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Microsoft's Passport: No Marylanders, Thanks
An Anonymous Cowardly Reader writes: "NewsForge is running a story about Microsoft's Passport service's terms of conditions, which effectively disallow residents of Maryland to use the service, and subject all users to Washington state laws, which they agree to by signing up." It's one case of unexpected consequences that the pro-UCITA forces may not have anticipated: states may pass (as Maryland did) versions of UCITA which unsubtly change the real effect of the law, and the changes may not be in the software makers' favor. Wasn't that "U" supposed to stand for "Uniform"?
A more interesting issue not mentioned in the article is what's known as "choice of law," where courts decide which forum's laws should apply. (For example, for a suit brought in MD, would Washington or Maryland contract laws apply?)
We can presume that the license states that its terms are governed by the state of Washington. So-called choice of law clauses are common in mosty contracts. But courts sometimes instead use the principle of 'lex loci contracti'--that is, the place of the contracting provides the laws. For products purchased in Maryland, that might (or might now) mean Maryland and not Washington state law applies.
A few states, like Kentucky, have extremely aggressive application of forum laws in 'choice-of-law' cases.
There's a curious trend in the linux community to speculate on legal matters, so I thought I'd throw this into the mix. BTW, IAAL (sic--no N).
Standard contract law says that the deal happens in the state of the purchaser, for the purposes of litigation. I don't see how M$ can ask you to waive the entire Uniform Commercial Code (ok, I forget the actual name of the collection of laws governing commerce) and get it to stick in court. Maryland actually has some additional clauses to their version of that piece of law, too, specifically to afford their residents with additional protection under the law. E.g. companies cannot warrantees of merchantability in MD. This has the side effect of making most "service protection plans" a waste of money in Maryland. I don't care if I didn't buy the service plan, if my TV breaks "too soon", you pay to fix it. End of Story. One reason you have the "you may have other rights that vary from state to state" disclaimer everywhere is MD's little addition to those "uniform" laws.
IANAL, but I remember a little from my Consumer and the Law class in college (the best class you could possible take =). In this case, Uniform means 99% identical, with 1% well known local variations.
How's my programming? Call 1-800-DEV-NULL
"Store information in your Passport wallet that will help you make faster, safer online purchases at any Passport express purchase site." - from Passport.com main page.
Quoting your own advice, perhaps you should "...consider learning about what you're talking about before you go spewing at the mouth."
-
Stop worrying about the risks of nuclear power and start worrying about the risks of not using nuclear power.
Don't get too excited. Microsoft has a couple options here: change Maryland law, change the TOS, or give up (potentially) billions in revenues by banning Marylanders in order to avoid the onerous task of changing the TOS. Which do you think it will pick?
"Never let your sense of morals prevent you from doing what is right" -Salvor Hardin
Please, people, consider learning about what you're talking about before you go spewing at the mouth. Passport.com has nothing to do with taking your credit card, or keeping more than a minimal amount of information, or anything like that. Passport is nothing more than a service designed to provide a single authentication mechanism for any service that wishes to use it (there may be licensing fees, I don't know). If Site X uses Passport for authentication and then asks you for your credit card number, Site Y that also uses Passport has no way of getting that credit card number. Why? Because (and pay attention, this is the kicker) Passport only provides authentication. Passport doesn't store that credit card number. All passport does is map an e-mail and password to a Passport ID. What tenant sites do with that is up to them.
If you're still all hot and bothered from the little TOS problem with Passport a while back, please realize that has been fixed, with both an explanation and apology from Microsoft.
I really don't get it. Microsoft screws up, and /.'ers bash them. Microsoft acknowledges the problem, fixes it, and apologizes, and they still get bashed. And they continue to be bashed for problems that haven't existed for a while. I guess I'll never understand that.
A whole state is banned from Microsofts on-line services... .Net and a whole line of Microsoft products will also be banned from same..
Add
This is a bad thing?
It means a whole state will have to use Linux or Mac eventually.
This means a rather larg jump in the user count...
Want costumers in Maryland? Support something other than Windows...
I don't actually exist.
