more on the Vista EULA allows self-help

[David Farber <dave () farber net>]

Begin forwarded message:

From: Carl Malamud <carl () media org>
Date: November 29, 2006 4:52:07 PM EST
To: "David P. Reed" <dpreed () reed com>
Cc: dave () farber net
Subject: Re: [IP] more on the Vista EULA allows self-help

Hi David (and David) -

Sorry for the delay in answering ... been on the road.

IANAL, and have not studied licensing in depth, but I remember
from landlord/tenant law quite a few terms that end up being
thrown out by the court.

But, I don't think it's a punative thing unless there is real
fraud going on.  It is simply the court saying "you can't sign
away certain rights" or "this is over-reaching."  But, the key
thing is you don't get into court until somebody has enough
real damage to get standing.

In the EULA case, I'm not sure where the consumer gets that
damage.  But ... the good news is that this is often the province
of groups like the states attorneys general or the FTC.  The
bad news, of course, is that they don't necessarily view this
as a real issue.  :)

But, rather than looking for a cause of action, I'd be looking
for a friendly attorney general in a state that has strong
consumer protection laws on the books.  And, even then, you
might find the clauses they don't like are not necessarily
the ones you don't like.

Carl

> IP readers probably would love to hear the answer to this, from  
> Carl or
> others:
>
> Not being a lawyer, this may not be possible, but if a EULA is
> *intentionally* misleading (claiming more than is legally possible),
> can't someone sue the propagator of such a EULA for damages?
>
> For example, if an ISPs Acceptable Use Policy says you cannot do  
> certain
> things, but the actual applicable law says that you cannot be  
> prevented
> from doing such things by an AUP, shouldn't the deceived customers  
> have
> a cause of action?
>
> And of course, enforcing such an invalid AUP should be extremely
> prejudicial.   Perhaps the ISP could then sue its lawyers for drafting
> such a fraudulent document, especially if they should have known that
> such limitations on the power of AUPs were on the books?
>
> That should kill a lot of overwrought shrink-wrapped licenses in the
> bud.  Lawyers don't like to be made the targets of suits for  
> misdrafting.
>
> David Farber wrote:
> > Begin forwarded message:
> >
> > From: Carl Malamud <carl () media org>
> > Date: November 23, 2006 12:05:21 PM EST
> > To: dave () farber net
> > Subject: Re: [IP] the Vista EULA allows self-help
> >
> > Dave -
> >
> > On the subject of EULAs, just like leases, warranties, and other
> > documents, it is worth keeping in mind that just because the
> > document says certain things the courts may not necessarily
> > agree with those terms:
> >
> > http://en.wikipedia.org/wiki/EULA#Enforceability
> > http://www.eff.org/wp/eula.php
> >
> > That doesn't mean the documents in question are any easier to
> > swallow, but there is at least a glimmer of hope in that
> > courts have often struck out more egregious terms.  A EULA,
> > like a patent, is more like a license to sue than a definitive
> > agreement.  (Of course, it would be nice if the legislative
> > branch would decide that there are too many such licenses in
> > the world instead of making us depend on the all-too-unpredictable
> > nature of the judiciary.)
> >
> > Carl
> >
> > > Begin forwarded message:
> > >
> > > From: Seva Batkin <sbatkin () gmail com>
> > > Date: November 22, 2006 3:51:07 PM EST
> > > To: dave () farber net
> > > Subject: the Vista EULA allows self-help
> > >
> > > Hi Dave,
> > >
> > > I just wanted to point out that the following portions somewhat
> > > exaggerate the issue:
> > >
> > > "Now if Microsoft breaches the contract it wrote, the Vista EULA,
> > > what are your rights? Well, according to the terms of the agreement
> > > you agreed to, "you can recover from Microsoft and its suppliers  
> > > only
> > > direct damages up to the amount you paid for the software. You  
> > > cannot
> > > recover any other damages, including consequential, lost profits,
> > > special, indirect or incidental damages." So if your entire network
> > > is shut down, and access to all your files permanently wiped out,  
> > > you
> > > get your couple of hundred bucks back - at most. And, as far as I  
> > > can
> > > tell, there are no warranties on the license, no assurance (like the
> > > kind you would get on a toaster oven or a lamp) that the thing
> > > actually works or does any of the things advertised. "
> > >
> > > In reality, if you use Microsoft Windows to run your mission
> > > critical, or for that matter virtually any corporate network, your
> > > rights and obligations in relation to Microsoft are not governed by
> > > the EULA, but by the contract that your firm signed with MS or its
> > > distributor. Just like contracts with ISPs and Telcos, these provide
> > > for SLAs, for damages for non-compliance, etc. Frankly, why would
> > > anyone expect otherwise? Why would a company that sells you  
> > > something
> > > for $200 want to assume a multi-million dollar risk? It wouldn't,  
> > > and
> > > no other company does, AFAIK.
> > >
> > > "What is worse, if you just want to get your money back (assuming
> > > Microsoft doesn't want to give it to you) then you have to file a
> > > lawsuit (probably in Redmond, Washington) under the laws of
> > > Washington State, and if (and only if) you can prove your case, and
> > > your damages, can you get your money back. "
> > >
> > > I don't know if the EULA also contains a forum selection clause, but
> > > if it doesn't the rules for where it can be filed are rather broad,
> > > and more chance than not that you can file it wherever you live.  
> > > Even
> > > if there is a forum selection clause, there is still a good argument
> > > to be made for filing a law suit in your own jurisdiction.
> > >
> > > "You aren't entitled to, upon your belief that there was a breach of
> > > contract, simply walk up to the cash register at your local Fry's or
> > > Best Buy and take a couple of hundred bucks from the till. This is
> > > called "self help" (or theft) and is not generally allowed as a
> > > contract remedy."
> > >
> > > When ARE you entitled to do that?
> > >
> > > -- Thank You,
> > >
> > > ----------
> > > Seva Batkin B.Eng.
> > > Technology and Legal Research Services
> > > Tel: (778) 389-7382
> > > Fax: (604) 677-5345
> > >
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