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New Dell Clickthrough Software License 1003

Posted by michael
from the bright-ideas dept.
Petrol writes "I just read that Dell is installing a new mandatory click-through software license at first boot. From the article, Dude, you're getting screwed: 'Kat and I just received the Dell Inspiron 5100 notebook we ordered from Dell Canada. We quickly ran across problems.'"
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New Dell Clickthrough Software License

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  • by MattCohn.com (555899) on Friday August 29, 2003 @01:04PM (#6826209)
    Problem with that is, if I got an OEM laptop or computer the first thing I'd do is format the thing. How can they prove I read the licence if I needed to boot the thing to read it?
    • by FileNotFound (85933) on Friday August 29, 2003 @01:08PM (#6826252) Homepage Journal
      Simple. Put it in bios. No way to bypass that at boot unless yout open the PC and flash that. Even then...
      • Or.. (Score:5, Funny)

        by EvilBit (702787) on Friday August 29, 2003 @01:21PM (#6826419)
        .. shrink-wrap the laptop and stick a piece of paper on it.

        "By openning this package you agree to the following license."
      • by Magnor (611476) on Friday August 29, 2003 @02:05PM (#6827019)
        I've setup numerous inspirons with ghost. If this is the screen i'm thinking of, then it's on its own partition (about 30 megs or so) right before the boot partition. I don't believe this is stored in the bios. However, hypothetically, if it was, then yes short of a bios flash there would be no way around it.
    • by jridley (9305) on Friday August 29, 2003 @01:09PM (#6826273)
      Me, too. The first time I turn on a new machine, there's a bootable install CD in the drive.

      Actually, the FIRST thing I do is boot to a bootable CD with Drive Image in it. I make a virgin image onto CD-R, lock it away, then reformat the drive and reinstall from scratch. I started doing this back in the "shovelware" era (which still hasn't stopped for some mfgs) where the machine would come preloaded with tons of useless crap.

      Also I've received machines from major manufacturers that had really bad installs; wrong drivers, missing drivers, etc. I found I had much more stable machines if I just threw out their installs and did my own.
      • by Flabby Boohoo (606425) on Friday August 29, 2003 @01:16PM (#6826354) Journal
        Yeah, but that's someone with technical skills. The average person will not do that. The EULA BIOS idea is frightening though (a couple comments above).

    • by Anonymous Coward
      He had to agree to the license in order to reach the point where the hard drive could be formatted. The EULA screen appeared when he attempted to boot from CD.
    • by nahdude812 (88157) on Friday August 29, 2003 @07:03PM (#6829805) Homepage
      What if I'm blind? Is there a screen reader built in to this EULA? Maybe I'm "blindly" pressing keys till I can hit a key combination that I know turns on the Microsoft Narrator.

      Further, what if I let my 7 year old son have "the honors" of booting up the computer? Just because he pressed a key when he was told to, doesn't mean that I'm legally obligated by the agreement. I haven't agreed to anything.

      Further, what if I set this system up for my elderly grandparents. It doesn't belong to me, how can I be the one who agrees to it? Anyone who wanted to dodge this could *easily* claim that they never saw this screen, but that they had a friend or child set it up for them.
  • by RobertB-DC (622190) * on Friday August 29, 2003 @01:05PM (#6826217) Homepage Journal
    I'm a coder in a company that is fully compliant with all licensing agreements -- word is that someone let things slip before I was hired on, and the company paid a buttload of cash after getting audited.

    So you'd think that before we install a Visual Studio upgrade, we'd all get together in a meeting room and go over the EULA we will all be required to agree to.

    (Ok, have you finished laughing yet? Good, I'll go on.)

    As you already guessed, nobody reads the damned EULA... except me. I no longer read it from top to bottom, but I skim it for the latest additions. This earns me some good-natured razzing from my co-workers, but I've discovered some doozies.

    Remember those "required patches"? When I installed them, there was a EULA. This one said, "You are not allowed to publish the results of benchmark testing of the .NET Framework." What the f*** does that have to do with installing a required security patch? It's like the sign at Wal-Mart [breathingplanet.net] saying employees of competitors are not allowed to compare prices. Maybe they can get away with it, but that doesn't make it right.

    Another memorable EULA quote: I'm forbidden to use Visual Studio tools to make any word processing or spreadsheet application, unless it's a small part of a larger application. Unlike Open Source, if a Microsoft-enchained programmer (like me) invents a better mousetrap, they're verboten to release it.

