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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?
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.
.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.
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
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.
Stressed? Me? Of course not. Stress is what a rubber band feels before it breaks, silly.
Now, they figure no one reads the EULAs anyway, so why bother even providing a copy?
.02
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
Let's start a pool on how long Dell takes to respond to this. I've got fifteen minutes from post-time. Anyone else? Prize: oh, I don't know, karma or something...
Carousel is a lie!
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..
anime+manga together at last.. in real time.
I'm finally connected to a Customer Care representative... 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 public computer if I have to.
I think we've reached a new low for customer support!
Any key?
The worst part is that they wanted him to press a key that doesn't even exist on his keyboard!
Dell have something similar to this already.. its an agreement that you have to accept which is part of their BIOS - first time you switch the machine on it comes up with a whole bunch of T&C's which you have to 'hit any key' to accept.. the machine then resets itself (removing that screen) and the system will boot through the BIOS as normal.
They have had this for at least the two years we have been buying their workstations & servers.
"Hey! Unless this is a nude love-in, get the hell off my property!!"
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.
Sig under construction since 1998.
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.
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
If you actually read the article, you'd notice that is was a BIOS screen, not software.
With that said, changing some crap in the bios passed the screen (??@#$?) but it wasn't purely software.
"During times of universal deceit, telling the truth becomes a revolutionary act" -- George Orwell
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
And shut the fuck up.
Please send me $699 for the use of my username. Thanks.
Here's the article text, because cypherpunks.ca does indeed seem to have found out the hard way that a Slashdot front-page feature is Considered Harmful. Not posting AC 'cause of problems with troll text mods.
- - - - -
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):
SOFTWARE LICENSES
- Before using your computer, read all of the software license
agreements that came with each program that you ordered.
There may be several agreements to examine. To comply with
the terms and conditions of the software license agreements,
you must consider any CD or diskette set of Dell-installed software
as BACKUP copies of the software installed on your computer's
hard-disk drive.
- If you did not order Dell-installed software for this computer,
or if you do not accept all the terms of the licenses, please call
the customer assistance telephone number listed in your system
documentation.
Press any key on the keyboard to indicate that you have
read all of the software licenses and agree to their terms.
Be Direct TM
Dell TM
www.dell.com
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:
"7. Software. All software is provided subject to the license
agreement that is part of the package. Customer agrees that
it will be bound by the license agreement once the package is
opened or its seal is broken. Dell does not warrant any software
under this Agreement. Warranties, if any, for the software are
contained in the license agreement that governs its purchase
and use."
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 lo
Stressed? Me? Of course not. Stress is what a rubber band feels before it breaks, silly.
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.
How much worse do things have to get before EULAs reach the legal standard of "agreed to under duress" for unenforcable contracts?
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!
My dad's Dell PC arrived on August 11th... by late afternoon I assembled it and had him hooked up to a new ISP. And one day later (if you recall) the PC was hit by the Blaster worm.
My dad was not happy... The thing was fresh out of the box, and here I was explaining to him that the patches had been available at microsoft.com since mid-July, and Dell was shipping unpatched software.
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.
paintball
how problematic is this license really
The problem is he had to agree to the license terms in order to be allowed to read the license terms! And the customer support line wouldn't give him the license terms when he called. How is that NOT problematic?
This person doesn't want to read the license. He wants to cause trouble.
"You must be new here."
People on Slashdot regularly fight incessantly for pedantic, yet idealistic goals, because they have nothing else to do with their time. I'd get used to it.
From the article:
they figure no one reads the EULAs anyway, so why bother even providing a copy?
This whole incident is a great example of an interesting progression of trends these days - zillions of home users have no idea that software licenses really mean anything, and now a huge vendor (Dell) doesn't even bother providing a copy of a license. But they're still forcing the user to agree to it before they can boot their new computer. What's the point then? What's the legality of forcing the user to agree to something that is actually impossible to agree to (given that it doesn't exist and can't be provided by the company)? When are we going to see an overhaul of the licensing patterns in this country, so that they're not so silly and empty? Next thing you know, SCO is going to try to get in on this Dell licensing issue somehow... Why not just say, "By clicking here, you agree that we can do whatever we want, whatever that may be, whether or not we inform you beforehand"? I can see the follow-up posts now... "they already do that"
Here.
