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As I did say in my previous post, but you omitted when quoting it, this might stand up if all parties agreed to the arbitration. Sometimes C2C contracts include these kinds of terms, for example.

However, it's going to be tough in most jurisdictions (obviously not everyone in the world is subject to the US legal system) to convince a judge that such a heavyweight term in a contract of adhesion that one of the parties may not even have realised existed should be enforced. For example, in my country we have the Unfair Terms in Consumer Contracts Regulations 1999. If you like, you can search down that page for the words "Compulsory arbitration clauses are automatically unfair for the purposes of most consumer disputes" and you can look up the law itself to see why.

Of course, all of this presumes that a contract even exists in the first place, which is another obvious avenue of attack against this strategy. For example, contracts generally require some form of consideration in both directions. What is in it for the guy who clicked 'Like' to accept such a draconian restriction in return? And if the original action was simply buying cereal from your local store, then the contract is almost certainly between you and the store, not the cereal company. While legal systems have been known to recognise third party rights under some conditions (again, varying by jurisdiction etc.) you'd probably come back to things like whether such terms were an expected part of the contract of sale, and whether they were unfair/unconscionable. And guess who is going to rule on that...

Nope. Under the Sale of Goods act they are responsible for considerably longer. Don't let them fob you off.

In short, a seller can be responsible for up to SIX YEARS (not six months) for the product they sold and the customer may still have legal rights AFTER a warranty has expired. In particular a hard drive that fails that quickly is clearly not fit for purpose and the seller must take it back. If they refuse take them to the small claims court. They will generally capitulate at that stage.

http://www.oft.gov.uk/shared_oft/738369/738375/OFT002_SOGA_explained.pdf

Managers know this and avoid competing on price whenever they can. In a market with only a handful of competitors, they can and do avoid it. Reducing the costs drives profits up, not prices down.

Surely this would be illegal under the Cartels and the Competition Act 1998, so they couldn't possibly be avoiding true competition. Could they?

My guess would be that they did see it beforehand but didn't appreciate how much smaller the rooms were because it was either empty or dressed to look bigger than it really is.

That is a real danger if they saw a show-house. A tactic used by 26% of large UK developers is to use smaller than standard sized furniture, which when done professionally is not obvious and makes the room appear larger than it is.

I wonder if they will pull out of the UK too? The UK has distance selling regulations that mandate a seven day "cooling off period" for internet sales.

Indeed, it looks like these regulations should be EU wide and I don't see any exemption for software sales.

I wonder if they will pull out of the UK too? The UK has distance selling regulations that mandate a seven day "cooling off period" for internet sales.

Indeed, it looks like these regulations should be EU wide and I don't see any exemption for software sales.

Ok, If you're going to deny the existence of all this legislation I guess we're done.

If someone showed up at your house and told you that your water could kill because of some microbe you have never heard of that they claim is getting into your pipes and the only way to make yourself safe is to install this helpful filter that they are selling would you believe them?

Probably not, but then again you're not being very insightful by asking this on /., where readers are by essence critical than the average joe.

There still is something called social compliance, a term coined by scammers but which is quite close to what this link describes. Also read up on this. Social compliance means that people will very easily accept your position of authority provided that you are in the right place, with the right attitude, costume and speech. One quite famous example of this is by BBC show The Real Hustle, where one of the hosts pretends to be with the company that provides parking spaces, and sells "special day passes". If you pay for an hour it's 2 GBP, if you pay for a day it's 10 instead of 16 [1]. The "pass" that he gives to people is an extremely simple ticket, it doesn't even hold a magstripe. By the time people start using the cards, he's long gone, and suddenly people have to try and explain to the parking manager why they're using cards that have utterly no value. Why did people buy them? Because he's wearing a hi-vis jacket, has a clipboard and gives out pieces of paper.

What most of these frauds rely on are "the bait". It's an age old trick, but the snake-oil seller needs someone to start buying first (and usually a big amount). This makes the others believe a/ it's a bargain, b/ the sale was validated by one (so they think) legitimate buyer, c/ there is scarcity because 20 items were sold in one go -- they might lose out if they don't act fast.

The UK gov published ordered and published a report that tried to explain the psychology behind scams, and why they work (so well). These were the highlights:

• Appeals to trust and obbey authority: This is roughly what I explained above. People are inclined to believe anything that seems legit, and which does not give them any reason to doubt. If it looks real, smells real, feels real and sounds real, it must be real. Also, people want to be led, this dramatises the above. This sadly also explains why phishing actually works.

