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.'"

Comments

I get razzed all the time at work...

[RobertB-DC]

I'm a coder in a company that is fully compliant with all licensing agreements -- word is that someone let things slip before I was hired on, and the company paid a buttload of cash after getting audited.

So you'd think that before we install a Visual Studio upgrade, we'd all get together in a meeting room and go over the EULA we will all be required to agree to.

(Ok, have you finished laughing yet? Good, I'll go on.)

As you already guessed, nobody reads the damned EULA... except me. I no longer read it from top to bottom, but I skim it for the latest additions. This earns me some good-natured razzing from my co-workers, but I've discovered some doozies.

Remember those "required patches"? When I installed them, there was a EULA. This one said, "You are not allowed to publish the results of benchmark testing of the .NET Framework." What the f*** does that have to do with installing a required security patch? It's like the sign at Wal-Mart saying employees of competitors are not allowed to compare prices. Maybe they can get away with it, but that doesn't make it right.

Another memorable EULA quote: I'm forbidden to use Visual Studio tools to make any word processing or spreadsheet application, unless it's a small part of a larger application. Unlike Open Source, if a Microsoft-enchained programmer (like me) invents a better mousetrap, they're verboten to release it.

If end-users actually read the EULAs (like our heroes in the article), there'd be riots in the virtual streets. As it is, nobody reads the EULA, and ignorance is bliss.

yeah sure.

[garcia]

Now, they figure no one reads the EULAs anyway, so why bother even providing a copy?

Duh!

First off, I have worked in customer service/tech support and have heard exactly "who reads those things anyway?" "you just click ok." Right.

Second, you are surprised that CSRs don't have ALL the information they need to do their jobs? Policy changes daily and even though the CSRs are the "front line" they are never told until it's too late.

Third, I just dealt with someone today (not computer related). They clicked through a document they should have read. It explained the policy they were trying to excuse themselves from. The exact quote was, "I saw the thing I clicked through, I never read those, no one does. You can't expect me to now agree to that." Sadly, this is commonplace. It's not advantageous to read them or ignore them. If you do read them, you have to go through a lengthy process to return what you disagree with (no company expects that more than a handfull of people will ever decline), if you do agree what good does it do you? You either a) didn't read and comprehend the rights you were signing away or b) you did know, you knew it probably wouldn't matter, and when it did matter, you already sold your soul.

That's why these things should be illegal.

That's my worthless .02

from reading that article..

[joeldg]

all I can say is "press yes" or "I agree"

hey.. I always agree..

whatever, what on earth can a license from them accomplish anyway?

Perhaps I have been using open source software for too long and am out of the loop, but do these things honestly matter in hardware.. You get a warranty, that is all I care about..

Maybe I am missing something here, but to agree with these stupid licenses on websites that all state they can be changed at any time for any reason would be the legal equiv of suicide in the real business world..

Guess I am just agreeable.. too much floride in my water or something..

Re:from reading that article..

[Soko]

You: Hi. My Inspiron laptop is busted - the PC-Card slot is fried.
Dell: OK, service tag?
You: 8xchyyw
Dell: OK. What do Windows diagnostics say?
You: Windows? This is running Linux.
Dell: Sorry sir, your laptop is supposed to be running Windows, and is now out of warranty.
You: What? How could running Linux possibly void my warranty?
Dell: Please read your EULA again, sir. Have a nice day. *click*

I'd read all of the agreements if I were you, friend. Lawyers can be nasty creatures.

Soko

Enforcement

[Godeke]

If this guy documented the steps he took, I suspect if he was to go to a judge, the judge would consider any agreements past that point unenforable. An "agreement" is just that. If one party is not given even a portion of the agreement's content, the entire agreement can be found to be invalid. If they can't provide agreements after that much work, any legal enforcement of those agreements would be in serious question.

Of course, lots of software has the agreement in the box, and you can only view it after breaking the seals (making the software unreturnable). Most companies try to get around that by saying you can get a refund if you don't agree to the terms, and then fail to provide a channel for such refunds. Again, as they have broken the agreement, I doubt any further terms would be enforcable.

Re:Problem with that...

[jridley]

Me, too. The first time I turn on a new machine, there's a bootable install CD in the drive.

Actually, the FIRST thing I do is boot to a bootable CD with Drive Image in it. I make a virgin image onto CD-R, lock it away, then reformat the drive and reinstall from scratch. I started doing this back in the "shovelware" era (which still hasn't stopped for some mfgs) where the machine would come preloaded with tons of useless crap.

Also I've received machines from major manufacturers that had really bad installs; wrong drivers, missing drivers, etc. I found I had much more stable machines if I just threw out their installs and did my own.

Contacting publicly traded corporations

[sphealey]

Well, the article is now Slashdotted so I can't get the exact quote. But in there somewhere he says the manager of customer service would not accept his complaint and would not give him a mailing address.

In this situation, one needs to write a letter stating one's problem or complaint in clear, calm, non-abusive language. Look up the corporation's VP of Customer Service, Chairman of the Board of Directors, and Chief Legal Counsel (all names should be available through finance.yahoo.com). Send the letter to each of them at the address where the company accepts legal correspondence (also available from public sources). That course of action is far more likely to get results in difficult or complex circumstances than endlessly e-mailing or calling worker bees.

Remember, the worker bees aren't fibbing: they really can't do anything outside corporate policy if they want to keep their jobs

sPh

It's good that nobody reads them.