He had to agree to the license in order to reach the point where the hard drive could be formatted. The EULA screen appeared when he attempted to boot from CD.
.. shrink-wrap the laptop and stick a piece of paper on it.
"By openning this package you agree to the following license."
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?
Before I may enter the website? Before I walk in the store?
How about before I get in the car to go to the store? Before I get internet access?
Before I leave the house in the morning? Before I get a credit card to pay for my ISP?
Before I wake up? Before the internet is invented?
Before I was born? Before the great landmass of Pangea split into the continents we know now?
Before the land that time forgot was forgotten? Before the cosmic dust coalesced into the planets of our solar system?
BEFORE THE FABRIC OF TIME, SPACE AND DIMENSION WERE TORN ASUNDER BY THE GREAT GOD ALGOROTH AND FASHIONED INTO THE UNIVERSE??
Fuck it, I'm getting an Apple.
This is unbelievable. These companies expect us to abide by these agreements but don't even take them seriously themselves. If anyone had paid even the slightest bit of attention to this situation at the factory they would have realized the circular logic of this. The god damned lawyers want us to abide by these things, but even they realize that no one reads them. They make such a big deal about the fact that you are entering into an agreement when you click okay, and yet are not even capable of providing you a copy of that agreement to read. Fuck these companies. I have recommended Dell systems to people looking for the cheap, easy, pre-set-up computer for a long time. I have done this because I ahve some *excellent* Dell systems...one that is nearly 8 years old, runs 24/7/365 and is still on it's original IBM HDD. Now Dell has started in with the integrated soundcards, the garbage hardware, and now totally unfeasable click through agreements. I'm sure I have sold more than a few Dells in my time with my recommendations (and no one has ever complained) but they will not be selling any more as a result of my recommendations. This is the last straw.
I'd just send this off via registered mail:
....
Dear Dell,
By opening this letter, you agree to the terms of the revised license agreement herein:
You agree that any prior End User License Agreements to which I have agreed are now invalid.
Thank you,
If I read it right they put it in BIOS?
Then in Germany they have to disable it or refund. Legally it's a defect of the machine. Every EULA and other crap the dudes invent in their hybris is plainly null and void in Germany.
If you buy something every rules you are forced to accept after the purchase is considered void. And if you are hampered in the use of such a good it is considered a defect and you are entitled for remedy or refund.
Not using the software doesn't mean the EULA doesn't apply to you - for example, if you've legally installed any MS software, including security patches, in the last year or so, you no longer have the right to run or publish benchmarks of the .NET framework. Period. Or for Media Player 9, too. This is even if you don't use the software in question anymore, or even if you didn't use it at all. The idea that they're unenforcable is open to debate - they're certainly enough of a legal wedge to make life difficult for you. If they _are_ unenforcable, then it should be a violation of fair trade laws to even show the damn things at all. It's a fucked up part of a fucked up industry and hassling people over it is about all you can do. The fact that a manager at Dell told him that he should just click through and that it didn't matter is grossly irresponsible - meaningless or not, the correct answer is that he'll have a copy of the EULAs in the mail to him the next buisness day. This was newsworthy as much for how shittily Dell support handles it (and for what it reveals about how important they consider EULAs) as much as for the existence of the screen.
So, did they just violate the DMCA?
-- Seq
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.
I'd like to see them go to court over this stuff sometime. With any other type of product, you have some sort of recourse if it totally sucks, but not with software. According to the terms of the EULA, it doesn't have to actually do anything, but if it does do something, and that something is bad, then it's not their fault.
I've grown to hate dell so much in the last few years. That tech support call is vintage dell. I haven't had a good experience with dell tech support in so long, I can't even remember the last time. Their service personel are hopelessly incompentent...grrrr.
Let me just give an example:
I used to work for a company that had sold a large number of dell rack servers with PERC 3 (i think) RAID controllers. Don't know who made these controllers, but they sucked. BIG TIME. It was to the point where the systems with NO redundancy, just a simple harddrive, were far more reliable.
