The UCITA does not say that you need to agree to an EULA in order to use the software. You are guaranteed the right to use software which you legally purchase by federal law.
If you don't like it, don't buy, it's really that simple.
How could he know that he doesn't accept the license terms until he sees them?
He could read slashdot once in a while.
So in other words, he should be able to get a refund on just the software?
He should be able to get anything the seller or state law allows him to get. If the seller doesn't grant refunds, and state law only guarantees refunds of complete products, then no.
Why? You are automatically assuming he's a troublemaker, and like I said, it makes you sound pretty prejudiced.
Because most slashdot readers, especially militant ones like the poster, already know about the Microsoft EULA.
Microsoft is dictating terms after the sale with the EULA.
Maybe they're trying to, but EULAs are noneffective.
I think you'll find that everywhere advertises it as Windows, not "A CD that contains Windows, which you may license if you accept the terms inside the box that you only get after you pay us".
I think it's common knowledge that "Windows" is shorthand for "A CD that contains Windows, which you may license if you accept the terms inside the box that you only get after you pay us."
But none of that is applicable for most users, because most users don't need to agree to the EULA in the first place.
If that's true, then why does it exist in the first place?
Well that's great, but Microsoft (and many others) argue that you need to agree to the EULA to use the software. It's even law in some places.
Not in the US, it isn't.
So if he doesn't get a refund, he's paid the "Microsoft tax": he's paid for Windows, even though he won't use it and doesn't want it, purely because they have a monopoly.
If you don't like it, don't buy, it's really that simple.
Here, the "return it" refers to the software product. Why should Microsoft be able to prevent the sale of the computer (or put another way: why should Microsoft be able to dictate the terms of the sale of the hardware - what authority gives them the right to say to the vendor "you must refund the whole package, not just our part")?
Microsoft shouldn't be able to dictate the terms of the sale. That's why their EULA is not binding on the person who sold you the software. As for the authority to tell the vendor what the vendor can and cannot accept, if Microsoft actually does that (and I doubt they do), the authority is a contractual agreement.
Perhaps he assumed there was a EULA that was acceptable.
Perhaps so, but I doubt it.
That makes you sound pretty prejudiced - assume he's a dick because he wants his money back for something that he bought in good faith?
I doubt he bought it in good faith.
In any other industry, dictating terms after the sale would be considered amazingly poor business, doubly so if you refused to take back the goods.
The only one trying to dictate terms after the sale is the purchaser. The seller sold a computer system with a CD, nothing more. Copyright law places certain restrictions on what can be done with that CD, which you need a license in order to do. But none of that is applicable for most users, because most users don't need to agree to the EULA in the first place.
It is quite common to sell things which can't be used for their intended purpose without obtaining a license. Car manufacturers do it all the time.
AFAIK there is no EULA delivered along with Red Hat that says you are entitled to a refund if you do not accept the terms.
There's none for Windows either. It says if you disagree, you must return the item for a refund. It never says you are entitled to that refund.
Most of the distribution is GPL'd but that grants you additional rights on top of those given by normal copyright law, so you don't have to accept it to use the system.
Again, same thing with the Windows EULA. EULAs can't take away rights without granting new ones.
Where the important difference comes in is a quasi-legal contract called the End User License Agreement which you must agree to be bound by if you wish to use the software.
Show me a court ruling that says that you must agree to be bound by the EULA if you wish to use the software.
99% of the population don't read them and simply accept them.
No, 99% of the population doesn't read them and doesn't accept them. 99% of the population is a lot smarter than you.
Frankly, I doubt your VW Golf, or your townhome came with such an agreement.
I'm sure his townhome came with a number of liens and easements. If there's a shared driveway easement which states that he can't build a barn in the middle of the driveway, he can't return the driveway to the seller for a refund.
The whole idea behind the Windows refund day is to illustrate that not even the software manufacturers pay any heed to their own EULAs.
