Windows 8: More EULA, Fewer Rights.

sl4shd0rk writes "Microsoft has adopted a brand new licensing scheme for Windows 8 which effectively removes your right to file a class-action lawsuit against them should you feel the need. '...Many of our new user agreements will require that, if we can't informally resolve the dispute, the customer bring the claim in small claims court or arbitration, but not as part of a class action lawsuit.' Class-action lawsuits are intended to help individuals stand up to corporate law-breaking but this new EULA model simply nullifies that course of action for the consumer."

Comments

not sure

[yagu]

Not sure that that's even legal -- would be surprised if it held up in court.

Re:not sure

[h4rr4r]

There was a recent Supreme court case that made this legal.

Now all 3 of our branches of government have officially sold out. We might as well replace all civil courts with a comparison of the defendants and plaintiffs net worths. Would not change the outcome much and save us a lot of tax money.

Re:not sure

[IDtheTarget]

Not sure that that's even legal -- would be surprised if it held up in court.

Actually, the Supreme court has already ruled that this is, in fact, legal.

Re:not sure

[Mashiki]

Not legal in Canada, or in Germany. Various other parts of the EU either.

Re:not sure

[Anonymous Coward]

in the UK at least contract law forbids you from signing away statutory rights which i would expect to protect me from move ssuch as this. basically any contract contains a clause that removes your rights becomes null and void... but of course IANAL...

Re:not sure

[cpu6502]

>>>There was a recent Supreme court case that made this legal.

Which one?
I find it hard to believe. During the Paypal case, the U.S. judge crossed-out most of the EULA saying customers can not sign-away legally protected rights..... such as the right to sue a company for stealing money (that's what Paypal was guilty of).

Re:not sure

[gstoddart]

>>>There was a recent Supreme court case that made this legal.

Which one?

Hopefully you can get through the paywall ... here. Failing that, google for "AT&T Mobility v. Concepcion".

SCOTUS ruled on this last year.

Re:not sure

[Sparticus789]

As juxtaposed by Ginsberg, who likes to cite the laws of foreign countries as the basis of her legal argument? At least Scalia uses the U.S. Constitution for his legal justification.

Re:not sure

[Anonymous Coward]

Not sure that that's even legal -- would be surprised if it held up in court.

Actually, the Supreme court has already ruled that this is, in fact, legal.

Actually, the Supreme Court ruled that a contract can remove the possibility of a class-action arbitration, not a class-action lawsuit. They are not the same thing. Further, there is still wide disagreement over what rights can and cannot be removed by a EULA specifically, rather than a traditional contract.

Re:not sure

[shutdown -p now]

The link is right there in TFA.

http://www.nytimes.com/2011/04/28/business/28bizcourt.html?_r=2

Re:not sure

[dkleinsc]

As opposed to the infinite "Legal Wisdom" of mbone, I'll take Scalia any day of the week.

We're talking about the same guy who has extensive ex parte communications with Dick Cheney and then goes on to rule on a case involving Dick Cheney (rather than recusing himself, as any non-corrupt jurist would do), right? He's not the only one, of course: Clarence Thomas has issued rulings on cases where his wife had a financial stake in one of the parties.

Regarding this kind of clause, the legal concept in question is an argument of unconscionability, where somebody claims that the contract terms are so unfair that they should not be enforced. Courts, including SCOTUS, have ruled both ways on whether clauses that bar access to legal redress are unconscionable. It's been part of contract law for decades at least.

Re:not sure

[Anonymous Coward]

"he is supposed to help by ensuring the law is applied fairly"

That is incorrect. His job is to make sure the law is applied constitutionally.

Re:not sure

[sg_oneill]

I wonder though - can an enterprising lawyer raise up a class-action lawsuit over the EULA clause itself?

If you havent clicked "Accept", for sure.

Lawyers can't write laws, only contracts, and even then this whole court nullification business tends to be treated as *VERY* fishy by the courts.

Re:not sure

[UnknownSoldier]

> All justices, judges, and magistrates accept that corporations are legal persons. This is neither surprising, nor debatable, and is a fundamental part of Common Law tradition.