I was speculating about setup file license agreements a while back. Got submitted as an Ask Slashdot whether anyone thought this would be possible, but got rejected after a natter with Cliff. Oh well :)
Anyway. InstallShield is a solid enough, known format. How hard would it be to write a program which could take any of its installer programs, strip out the license and give you a new file? Sounds possible enough to me.
Greg
(Inside a nuclear plant)
Aaaarrrggh! Run! The canary has mutated!
How is it that we allow this to go on? Oh yeah, everyone just clicks OK when the big box full of text pops up. We need to get used to this type of conflict, or start our own services like passport that aren't so silly in construction.
This is the problem:
Use of the Passport Web Site and service is unauthorized in any jurisdiction that does not give effect to all provisions of these terms and conditions, including without limitation this paragraph.
The problem is that the version of UCITA which Maryland passed specificly says that if there is a problem with licensing issues in Maryland, that the issue must be solved in Maryland, under Maryland's laws.
How many of you assemble a wallet and then hand it to some guy on the street who happens to be dressed in a pinstripe suit with a tie?
Look, I only did that once, will you stop hounding me about it?! Besides, he was very convincing. He said, "Wallet inspector. Give me your wallet."
On the one hand, yes, we'd be enabling people's bad habits to blissfully continue. More importantly, however, this would provide a service not only to those who would not take the time to read the document but to those who wouldn't understand it anyways.
There where part is determined by what courts can obtain jurisdiction over the party that does not want to be involved in the suit.
Pretty much every contract in existence has a clause that specifies what state's contract law is to be applied. Grab any random contracts you have in your file cabinet or safe deposit box and read them, and you'll probably find such clauses.
So what happens if you live in, say, California, and your Delaware insurance company sues you? The trial takes place in California, but the California court applies Delaware law (if that's the law the contract specifies).
The MA people
Who has jurisdiction over interstate commerce in the US? What laws, if any, would apply?
Federal law applies to interstate commerce. According to United States Constitution, article 1, section 8: "The Congress shall have power ... To regulate commerce with foreign nations, and among the several states."
In other words, all your jurisdiction in interstate commerce are belong to U.S.Will I retire or break 10K?
However you got a few facts slightly incorrect.
Children born in these states will not only get an NDA, but they will also receive a product ID, which their parents will have to activate with Redmond. If Bill doesn't like your kid, too bad !
And of course these states _will_ be more democratic, Micro$oft is constantly innovating in the area of Democracy. In fact Democracy XP(tm) will take democracy to a new level, never before seen.
There will be no law breaking, because as soon as you cross the street at the wrong time, a giant floating judge will appear and say 'It looks like you are trying to shoot your wife.' thus alerting everyone else to your intransigence !
I recently bought a copy of VC++ 6.0 at compusa for a client. I promptly went to the MS registration site to um, register it. In order to complete the registration, MS forced me to signup for a passport account.
Does this mean people in maryland can't register MS products.
But this is still a hoot.
We need a lawyer or law geek to go through this. I am interested in many of the sections that seemed to allow all kinds of consumer rights, but I might be hallucinating.
I am also wondering is this would mean that Windows would be outlawed in Maryland? [joke]
For example section 21-708. ADEQUATE ASSURANCE OF PERFORMANCE.
This sounds fascinating.
One part of the Maryland law is that One of the most contentious pieces of the Uniform Computer Information Transaction Act -- allowing vendors to remotely disable software on a user's computer if the user was in breach of the software's licensing terms -- has been modified. The change eliminates the provision for software sold via retail outlets. But is still an issue for corporate users.
Check out the Vinny the Vampire comic strip
"It is a greater offense to steal men's labor, than their clothes"
They might be interested in this piece of European legislation.
In short, it says about that...
Companies must notify both employees and consumers about how information collected about them will be used;
Companies can only use data for its intended purpose;
Companies cannot transfer data on employees and consumers to countries with inadequate privacy protection laws;
Consumers will have a right to access data collected about them;
Consumers will have a right to have inaccurate data rectified;
Consumers will have a right to know the origin of data about them (if this information is available);
Consumers will have a right of recourse in the event of unlawful processing of data about them;
Consumers will have a right to withhold permission to use their data (e.g. the right to opt-out of direct marketing campaigns for free without providing a reason);
Companies need explicit permission of consumers to process sensitive information, including information on racial origin, political or religious beliefs, trade union membership, medical data, and sexual life.