Isn't the best way to do that to not pay any heed to the EULA, like 99% of the population already does?
That's just it - he may have accepted the purchase, but he didn't accept the EULA for Windows.
So he doesn't get any of the rights granted by the EULA. Big deal.
That same document states that if he doesn't agree to them, he can get his money back.
Sure, he can return his entire purchase for a complete refund.
The obvious way of fixing this is to present the EULA before purchase.
No, the obvious way of fixing this is to not buy products you don't want then whine about not being able to return part of them for a partial refund. If he honestly didn't know there was going to be an EULA then he can return the entire product for a complete refund. But I doubt that's the case. More likely he's just being a dick because he doesn't like Microsoft.
and refresh them onto new disks every year. Problem solved, though at 30 times the cost (assuming 10% interest rate and that you can't sell the used drives).
Sorry, but no matter how much lawyers will try to convince you otherwise, the fact that I haven't taken the bar exam has no bearing on the relevance of my opinions.
Let me be more blunt since the subtlety was lost on you: No terrorist will be able to construct a nuke of that size.
Are you 100% sure of this?
I have spent about 1/2 hour trying to find a ruling or law either way (regarding use of parabolic microphones for eavesdropping) and have been unsuccessful. It appears that, if your neighbors are standing on the sidewalk, it's probably legal to listen to, but not record, the conversation.
I meant the Supreme Court ruling, making the use of parabolic microphones unconstitutional.
The Fourth Amendment's "reasonable" clause refers to searches and siezures, not incarcerations.
Incarceration is a seizure. Should I cite the Supreme Court ruling which stated that?
Besides, if some guy sets the detectors off, the police are going to want to know why.
Sure they want to, but you're saying it's constitutional for them to force the person to tell them.
If the police stood idly by while the detectors went off, there would be minimal invasion of privacy. If that has been the entire thrust of your argument, than we are basically in agreement.
Sort of. My argument is that the use of the detector is not a violation of the Fourth Amendment. The strip search may be, depending on what other evidence was collected.
Obviously, that's not what is happening. When a detector goes off, the person setting it off is pulled aside, stripped nude, searched, and questioned. That's an invasion of privacy.
If that's indeed what's happening (that anyone who sets off a detector is strip searched), then I agree, it's an unlawful search.
As the Court rule in UNITED STATES v. KARO: "It is the exploitation of technological advances that implicates the Fourth Amendment, not their mere existence."
You're taking that out of context. The point is that the police aren't violating the constitution by mere possession of the device (in this case the radiation detector), but by its use in searching people with it. In this case, I disagree.
So what's to stop me from starting one corporation now and donating 250 million through that corporation (aside from the problem of where would I get 250 million)?
Corporations can't contribute to candidates. They can give soft money, but there's no limits on soft money.
It increases accountability. Sure, Windows clients can generally change their identification, but Windows clients generally are run by the system administrator. So if I get hacked by bill_gates@1.2.3.4, I'm going to ignore the identd at first. If it turns out to be a dialup then I can proceed to sue whoever was using that IP address. But if on the other hand it's a multiuser unix box, I'm not going to sue the admin, as long as the admin tells me who owns that account.
it's just not being used for its original intended purpose. How many people do you know trading warez on AOL, Yahoo, or MSN Messenger? Sure, there's some, but not nearly as many as good old IRC. Along with usenet, they're the original napsters.
First off, the "ordinary course of its operation" is itself suspect. Be "ordinary" or go to jail?
What are you talking about? First of all, "ordinary" does not compare to other things here, it means that usually this is what the device does. Secondly, there's nothing about anyone going to jail for not being ordinary.
There's a grey area here, in that if your circumstances force you to access your legally-obtained data in an unusual way, you could argue that that is ordinary for people in your circumstances, and in those circumstances the "ordinary course of [the access control method's] operation" is for it not to operate at all.