Total nonsense. Corporations became legal persons OVER time.

Date Decision, Legal Right Affirmed
1889 "Minneapolis and St. L. R. Co. v. Beckwith", Right for judicial review on state legislation
1893 "Noble v. Union River Logging R. Col", Right for judicial review for rights infringement by federal legislation
1906 "Hale v. Henkel", Protection "against unreasonable searches and seizures (4th)
1908 "Armour Packing C. v. United States", Right to trial by jury (6th)
1922 "Pennsylvania Coal Co. V. Mahon", Right to compensation for government takings
1962 "Fong Foo v. United States", Right to freedom from double jeopardy (5th)
1970 "Ross v. Bernhard", Right to trial by jury in civil case (7th)
1976 "Virginia Pharmacy Board v. Virginia Consumer Council)", Right to free speech for purely commercial speech (1st)
1978 "First National Bank of Boston v. Bellotti", Right to corporate political speech (1st)
1986 "Pacific Gas and Electric Company v. Public Utility Commn of California", Right against coerced speech (1st)
Reference:
http://cnx.org/content/m17314/latest/

Also see:
http://www.thecorporation.com/index.cfm?page_id=314
Specificaly, "The Corporation complete film transcript (PDF)"
http://hellocoolworld.com/files/TheCorporation/Transcript_finalpt1%20copy.pdf
http://hellocoolworld.com/files/TheCorporation/Transcript_finalpt2%20copy.pdf

> Because otherwise, they couldn't own property, and could not be sued.
At one time in America they couldn't OWN other corporations. This limited the collateral damage they could do. This was a GOOD thing.

> Let's have a hypothetical.
The fact that OWNERS wanted to separate their liability is based on thing: Greed.

Corporations pay no death tax (estate tax) because corporations NEVER die. That fact right there is a HUGE problem. It slowly strips the wealth (power) out of individuals and consolidates it -- total anathema to the original intent of State and Federal separation and balance of power.

It would behoove you to watch "The Corporation"

Re:not sure

[westlake]

Oh wait, he was one of the (ahem, so called) justices that ruled that corporations are people

Corporate Personhold is at least two hundred years old in American law.

Since at least Dartmouth College v. Woodward (1819), the U.S. Supreme Court has recognized corporations as having the same rights as natural persons to contract and to enforce contracts.

In Santa Clara County v. Southern Pacific Railroad, 118 U.S. 394 (1886), the Supreme Court noted in dicta in a headnote that corporations as persons for the purposes of the Fourteenth Amendment. In a headnote --- not part of the opinion --- the reporter noted that the Chief Justice began oral argument by stating, "The court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of the opinion that it does."

The basis for allowing corporations to assert protection under the U.S. Constitution is that they are organizations of people, and that people should not be deprived of their constitutional rights when they act collectively. In this view, treating corporations as "persons" is a convenient legal fiction that allows corporations to sue and to be sued, provides a single entity for easier taxation and regulation, simplifies complex transactions that would otherwise involve, in the case of large corporations, thousands of people, and that protects the individual rights of the shareholders as well as the right of association.

Corporations as persons

Re:not sure

[Altrag]

The problem with any of those is that they affect J.Random employee far more than they affect the people who actually caused the problems. Firing the entire executive staff? Well they'll have a temper tantrum over losing their huge bonus for the year, but chances are they've already got more banked than us average people earn in a lifetime so while they might not like it, it won't particularly harm them unless they've been totally stupid with their money.

On the other hand, a full corporate shakeup rarely bodes well for the folk in the trenches. The odd few lucky ones might get promotions, but for the vast majority of any decently large corporation, the best they can hope for is status quo. And more than likely they'll at least be reassigned if not outright laid off.

Same goes for slapping shareholders around. The big guys (the ones you really want to hurt) will just shrug it off and hide the loss behind a hedge fund. The people you'll actually hurt are the people with $10-20k in a retirement fund that they're trying to grow. The stock market is already pretty stacked against anyone who can't do sub-millisecond trading, there's no reason to add even more of a burden on those people. Stopping trading all together in particular would be a fairly horrible thing to do (the stock price would be tanking and they wouldn't even be able to bail on it.)

