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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.'"
Problem with that is, if I got an OEM laptop or computer the first thing I'd do is format the thing. How can they prove I read the licence if I needed to boot the thing to read it?
Ok, an EULA for hardware? We're venturing into the land of the absurd here. What's next, installing new components in your computer is reverse engineering? I can understand software EULAs, but hardware? Hardware isn't just a license, it's tangible. I really should be able to do with it what I want (excluding using it to beat someone or something like that).
Help I'm a rock.
Well the courts MAY take that argument... although legally, they shouldn't.
Rights are rights, and rights and limitations granted by accepting agreements should stick. If the user can't be bothered to read the agreement before accepting it, the company shouldn't be bothered trying to enforce what contract law states that the cops and courts should enforce automatically.
If ignorance of law is no defense of violation of law.. how can ignorance of contract be any defense at all?
"The Tree of Liberty must be refreshed from time to time with the blood of Patriots and Tyrants." --Thomas Jefferson
This is more of an issue if you are in fields like medical, defense, and other such data / privacy oriented environments. Agree to a EULA that lets a third party monitor data on your computer in these environments and you could conceivably go to prison if not get sued. The factory images can't be trusted, and are always unsuitable to business use. As a result most business or government systems are imaged before ever being put into use.
The other problem is the license agreements are forced to be agreed to blindly without an option to decline. It would be different if the message on boot brought you sequentially through all software liceneses, with an opportunity to decline and still use the hardware. Afterall, it's the hardware that I'm buying, especially if I want to use Linux. The license agreements may be commonplace and ignored, but unfortunately there also presently considered legally enforceable contracts. Makes me wonder when someone will prove a point on this by making a license that requires the turnover of a persons' estate when they die.
Well the courts MAY take that argument... although legally, they shouldn't.
Rights are rights, and rights and limitations granted by accepting agreements should stick.
Yes, but have you really agreed to the EULA when you click "I Agree"? Legally, that's untested.
I think we'd all agree that you can't put a EULA on the screen with the words "If you blink in the next 30 seconds, you affirm acceptance of the follwing terms and conditions." Right? So why is "by clicking, you agree" considered legally binding?
I have yet to see a single, documented, upheld court decision asserting that these click-throughs are really legally binding. Admitedly, the UCITA laws change it a little, but then it changes from someone challenging EULAs to someone challenging EULAs as allowed by UCITA.
If ignorance of law is no defense of violation of law.. how can ignorance of contract be any defense at all?
True, but the ambiguous point of click-through licenses is that you've not really signed any contract, especially in cases like this, where they ask you to accept something you haven't seen (and which they've failed to provide you). If you close your eyes and just hit keys randomly until the EULA screen goes away, can you legally be held responsible for whatever may have been "agreed to" without your knowledge or consent?
Most of these Eula's are unenforceable anyway.
/.ers do, but that doesn't mean it's going to hold water in court.
Really? Are you a lawyer? How did you reach that decision? What country are you discussing when you say that?
For Canada, you're quite wrong. There have been cases and EULAs have been upheld.
In the US, it's more questionable. There have been judgements either way, but from my reading of this article it would apear that they are more likely enforceable than not. The ProCD case is pretty damning from the POV of the average consumer. You don't even need to be able to read the license before agreeing to it as long as you can return the software afterward. Isn't that fun?
There are exceptions. The license cannot violate the law, nor can it be "unconscionable" (yeah, there's a term that'll be fun to define, just like "pornography"). The appellate court's ruling is not binding except inside of it's perview, and even then only specifically to Wisconsin. But it's apparantly a well regarded Federal appellate court and its decision is going to be cited/referred to in any other cases regarding EULAs.
IANAL. But I'm at least willing to do a Google search rather than spout my opinion on this kind of thing. I find most of the more absurd T&C's in EULAs to be "unconscionable", as I'm sure many
If the user can't be bothered to read the agreement before accepting it,
But the fact is, they're not "accepting an agreement". They are either "installing software" or "applying a patch".