Sure, you could argue that, but you'd lose. First of all, for being a dick to a judge, and secondly, because if the ordinary course is for it not to operate at all, then the ordinary course is for it to require the application of information in order to gain access to the work.
Of course if it means "requires" in the absolute sense that the encryption is unbreakable, the law becomes redundant. In between I would suggest that an obviously naive encryption method could easily be said not to "require" assistance from the copyright holder.
Nope. Even a breakable encryption still requires the application of a process to gain access to the work. Also, the question is whether it requires this application "in the ordinary course of its operation." Once it is cracked it is no longer acting in the ordinary course of its operation.
Now, "with the authority of the copyright holder". That is plainly incorrect. The technological measure can only tell if you have the right key, not that you have the authority of the copyright holder to use it.
Once again you're mixing up the plain language here. "with the authoririty of the copyright holder" tells you where the process or treatment ordinarily comes from.
IANAL, but I am a picky, pedantic, bloody-minded and argumentative computer programmer (is there any other kind?;)
In order to understand legal documents you have to stop thinking like a programmer and start thinking like a lawyer. The difference is subtle, but it's most certainly there.
If you think any lawyer could shoot holes in these arguments you're probably right. But equally, a good lawyer could make them stand up.
No lawyer would make the arguments you're making because s/he would fear being found in contempt and/or disbarred.
There is ambiguity.
If this were a programming language perhaps, but humans are able to throw out obviously ridiculous interpretations of legal documents. It's one of the things that seperates lawyers from programmers.
Slashdot Mirror
If that's true, then why does it exist in the first place?
Oh yeah, also because many years ago there was no Title 17, Chapter 1, Section 117 (a) (1)
Ever heard of UCITA?
The UCITA does not say that you need to agree to an EULA in order to use the software. You are guaranteed the right to use software which you legally purchase by federal law.
If you don't like it, don't buy, it's really that simple.
How could he know that he doesn't accept the license terms until he sees them?
He could read slashdot once in a while.
So in other words, he should be able to get a refund on just the software?
He should be able to get anything the seller or state law allows him to get. If the seller doesn't grant refunds, and state law only guarantees refunds of complete products, then no.
Why? You are automatically assuming he's a troublemaker, and like I said, it makes you sound pretty prejudiced.
Because most slashdot readers, especially militant ones like the poster, already know about the Microsoft EULA.
Microsoft is dictating terms after the sale with the EULA.
Maybe they're trying to, but EULAs are noneffective.
I think you'll find that everywhere advertises it as Windows, not "A CD that contains Windows, which you may license if you accept the terms inside the box that you only get after you pay us".
I think it's common knowledge that "Windows" is shorthand for "A CD that contains Windows, which you may license if you accept the terms inside the box that you only get after you pay us."
But none of that is applicable for most users, because most users don't need to agree to the EULA in the first place.
If that's true, then why does it exist in the first place?
To scare people.
Well that's great, but Microsoft (and many others) argue that you need to agree to the EULA to use the software. It's even law in some places.
Not in the US, it isn't.
So if he doesn't get a refund, he's paid the "Microsoft tax": he's paid for Windows, even though he won't use it and doesn't want it, purely because they have a monopoly.
If you don't like it, don't buy, it's really that simple.
Here, the "return it" refers to the software product. Why should Microsoft be able to prevent the sale of the computer (or put another way: why should Microsoft be able to dictate the terms of the sale of the hardware - what authority gives them the right to say to the vendor "you must refund the whole package, not just our part")?
Microsoft shouldn't be able to dictate the terms of the sale. That's why their EULA is not binding on the person who sold you the software. As for the authority to tell the vendor what the vendor can and cannot accept, if Microsoft actually does that (and I doubt they do), the authority is a contractual agreement.
Perhaps he assumed there was a EULA that was acceptable.
Perhaps so, but I doubt it.
That makes you sound pretty prejudiced - assume he's a dick because he wants his money back for something that he bought in good faith?
