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New Dell Clickthrough Software License
Petrol writes "I just read that Dell is installing a new mandatory click-through software license at first boot. From the article, Dude, you're getting screwed:
'Kat and I just received the Dell Inspiron 5100 notebook we ordered from Dell Canada. We quickly ran across problems.'"
Dell's Software License Policy
Dude, you're getting screwed
28 Aug 2003
Kat and I just received the Dell Inspiron 5100 notebook we ordered from Dell Canada. We quickly ran across problems.
I pushed the power button to turn on computer. I got the Dell POST screen, then a screen from Dell (Photo):
But there are no license agreements in the box that the computer came in. [There are some shrinkwrapped CD containers, but the "Terms and Conditions of Sale (CANADA)" that came with the invoice says:
I've never agreed to those Terms and Conditions, to my knowledge, but I assume they think they're enforceable, so I can't open up the shrinkwrap to see if the license agreements are in there, without automatically agreeing to them.]
So I called the only Dell number I could find on my documentation (1-800-847-4096) and spoke to a customer support representative. I told her what was on the screen, and told her I couldn't find the license agreements I'm required to read and agree to before pressing any key.
She put me on hold while she looked into where the license agreements might be, and eventually transferred me to technical support. The tech support agent told me her database was down, so she couldn't look up anything at all (I hadn't even told her what the problem was yet), and I'd have to call back in an hour.
I call back, and speak to a tech support woman. She says: "press Tab." I explain that I can't without saying I've read and agreed to documents I don't have. She says "press page down". Same problem. She says "scroll down". I explain it's not a Windows screen. She says "insert any Dell-shipped CD". I exlpain the problem of opening the CD packaging.
She insists I have to press a key. I ask her if she really means that I have to agree to the licenses before it's at all possible that i've read them. She says "yes". I explain that that's not acceptable, and ask for her supervisor.
Her supervisor insists it's a Customer Care issue, and not tech support, and that there's nothing he can do. He can't explain why they sent me to him. He enters my info into the call log databse, and I go to call back Customer Care.
So back into the hold queue I go.
I'm finally connected to a Customer Care representative. [Pretty much each sentence in the following was interspersed with long, long times on hold.]
She looked up the call log to get the background info. She insists she doesn't have copies of the agreements, and that I'm supposed to go online and look them up myself. (?!) She says to use a
Uhm, licenses you are forced to agree to before reading them are null and void! Under contract laws, these arrangements are illegal. A contract entered into under misleading or coerced circumstances is broken. Even severability clauses may not apply ( IE, if some part of this contract is found to break a law, then only that part of the contract is broken, and the rest of the terms are still binding ). Since you can't even read that clause if it existed, it doesn't exist.
Essentially, the defaults of copyright, customer service, and warranty laws would then apply.
Bad move for Dell, as whatever rights they want you to throw away, you can't! Since the 'License' is non-binding, well. MUHAHAHA!
Here.
My inspiron 2650 came with this feature almost a year ago. I called Dell and asked them "What if I don't agree with the license?" He said, "Boot off of your new OS CD and format the hard drive."
I was like OK. That was what I did. If you do format the hard drive, then you're not bound to the terms. If you never use that OS, then you are fine.
Okay maybe it wasn't a click-through process. But it said "Press the space bar to agree to the terms of the license agreement."
So, I don't see what the big deal is. You're not forced to agree. You're not agreeing by using the laptop, so what?
I am happy to own an Apple Power Macintosh. Apple doesn't screw around with its users. Apple doesn't put all kinds of weird icons like AOL, MSN, EarthLink on my desktop. The computer comes out of the box with a blank desktop, no gimick license agreements, and best of all, everything works well all the time. Good God, why oh why do people WASTE their time with Wintel?
My boss just won the raffle for an old company laptop. He went out and purchased a wireless PC card. When he installed it and loaded the software, the software said to install the Windows 98 2nd Edition installation CD. Well, he didn't have one since it was a recently retired company laptop, and installation CDs at the company are VERBOTTEN except for the IT department. I told him if he had an Apple, everything would have worked from the beginning, and he still would not have had to install any additional software. He spent 5 hours playing around with installation CDs at home, calling the wireless PC card company to see if they could just email him the drivers, he's even contacted the company IT department and they haven't gotten back with him yet. By golly, that old laptop sure was a bargain. That's 5 hours he could have used for spending time with his family, having fun, or doing something truly productive. I guess it comes down to "What is your time worth in your life?" Personally, I don't have any time to waste and I need everything to work out of the box with no fuss.
Apple, it's the way to go for personal computing needs. All you can do with a PC is use it as a space heater, a door stop, or an enclosure for a fireworks event.
BUT bad people are trying to change all that. They've come up with a proposed law, called the Uniform Computer Information Transactions Act, or UCITA. UCITA would, among other things, explicitly make shrinkwrap licenses fully enforceable. This would be a very bad thing.
UCITA is already the law in Maryland and Virginia. If you live in those states, move!
For more information on why UCITA is bad, click here. Find your state representatives here. Tell them what you think.
There have been several instances where the courts have refused to enforce a contract because the user was unable to read or to understand the entirety of it. IANAL, and I do remember that there were very specific circumstances, but it has happened. Cases like that are one of the reasons that your Mortgage agent has to go through the whole bloody mortage agreement with you, clause by clause, before they'll even let you sign it.
This one is the closest to what I remember agreeing to. It's actually the license to use ODBC, which was a virtual requirement for accessing databases from Visual Basic in our environment at the time (apparently '96-'97).
Here's the salient paragraph (emphasis and examples mine):I found a number of references to the
Stressed? Me? Of course not. Stress is what a rubber band feels before it breaks, silly.
