profit entity, the library can possibly lend you a copy of the software (which must include the EULA) for you to use if you fall within the parameters of 2A of this particular act. Otherwise, the OEM or Microsoft will provide replacement media, and after that you're into that legal limbo.
Ultimately today, lending is still technically illegal based on laws on the book and quite a bit of case law, but I sincerely doubt anyone or any organization is going to go after you for doing so.
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