Every time a RAID controller died, we called dell, and every time they managed to destroy the damn RAID information! EVERY TIME! It didn't matter if they sent a tech, or tried to give us phone support, BAM! The whole thing went into the toilet and we had to try and rebuild it to the point where we could get some information off it.
I've seen a damn situation where a dell tech had to go replace a FRICKING HARD DRIVE. A HOTSWAP harddrive, in a computer that didn't HAVE a raid problem, and the bastard managed to kill the RAID! All he had to do was pull the bad drive, and slot the new one in, and the damn thing would have rebuilt ITSELF!
And on top of all of this, they are SO stingy about sending parts, or replacing faulty equipment. I am NOT going to spend a month rebuilding a whole box one part at a time. That is UNACCEPTABLE! I have to spend hours on the phone trying to work through tech support on an issue where I already know what the problem is and I just need them to send me a fricking part!
I really can't come up with a company I'd be less willing to buy a computer from. I'd buy one off a blanket from a cracked out junkie in Times Square before I'd call them again.
ad logicam Claiming a proposition is false because it was presented as the conclusion of a fallacious argument.
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.
Dude, those are both student licenses, not the licenses for the retail version. The first one says it in the URL (studentlicence?). The second one is to the MSDN-AA EULA, where MSDN-AA is MSDN Academic Alliance.
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.
There's an easy away around the EULA. I always install my EULAed software stoned drunk. No contract is valid if you're not in your sane mind.
Another alternative is to have your 5 year old child to install the software. He can't agree to anything.
You don't actually need to agree to the EULA to run the software. But if you don't, your license automatically falls into standard copyright law which basically gives you more rights than most EULAs.
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.
Simpli - Your source for San Jose dedicated servers and colocation!
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.
Did they make the laptop, already bought and paid for, unusable until he agreed to arbitrary conditions revealed after purchase? YES.
Does Dell warn customers that their machines are unusuable without agreeing to further conditions after purchase? NO.
Is it reasonable to require that someone you've already put through the hassle of buying a laptop subsequently go through the trouble of sending it back over an unnecessary and freedom infringing legal agreement you don't even have the guts to warn people about? NO.
Is this about a Windows EULA? NO.
When is this crap going to end? When is someone going to use the Doctrine of First Sale to slap these dishonest and unfair business practices and the people who perform them? Why is Dell considered a reputable company when, apparently, they've been pushing this underhanded stunt for the last year with some of their machines? (Maybe because certain pseudo-libertarians believe that able means ethical, that everything's ok for anyone to do as long as they're a business and don't actively deny they're going to do it.)
You are not alone. This is not normal. None of this is normal.
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
Seems there was already something in the past which grants them some rights to anything developed with one of their tools or passing through their networks, even if unintentionally.
Their legal team probably gets loaded on sodium pentathol before coming up with these things in a fit of giggling.
A feeling of having made the same mistake before: Deja Foobar
Pharisee: The next person who says, "Dude!" is going to be stoned!
Person A: You said, "Dude!"
Crowd: Stone him! Stone him!
Person B: He said, "Dude!" too!
Crowd: (Yells and throws stones at everyone)
"Since you can't program on Windows without using the MSDN documentation, you're screwed." I've done it. Besides, that is for the installed version of MSDN, there is no license for using msdn.microsoft.com. And like the other poster pointed out, both of these are for Academic licenses. You're not allowed to do any commercial work with these.
-- Jason
Well, first off he haven't ordered any programs! Secondly, he ain't got no licenses! So he may consider himself having read all of them already.
It goes like this: If you have TWO licences in the box, you need to read TWO licenses to have read them ALL, right? Duh! Well, if you have ONE liccense, you need to read ONE license to have read them ALL. Right? Well, then, if you have NO licenses...you can see where I'm going...you don't need to read NO licenses to have read them all. Make sense??
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.
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
" No, officer. I didn't actually READ the posted speed limit. May I go now? "
Last I checked, being ignorant of the terms of an agreement one enters into, when those terms are made clear and available, does not excuse one from abiding by those terms.