Yes, because we have seen what happens to people when they make the people in power angry. That's why Slashdotters are sensitive to legal issues with whatever they do. They don't want to be locked away for 20 years because some scumbag found a technicality (he swapped the order of his PCI cards! That was forbidden by the EULA! DMCA!).
It is also important to raise people's awareness of EULAs before they become even more rediculous. The consumer already gets the short end of the stick with most EULAs, there's no reason to give even more power to the companies.
I read the internet for the articles.
IANAL, but i am a law student. if you purchase something, and clauses are presented to you after the purchase then they are unenforceable, full stop.
Why don't you write a little adaptor that connects to the mysql db that your app connects to (without linking to it) and GPL that?
Reliable, Great Value Hosting: $7.95/mo 2.4G/120G
Yes, the 7th Circuit Court of Appeals held that a consumer was bound by a mandatory arbitration provision which was contained in a EULA that came with the computer.
Hill v. Gateway 2000, 105 F.3d 1147
If someone says he and his monkey have nothing to hide, they almost certainly do.
Attempting to make a purchase into a license after the sale has taken place, just doesn't seem legally enforcable.
It isn't, but the highest US Court to consider the issue so far does not agree. Read the bile that is the ProCD opinion.
Fortunately, the Supreme Court hasn't ruled yet, so we have some hope that sanity will overcome. If a cooperative software vendor wanted to speed the case to a victorious conclusion, he could just modify 1% of his shrinkwrap EULAs to include an extra provision- something outlandish like an additional $1000 monthly fee as long as the product is installed. The ensuing lawsuit would clearly demonstrate the folly of the ProCD position.
If shrinkwrap/clickwrap is genuinely an opportunity to enter into an arbitrary contract, then such a clause would stand up (and IT departments would start hiring a lot more lawyers to install patches). But of course, intelligent judges will realize that a person engaged in opening/installing software is in no position to pore through legalese, and that contractual agreements cannot be a conventional part of such events.
a) There's no opportunity for argeement with an EULA, which is a commonly accepted characteristic of a contract
b) There is no consideration involved in an EULA, and consideration is a defining attribute of a contract.
c) Software purchases are presented as sales and have all the characteristics of a sale, thus they cannot be contractual obligations.
I've setup numerous inspirons with ghost. If this is the screen i'm thinking of, then it's on its own partition (about 30 megs or so) right before the boot partition. I don't believe this is stored in the bios. However, hypothetically, if it was, then yes short of a bios flash there would be no way around it.
Actually it's not a grey area at all. Any contract signed by an unemancipated youth is null and void if the youth decides that they don't want to be bound by it. In the case of child actors and such it is the primary caregiver or some other responsible agent that signs the contract and pledges that the child will work, not the youth.
Each state in the United States has their own versions of contract law, here's an example from California:
So yes, this would most likely get around any user agreement or contract that you have to "click-through". Just have your 5 year old kid press the key and click on the buttons and then you are home free to do whatever you want with the software. Of course if it came down to a court case you would have to convince a court that you truly never saw or agreed to the clauses.
Sapere aude!
Here's a U.S. Supreme Court Decision that does just that: InfoWorld article
I managed to get The startup splash screen image, and I've put it on my website.
Free Software: Like love, it grows best when given away.
Which the Dell defaults to booting in its shipped state. After agreeing to the EULA (plus a small multimedia intro to your machine), the partition is never used again.
Apparently, the Inspiron 5100s have the default BIOS boot order set to boot the HD before the CD. (See a post near the end of this article's comments from a guy that mass-installed Linux on some 5100s where he worked. This was not the case with my 8200 from what I remember, which DID have this EULA.) Pressing F2 at bootup lets you change this to a more sensible order, after which you can insert your favorite OS install CD and nuke the EULA partition into oblivion without ever even booting it.
retrorocket.o not found, launch anyway?
SlashChick,
. html#TOCGP LAndPlugins
I think your frustration with mysql and the GPL is based on common misconceptions about free software and teh GPL. First off, "free software" is more like "Freedom" than "zero cost". Look in google for the old discussions about free software vs. free beer. They're not the same thing. Also read Stallman's musings about "software libre" and "software gratis".
Secondly, the GPL's requirements for redistribution are not as all-encompasing as you might think. A program that uses another program that is GPL does not need to be GPL. Consider that many vendors (i.e. Checkpoint, Tivo, Google, VMWare) use linux as a core part of a commercial software product. Some elements of those products, generally modifications to GPL source code, are required to be GPL. However the majority of the product is not at all GPL.
Because MySQL release the client software as a library, you may choose to structure your application so that those portions that directly access the GPL client software are distributed separately, and are released under GPL. The rest of the program would go through your client app to access the mysql cliet library to query the database.
Note that the FSF advises that passing data to & from a GPL program does not normally constitute a derivative work. You would be passing data in a way that is consistent with simply using the program.
see:http://www.gnu.org/licenses/gpl-faq
Consider these examples,
1. I write a shell script that uses bash, I release that script as a commercial, non-free software product. This is an acceptable distributon of GPL software in conjunction with non-GPL software.
2. I write an extension to bash, that via changes to the bash source code, adds a new capability to bash. Distribution of this extension must be under the terms of the GPL.
Remember that by design, the GPL tries to protect the original rights of the developer, not to attempt to extend those rights onto to new programs not authored by the developer. Don't believ the MS hype about viral software, it's misinformation, and it harms both sides of the free software debate.
Oh we all wish. But it ain't so Joe.
We have a full line of bad cases out there that make them enforceable.
Fire up WestLaw/Lexis and read ProCD.p rocd.htm
ProCD, Inc. v. Zeidenberg, 86 F.3D 1447 (7th Cir., June 20, 1996)
Also, http://www.utsystem.edu/ogc/intellectualproperty/