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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

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