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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
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!
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
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.
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!
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
Here.
.. 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.
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,
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.
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.
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
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.
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.
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.
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.
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.
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.
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