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more on the Vista EULA allows self-help
From: David Farber <dave () farber net>
Date: Wed, 29 Nov 2006 16:59:11 -0500



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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