[c-nsp] IOS pirating requests

[Ted Mittelstaedt]

> -----Original Message-----
> From: cisco-nsp-bounces at puck.nether.net
> [mailto:cisco-nsp-bounces at puck.nether.net]On Behalf Of Asbjorn Hojmark -
> Lists
> Sent: Sunday, April 06, 2008 1:23 PM
> To: 'Daniel Hooper'; 'Jon Lewis'
> Cc: cisco-nsp at puck.nether.net
> Subject: Re: [c-nsp] IOS pirating requests
> 
> 
> > But if you send me the chassis as well as the IOS and no money
> > changes hand's it's technically not pirating.
> 
> Well, that depends on who you ask... It's pretty clear from the
> license that the software does *not* follow the hardware to a 3rd
> party. If you sell the box, you have to buy a 'transfer license'.
> 
> (Wether that'll be legal in other countries is another matter).
> 

That has never been tested in a court and a Cisco buyer is not
required to sign a contract that would obligate them to such an
act.  In fact, if anything, the courts
have ruled in the few cases that have come up regarding used 
software being sold, that it is illegal for a software vendor to
place a purchaser under such a restriction.  In short, if you
go buy a copy of Windows and use it for a few years then sell it,
(assuming that you have not of course used the license as the
basis for an upgrade, and that it's not an OEM license) that
you and the buyer are perfectly legal.  As for OEM software,
this travels with the device.  As much as Microsoft and other
vendors would like to have the software license of Windows
'untied' from the hardware post-purchase, if you sell a PC you
bought with Windows preloaded, the license for the preload goes
with the PC.

This also works for cell phones, DVD players, automobiles,
microwave ovens, hybrid key phone systems, etc. all of which
have embedded computers with software running.  The manufacturer
can only deny you new updates or cut you out of support if
you get the item from the secondary market - they cannot win
a suit against you for merely buying and owning the item that
has the software on it that was loaded on it when it came from
the factory.

Cisco I am sure is perfectly aware of all of this.  It is undoubtedly
why they put the oldest and archaic IOS on their products possible.
For example we just sold a recent 2800 to a customer - running an
OLDER version of IOS  (12.4.1 I believe) than what was in it's ROM -
this was a brand-new, never-opened, direct from Ingram Micro router -
it was an IOS image that has been deferred years ago and long since
covered under Cisco's free "security upgrade replacement"

Clearly, pulling such a stunt gives Cisco much leeway to argue in
a court that someone isn't entitled to a more current IOS version
because the "official OEM IOS version" that was shipped with the
router is going to be older than -anything- that was ever available
for download from the Cisco website.  Thus Cisco could make the argument
in a court that while a buyer of a used 2800 might have a legal right
to posses the 2800 with IOS 12.4.1 loaded, (because that was what
was on it when the router shipped from the factory) that is as new
an IOS as they can have, simply by merely purchasing the box.

You really need to be careful here.  Keep in mind
that for the last decade software vendors have been scruplously
avoiding having shrinkwrap licenses tested in court, there's not been
a single court case of a software vendor (like Microsoft or Cisco)
suing anyone for violating a shrinkwrap license that they did not
explicitly sign and agree to abide by.  Yet there's millions of
devices sold every year that have shrinkwrap licenses on them.
Most of what you read from the software vendors is FUD and
speculation in this area.  And, I will also remind you, there is
no law that states that Cisco or any other software vendor MUST
tell the truth with regards to contracts or their interpretation.

It is SOP for most companies to put illegal, rediculous, and 
unenforceable terms in their contracts, then have their sales
guys claim those terms are legally binding.  In writing even.
Naturally, contract law being what it is, if there is ever a
legal dispute, this will be held against them by the judge - 
but they do this because they know the vast majority of people
automatically assume that just because it's written down in
the contract that it must be legal.

Ted