[raehl]

When it comes time that someone actually tries to enforce one in court, the fact that no one ever reads them will make a good case for them being invalid - it shows that sticking a bunch of text between a user and using a product they just bought is not an effective means of establishing a binding, legal agreement.

Re:It's good that nobody reads them.

[Martin Blank]

There is also little direct proof that you clicked the approval. What if your kid got to the laptop first and went through it? If the kid is under 18, it's a gray area at best on the applicability of a contract to him. Are you responsible then for a contract you never saw that was "signed" by someone not able to sign a contract alone in the first place?

Re:It's good that nobody reads them.

[SatanicPuppy]

Actually, it is a defense, for the same reason that, if I came on to your land, passed all the no trespassing signs, broke into your house, and then hurt myself, I could still sue you for having an unsafe environment. My having read the signs, and even committing an illegal act, does not remove your liability in this case.

The same thing applies when you sign a legal waiver. Those can be overruled if the court believes that the injury you experienced was beyond the scope of the waiver.

EULA's are very shady, for the most part, and I would say if one was ever seriously challenged in court, it would very likely be declared non-binding.

Re:It's good that nobody reads them.

[Hierarch]

Another important point with contracts: the courts have been known to discard clauses that the signatory could not reaonably have expected to be present. The original precedent - I don't have the actual citation handy, I'm sure someone can google it up - was a case where a man signed a friend into the hospital. He thought he was signing consent forms; there turned out to be a clause wherein he agreed to take financial responsibility for the medical bills if the patient was unable to pay. Well, when the bill came due he refused to pay and went to court, where the court agreed that a reasonable person would not expect to find such a clause in the contract.

Given the nature of some of these clauses, particularly on the security patches, I don't think the courts would hold them valid, completely aside from the other obvious points that have been brought up. (Lack of negotiation, consideration, etc.)

Re:It's good that nobody reads them.

[bobthemuse]

This would be the perfect job for students during the summer. For $5 a pop, they can accept all license agreements during installs of software, etc. License is unenforceable.

I'd love to see something like this go to court...just to show the sad state things are in.

Happens in Open Source too!

[SlashChick]

First of all, I completely agree that some of the EULA clauses in proprietary software are absurd. (If I remember correctly, Microsoft did remove the benchmark testing clause at some point, however.)

But open source software has some equally bad doozies.

For instance, I write a software application similar to phpMyAdmin. It's open-source by nature since it's written in PHP, but I don't use the GPL or a free software license -- I sell the code and the users are then free to make any modifications they wish, but they have no redistribution rights (much like the vBulletin license.)

This software lets clients update a database easily. It uses MySQL as the backend.

Recently, MySQL changed their client license to the GPL. This means that ANY application that uses the MySQL client software (e.g. mysql_connect() and mysql_query() in PHP) must now be GPL, or you must pay a license fee to MySQL. This has upset many developers, and it will cause PHP itself to drop the MySQL client libraries since PHP isn't a GPL application. (The MySQL client libraries will be a separate download.)

Basically, the MySQL license change has polarized the development community into those who say "F*ck 'em; everything should be under the GPL anyway" and those who say that MySQL led everyone along until it became popular, and then decided to cut off their developers.

I have four choices now:
1) Release my application under the GPL, which grants redistribution rights to anyone I sell it to (i.e. anyone could buy it once and put up the application on Joe Blow's Download Site for free). I don't consider this a viable option because I don't want to allow redistribution rights for free.
2) Pay $220 per server to MySQL for my application. That is to say, pay $220 for our database server, and force my clients to pay $220 if they don't want to use our database server and hosting service. I don't consider this a viable option either, because I feel that it's blackmail.
3) Only use old versions of MySQL with my application.
4) Switch to PostgreSQL.

Obviously, #3 and #4 are what I've decided on. This means porting over 2500 lines of code to ADOdb (a database-independent PHP layer which I have used before with great success) and then testing everything with PostgreSQL instead. It means learning an entirely new database, and it means pulling ALL of my existing customers to a new database.

So while you may say that "Microsoft suxx0rs" because of their EULAs, I say that open-source often does the same thing. Look at Red Hat's absurd EOL policy. Why? Because they've finally figured out what step 2 in the following equation is:

1) Release open-source software
2) Charge people money for your product after you've locked then in, since they've already decided to base a business/software product around it
3) Profit!!

Only this won't work for MySQL, and it won't work for Red Hat either. I'm switching away from both. They've both been great for me, but I don't consider blackmail a viable business plan.

Unenforcebale

[taustin]

This took from around 3pm to around 8:30pm today. I'm just bewildered that Dell corporate policy is that users need to lie to use their new laptops, and to agree to legal agreements that it's completely impossible to have read.

If you can't read it, legally, you can't agree to it. It is unenforceable, period. Since it is unenforceable, and invalid on its face, that means the user is bound only by Title 17 copyright law.

Very simple situation.

Perhaps Dell is doing it on purpose because Microsoft is forcing them to use an unacceptable EULA, and this is their way to working around it.

In any event, this isn't exactly a new issue. It's been well covered by contract law for decades, even centuries.

You can't be held to an agreement you weren't allowed to understand.

No msdn.microsoft.com license? Au contraire?

[Trelane]

Visit msdn.microsoft.com and click on "Terms of Use". For a quicker ride, click here

I'd paste some of the Terms of Use, but then I'd be violating the third paragraph. Actually, taking the fascistic bent (hey, when has Microsoft ever been a stickler on the terms?) you can't write a program based on the information presented there, since it'd be a derivative work of the information presented there (again, third paragraph).

Of course, this posting is also a derivative work.

Dang it!!