I could see fining shareholders as a little less painful -- especially if you limited it to only fining people with more than say, 5% (or even 1%) stock in the company. That would protect the little guys who are just trying their luck, while still applying some damages to the people who have enough say that they should at least be getting heard even if the board/CEO ignores them.

And for your extreme "death penalty" case. That's probably never going to fly. We already refuse to let corporations die of their own free will (see: $700b bailout and "too big to fail" actions) so the chance that we'd go out and kill them off ourselves is pretty damned small. And with good reason. Killing off a patent troll that has 3 employees and a small novel full of consulting lawyers probably won't hurt the world too much, but killing off a major industrial manufacturer can easily dispense with thousands or even tens of thousands of jobs. Again, its the little guy working the lines who gets really fucked, and they don't have any say in these matters -- they're just trying to provide for themselves and their family.

Penalizing corporations is, generally speaking, a pretty difficult thing to do. Even without the "corporations are people" concept, the fact of the matter is that the people who have enough power to make serious decisions are also the least likely people to be seriously injured (financially..) when the shit hits the fan.

I've got no idea how to deal with that. I can't even suggest some sort of utopia where corporations don't exist, because there are many aspects of the modern world that simply couldn't be done without the kind of resources that a Ford or a General Electric can bring to the table. The government could fill in somewhat, but rampant communism hasn't exactly proven itself to be a shining beacon of hope and prosperity.

Re:not sure

[Anonymous Coward]

California law states you cannot sign away your rights to litigation.

So such EULA's are non-binding in California.

IBM tried something simuliar in the 90's when it laid off a bunch of workers who were close to retirement. Made them sign agreements when they accepted much lower settlements that they would not file litigation for more severance (even though many lost their retirements benefits by forced early retirement). Many people signed the documents because they needed to feed themselves and their families. The former employees still joined a class action suit. IBM tried to have it dismissed stating these people signed earlier agreements stating they would not file litigation. CA courts squashed IBM's move for dismissal stating that no one can be barred from filing litigation.

An EULA isn't a contract

[Sycraft-fu]

There are numerous requirements for something to be a contract in US law and the EULA fails a number of them. The biggest is contracts have to happen before the exchange of goods/money. They can't be ex post facto. So if a company requires you to sign a contract before you buy the software, that's a real contract. An EULA that you are introduced to after the sale, not a contract.

Easy to see here at work too. I work for a state university so they are very big on the "only approved people can sign contracts for the university" thing. Any contract has to go through the contracts office and be approved by the lawyers. EULAs? They tell us don't worry just click through. In other words, they are confident the EULAs don't bind us to shit. If they though they did, we'd have to get them all approved.

Re:As many people pointed out when sony did this..

[idontgno]

As cited in TFA, The US Supreme Court has already decided this kind of EULA clause may hold up.

The specifics of that case seem somewhat applicable: The "you can't sue us, you have to use arbitration instead" type of clause was being prohibited by state law in certain states (California, in the specific case), but the Supremes held that Federal Arbitration Act of 1925 takes precedence and overrides state law. That federal law says that binding arbitration is valid if both parties agree, and the presumption seems to be that both parties agree if the user agrees to the EULA by using the product.

IANAL, but it sure looks that ruling supports MS's position on this. If there's some substantial reason why this case is any different than the AT&T Mobility v. Conception, I'd sure like someone to point it out.

One sided contracts are contracts.

[GodInHell]

They're called adhesion contracts. EULAs are the most common example, but so are the warranties that come with mass produced goods, the terms on your ticket stub at a ball game or a parking garage -- these things are contracts and they are enforceable. They're just held to a (very slightly) higher standard of fairness before being held unconscionable.

Theoretically you could break a contract of adhesion, hire a lawyer, and get away with it. But that lawyer will charge you more than you would have to pay for windows (unless he's a very cheap lawyer, or you get a really bad deal on windows). So, click accept little sheep, go down the ramp into the windowless room now please.