| Q. |
What is the difference between OEM and retail software products?
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| A. |
OEM software is sold to Original Equipment Manufacturers to be sold with new hardware. Generally, software publishers do not provide support for OEM titles and attempt to restrict its sale unless accompanied by a new hardware purchase. Retail software is sold through distribution channels and can be freely sold and resold.
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| Q. |
Can I purchase OEM software including desktop OS and bundled suites without purchasing new hardware?
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| A. |
The purchase of OEM software without a new hardware purchase usually violates the publisher's contract with hardware vendors. The law is unsettled on whether software companies can restrict downstream sales of their products in this manner. Our lawyers advise clients that the purchase of OEM desktop OS systems with peripheral hardware, such as a new mouse or RAM chip, is acceptable, but the purchase of OEM software suites, such as Microsoft Office, without a new computer is too risky and should be avoided.
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| Q. |
What are the required indicia of ownership for OEM software products? |
| A. |
The indicia of ownership for OEM products are usually a Certificate of Authenticity or COA and the media disks. The COA is usually affixed to the computer.
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| Q. |
What are the required indicia of ownership for retail software products? |
| A. |
The indicia of ownership for retail products are usually the media, the manuals, and the end user license agreement or EULA.
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| Q. |
How do Open License products differ from boxed products? |
| A. |
The Open License product is a direct license from the manufacturer that cannot be resold or transferred as of right. The license grants the right to use the product in accordance with the license, but does not convey title to the product.
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| Q. |
Am I liable if I purchase counterfeit software or software that is not appropriate for my usage? |
| A. |
Yes. If you purchase counterfeit software or software that is not appropriate for your use, it is not a defense that the seller represented that the product was authentic.
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| Q. |
Can I aggregate client access licenses for Microsoft Server across my network or does each server require a sufficient number client access licenses for each device or user on the network? |
| A. |
Yes, client access licenses for Microsoft Server products can be aggregated across the entire domain. Each server need not have a sufficient number of CALS for each user connecting to the domain.
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| Q. |
Is Microsoft Outlook a substitute for a user or device client access license for Microsoft Exchange Server? |
| A. |
No. Microsoft Outlook is not a substitute for a user or device client access license for Exchange Server. In the ordinary environment, each user will require a valid license for Outlook and an Exchange client access license.
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| Q. |
If I use my Exchange Server to relay mail to other servers but do not permit user authentication on the Exchange Server, do I still need a CAL for each mail box for which relay services are performed? |
| A. |
Yes. Client access licenses for Exchange Server are required for any user or device that accesses the functionality of the Exchange Server. Accordingly, licenses are required for users who don't authenticate to the server, but benefit from its functionality by, for example, receiving relays to other mail servers.
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| Q. |
If I run Microsoft Office on my office computer and my laptop, do I need to purchase two separate licenses for Microsoft Office? |
| A. |
No. Provided that you are using either one machine or the other, and never both at the same time, one license will cover both your desktop PC and your laptop.
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| Q. |
Why do I need to maintain dated proofs of purchase as part of my software documentation? |
| A. |
Dated proofs of purchase are not required to demonstrate ownership of software products. However, dated proofs of purchase are requested by the BSA in all audits, and retaining them can assist in resolving a BSA dispute favorably and without the need for litigation.
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