If the agreement was INSIDE the shrinkwrap (as has been tried before), and you are made to agree to it by opening the box, then you would be right. But, as you are given the opportunity to not agree to the terms, logic (not Law, since Law and logic are not always in sync) dictates that the terms are, in fact, binding.
The REAL jabber has the user id: 13196
What you do today will cost you a day of your life
Not after he changed the BIOS to boot from CD first. Although, when he did, he had a Linux CD in the drive and the computer started booting windows. Nevertheless, the Dell EULA screen wsa bypassed.
It's nothing but crumpled porno and Ayn Rand.
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.
Since Dell is incapable of knowing how to access their own alledged license agreements, you can just create one yourself. Of course, your agreement must state that it supersedes any Dell EULA; it will be impossible for Dell to dispute that in any case. Put in any clauses you like and send a copy to Dell (at any of their official addresses, which means it will take many days to get to the correct department to be reviewed. Oh well). Include in your license agreement the clause: "This document must be signed, notarized, and returned by [date]. Failure to respond with any dispute puts this agreement in full force." Or words to that effect. Just make sure the [date] is the same day you send it to Dell.
/. community.)
(this proposal was written extemporaneously, so any tweaks and enhancements are expected from the
This is precisely the reason I will not purchase a Dell product again. My experiences with my laptop have been horrendous to say the least. Two years ago I purchased an Inspiron 8000 laptop which worked great for about nine months. I then began to have problems with the display and the pointer stick embedded in the keyboard. One of the little plastic switches that holds the CD-RW drive in place also broke. Upon calling Dell they instructed me to send the laptop to one of their service centers and they would repair it. I did as they suggested and sent my laptop in for service. Nearly two weeks later I had to call them to get a status update. I learned that apparently there was a $1600 bill now attached to my laptop because there was evidence of "spill and drop damage." I immediately asked for a supervisor, of course one was not available so I hung up and promptly called back. I spent nearly three hours on the phone being transferred from one department to another when I finally got a tech who would at least return the laptop to me without repair. At this point I was quite furious. Upon receipt of my unrepaired, improperly functioning laptop I contacted my state Attorney General's office as well as the Better Business Bureau. A week after filing my complaints there was a message on my answering machine from a representative claiming to be from Michael Dell's office regarding my complaint to the BBB. I do not remember the actual substance of the conversation but to paraphrase the Dell representative stated that I had no right to complain to the BBB because I had dropped my laptop and spilled a "brown liquid" on it. Needless to say I did not return the call and a week later (this has been going on for over a month) I receive a call at my office from another Dell representative who wanted to know why I hadn't returned the call. At this point I was so angry that I lashed out and explained all of my disgust with the entire support process. The representative was kind enough to bring up the history of my complaints and again mentioned the spill and drop damage. I explained that the laptop spends the majority of its time on a desk and had it fallen I would have known about it. After a brief pause she offered to replace my 8000 with a refurbished 8100 albeit with no warranty (my existing warranty was due to expire in another three weeks.) I accepted her offer and quickly received a refurbished 8100 that even had a few small upgrades. During this entire process I was simply wanting my 8000 repaired. The problems were minor and the only reason I had even bothered calling Dell was that I figured why should I make the repairs myself when I can use my warranty? The replacement laptop did make things better but they did not "make it right." I have had the refurbished 8100 for a little over a year now and I am in the process of replacing it (not with another Dell.) The display adapter backlight flickers on and off because the video card is not making good contact somewhere. The case has also developed a few small cracks due to it being overly flexible. After reading this latest episode in the ongoing comedy of Dell errors I can only assume that Dell has lost sight of its original goals and is now driven by greed. First we have to deal with the Microsoft "tax" and now click through licensing and we can't even read what we are agreeing to. It's a shame really beacuse Dell does make some nice hardware.
Dell laptops support embedded HD passwords as do many other brands. They could set the EULA to refuse to unlock the HD unless you agreed. Locked drives will not even function in other computers.
That's not in BIOS. It's in a small hidden partition on the hard drive that is initially toggled bootable, which un-toggles itself after you accept.
