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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."
Not sure that that's even legal -- would be surprised if it held up in court.
Good - class action lawsuits are bad for the individual consumers anyway, only make money for the law firms. I'd rather 200 people file small claims suits than someone file a class action.
Just because something is in a EULA, it does not mean it's actually legal.
I hope to see a class action for allowing class actions.
There needs to be a better mechanism for keeping corporations in line, anyway.
I'm not endorsing MS's attempts to weasel out of liability here (although I guess once Sony took a bite of that particular poison apple, it's only a matter of time before the other tech giants decide that class action immunity is too awesome to pass up).
But class action lawsuits never deliver anything of real value to the people who actually suffered from whatever prompted the class action suit. They often hurt the target company, a lot, but that's vengeance & retribution rather than justice - the only people who actually benefit from the "restitution" and "settlement" are the lawyers.
Really, it would probably be better all round to just have regulators & ombudsmen with real teeth rather than relying on lawyer feeding frenzy class actions to provide a punishment system for corporations. The big problem with that is regulatory capture. I don't have a solution, but I wish I did. The present state of affairs isn't really satisfactory to anyone IMO.
Start a class action over the onerous EULA before agreeing to it.
How's that Microsoft?
Now all 3 of our branches of government have officially sold out
You say that as if there was ever a time when government was driven by anything but self interest.
Just when I thought I couldn't be less excited about Windows 8.
One more reason to skip it.
Even more unsettling, server 2012 (server "8") will have the same stupid-ass "Start Screen".
Blech.
Secondly, how the hell can this be allowed? AT&T did it, MS did it with the xbox.
How many more ways can they screw us out of our rights?
"Helping to keep you two steps ahead of the Thought Police!"
but I'm not sure it matters. When was the last time you were part of a class-action suite against Microsoft? Moreover, this won't stand up in many other countries so it amounts to an attempt to minimize legal exposure in the USA. Given the increased availibility of Linux/Android/Web applications, we're all at a stage now where we can "vote with out feet" if Microsoft does something too buttheaded, and that's exactly what will happen if they overreach.
Please do not read this sig. Thank you.
Remember, you don't NEED to use Microsoft Windows. Linux is a viable option. Red Hat Linux works well on the desktop.
Is there anyone actually considering using Windows 8? Bueller? Bueller? Bueller?
I have a suspicion this might not be the only nasty thing to lurk in the small print.
...EULAs can't effectively hold up with something like this in court.
What do I know, I'm just an idiot, right?
If one man has a grievance and sues a company he's portrayed in the press as crackpot. A class action takes the same grievance and because numerous people are involved there's the appearance of wrongdoing, no matter if it's real or not. Lawyers representing the plaintiffs try the case in the court of public opinion until a settlement is forced because the defendant feels their reputation is becoming tarnished. A settlement will mean pennies on the dollar for the numerous plaintiffs, and that's after the attorneys take out their costs.
Microsoft thinks they are clever enough to circumvent this cycle. Does anyone think they class action lawsuit industry will let Microsoft's new license stand? Not without a fight.
Yes, class action lawsuits don't help the victims. Neither does putting murderers in jail. But the goal is to give people and businesses a reason to think twice before committing a despicable act. Thanks to SCOTUS's decision that companies can stick a "you can't sue us!" clause in any and all contracts, there is now no mechanism by which companies can be made to pay for abusing their customers. Day-dreaming about alternate mechanisms is pointless. This is the one that we have (or had, at any rate), and for all its flaws, it did work. Companies that abused people were made to pay. But no longer.
So does this mean I can put a sticker on my car that says:
"By Reading this Bumper Sticker you agree to the following Terms and Conditions:
In the event of an accident the operator of this vehicle shall be held harmless for any damage or personal injury incurred to any person involved. You agree to take full personal and financial responsibility for any damage incurred to this motor vehicle and belongings."
Apple is a even bigger money grubber than M$ is.
Because I haven't been able to find a pen computer system which works as nicely as Windows Tablet PC.
Sphinx of black quartz, judge my vow.
...EULAs can't effectively hold up with something like this in court.
Depends on the country. In EU it won't, not so sure about other 3rd world countries.
P.S: We also hate our politicians. :)
Love many, trust a few, do harm to none.
