Windows Server 2016 -- cheap & easy failover ?

I licensed my below setup so I could run 4 HyperVs on each physical server

If one of my PHYSICAL servers dies can I restore 2 Windows Server 2016 HyperVs backups onto the remaining PHYSICAL server without having licensing issues since I have enough LOCAL storage to support all 4 HyperVs on one PHYSICAL server ?

Setup
 ** 2 PHYSICAL "16 core licensed" Windows Server 2016 servers via OEM licensing, not OpenBusiness/etc
      ** each hosting 2 Windows Server 2016 HyperVs
      ** each using LOCAL storage
finance_teacherAsked:
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Cliff GaliherCommented:
First, the disclaimer.  Licensing is a legal matter, and taking legal advice from strangers is never a wise course of action.  "I read it on the internet" will not be a viable defense if you find yourself in an audit, and that happens more often than you might think.

With that said, OEM licenses are *NOT* transferrable (at least not for the purposes you describe), so no you cannot do what you want.  You  are licensed for 2 VMs per host. Not 3 and 1, not 4 and 0.  2 max each. And since the license can't be transferred, you can't rebalance that.
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Lee W, MVPTechnology and Business Process AdvisorCommented:
Agree with Cliff.  Friends don't let friends buy OEM.  That was a mistake.  

*MY INTERPRETATION* of licensing says you can replicate the VMs to each other, but you CANNOT, EVER, turn them on - so this could be a form of backup, but not disaster recovery.  That said, *MY INTERPRETATION* of licensing says *IF* you had a major failure, you could then buy another Windows Server License (NOT OEM) and add it to the working server.  This would allow you 4 VMs now and you would have two running under the OEM license and two under the new license.
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Philip ElderTechnical Architect - HA/Compute/StorageCommented:
Beg to differ. Eric Siron has a great post on the Microsoft Forums.

The host installed OS in OEM form is not transferrable. The workload VMs are so long as the destination host is correctly licensed.

VMs are licensed based on the host not in and of themselves.
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Cliff GaliherCommented:
@Phillip:  I agree that hosts are licensed, not VMs.  But reread the OPs post.  The *HOSTS* are only licensed for two VMs each in the OPs case. The post you linked to is dealing with Datacenter where VM count doesn't matter.  Apples to oranges. And since the host OEM license is not transferrable, he couldn't spin up 4 VMs in case of a failure "as is" right now.  I did state as much in my initial reply, and I stand by it.  Your response doesn't contradict my stance given the current licenses that the OP has.
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Philip ElderTechnical Architect - HA/Compute/StorageCommented:
@Cliff Yes, we are on the same page.

Source and destination must be licensed accordingly for the number of guests to be moved around.

Software Assurance added on to those OEM licenses would allow for a "Cold Backup" thus avoiding the full cost of the destination server's OEM licensing.
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Lee W, MVPTechnology and Business Process AdvisorCommented:
So I may have not been clear....

Server 1 with OEM install and 1 VM
Server 2 with OEM install and 1 VM

In this scenario, replica can be used and both systems can optionally run both VMs if they had two because each license comes with rights for 2 VMs but initially, only 1 is used.

...

Server 1 with OEM install and 2 VMs
Server 2 with OEM install and 2 VMs

In this scenario, replica (in my interpretation) can be used to replicate the systems.  The replicas may NEVER be brought online, even for testing.  Because if Server 2 replicates it's 2 VMs to server 1 and server 1 already has 2 VMs, that would mean 4 OPERATIONAL VMs on Server 1 with ONLY an OEM license.  This cannot be done.  However, in a disaster, PURCHASE a new Server 2016 license that accomodates the hardware and you're covered for the additional 2 VMs on Server 1.  Or EXPORT the replicated VMs of Server 2 on Server 1 and then reload server 2 and import the VMs.  You've just used replica as a backup but nothing more.  Hence my interpretation that this would be acceptable.

Similar scenario with:
Server 1 running 2 VMs on Windows Server
Server 2 running 0 VMs on Hyper-V server

Replicate 1 to 2.  You cannot turn on the VMs on 2, but you have a DR ready backup on 2 that can be "activated" with a new server license OR have the VMs exported and imported onto a rebuilt Server 1.
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