If you fdisk the hard drive and completely reformat it, you will never see the clickthroughs.
retrorocket.o not found, launch anyway?
I don't see what the big deal is here. They told him he could go to a friend's house and read the license, but he refused.
For those of you considering an Dell Purchase, I suggest you read it.
"By cashing this check you agree to my EULA and all its terms and conditions and you further agree to indemnify me for any legal expenses I may incur if you decide to give me legal trouble. My EULA may be found on my website at
Dogbert: "Please read me the serial number on the inside of the case of your computer."
End User: 'But that will void my warranty.'
Dobgert: "Call me if anything changes."
- it is an opinion piece, not law
- the conclusions sought run contrary to consumer protection legislation in many provinces that state that shrink-wrap contracts are void (you cannot agree to a contract of wich you don't know the contents of what you are agreeing to)
- that a contract is a negotiation, and where there is no possibility of negotiation, there is no contract, except in the most petty of cases
- (this is the most important part) that a contract is between 2 persons or bodies capable of contracting.
It is this last point that kills all click-thru EULAs. A contract requires 2 parties. My computer is not a party with whom I can enter into contract with, at least not in the legal sense. For one thing, as my property, it is not capable of taking an independent action. As my property, it also is not capable (in the legal sense) of representing the software manufacturer or other EULA author. It lacks all legal authority to represent, negotiate for, or act on behalf of another entity.Besides, a contract is not "perfected" - meaning, in force, until BOTH SIDES have a copy. Do you have a copy? Did the other side receive a duplicata of your copy (here I don't mean the original text from which they wrote the EULA, but an actual copy of the agreement YOU entered into with THEM). This might sound like nit-picking, but until both sides have a copy of the agreement that was presented to you, the consumer, there is no contract.
It's the old saying: 3 rules for agreements:
- get it in writing
- get it in writing
- get it in writing
This is aside from the whole issue of minors clicking on click-thrus, etc. There is not a click-thru EULA on the planet that can't be broken under the right circumstances.-
Has this happened to you? You plunk down a pretty penny for
the latest and greatest software, speed back to your computer,
tear open the box, shove the CD-ROM into the computer, click on
"install" and, after scrolling past a license agreement which
would take at least fifteen minutes to read, find yourself
staring at the following dialog box: "I agree." Do you click on
the box? You probably do not agree in your heart of hearts, but
you click anyway, not about to let some pesky legalese delay the
moment for which you've been waiting. Is that "clickwrap"
license agreement enforceable? Yes, at least in the case
described below.
There are some painful lines in that decision, such as "Money now, terms later" is a practical way to form contracts, especially with purchasers of software."decision by William C. Young, U.S. District Court Judge
If it's an agreement, then by all means the company should have something indicating that I accepted it. Let them produce that in court.
"The software is installed" is not good enough, as there is nothing to say that:
A) I installed it, caused it to be installed, or accepted it's installation.
B) Even if I did any of the former, there is no proof that the software did not in some way malfunction (perhaps due to a temporary computer memory glitch) and thus did not present the EULA, presented it in an unreadable format, or presented a modified EULA that did not match the terms they expected.
C) Even assuming that I installed it, that the EULA was presented in a reasonable format, and that the terms were as they specified, there is nothing to say that the software did not malfunction in such a way that caused it to continue with the installation even after I indicated that I would not accept the agreement.
And this is without going into the whole questionable legality of presenting the terms after the purchase.
EULA's exist only because they've never been seriously challenged.
That Jesus Christ guy is getting some terrible lag... it took him 3 days to respawn! -NJ CoolBreeze
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.
Not to brag, but I submitted this story to slashdot three years ago.
Dell has been doing this for quite some time.
My first experience with this kind of nonsense was with a box containing the install disks (and by "disks" here, I mean 3.5" floppies, this being about 13 years ago) for Macintosh System 6.3. There, spanning the gap over the disks in their little plastic tray, was a paper sticker proclaiming that, by breaking the seal, you agreed to...something. Of course there was no room on the sticker for the actual contract you were supposedly agreeing to by the tearing of a paper, and it wasn't clear where this "agreement" referred to actually was. But, trickster that I am, I found that I could slip the disks out one by one without tearing the sticker. (Looking back on it now, I suppose I could have cut the back of the plastic tray with a box-cutter, but no matter.)