I doubt he bought it in good faith.
In any other industry, dictating terms after the sale would be considered amazingly poor business, doubly so if you refused to take back the goods.
The only one trying to dictate terms after the sale is the purchaser. The seller sold a computer system with a CD, nothing more. Copyright law places certain restrictions on what can be done with that CD, which you need a license in order to do. But none of that is applicable for most users, because most users don't need to agree to the EULA in the first place.
It is quite common to sell things which can't be used for their intended purpose without obtaining a license. Car manufacturers do it all the time.
AFAIK there is no EULA delivered along with Red Hat that says you are entitled to a refund if you do not accept the terms.
There's none for Windows either. It says if you disagree, you must return the item for a refund. It never says you are entitled to that refund.
Most of the distribution is GPL'd but that grants you additional rights on top of those given by normal copyright law, so you don't have to accept it to use the system.
Again, same thing with the Windows EULA. EULAs can't take away rights without granting new ones.
Where the important difference comes in is a quasi-legal contract called the End User License Agreement which you must agree to be bound by if you wish to use the software.
Show me a court ruling that says that you must agree to be bound by the EULA if you wish to use the software.
99% of the population don't read them and simply accept them.
No, 99% of the population doesn't read them and doesn't accept them. 99% of the population is a lot smarter than you.
Frankly, I doubt your VW Golf, or your townhome came with such an agreement.
I'm sure his townhome came with a number of liens and easements. If there's a shared driveway easement which states that he can't build a barn in the middle of the driveway, he can't return the driveway to the seller for a refund.
The whole idea behind the Windows refund day is to illustrate that not even the software manufacturers pay any heed to their own EULAs.
Isn't the best way to do that to not pay any heed to the EULA, like 99% of the population already does?
Yes, but when you get charged for the bundled item even when you don't receive it then it's illegal.
Umm, he did receive it.
That's just it - he may have accepted the purchase, but he didn't accept the EULA for Windows.
So he doesn't get any of the rights granted by the EULA. Big deal.
That same document states that if he doesn't agree to them, he can get his money back.
Sure, he can return his entire purchase for a complete refund.
The obvious way of fixing this is to present the EULA before purchase.
No, the obvious way of fixing this is to not buy products you don't want then whine about not being able to return part of them for a partial refund. If he honestly didn't know there was going to be an EULA then he can return the entire product for a complete refund. But I doubt that's the case. More likely he's just being a dick because he doesn't like Microsoft.
My computer came with Red Hat. Where can I send the software for a refund?
Actually I'm 25 (26 if you round up).
What I mean is, I don't think an intelligent being would be capable of creating something that is more intelligent than himself.
My dad was :).
You should sell your program to Project Gutenberg.
No, there are alternative tests, such as audio ones.
driving the groom :)
and refresh them onto new disks every year. Problem solved, though at 30 times the cost (assuming 10% interest rate and that you can't sell the used drives).
I highly doubt that DVD-R lasts very long.
Sorry, but no matter how much lawyers will try to convince you otherwise, the fact that I haven't taken the bar exam has no bearing on the relevance of my opinions.
Let me be more blunt since the subtlety was lost on you: No terrorist will be able to construct a nuke of that size.
Are you 100% sure of this?
I have spent about 1/2 hour trying to find a ruling or law either way (regarding use of parabolic microphones for eavesdropping) and have been unsuccessful. It appears that, if your neighbors are standing on the sidewalk, it's probably legal to listen to, but not record, the conversation.
I meant the Supreme Court ruling, making the use of parabolic microphones unconstitutional.
The Fourth Amendment's "reasonable" clause refers to searches and siezures, not incarcerations.
Incarceration is a seizure. Should I cite the Supreme Court ruling which stated that?
Besides, if some guy sets the detectors off, the police are going to want to know why.
Sure they want to, but you're saying it's constitutional for them to force the person to tell them.