I can see it now, the M$ Hail$torm license agreement going like:
All your database are belong to us and in an event that your local laws conflict with our right of ownership of your data then Washington State laws and the word of our Lord Gates supersede such laws...
Well, they just might be laughed out of any European court.
For starters: Click through licenses are not legally binding in most European countries. And their certainly not binding when they conflict with mandatory local laws.
ich bin der musikant
mit taschenrechner in der hand
kraftwerk
Of course, there's no *signature* on this agreement either, so I suppose that would be the first legal challenge, if there were one.
In general, the law of contract does not require a signature to create a legally binding agreement. You just need some communication between the parties, or even just actions, consistent with an intent to enter legal relations. A signature is useful purely for documentation (evidentiary) purposes.
There are exceptions to the rule, but they're generally for statutory classes of contract (e.g. contracts for the sale of land), and deeds (legally binding agreements where no consideration has been paid for a promise).
Isn't law fun?
IAALS: I Am A Law Student
Now as a European I don't really bother too much about the UCITA, but woudn't there be a way around it? Consider this: I had a case where I copied the installable product from CD to harddisk, removed a text file called 'lisence.txt' and then launched the setup. The click through agreement said exactly nothing (empty textfield), so I clicked accept for a empty agreement. And don't say, I coudn't remove the lisence.txt file because up until then I did not agree to anything.
Oh, besides...does anyone remember those diskette pakages that said "if you open this package you agree to the encosed lisence agreement". I didn't notice them in ages, do they still exist?
Ahhh...the great dumpster continuum. Many a free computer will be found there. -- sowth (748135)
Article IV, Section 1: Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State....
It would seem that in absence of a Washington law directly contradicting the distasteful-to-Redmond portions of Maryland's law, the law in Maryland would stand.
bit of article clarification... And this is not optional boys and girls, you can't just drop Marylanders because you don't like the laws there, because the Constitution forces it. Okay, if you had a brick-and-mortar chain and decided that Maryland's laws were restrictive, you wouldn't build a business presence in that state to accept clients there -- no problem. But MS already has a Maryland business presence, so they're screwed.
Continuing: ...And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.
It seems that only a federal-level UCITA will solve this problem, but let's hope that consumer protection rather than rights-castration is the central point of that law. We do have a chance after the DMCA backlash, since Congressmen appear to be realizing that the people are starting to notice when Congress passes laws supporting big business at the direct expense of the people. The Internet's been a big help in that one.
I just looked through the Passport T&Cs (IAAL, btw, UK rather than US qualified) and there's one or two terms in there that would be unenforceable in english law (and probably in scots law as well), including the jurisdiction and choice of law clause as against a consumer.
Yes, Microsoft's T&Cs prohibit the use of their Passport service in most of the UK. If not all of it.
To use the lawyers' term of art, they can go pee up a rope.
-- AndrewD
A Maze of Twisty Little Laws, All Different.
Back when I worked for [multinational telco] they had all sorts of problems trying to make up ways to get round the legality of the London employees simply having their phone numbers stored on the US phone directory.
Does that mean Microsoft can stop annoying Europeans too? With luck they can close themselves out of every market soon.
"Where do you want to go today?"
>Maryland
BSOD: An error occured int legal module 0C673E2.
Please relocate and try again.
This sig intentionally left blank.
Since Passport is closely tied into .NET through "Hailstorm", this might mean that you won't be able to use any .NET products (like Windows XP) in Maryland either. In effect, Micro$oft might have shut themselves completely out of Maryland once .NET arrives. This is almost too good to be true.
This
Dear Mr. Gates,
Can you ban Ohio from your software too?
Thanks,
What is pirate software? Software for inventory of stolen treasure?
Yes, I love living in Maryland, even if this isn't a good thing, I'm proud to be a stumbling block in the way of world domination.
:)
My college sent a guy to work for Microsoft mere weeks before their security was compromised. He seemed like the patriotic type, although I doubt it was him. Whatever my state can do to help, we will.
(Being a border state in the last war gave us a bad image, we're sorry!
So much for the Global Community
"Where do you want to go today?"
Obviously not Maryland.
-Scott