    If end-users actually read the EULAs (like our heroes in the article), there'd be riots in the virtual streets. As it is, nobody reads the EULA, and ignorance is bliss [chuckjerry.com].
    • by raehl (609729) * <raehl311 AT yahoo DOT com> on Friday August 29, 2003 @01:17PM (#6826364) Homepage
      When it comes time that someone actually tries to enforce one in court, the fact that no one ever reads them will make a good case for them being invalid - it shows that sticking a bunch of text between a user and using a product they just bought is not an effective means of establishing a binding, legal agreement.
      • by militantbob (666209) <militant&nycap,rr,com> on Friday August 29, 2003 @01:23PM (#6826443) Homepage
        Well the courts MAY take that argument... although legally, they shouldn't.

        Rights are rights, and rights and limitations granted by accepting agreements should stick. If the user can't be bothered to read the agreement before accepting it, the company shouldn't be bothered trying to enforce what contract law states that the cops and courts should enforce automatically.

        If ignorance of law is no defense of violation of law.. how can ignorance of contract be any defense at all?
        • by robocord (15497) on Friday August 29, 2003 @01:34PM (#6826609)
          There have been several instances where the courts have refused to enforce a contract because the user was unable to read or to understand the entirety of it. IANAL, and I do remember that there were very specific circumstances, but it has happened. Cases like that are one of the reasons that your Mortgage agent has to go through the whole bloody mortage agreement with you, clause by clause, before they'll even let you sign it.
          • by pmz (462998) on Friday August 29, 2003 @01:56PM (#6826908) Homepage
            Cases like that are one of the reasons that your Mortgage agent has to go through the whole bloody mortage agreement with you, clause by clause, before they'll even let you sign it.

            It's interesting how companies will spend lots of money and resources properly aquiring real estate but totally blow past the legalese for software. If this isn't an inicator about the immaturity of the software industry, I don't know what would be.
        • by dschuetz (10924) * <slash AT david DOT dasnet DOT org> on Friday August 29, 2003 @01:34PM (#6826620) Homepage
          Well the courts MAY take that argument... although legally, they shouldn't.

          Rights are rights, and rights and limitations granted by accepting agreements should stick.


          Yes, but have you really agreed to the EULA when you click "I Agree"? Legally, that's untested.

          I think we'd all agree that you can't put a EULA on the screen with the words "If you blink in the next 30 seconds, you affirm acceptance of the follwing terms and conditions." Right? So why is "by clicking, you agree" considered legally binding?

          I have yet to see a single, documented, upheld court decision asserting that these click-throughs are really legally binding. Admitedly, the UCITA laws change it a little, but then it changes from someone challenging EULAs to someone challenging EULAs as allowed by UCITA.

          If ignorance of law is no defense of violation of law.. how can ignorance of contract be any defense at all?

          True, but the ambiguous point of click-through licenses is that you've not really signed any contract, especially in cases like this, where they ask you to accept something you haven't seen (and which they've failed to provide you). If you close your eyes and just hit keys randomly until the EULA screen goes away, can you legally be held responsible for whatever may have been "agreed to" without your knowledge or consent?
          • by Martin Blank (154261) on Friday August 29, 2003 @01:45PM (#6826764) Journal
            There is also little direct proof that you clicked the approval. What if your kid got to the laptop first and went through it? If the kid is under 18, it's a gray area at best on the applicability of a contract to him. Are you responsible then for a contract you never saw that was "signed" by someone not able to sign a contract alone in the first place?
            • by Graff (532189) on Friday August 29, 2003 @02:09PM (#6827089)
              If the kid is under 18, it's a gray area at best on the applicability of a contract to him. Are you responsible then for a contract you never saw that was "signed" by someone not able to sign a contract alone in the first place?

              Actually it's not a grey area at all. Any contract signed by an unemancipated youth is null and void if the youth decides that they don't want to be bound by it. In the case of child actors and such it is the primary caregiver or some other responsible agent that signs the contract and pledges that the child will work, not the youth.

              Each state in the United States has their own versions of contract law, here's an example from California [weblocator.com]:
              Capacity of the Parties

              In order to be bound to a contract, the parties must be competent to enter into such a legal arrangement. Underage persons, persons who are mentally ill, and intoxicated persons are usually not held to the contracts they enter. However, a minor may have the option of enforcing a contract.


