Windows close on Comet

Surrounded by Apple Macs, iPods, and iPhones, I sit in my iVory (sic) tower, happily proclaiming that Apple devices don’t get viruses

I’m therefore not entirely familiar with the concept of Microsoft Windows recovery CDs, but it seems that they are for use when your Windows, er, closes. That is, you use the recovery CD to load back up the Windows operating system if your PC or laptop crashes.

All Windows PCs and laptops used to come packaged with a recovery CD. However that practice stopped in 2008, with customers being encouraged to create their own CDs. Not all customers found this arrangement convenient however, or didn’t think about making a recovery CD until after their PC had crashed and it was too late.

Comet therefore decided to help out by manufacturing around 94,000 of the recovery CDs somewhere in a field (factory) in Hampshire.  Comet sold these CDs and generated an estimated profit of over £1m.

Microsoft’s claim
Microsoft has taken a dim view of Comet’s actions, and has decided to sue for the manufacture and sale of what it calls “counterfeit CDs”.

Comet claim that it has not infringed Microsoft’s IP. It will be interesting to see what defences it offers.

On the one hand, each copy of Windows is still only licensed for a single user. Under section 50A(1) of the Copyright, Designs and Patents Act 1988 it’s not an infringement of copyright for a “lawful user” of a copy of a computer program to make any back-up copy of it, which is necessary for it to have for the purpose of its lawful use.

On the other hand Comet isn’t the “lawful user” (the customer is), and the £14.99 they were charging looks fairly steep for simply burning a CD to help out a customer. Given that the CDs were made by Comet in advance (probably before the customer had even bought their new computer), it’s difficult to see how Comet could argue that it was acting as an agent or on the instructions of the lawful user in making the back-up CD.

Microsoft’s loss?

Under the Copyright, Designs and Patents Act 1988, if Microsoft’s claim is successful it will entitled to damages for the infringement. 

It may however difficult to quantify what loss Microsoft has suffered. Whilst apparently excessive for the the few seconds that it would take to burn a CD, the £14.99 perhaps represents the price consumers are willing to pay for someone to do the techie stuff for them. Microsoft has not lost any sales (and as far as I’m aware was not offering this service itself).

That said, this “counterfeit CDs” action is likely to do little for the “recovery” of the precarious finances of the Comet group.

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