Forget about class action. Go with crowd action. Let 100,000 people file in small claims court at the same time. Assuming the courts can handle the load, I'm guessing even MS doesn't have enough lawyers to appear personally in each suit.
They don't allow plaintiffs to pay out coupons in small claims court.
Elsewhere things are more sane. I believe in EU that enforced arbitration is not allowed, and in BC Canada you can't be forced to give up your rights to class action in this manner.
http://www.foxnews.com/scitech/2010/04/15/online-shoppers-unknowingly-sold-souls/
Companies can put whatever shit they want to in their EULAs but it won't hold in court.
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.
"Windows 8 bit"
I do not fail; I succeed at finding out what does not work.
It's simple: Add rules to any position of public office restricting the revolving door of private industry. Make those in power commit to avoid working for those they are regulating or accepting "contributions" from them.
Of course, such rules would require those in power to sign off on them, which will never happen unless they're replaced.
It's better to vote for what you want and not get it than to vote for what you don't want and get it.
- E. Debs
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.
Welcome to the Panopticon. Used to be a prison, now it's your home.
Sure they do, they provide notification of a potential cause of action that they are quite likely to have overlooked on their own. Potential class members are provided notice and an opportunity to opt-out and preserve the right to file individual, direct-action lawsuits.
Class actions are far from perfect, but they exist to deal with an economy of justice problem with diffuse harms (cases where they are available overlap, to an extent, with cases where regulatory agencies and states attorneys-general have the right to file claims on behalf of the public or affected specific citizens, but regulatory capture and other effects of corporate influence on government make them necessary.)
The reason corporations want to foreclose them is because they are often the only effective method of addressing harms, especially where the harm to each individual is fairly small. Mass direct actions have a lot more overhead to coordinate than class actions, and individual direct actions require essentially each plaintiff to bear the full cost of an action to prove the same points. This makes direct action, particularly individual direct action, impractical where the individual harm isn't very large but lots of people are affected.
Attempts to use an EULA to foreclose class action lawsuits ought to be void as contrary to public policy, since class actions are provided as a mechanism for economy of justice.
Windows 9 will require you to hire an licensed operator to actually use Windows. You will not be allowed to actually interface with Windows without an operator. Hey, could happen!
Class-action lawsuits are intended to make lawyers rich while individuals get worthless token compensation
FTFY.
Given everything one has read about Windows 8, these disincentives not to buy it are even better. People can either just keep buying Windows 7, or try out other OSs.
As the title suggests, I've never accepted the EULA for my work PC. If I suffer a damage due to Windows 8 on my work PC, presumably I'd still have the right to sue in a class action.
Or, recognizing that my employment may cause legal complications for damages there, then I suggest that my wife (who didn't install Windows 8) could sue in a class action.
I suppose that for Windows 9, we'll have to accept a click-wrap license every time we log into our user account or open a new application.
--Jim (me)
Remember, you don't NEED to use Microsoft Windows.
You do if you are a gamer.
If you play indie games, a growing number of those are ported to Linux. If you play major-label games, there are plenty of those on consoles.
If the best paying positions by a wide margin for people with knowledge in the field are in private industry, then -- while this might have some effect on regulatory-capture-through-career-planning -- it would also assure that few competent people would ever enter the regulatory agency in the first place. The imbalance of resources and skill between private industry actors with lots of profit on the line is itself a source of effective regulatory capture, as regulators are dependent on information.
Equally importantly, ethics rules governing regulators don't address the problem of industry influence on the chief executives and legislators who define the boundaries of regulatory authority and the funding of regulators and control the composition of the courts to which regulatory decisions are appealed.
Yes, it is legal to require you relinquish rights to partake in a voluntary activity, such as purchasing Windows 8.
But there it is anyhow.
When Vista came out I bought an iMac.
When Windows 8 comes out, I'm buying a Raspberry Pi.
I see no reason to continue feeding the troll. Goodbye MS.
If telephones are outlawed, then only outlaws will have telephones.
Just by not buying Windows, Microsoft won't see they lost a sale.
Everyone go out and buy a copy of Windows 8, open the box so it can't be resold, then return it for a full refund with the reason that the EULA you can't see until you try to install it was an unacceptable attack on basic civil rights.
This is about the only way Microsoft would get a clear message and see how much its costing them.
Signing away your right to a class-action suit should only be limited to settlements, not as entry agreements.