              So yes, this would most likely get around any user agreement or contract that you have to "click-through". Just have your 5 year old kid press the key and click on the buttons and then you are home free to do whatever you want with the software. Of course if it came down to a court case you would have to convince a court that you truly never saw or agreed to the clauses.
              • by Martin Blank (154261) on Friday August 29, 2003 @02:45PM (#6827506) Journal
                Having your 5-year-old kid do it could be construed as an active attempt to avoid the responsibilities of the contract. However, there are a lot of people who would just say to their teenager, "Bobby, I'm busy here. Can you go set up the laptop for me?" Whether it's being done to avoid the license or out of ignorance of how to truly set it up, you never saw the license, and so you never knew about it.
                • by Dyolf Knip (165446) on Friday August 29, 2003 @04:12PM (#6828518) Homepage
                  Having your 5-year-old kid do it could be construed as an active attempt to avoid the responsibilities of the contract

                  And what of it? If ABC Software Company expects me to be legally bound to an agreement, they'd damned well better make certain that I'm the one who agreed to it. If they really want it to be binding, they'd need to have a Real Person (TM) watch me click "I Agree" or sign a real physical contract. Instead they're willing to entrust that responsibility entirely to a computer that has no idea if it is even a human being, much less the actual purchaser of the product, that is agreeing.

            • by bobthemuse (574400) on Friday August 29, 2003 @03:21PM (#6827905)
              This would be the perfect job for students during the summer. For $5 a pop, they can accept all license agreements during installs of software, etc. License is unenforceable.

              I'd love to see something like this go to court...just to show the sad state things are in.
          • by neomorph (172439) on Friday August 29, 2003 @02:12PM (#6827118)
            I have yet to see a single, documented, upheld court decision asserting that these click-throughs are really legally binding.

            Here's a U.S. Supreme Court Decision that does just that: InfoWorld article [infoworld.com]

          • by Atario (673917) on Friday August 29, 2003 @02:20PM (#6827223) Homepage

            My first experience with this kind of nonsense was with a box containing the install disks (and by "disks" here, I mean 3.5" floppies, this being about 13 years ago) for Macintosh System 6.3. There, spanning the gap over the disks in their little plastic tray, was a paper sticker proclaiming that, by breaking the seal, you agreed to...something. Of course there was no room on the sticker for the actual contract you were supposedly agreeing to by the tearing of a paper, and it wasn't clear where this "agreement" referred to actually was. But, trickster that I am, I found that I could slip the disks out one by one without tearing the sticker. (Looking back on it now, I suppose I could have cut the back of the plastic tray with a box-cutter, but no matter.)

            Since then, of course, this silliness has escalated to the point where the events in the article come to pass: you are required to do something which you could do entirely by accident, which is supposed to signify that you agree to something you aren't told, and in fact have no way of finding out about without doing the thing you're supposed to do. Double Catch-22 ("Catch-44"?).

            So how about this: we start sending mail (real, physical mail might make more of an impression, but email could be good for a larf too) to these companies, proclaiming on the outside of the envelope (or, in the case of email, in the Subject: or some other more obscure header line) that, "by opening this mail, you agree to the enclosed agreement". Then, inside, you have whatever agreement amuses you. For example:

            The opener (you; hereafter, 'Dorkus') agrees provide me with all the free cookies, hundred-dollar bills, and blowjobs I ask for, and like it, in perpetuity, throughout the universe, forever and ever, amen.

            If anyone ever tries to call you on their EULA, simply fire back that they agreed to your UALA (User Abuser License Agreement) too, and it's equally enforceable.

        • by Anonymous Coward on Friday August 29, 2003 @01:39PM (#6826690)
          IANAL, but i am a law student. if you purchase something, and clauses are presented to you after the purchase then they are unenforceable, full stop.
        • by Minna Kirai (624281) on Friday August 29, 2003 @01:39PM (#6826695)
          If the user can't be bothered to read the agreement before accepting it,

          But the fact is, they're not "accepting an agreement". They are either "installing software" or "applying a patch".

          Either of those activities is something they are legally allowed to do, since they've already paid for the software.

          Popping up a piece of legalese and claiming that a person agrees to it by performing some other action- which you have no right to forbid him from doing- is invalid. Watch this: "By closing this browser window, you agree to mail Minna Kirai $700". Is that binding? (I wish).