• Visceral triggers: Again, what I explained above, scammers will play the most basic instincts and feelings of people in order to fool them. Greed, fear, avoidance of pain, desire to be liked, etc. This causes instinctive, impulsive behaviour, which means people buy first, ask questions later.

• Scarcity cues: Same as explained in the example above, by making people feel as if the product may run out soon, they have instinctive pressure building up to make a decision fast. This can also work by making the offer seem highly personal. If you, and only you are in for a particular deal, you're not lucky: you just need to make sure no-one else gets it.

• Induction of commitment: By making people take small steps, individual steps that aren't very difficult to accomplish, the scammer push the victim into a guilt-trip for pulling out. The further they go, the harder it is for them to pull out. This also works if the victim already gave money. You're more inclined to give me 200 USD for "processing" if you've already given me $10, $20 and $50. (This BTW is used by casinos too, that's why the cheapest fruit machines are at the front, the big money losers are hidden in the back.)

• Pot odds: May sound stupid, but everyone makes those calculati

In the UK under The Distance Selling Regulations ( http://www.oft.gov.uk/advice_and_resources/resource_base/legal/distance-selling-regulations/ ) All mail order companies, including on-line sellers must give you a seven (working) day cooling off period during which you may return your purchase for a full refund. For a phone you would be expected to pay the tariffed cost of any calls etc that you made but during the time you had it but nothing for the phone, no penalty and the contract would be cancelled. All networks also offer SIM only contracts where you may use your own phone. T-Mobile UK for instance offer both monthly sim-only plans: http://www.t-mobile.co.uk/shop/mobile-phones/sim-card/pay-monthly/ and pay as you go 'free SIM' plans http://www.t-mobile.co.uk/shop/free-pay-as-you-go-sim-cards/

Well, here in the EU at least you would be entitled to refunds for both your LCD monitor and cellphone regardless of warranty as all goods are required to be sold as "fit for purpose". Clearly neither of these products functioned to reasonable expectations and you would just return them to the store you bought them from.

On top of that, my statutory rights also allow me to return any product (working or not) within 7 days if they are bought "sight unseen", i.e. over the Internet.

It might well be specifically legislated against in the UK within a year or two. The OFT (Office of Fair Trading) is currently undergoing a market study into potentially misleading advertising and pricing practices including this specific area of artificially inflating reference prices to exaggerate the value of discounts: http://www.oft.gov.uk/news/press/2009/126-09

At which point (in the UK at least), you would tell them to take it through the small claims court if they want their money back and cite OFT guidance (page 52) in your defense of the claim.

I'd be surprised if you couldn't pull something similar in the US as two of the basic concepts of contract law are consideration and estoppel. I guess you would be probably relying on previous case law for this, unless the US has any guidance similar to that given in the UK.

No, but I'd imagine the Consumer Protection (Distance Selling) Regulations 2000 would apply. These give the customer a cooling off period of 7 working days.

Source:
    UK Office of Fair Trading

But the Distance Selling Regulations may come to the rescue there - it mandates a 7-day cooling-off period for goods or services bought remotely. The big ADSL providers think it even applies to them, so I'd be very surprised if it couldn't be ruled to apply to software as well.

On the other hand, with a free download (eg. SP2, VS Express), the EULA is the contract - it's the only point at which consideration is exchanged.

...and plenty of others.

The distance selling regulations would often apply:
http://www.oft.gov.uk/advice_and_resources/resource_base/legal/distance-selling-regulations/
http://www.opsi.gov.uk/si/si2000/20002334.htm

The Sale Of Goods act certainly would:
http://www.opsi.gov.uk/si/si2002/20023045.htm
(there have been many revisions of this)

while it helps the NCC get column inches to say that people are "signing away legal rights", it's not actually true. They may THINK that they have, but all legislation in this area has been drafted to ensure that people CAN'T.

Most companies will release you from an unfair contract if you detail your issues in writing, otherwise just redirect them to relevant parts from the OFT - http://www.oft.gov.uk/advice_and_resources/resourc e_base/legal/unfair-terms/guidance

Matt

You need to read the regulations again.

http://www.oft.gov.uk/News/Press+releases/2006/133 -06.htmConsumer

Section 3.48:

"The DSRs require you to refund any money paid by or on behalf of the consumer in relation to the contract to the person who made the payment. This means the full price of the goods, or deposit or prepayment made, including the cost of delivery. The essence of
distance selling is that consumers buy from home and receive goods at home. In these circumstances, almost every case of home
shopping will involve delivery of the goods"

Section 3.57:

"If the goods are faulty or do not comply with the contract, you will have to pay for their return whatever the circumstances."

OFT thinks otherwise

I'm not sure what the law in the U.S. is but here in the U.K. you can go to jail for contempt.

