From: Ken (kenzo_at_free-music.com)
Date: Sat May 04 2002 - 01:17:05 EDT
(Apologies for contributing to this off-topic thread. ObThinkpad: My new T23 will be arriving soon. I plan to install some flavor of Linux on it. Trying to choose a distro has been hard, but the recent comments made on the list help a bit. I resent not having been given a choice not to buy an MS OS with it...but see my comments below about how cause for resentment isn't the same thing as illegality.)
I just (re)read the EULA from my Windows 95. It is quite clear: I didn't buy the software. I bought a computer and have been licensed to use the software under MS's specific terms. I'm not allowed to use the OS except on the computer it came with. I can transfer my rights of the license to someone else, provided I turn over the computer and all the Windows stuff that came with it (disks, recovery CD, my one allowed backup copy, certificate of authenticity). If I don't agree to the license, I am not allowed to use the OS (and I'm supposed to contact the PC manufacturer about returning the machine...ha). If at any point I violate any terms of the license, Microsoft has the right to revoke the license, and demand that I destroy all my copies of the OS.
And, to my recollection, when I first turned the computer on for the first time, the machine showed me this license agreement, and asked me whether or not I consented to it. Without consenting, the software would not have proceeded to allow me to use it.
So, it appears to me that I entered into a clear agreement with Microsoft. And, honestly, although I don't much like most of the terms I just mentioned, I can't see anything that seems illegal about any of them. If I didn't like it, I didn't have to use it (putting aside any practical questions of market forces and monopoly practices).
Microsoft didn't invent the concept of a license. Just because it's called "EULA" doesn't make it a new thing that requires them to pass new laws. Software licenses long predated microcomputers. Some sellers of software sell their executable code. Some sellers of software sell their source code. Some only sell licenses to use software (executable or source). Some buyers may choose not to buy from some of these kinds of sellers.
The only potential legal question I see is whether some consumer (or other) law prohibits certain kinds of terms to be in license agreements. I haven't heard of any that prohibit those I saw in the Windows 95 EULA...but I'm not a lawyer.
On the subject of whether clicking "I agree" and proceeding to use the software can be considered legally binding, that's a valid question. If the DMCA didn't specify that such keyclicks are legally binding, I suspect precedent has. You mentioned needing two signatures. Yet I agree to terms and conditions all the time in this world without ever signing a thing (when I buy a concert or movie ticket, a train ticket, etc.).
Regardless, it's a different question from "can they prove I clicked it?" Whether it's illegal, whether you can get away with it, and whether the law is practically enforceable are different issues.
And has already been mentioned, Microsoft has certainly gone after businesses and educational institutions. I don't know about individuals.
[Excerpts from previous message quoted below; no comments added.]
- Ken
kenzo_at_free-music.com
On Fri, May 03, 2002 at 06:45:50PM -0400, STeve Andre' wrote:
> > You may not have direct dealings with MS, but it's still
> > MS's software, isn't it.
At 12:37 AM 5/4/02 +0100, John Poltorak wrote:
>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.
...
>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 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
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