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more on the Vista EULA allows self-help
From: David Farber <dave () farber net>
Date: Thu, 23 Nov 2006 13:49:20 -0500
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 ------------------------------------- You are subscribed as carl () media org To manage your subscription, go to http://v2.listbox.com/member/?listname=ipArchives at: http://www.interesting-people.org/archives/interesting- people/
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- more on the Vista EULA allows self-help David Farber (Nov 23)