According to the Office of Fair Trading http://www.oft.gov.uk/
"The maximum penalty for contempt of a county court order is two years imprisonment and/or an unlimited fine"

So a simple way to calculate a fine would be to calculate how much money MS has (including financial assests) and double it, if they don't pay up send the baliffs in.

When they still don't pay up hold them for contempt of that, and then imprison whoever was responsible for a couple of years.

Unfortunaltely the legal system has a problem with coruption. If you have money you are allowed to break laws it would seem.

Still if they laugh at fines, let then laugh at it from inside a prison cell.

I think slashdot agrees with me, the CAPTCHA word is "detain"

Someone in the UK with time on their hands looking for a cause should contact the Office of Fair Trading since it sounds like the contract between MS and the individual is too one-sided and the OFT has a legal requirement to look into any complaint made. I understand that they work under rules that are common in most EU countries now, so maybe it would be worth doing there too.

I'm disgusting with Paypal and going through the process of deleting my account. It's not easy, but I'll keep trying. Paypal will always suck in the UK it seems...

not allow you to speak to anyone in the dispute or resolution centre, leaving you arguing with sales staff who don't have a clue

Every mayor city has a mobile phone system, and implementing the 'send an SMS to every newcomer' system should be trivial. unfortunately, that particular system is illegal in the uk, and possibly the rest of europe. the provisions of the Privacy and Electronic Communications Regulations [our anti-spam laws] prevent any non-private entity from opening electronic communications with someone who has not explicitely reqiested it. [link]

Not exactly:

http://www.oft.gov.uk/Consumer/Unfair+terms+in+con tracts/default.htm

Knowing a lawyer, the legal system in the UK doesn't put up with the shit the American system does.

To put a finer point on it, the UK has some government offices that take in interest in SCO-like shakedown practices. The Office Of Fair Trading is concerned with fair business practices in general; misleading sollicitations being a particular area where they have legal powers.

Furthermore, the Serious Fraud Office is a likely place to turn to in the event SCO starts sending out letters to a lot of businesses (especially if the total amount of monies sollicited in bogus licenses exceeds 1 million pounds, but given the international dimension and widespread public concern, they might decide to take on the case even below the 1M GBP threshold).

I'm under the impression that these offices are a lot more assetive than for example the FTC or FBI, seeing as we've not heard a peep out of them during the whole SCO debacle.

And don't forget kids, when SCO comes knocking, ask them what they're selling, ask them to prove they own what they're selling, and have them send an invoice. If they invoice you for linux, that's fraud.

And if the line is that they're selling the right not to be sued by them, remember these people are on record as saying "contracts are what you use against parties you have relationships with" - you'd be no safer (in fact, worse off).

It's the law! Try somewhere like the Office of Fair Trading .....

Do you mean something like this?

According to the [Unfair Terms in Consumer Contracts Regulations 1999], a standard term must be expressed in plain and intelligible language. A term is open to challenge if it could put the consumer at a disadvantage because he or she is not clear about its meaning - even if its meaning could be worked out by a lawyer. If there is doubt as to what a term means, the meaning most favourable to the consumer will apply.

From the UK Office of Fair Trading, guidance on recent changes in UK contract law.

Under Part 8 of the Enterprise Act, the OFT and other bodies responsible for consumer law enforcement, have stronger powers to seek court orders against businesses who breach certain consumer protection laws.

Before taking court action (ie seeking an Enforcement Order), the OFT and our enforcement partners will always invite the trader concerned to respond to the allegations against them, and they will be able to give binding commitments (undertakings) instead of going to court.

The enforcement procedure is based on the Stop Now Regulations which it replaces along with Part III of the Fair Trading Act.

Download Enforcement of consumer protection legislation for more detailed information on the enforcement procedure

Under Part 8 of the Enterprise Act, the OFT and other bodies responsible for consumer law enforcement, have stronger powers to seek court orders against businesses who breach certain consumer protection laws.

Before taking court action (ie seeking an Enforcement Order), the OFT and our enforcement partners will always invite the trader concerned to respond to the allegations against them, and they will be able to give binding commitments (undertakings) instead of going to court.

The enforcement procedure is based on the Stop Now Regulations which it replaces along with Part III of the Fair Trading Act.

Download Enforcement of consumer protection legislation for more detailed information on the enforcement procedure

The record industry seems to be running a nice little cartel, fixing prices, and trying to destroy competetion. In the UK, people should visit the Office of Fair Trading and complain about the music industry being a cartel.