Some kind of law needs to be passed that forbids EULAs from trumping law and civil rights. With EULAs the way they are, if some law is passed that is designed to help the consumer, give them more rights and balance the power between consumer and company, Microsoft (or any other software publisher) can simply modify their EULA and basically nullify that law.
Not Surprised
"I believe in Karma. That means I can do bad things to people all day long and I assume they deserve it." : Dogbert
...don't buy MS products.
It is injust and wrong that this is the only option that remains. But it is still an option.
I can't imagine where that's going to go.
Is that not the point of Class-Action Lawsuits, or at least their broadcast point? To provide restitution to the consumer.
If Scalia keels over of a heart attack, so would Thomas, just to loyally follow his leader.
I work with Win8 at an undisclosed large corporation doing driver testing. I won't be using Win8, not even if I can manage to get a copy for free. I'd sooner dump everything and jump to linux. Win8 is the "Playskool" OS, it holds your hand and hides important things from you more than any other version of Windows I've ever used (all the way back to v3.1) and I just can't stand that.
Are YOU using the TOOL, or is the TOOL using YOU? Think about it!
This EULA isn't really targeting people that frequent these kinds of forum/news sites. It's a scare tactic to keep the average American from joining in, to minimize the payout in the end. Billy Joe Farmer "oh I can't sue, I clicked the OK box when I started up mah winderz." Internet Tech Nerd "YOU CAN'T BIND ME LEGALLY TO EULA. EXCELSIOR!!!" Big gap in understanding there.
Scalia, et al are the worst practioners of Salad Bar justice; ruling for something and acting like it was carved on Moses' third tablet and then totally ignoring precedent when it doesn't favor their glaringly obvious political (and social) ideology based on mysogyny and greed.
I'll say the truth again: worst Supreme Court since the Dred Scott decision.
Well, of COURSE it will. Remember, Government is Grubberment; if you can't pay the politician more, you don't get the vote.
Cynical? Let's see. Class actions have been around a LONG while. The new rules protecting companies from class action litigation are not. Those rules are younger than I, and while a bit long in the tooth, I am not on my fifth decade yet.
How can this be? Money. The recipe is simple. Power Draws Money. Money Corrupts Power. Corrupted power with money corrupts State and federal representatives and congress persons. In toto, and short, Power corrupts, money+power corrupts absolutely. Sometimes, power alone corrupts. Any Questions? Look at the Congressional/Senate retirement package. Golden Parachute indeed.
This would be a bonanza for Ubuntu or any other linux distro. They could advertise something like:
Buying a new PC shouldn't mean having to automatically giving up your legal rights if something is wrong with it. At Ubuntu (or Redhat, or Suse, etc.) we believe in freedom. Freedom to use the software we provide however you want to use it. Freedom to build on the software we provide however you want to build on it. Freedom to keep using the software we provide regardless of what we or anyone else decide to do in the future. At Ubuntu we believe that when you buy a computer, it is yours to do with as you wish, not as we wish you would. Ubuntu Linux - Freedom
Again, you can pretty much put in what ever Linux distro you want, but since Ubuntu is pushing the desktop market, that is why I used them.
My eye doctor of several decades recently moved all his scheduling, billing, and insurance to a web site. Guess what the first thing that pops up when you access it?
A EULA.
Just a matter of time before all services from pet grooming to parking lots will require EULAs to forego lawsuits, responsibility for privacy, permission to sell information to 3rd party aggregators, responsibility for due care, automatic updating of contract terms and irrevocability..
When you are dying in an emergency room, I doubt you will carefully read the two hundred page document required before treatment, essentially affirming that you are a serf to the establishment forever: it could forbid discharge of medical debt in bankruptcy, automatic lien on all personal and real property, repudiation of your states exemption from execution of judgment, agreement to a particular venue, agreement that you are already deemed to be personally served in a future lawsuit for fees, automatic 50% per annum penalty added to the principal--you name it.
"Just click 'I agree' there."
It is easy to circumvent the EULA. Either have your minor child install the software, as minors cannot enter into a binding contract or have somebody else install/set the computer up. That way, you can honestly say that you never saw the EULA nor agreed to it.
Unbuntu 12.4 is out, and looking good. Oh, and Ubuntu is FREE, as in cookies, and toasters.
That's pretty interesting, since Jefferson lived when IQ tests hadn't been invented. Furthermore, I have to wonder if this "estimate" (based on what, exactly?) takes things like the Flynn effect into account.
