Expert witness on Microsoft software licensing helps Willemsen ICT win a lawsuit

Willemsen ICT is a IT Service Provider. For a project at one of their customers they bought hardware and software licenses at a supplier. During implementation they found out that they didn’t have the correct software licensing keys. Because consultation with the supplier didn’t lead to a solution they searched for expert help.

What type of licensing?
The first question which Caspar Willemsen of Willemsen ICT asked was about the license key: “Correct”, Caspar starts. “We received a license key over e-mail and a link to a software download. This is not what I’m used to. Normally the software, licenses and installations keys are provided in a Microsoft portal.”
Peter van Uden, certified software licensing expert at Quexcel: “In the early stage we had to collect al sorts of data to find out what really happened. All to find answers to questions like ‘What did you buy?’, ‘Who supplied what?’, ‘In what way’ and so on. Fact finding is important for proper consultancy, especially when there is a dispute between a buyer and seller.”

Second hand licensing
After the fact finding phase it showed that the supplier didn’t supply new Microsoft Volume licenses, but reused, or so called, second hand licenses. In the next phase Willemsen ICT consulted with the suppliers, using the facts found trying to solve the problem. “The supplier admitted that reused licenses were sold, but also claimed that he offered as such. Secondly, they told me that ‘lots of companies’ buy reused licenses and that there is no difference between reused and new”, says Caspar Willemsen. “But in fact, it wasn’t clear that they offered reused licenses and – in fact – there practical are differences in the end.”

Legal consult
Because there remained difference in opinion between Willemsen ICT and Quexcel at one side and the supplier at the other side, Willemsen ICT decided to go to court. Peter van Uden: “I recommended Sandra Koloc as an attorney to Caspar. I’ve worked with Sandra in the past and she has excellent knowledge on the IT industry.”

Expert witness
Sandra Koloc: “As a lawyer I can assist companies who want to go to court on legal matters. In this particular case we’ve built a case around the questions ‘Should the supplier have told that the licenses were used?’, ‘Could Willemsen ICT have known that the licenses were reused? And if they had known, would they still have bought the license?’. To get the answer, we have to look beyond the legal differences. For getting answers to what the practical differences between new and reused are, and what software licensing, terms of use, software contracts and other specific Microsoft legal documents mean in real life, we do need expert knowledge.”
Peter van Uden: “I’ve consulted in legal cases before, also to judges. Judges lack specific Microsoft licensing knowledge and that’s totally normal. It is important but difficult to explain Microsoft licensing in words everybody can understand. It is without luck that we managed to do so in this specific case.”

Court ruling
Willemsen ICT took the case to court and the judge ruled in favor of Willemsen ICT, nullifying the purchase and forcing the supplier to pay back the purchase price. All in all, the expert argumentation and explanation on Microsoft licensing helped the judge making the proper decision in the end.
Caspar Willemsen: “I’m glad I contacted Peter. He was able to explain the differences between new and use licenses in a way it was crystal clear to the judge why new is different and what we needed. Sandra included this in her general legal statement for the court with the positive outcome described.”

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