You seem to have had different experiences, so good for you, but from both sides, both trying to get a replacement, and seeing how a store operates with regards to these, I wouldn't wipe my arse with them in case I get ink stains from it.

complain to our goverment, maybe kicking up a stink and something might get done

http://www.oft.gov.uk/About/Who+to+contact/In+Comp etition+Enforcement+division.htm

Better yet, sue!

Take the record store to the small claims court, and sue for fraud, and hassle, and costs, and anything else you can think up.

Also/or: lodge a formal complaint to a trades standards body (in the UK it's the Office of Fair Trading.)

Tell them how you bought a CD from the CD rack of the store, but it's not a CD (it doesn't work with your Red Book/Orange Book, whatever, legitimately branded CD player.)

If you bought the CD from a store and were forced to return it, ask them for your transportation costs, if they refuse, keep the CD, and sue in the small claims court, in the UK (IANAL) if an item is faulty, you are entitled to compensation for 6 years from the date of purchase, to cover costs of repairs of the faults and incurred costs.)

Consider talking to a Citizen's Advice Bureau, or equivalent ofering free legal/consumer/citizen advice, rather than taking your advice only from /.

Stick it to them.

Recently the UK Govt found the CD producing cartel of price fixing, but only in the past.
here

They say that they can find no evidence of continued law breaking so they will take no action.

and yet the prices stay the same

Any modifications that Microsoft chooses to make to its EULA by threatening you with an insecure system unless you sign up simply do not apply in the United Kingdom - at least, if you are a consumer rather than a business. So you can click "Yes" and not lose anything.
The Office of Fair Trading has a good, simple explanation: "An unfair term in a contract covered by the Unfair Terms in Consumer Contract Regulations (UTCCRs) is not binding on you... A term is unfair if... contrary to the requirement of good faith it causes a significant imbalance in the parties' rights and obligations under the contract, to the detriment of consumers... Although standard terms may be drafted to protect commercial needs, they must also take account of the your interests and rights by going no further than is necessary to protect those legitimate commercial interests".
The onus is on the company to prove that a contract term is fair.
None of this applies to contracts between businesses.

(Quotes from the Office of Fair Trading website at <http://www.oft.gov.uk/Consumer/Unfair+terms+in+co ntracts/unfair+terms+fairness.htm>)

If this company is UK based i would advise you to report them to the Office of fair trading and the UK Trading Standards , these kinds of practices are despicable and the OFT and TS do not take kindly to this sort of behaviour

Here is how the conversation is going to go with the BOFT (not to be confused with the BOFH) authorities and M$:

BOFT: We have questions about your...

M$: Hey, lookie here... a couple hundred million dollars... why don't you go out and buy yourself something nice. Like an island.

BOFT: I'm sorry, but we really can't...

M$: Now, how big is the British empire now? A few nations around here and a bungalo somewhere in the Bahamas? The whole "sun never sets" etc is really taken a hit. Tsk tsk. Money like this could buy an awful lot... I hear the going rate of Yemen is mighty resonable these days.

BOFT: Well, in fact we have had our eye on this nice little island out in the pacific now that you mention it.

M$: So, what about that investigation?

BOFT: Investigation? Oh pishaw... Those are just your average normal old price increases. Inflation, don'tcha' know.

Now, that isn't intended to be a slander against England or the people who staff the BOFT. I'm willing to bet there are quite a few nice vacations being planned for members of the FTC, not to mention a few politicians who suddenly have a bit more dosh in the old campaign coffers. But lets all face it, we are talking about one of the most powerful companies in the history of, well, history. Call me a cynic, but I think that other nations saw how much the US government made on dropping the case against M$, and they decided they wanted a piece of THAT pie.

Does anyone else get the impression that Microsoft has learnt something from the DoJ case? Namely, that driving their competitors out of business by using underhand tactics isn't such a good idea, and that it's easier (and probably cheaper, in the long run), to buy them.

STNC is a perfect example. This is a British company which is psrt of the Symbian Consortium which, of course, is supporting EPOC. STNC supplies browser technology to Symbian.

However, Microsoft has bought STNC, and it's not yet clear how long they'll continue supplying Symbian.

I'm trying to raise the subject with the Office of Fair Trading, here in the UK, in an attempt to get it referred to the Competition Commission, but I'm afraid it's too late.

And it's not just software companies. Microsoft's investments in cable TV companies and the like are part of a strategy to force more widespread adoption of Microsoft software, thus extending their monopoly beyond the desktop.

I think that Microsoft should be broken up into a number of seperate companies, including some sort of investment fund, to cover it's investments in other companies. Otherwise, it's in danger of becoming unstoppable.

D.
..is for Dangerous.