          The ProCD decision widely cited as precedent for the validity of shrinkwrap licensing is simply wrong. If it ever gets kicked up to the Supreme Court, they'll immediately see why. It claims that by opening a box, the user has indicated acceptance of a license. But it is impossible to "indicate" anything if the other party has no idea whether or not you've performed the action! "Indication" can only happen if communication occurs.

          The parties to a shrinkwrap or click-thru "license" are not in communication, thus they have no way to enter a contract.
        • by SatanicPuppy (611928) <`Satanicpuppy' `at' `gmail.com'> on Friday August 29, 2003 @01:48PM (#6826807) Journal
          Actually, it is a defense, for the same reason that, if I came on to your land, passed all the no trespassing signs, broke into your house, and then hurt myself, I could still sue you for having an unsafe environment. My having read the signs, and even committing an illegal act, does not remove your liability in this case.

          The same thing applies when you sign a legal waiver. Those can be overruled if the court believes that the injury you experienced was beyond the scope of the waiver.

          EULA's are very shady, for the most part, and I would say if one was ever seriously challenged in court, it would very likely be declared non-binding.
        • by cybermage (112274) on Friday August 29, 2003 @01:54PM (#6826881) Homepage Journal
          Well the courts MAY take that argument... although legally, they shouldn't.

          I agree that ignorance is no excuse, but here's some issues where challenges could be raised:

          By the time you get to read a click-thru agreement, you've already made the purchase in a typically non-refundable fashion. They've accepted your money with the only license being their protection under copyright and whatever is printed on the outside of the box. Don't like what's inside, "sorry no refund, you've opened it."

          When you're presented with an EULA for a software patch, their basically saying, "we'll fix your broken copy of our software if you agree to the following ..." This is wrong for a few reasons: 1) There's nothing stopping them from breaking it on purpose (e.g., delibertately cutting corners in QC) so as to backdoor clauses into the contract. 2) If the patch in question involves security issues, they may be liable for damages for withholding the patch. 3) In a sense, amending the contract when patching a program, is like extorti0n. "We wouldn't want anything to happen to that nice computer of yours, would we?" 4) For a contract to be binding, each party gives something to the other. (I give you money, you give me software. You give me patch, I give you what?)
      • When it comes time that someone actually tries to enforce one in court, the fact that no one ever reads them will make a good case for them being invalid

        " No, officer. I didn't actually READ the posted speed limit. May I go now? "

        Last I checked, being ignorant of the terms of an agreement one enters into, when those terms are made clear and available, does not excuse one from abiding by those terms.

        If the agreement was INSIDE the shrinkwrap (as has been tried before), and you are made to agree to it by
        • Last I checked, being ignorant of the terms of an agreement one enters into, when those terms are made clear and available, does not excuse one from abiding by those terms.

          The difference being, the speed limit is a LAW and the EULA is a CONTRACT.

          If some large company sues you for violating the EULA, your legal defence would be something along the lines of "I'm sorry, I don't recall signing anything to that effect."
    • I'd be really interested to see the portions of the EULAs you mention. If you have the time, please post them to Slashdot here.

      Thanks.
      • by RobertB-DC (622190) * on Friday August 29, 2003 @01:36PM (#6826656) Homepage Journal
        The reply to the first reply to my message (whew!) includes a couple of links. Just to round things out, here's another reference [sun.com] I was able to find (on Sun's site, how ironic).

        This one is the closest to what I remember agreeing to. It's actually the license to use ODBC, which was a virtual requirement for accessing databases from Visual Basic in our environment at the time (apparently '96-'97).

        Here's the salient paragraph (emphasis and examples mine):
        (ii) The following additional restrictions apply if you use the SOFTWARE other than solely for internal business purposes. (For applicable licensing terms for all such uses of the SOFTWARE, please contact Microsoft Corporation at (206) 703-4515.) (1) You may commercially distribute the SOFTWARE only in conjunction with and as part of your software product to which you have added significant and primary functionality and value. (2) Unless your software product requires your customer to license Microsoft Office for Windows, or a component of it, in order to operate, you may not reproduce or use the SOFTWARE for commercial distribution in conjunction with a
        general purpose word processing [no competing with Word], spreadsheet [or Excel], or database software product [Access, ditto], or an integrated work or product suite [like Office] whose components include a general purpose word processing, spreadsheet, or database management software product except for the exclusive purpose of importing or exporting data to the various formats supported by the SOFTWARE and included in your application (e.g., reading data from and writing data to a single data source at one time). Note: a product which includes limited word processing, spreadsheet, or database components along with other components that provide significant and primary value, such as an accounting product with limited spreadsheet capability, is not considered to be a "general purpose" product.
        I found a number of references to the .NET benchmarking restriction on a Google search [google.com], if you're interested.
    • by SatanicPuppy (611928) <`Satanicpuppy' `at' `gmail.com'> on Friday August 29, 2003 @01:29PM (#6826528) Journal
      I'd like to see them go to court over this stuff sometime. With any other type of product, you have some sort of recourse if it totally sucks, but not with software. According to the terms of the EULA, it doesn't have to actually do anything, but if it does do something, and that something is bad, then it's not their fault.