Since then, of course, this silliness has escalated to the point where the events in the article come to pass: you are required to do something which you could do entirely by accident, which is supposed to signify that you agree to something you aren't told, and in fact have no way of finding out about without doing the thing you're supposed to do. Double Catch-22 ("Catch-44"?).
So how about this: we start sending mail (real, physical mail might make more of an impression, but email could be good for a larf too) to these companies, proclaiming on the outside of the envelope (or, in the case of email, in the Subject: or some other more obscure header line) that, "by opening this mail, you agree to the enclosed agreement". Then, inside, you have whatever agreement amuses you. For example:
If anyone ever tries to call you on their EULA, simply fire back that they agreed to your UALA (User Abuser License Agreement) too, and it's equally enforceable.
"A great democracy must be progressive or it will soon cease to be a great democracy." --Theodore Roosevelt
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?
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.
When he installed it and loaded the software, the software said to install the Windows 98 2nd Edition installation CD.
Oh, this is so true. That's why I've been putting a copy of Windows in a subdirectory on the hard drive since Windows 98. It just saves so much trouble, and hard drive space is cheap anyway.
Sometimes I worry that I'll develop Alzheimer's disease, but no one will notice.
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!!
--
Given enough personal experience, all stereotypes are shallow.
If they want bizarre contract terms from their customers, they need to do it before the sale:
Dell: "Hi, this is Dell. Want to buy a computer?"
Customer: "Yes, sell me a computer. Preferably one that sucks. That's why I called you instead of building one I could trust."
Dell: "You called the right company and I think you will be very satisfied with your purchase. May I have your fax number, or could I give you an address where you can download some documents?"
Customer: "Yeah, uh, my fax number is 555-1212."
Dell: "Ok, I am faxing some legal documents for you to sign as part of your purchase. Once we have recieved payment and your signature to some draconian terms, we will ship your new computer immediately. Thank you for calling Dell." [Click.]
Customer: "Hooray, I'm getting a Dell. Finally, I have a legitimate excuse to complain about how much PCs suck."
Of course, that would never happen because there would be negative market consequences because nobody wants it and they would choose to buy from Dell's competitor. And that's what makes the "agreement" meaningless and unenforcable. Because it it were enforcable, it would be fraud. You disclose terms before a sale, not after a sale, silly.
As copyright owner of this comment, I authorize everyone to defeat any technological measure which limits access to it.
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
...and Windows XP Home Edition didn't see the light of day.
A KNOPPIX CD was in the laptop on its first boot, the BIOS was set to boot the CD-ROM directly. The first thing KNOPPIX was used to do was write zeroes over the entire hard disk. Then Linux was installed.
The EULA happens to be on one of the included CD-ROMs. It says if we don't agree to the Windows XP Home Edition license, Microsoft owes us money by way of Dell.
Dell refuses to honor this agreement.
Some shit is going to go down.
And no, there was no paper EULA provided.
What if I'm blind? Is there a screen reader built in to this EULA? Maybe I'm "blindly" pressing keys till I can hit a key combination that I know turns on the Microsoft Narrator.
Further, what if I let my 7 year old son have "the honors" of booting up the computer? Just because he pressed a key when he was told to, doesn't mean that I'm legally obligated by the agreement. I haven't agreed to anything.
Further, what if I set this system up for my elderly grandparents. It doesn't belong to me, how can I be the one who agrees to it? Anyone who wanted to dodge this could *easily* claim that they never saw this screen, but that they had a friend or child set it up for them.
Slay a dragon... over lunch!
I just purchased a Presario laptop at BestBuy. I wanted to have it checked for bad pixels, DOA hardware, etc., so the tech there opened the box and ran a few tests before releasing the machine to me.
So, a BestBuy representative did the initial clicking and agreeing and I have no need to ever open the enclosed shrink wrap agreements. Am I free of all of them? I think I might be!
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