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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?
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
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
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.