Either of those activities is something they are legally allowed to do, since they've already paid for the software.
Popping up a piece of legalese and claiming that a person agrees to it by performing some other action- which you have no right to forbid him from doing- is invalid. Watch this: "By closing this browser window, you agree to mail Minna Kirai $700". Is that binding? (I wish).
The ProCD decision widely cited as precedent for the validity of shrinkwrap licensing is simply wrong. If it ever gets kicked up to the Supreme Court, they'll immediately see why. It claims that by opening a box, the user has indicated acceptance of a license. But it is impossible to "indicate" anything if the other party has no idea whether or not you've performed the action! "Indication" can only happen if communication occurs.
The parties to a shrinkwrap or click-thru "license" are not in communication, thus they have no way to enter a contract.
That's how to fix this problem. If enough people were calling about it that Alan Burley spent 4 hours a day on this issue, the problem would be solved next release.
Well the courts MAY take that argument... although legally, they shouldn't.
..." This is wrong for a few reasons: 1) There's nothing stopping them from breaking it on purpose (e.g., delibertately cutting corners in QC) so as to backdoor clauses into the contract. 2) If the patch in question involves security issues, they may be liable for damages for withholding the patch. 3) In a sense, amending the contract when patching a program, is like extorti0n. "We wouldn't want anything to happen to that nice computer of yours, would we?" 4) For a contract to be binding, each party gives something to the other. (I give you money, you give me software. You give me patch, I give you what?)
I agree that ignorance is no excuse, but here's some issues where challenges could be raised:
By the time you get to read a click-thru agreement, you've already made the purchase in a typically non-refundable fashion. They've accepted your money with the only license being their protection under copyright and whatever is printed on the outside of the box. Don't like what's inside, "sorry no refund, you've opened it."
When you're presented with an EULA for a software patch, their basically saying, "we'll fix your broken copy of our software if you agree to the following
Some people have a way with words, and some people, um, thingy.
What would be very helpful is if you could establish the "looks like a duck, quacks like a duck" precedent that as a matter of public policy it is indistinguishable from a sale, so that your comment would apply.
"My opinions are my own, and I've got *lots* of them!"
No... the S.Ct. refused to hear the case. That doesn't mean that they agree, it just means that they had more important things. Don't read too much into a denial of cert.
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
I agree with his frustration, but honestly, if your buying a namebrand system (especially M$ henchmen Dell) you should expect to agree to every EULA ever written for any and every version of Windows. All name brand systems pretty much have the standard "This is sold with Windows OS and you agree to all Microsoft End User Licenses by using this system because they paid us a lot of money to ship our systems with their OS and you are not smart enough to build your own and/or install something other than Windows"
The fact that he escalted such an issue shows more of how much time he is willing to waste to prove HIS point. Thats really all this was.
I can imagine the author thinking - Hay i'm bored so i'm gonna bitch about the most mundain part of a contract I can and see how far I can get with this, then i'll post it to slashdot where everyone hates M$ and Dell enough that it'll get posted and my website will get tons of traffic and i'll become an internet rockstar - look how 1337 I am.
Besides - how many people "borrow" software from firends - install it, yet obviously had to agree to the EULA that came with it that told them specifically not to do that? And i'm not talking about software "piracy" in the sense of warez, i'm talking about how my aunt gets some cheeseball program and then my cousin says - hay that looks cool can I borrow that to install on my system and so she does - neither one knows/realizes they did anythign wrong - but then again - neither one has that thing called "the internet web"
Ave Molech Setting
What's really troubling about all this is that Dell is selling you a system, collecting your money, and then trying to change the terms of the deal after the deal has been closed. They are not telling you about the restrictions in the licence terms before you pay your money and commit to the deal. You open the box and you find that Dell intended to give you less than they told you about, up front.
THIS IS FRAUD!
No honorable person can do this to his customers. How can we escape the conclusion that there are no honorable people in charge at Dell? I don't understand why we, as a culture, don't treat these dishonorable people like the criminals that they are.
Adrian