In point of fact, Nixon has a known IQ of 143 and therefore the highest IQ of all presidents who were actually tested. That is in no way an endorsement of Nixon as the smartest president.
Considering that many biographies of Jefferson place him as the most intelligent of any sitting US president, I have to ask who you think was the most intelligent president, someone who bests Jefferson with an IQ that you estimate at 160?
You also conveniently forget that Jefferson advocated periodic revolutions, whether bloody or bloodless, and by logical extension a new constitution would have to be ratified after each such revolution. (Think of the French, who routinely adopt new constitutions.) So while Jefferson may have been a strict Constitutionalist by our modern reckoning, he also likely did not expect our current constitution to last as long as it did.
On a different tack, it's pretty obvious that your response to smooth wombat was meant to be snarky. You haven't really addressed the fact that he raises a valid point: Laws must stay relevant to their times. If you're going to invoke Jefferson to advocate for a system of governance where nothing ever changes and technical progress is impeded for the sake of preserving an antiquated social and legal framework, well, I'm afraid I can't get on board with that simply because of Jefferson's cyclical view of governments and their founding documents.
It was the the Arbitration Act of 1925 that allowed arbitration in contracts to be binding. Blame the politicians, not Scalia for reading the law as it is.
Instead of trying to get Scalia shot, try getting the current politicians to recognize the difference between negotiated contracts between equals with an arbitration clause, and adhesion contracts where the consumer has little or no power.
Liberal fucktards always think that nine people in black robes should be making the law, and blame them when the law sucks instead of blaming the people who actually wrote the law.
"Why are corporations people? Because otherwise, they couldn't own property, and could not be sued."
Sure, because no partnership or sole proprietorship has ever controlled property or been sued... *eyeroll*
Snowgirl then goes on with a convoluted discussion of how the existence of corporations protects workers from illegal actions they undertake on behalf of their employers, while simultaneously ensuring company assets and directors are held responsible for their misdeeds.
The mind just reels...
OK, now for an update from the soft green fields of reality. Workers for corporations are held responsible for their misdeeds all the time -- in fact, they are scapegoated on a regular basis. The system is specifically set up to blame the workers and shield the corporation. See those Fedex Home Delivery trucks? The Drivers -- not FedEx -- carry the insurance and take the hit for accidents. Back when Domino's had their "30 Minutes or Less" suicide jockeys on the road, guess who paid for the accidents? The CEO of Dominos used to brag about how he had a fleet of vehicles he got other people to pay to insure and maintain.
Need another example? If you're an eighteen-year-old kid waiting tables for the "Tomato-Paste-R-Us" corporation, and you give someone a beer because your manager told you to, and that customer goes out, has an accident, kills someone and blows a 0.0800000001 BAC, YOU will be held criminally responsible while the company is specifically shielded from repercussions by the law.
Either Snowgirl is breathtakingly out of touch with reality, or she's unbelievably disingenuous...
He put his boots up on the table and made a face. "The sig," he smirked. "You can waste your life in search of the sig."
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.
I've been trying to get the EULA for Expression Web Studio 4, but the site: http://www.microsoft.com/About/Legal/EN/US/IntellectualProperty/UseTerms/Default.aspx fails constantly, even if I use IE. MS "support" has sent me the same form letter three times, saying that if I haven't heard from them in three days, to email them back.
And when has a corporation EVER been fined out of existence? Go ahead. Feel free to Google. I'll wait.
A long, long time.
Your problem is that judges are specifically barred from fining a corporation into bancruptcy. Oddly enough, that prohibition doesn't exist for your average 18-year-old kid pulling an .mp3 off the net.
"But, but , but, fining the company just hurts the workers more than the executives in charge."
Hmm, I somehow doubt that the Court would take the welfare of my kids into account at my sentencing hearing, but OK, how about we just pierce the corporate veil and seize the assets of the directors?
Again, go ahead and find me an example of where this has ever happened to any company the size of say, Massey Energy, Morton Thiokol or British Petroleum?
Something tells me I'll be waiting a long, long time...
He put his boots up on the table and made a face. "The sig," he smirked. "You can waste your life in search of the sig."
