From: Mick McQuaid (mcquaid_at_u.arizona.edu)
Date: Fri May 03 2002 - 19:56:32 EDT
I agree with most of what you say, but I think the
important point is that consumers only have the
rights they exercise. If a company can convince
people they don't have a right, and keep them from
exercising it, that company may stand to profit.
Therefore I don't blame MS for their outrageous
misstatements, such as the recent claptrap about
how schools must not take donations of computers
without MS documentation (!!!), but I think it's
worthwhile to remind people, as you have here,
that the MS claims are untrue. It is legal and
perhaps clever for MS to make these claims,
but they are untrue.
p.s. An example of a computer-aware lawyer would
be Lawrence Lessig. I don't know who the
"computer-aware lawyers" are who were invoked
by the original poster.
... regarding a message from John Poltorak on May 04:
> On Fri, May 03, 2002 at 06:45:50PM -0400, STeve Andre' wrote:
> > I'd like to think that, but why then is it the EULA, End User
> > License Agreement?
> >
> > Just because they haven't in the past doesn't mean they
> > might not in the future.
> >
> > You may not have direct dealings with MS, but it's still
> > MS's software, isn't it.
>
> No it's mine. I bought it. I don't accept that the EULA is valid so I
> have no obligations under it. Microsoft does not (yet) pass laws, so the
> EULA has no legal status. If I buy a book, or CD, it's mine. I can use
> it throw it away, give it away, sell it. It's up to me not the writer/artist.
>
> > Thus even though you didn't
> > enter into the contract directly, you are still obgliated
> > to its terms, because you are using it.
>
> That presupposes that the EULA has any legal authority. I'm using it
> because I paid for it. What do you think buying some goods entitles you
> to? Use them, of course. You don't enter into some dumb agreement not to
> criticise MacDonald if you buy a burger from them, even if they may have
> some sign somewhere saying that by eating such a burger you are committed
> to never saying bad things about them.
>
>
> > I know there is
> > case precedent for that; I've talked with computer
> > aware lawyers who have explained this to me.
> >
> > Sadly, MS can--and perhaps will-try to enforce all sorts
> > of things to stay on top. Look at the XP license, and how
> > it's changed. Look at Office XP and how it says, somwhere,
> > that you will only run it on Windows.
>
> They can say what they want, it doesn't make it legal.
>
> Consumers do have statutory rights, and they would take precedence of
> anything Microsoft thinks you are obligated to do.
>
>
> > MS is scared to death of the GPL world, and at the same
> > time trying to control people stealing from it (like Asia, for
> > example).
> >
> > At this point I wouldn't bet that they wouldn't try some high
> > visibility prosecutions of EULA breechs, for the "educational"
> > impact on others.
> >
> > I think you need to talk with a lawyer on this. You are bound
> > by the licensing agreement as far as I know.
>
> I have not made any legal agreement with Microsoft. What rights can they
> possibly have over me. Clicking on a button cannot be considered to be the
> basis of a legal contract, because a legal contract needs to have at least
> the names of two parties to the contract, and presumably a signature, but
> in any case I haven't bought anything from them so they are not party to
> any deal. They have no rights in the matter.
>
> I defy anyone to show me that there is anything remotely resembling a
> legal contract is in place between the end user and Microsoft when you use
> Windows.
>
> --
> John
>
>
--
Mick McQuaid, mcquaid_at_u.arizona.edu
520-621-4074 office / voice mail
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