By Michael Geist
January 29, 2007
Vista, the latest version of Microsoft's Windows operating system, makes
its long awaited consumer debut tomorrow. The first major upgrade in
five years, Vista incorporates a new, sleek look and features a wide
array of new functionality, such as better search tools and stronger
The early reviews have tended to damn the upgrade with faint praise,
however, characterizing it as the best, most secure version of Windows,
yet one that contains few, if any, revolutionary features.
While those reviews have focused chiefly on Vista's new functionality,
for the past few months the legal and technical communities have dug
into Vista's "fine print." Those communities have raised red flags about
Vista's legal terms and conditions as well as the technical limitations
that have been incorporated into the software at the insistence of the
motion picture industry.
The net effect of these concerns may constitute the real Vista
revolution as they point to an unprecedented loss of consumer control
over their own personal computers. In the name of shielding consumers
from computer viruses and protecting copyright owners from potential
infringement, Vista seemingly wrestles control of the "user experience"
from the user.
Vista's legal fine print includes extensive provisions granting
Microsoft the right to regularly check the legitimacy of the software
and holds the prospect of deleting certain programs without the user's
knowledge. During the installation process, users "activate" Vista by
associating it with a particular computer or device and transmitting
certain hardware information directly to Microsoft.
Even after installation, the legal agreement grants Microsoft the right
to revalidate the software or to require users to reactivate it should
they make changes to their computer components. In addition, it sets
significant limits on the ability to copy or transfer the software,
prohibiting anything more than a single backup copy and setting strict
limits on transferring the software to different devices or users.
Vista also incorporates Windows Defender, an anti-virus program that
actively scans computers for "spyware, adware, and other potentially
unwanted software." The agreement does not define any of these terms,
leaving it to Microsoft to determine what constitutes unwanted software.
Once operational, the agreement warns that Windows Defender will, by
default, automatically remove software rated "high" or "severe," even
though that may result in other software ceasing to work or mistakenly
result in the removal of software that is not unwanted.
For greater certainty, the terms and conditions remove any doubt about
who is in control by providing that "this agreement only gives you some
rights to use the software. Microsoft reserves all other rights." For
those users frustrated by the software's limitations, Microsoft cautions
that "you may not work around any technical limitations in the
Those technical limitations have proven to be even more controversial
than the legal ones.
Last December, Peter Guttman, a computer scientist at the University of
Auckland in New Zealand released a paper called "A Cost Analysis of
Windows Vista Content Protection." The paper pieced together the
technical fine print behind Vista, unraveling numerous limitations in
the new software seemingly installed at the direct request of Hollywood
Guttman focused primarily on the restrictions associated with the
ability to play back high-definition content from the next-generation
DVDs such as Blu-Ray and HD-DVD (referred to as "premium content").
He noted that Vista intentionally degrades the picture quality of
premium content when played on most computer monitors.
Guttman's research suggests that consumers will pay more for less with
poorer picture quality yet higher costs since Microsoft needed to obtain
licences from third parties in order to access the technology that
protects premium content (those licence fees were presumably
incorporated into Vista's price).
Moreover, he calculated that the technological controls would require
considerable consumption of computing power with the system conducting
30 checks each second to ensure that there are no attacks on the
security of the premium content.
Microsoft responded to Guttman's paper earlier this month, maintaining
that content owners demanded the premium content restrictions. According
to Microsoft, "if the policies [associated with the premium content]
required protections that Windows Vista couldn't support, then the
content would not be able to play at all on Windows Vista PCs." While
that may be true, left unsaid is Microsoft's ability to demand a better
deal on behalf of its enormous user base or the prospect that users
could opt-out of the technical controls.
When Microsoft introduced Windows 95 more than a decade ago, it adopted
the Rolling Stones "Start Me Up" as its theme song. As millions of
consumers contemplate the company's latest upgrade, the legal and
technological restrictions may leave them singing "You Can't Always Get
What You Want."
Michael Geist holds the Canada Research Chair in Internet and E-commerce
Law at the University of Ottawa, Faculty of Law. He can reached at
mgeist (at) uottawa.ca or online at www.michaelgeist.ca.
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