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
Hi. I'm a child of the 20th Century. You might remember us. We fixed a Depression, killed Adolf Hitler, held Stalin in check, invented the atom bomb, rebuilt Europe and Japan, built a national infrastructure of highways and electricity, got Jim Crow off the books at least, added a Moon rock to our mood ring collection and then watched Al Gore invent the internet -- all without a single corporation as the driving force.
Mozart wrote his operas, Shakespeare wrote his plays, Nobunaga conquered Japan, Genghis Kahn ruled an empire, Rome took Europe, the Mings handled China, and Ogg invented fire all without a single patent or copyright protection to their name.
He put his boots up on the table and made a face. "The sig," he smirked. "You can waste your life in search of the sig."
"A growing number"?
The Humble Bundles, for example.
Especially with a one-sided agreement like an EULA is. Perhaps a concrete signed contract, but even then it can only go so far.
Sounds more like a way for some attorneys to make some extra cash when they file a class action against them for the EULA its self.
---- Booth was a patriot ----
Given how corporations tend to buy off government we can assume the legality of the EULA isn't a problem (to them). Therefore the only viable solution is: 1- extract the software without agreeing to the EULA, 2- reverse engineer the installer, 3- write our own installer that doesn't have an EULA. 4- profit.
A click-through EULA has no validity in a court of law.
AccountKiller
Just because someone says something, doesn't make it so. Companies have been trying to put all sorts of stupid unenforceable things in EULA's for years. They know they will not work. However it does two things: One is that it may fool some people into not doing the said activity, even if they have a perfect right to, it costs them nothing to do so. Two is that while likely stuff like this will be thrown out, it strengthens some arguments, and starts building a history to call on later.
Basically stuff like this would be likely thrown out as a bad contract, and also as you cannot just supersede other rights/laws simply by "agreeing" to it.
I can make you sign a contract that if you don't pay me back my 20$ in 30 days I get to murder you without penalty. However after 30 days, you haven't paid, and I go murder you, well that contract is not going to protect me from the law. It may be considered in some way, but it does not supersede laws. Just like if you go sky diving, or white water rafting, you will sign all sorts of garbage saying under no circumstances are they liable for anything, and you will not sue no matter what. Those pieces of paper are mostly useless. If there has been negligence (which is really the only time a person is going to sue to begin with), those contracts/disclaimers do nothing. However they may still be considered, things like they were made aware of the risks involved, etc... which may give them some leverage or advantage in a case, but it is by no means a get out of jail free card.
This is why there are laws on the books in other places that specifically state you can't give up certain rights. That way the merchant can't make giving up your rights to a consumer protection law a term of the sale
I'm amazed that the right to form/join a class action suit hasn't been covered by such terms yet. Clearly merchants will take every opportunity possible to reduce or nullify any consumer protection laws they can, so there's really no reason any consumer protection right should be surrenderable.
I work for the Department of Redundancy Department.
....you pronounce that "win hate".
So what you're saying is that corporations must be people because winning a large monetary judgment is more important than justice?
Legal theory holds that "damages" are fundamentally monetary, and that a legal judgement can only grant monetary compensation in order to balance out the harm done. If you do $100 of property damage to my car, then you owe me $100. Fairly simple. ("Equity" was a distinctly different compensation that dealt with things that are non-monetary.)
But seriously. Yes, a real person dumped the toxic waste in my backyard, but the civil justice system doesn't generally care about punishing people for their actions, it's generally worried about returning the situation to the prior state before the damage. What good does it do for me to punish Charlie from the example, when he was operating under orders to dump the toxic waste there? I could not touch the people who were fundamentally responsible, unless I can prove that they were actually causally involved.
If people knew they'd go to jail for doing something illegal while at work, they'd do less illegal shit while at work.
People can still be held liable for criminal actions that they performed, even if those actions were done as an agent of a corporation. One does not gain immunity from criminal prosecution simply by being a corporate drone. Each person is responsible for their own actions.
However, considering that the criminal system is designed to punish people for their criminal actions, and not to compensate victims for the damages done, what you suggest would not be justice either. Sure, some people would go to jail, but what happens to me, now that my backyard is a toxic waste dump... do I have to spend money out of pocket in order to clean it up, with no compensation? Or should I be able to sue the corporation (and thusly, all of the collective persons owning the company, all together as one) in order to receive compensation for my loss?
WARNING! This girl exceeds the MAXIMUM SAFE standards established by the FDA for BRATTINESS