If the police stood idly by while the detectors went off, there would be minimal invasion of privacy. If that has been the entire thrust of your argument, than we are basically in agreement.
Sort of. My argument is that the use of the detector is not a violation of the Fourth Amendment. The strip search may be, depending on what other evidence was collected.
Obviously, that's not what is happening. When a detector goes off, the person setting it off is pulled aside, stripped nude, searched, and questioned. That's an invasion of privacy.
If that's indeed what's happening (that anyone who sets off a detector is strip searched), then I agree, it's an unlawful search.
As the Court rule in UNITED STATES v. KARO: "It is the exploitation of technological advances that implicates the Fourth Amendment, not their mere existence."
You're taking that out of context. The point is that the police aren't violating the constitution by mere possession of the device (in this case the radiation detector), but by its use in searching people with it. In this case, I disagree.
Obviously those are things editors should do, but the slashdot editors are notorious for being unable to spell even trivial words correctly.
I think you mean the Slashdot editors.
Yeah, I know it's proper, but it looks stupid.
"Life is just to damn short to worry about grammar on Slashdot!" - CmdrTaco
But only if he promises to stop capitalizing "web."
So what's to stop me from starting one corporation now and donating 250 million through that corporation (aside from the problem of where would I get 250 million)?
Corporations can't contribute to candidates. They can give soft money, but there's no limits on soft money.
It increases accountability. Sure, Windows clients can generally change their identification, but Windows clients generally are run by the system administrator. So if I get hacked by bill_gates@1.2.3.4, I'm going to ignore the identd at first. If it turns out to be a dialup then I can proceed to sue whoever was using that IP address. But if on the other hand it's a multiuser unix box, I'm not going to sue the admin, as long as the admin tells me who owns that account.
it's just not being used for its original intended purpose. How many people do you know trading warez on AOL, Yahoo, or MSN Messenger? Sure, there's some, but not nearly as many as good old IRC. Along with usenet, they're the original napsters.
First off, the "ordinary course of its operation" is itself suspect. Be "ordinary" or go to jail?
What are you talking about? First of all, "ordinary" does not compare to other things here, it means that usually this is what the device does. Secondly, there's nothing about anyone going to jail for not being ordinary.
There's a grey area here, in that if your circumstances force you to access your legally-obtained data in an unusual way, you could argue that that is ordinary for people in your circumstances, and in those circumstances the "ordinary course of [the access control method's] operation" is for it not to operate at all.
Sure, you could argue that, but you'd lose. First of all, for being a dick to a judge, and secondly, because if the ordinary course is for it not to operate at all, then the ordinary course is for it to require the application of information in order to gain access to the work.
Of course if it means "requires" in the absolute sense that the encryption is unbreakable, the law becomes redundant. In between I would suggest that an obviously naive encryption method could easily be said not to "require" assistance from the copyright holder.
Nope. Even a breakable encryption still requires the application of a process to gain access to the work. Also, the question is whether it requires this application "in the ordinary course of its operation." Once it is cracked it is no longer acting in the ordinary course of its operation.
Now, "with the authority of the copyright holder". That is plainly incorrect. The technological measure can only tell if you have the right key, not that you have the authority of the copyright holder to use it.
Once again you're mixing up the plain language here. "with the authoririty of the copyright holder" tells you where the process or treatment ordinarily comes from.
IANAL, but I am a picky, pedantic, bloody-minded and argumentative computer programmer (is there any other kind? ;)
In order to understand legal documents you have to stop thinking like a programmer and start thinking like a lawyer. The difference is subtle, but it's most certainly there.
If you think any lawyer could shoot holes in these arguments you're probably right. But equally, a good lawyer could make them stand up.
No lawyer would make the arguments you're making because s/he would fear being found in contempt and/or disbarred.
There is ambiguity.
If this were a programming language perhaps, but humans are able to throw out obviously ridiculous interpretations of legal documents. It's one of the things that seperates lawyers from programmers.