      I've grown to hate dell so much in the last few years. That tech support call is vintage dell. I haven't had a good experience with dell tech support in so long, I can't even remember the last time. Their service personel are hopelessly incompentent...grrrr.

      Let me just give an example:

      I used to work for a company that had sold a large number of dell rack servers with PERC 3 (i think) RAID controllers. Don't know who made these controllers, but they sucked. BIG TIME. It was to the point where the systems with NO redundancy, just a simple harddrive, were far more reliable.

      Every time a RAID controller died, we called dell, and every time they managed to destroy the damn RAID information! EVERY TIME! It didn't matter if they sent a tech, or tried to give us phone support, BAM! The whole thing went into the toilet and we had to try and rebuild it to the point where we could get some information off it.

      I've seen a damn situation where a dell tech had to go replace a FRICKING HARD DRIVE. A HOTSWAP harddrive, in a computer that didn't HAVE a raid problem, and the bastard managed to kill the RAID! All he had to do was pull the bad drive, and slot the new one in, and the damn thing would have rebuilt ITSELF!

      And on top of all of this, they are SO stingy about sending parts, or replacing faulty equipment. I am NOT going to spend a month rebuilding a whole box one part at a time. That is UNACCEPTABLE! I have to spend hours on the phone trying to work through tech support on an issue where I already know what the problem is and I just need them to send me a fricking part!

      I really can't come up with a company I'd be less willing to buy a computer from. I'd buy one off a blanket from a cracked out junkie in Times Square before I'd call them again.
      • by Nynaeve (163450)
        Question: If computer company X (insert HP/Compaq, Dell, Gateway, etc.) is so awful, how are they still in business?

        Truth is, they won't be.

        Packard bell and many others are nowhere to be found nowadays. Compaq was on its last legs when the merger occurred. Home computers (not business computers, though -- different world!) are a commodity, and the tier 1 vendors now firmly believe they can save more by shafting the customers that complain than they can gain by supporting them.

        Answer: Buy from a reputa

    • by Anonymous Coward on Friday August 29, 2003 @01:32PM (#6826587)
      There's an easy away around the EULA. I always install my EULAed software stoned drunk. No contract is valid if you're not in your sane mind.

      Another alternative is to have your 5 year old child to install the software. He can't agree to anything.

      You don't actually need to agree to the EULA to run the software. But if you don't, your license automatically falls into standard copyright law which basically gives you more rights than most EULAs.
    • by SlashChick (544252) <ericaNO@SPAMerica.biz> on Friday August 29, 2003 @01:33PM (#6826598) Homepage Journal
      First of all, I completely agree that some of the EULA clauses in proprietary software are absurd. (If I remember correctly, Microsoft did remove the benchmark testing clause at some point, however.)

      But open source software has some equally bad doozies.

      For instance, I write a software application similar to phpMyAdmin. It's open-source by nature since it's written in PHP, but I don't use the GPL or a free software license -- I sell the code and the users are then free to make any modifications they wish, but they have no redistribution rights (much like the vBulletin license. [vbulletin.com])

      This software lets clients update a database easily. It uses MySQL as the backend.

      Recently, MySQL changed their client license to the GPL. This means that ANY application that uses the MySQL client software (e.g. mysql_connect() and mysql_query() in PHP) must now be GPL, or you must pay a license fee to MySQL. This has upset many developers [heroicdesigns.com], and it will cause PHP itself to drop the MySQL client libraries since PHP isn't a GPL application. (The MySQL client libraries will be a separate download.)

      Basically, the MySQL license change has polarized the development community into those who say "F*ck 'em; everything should be under the GPL anyway" and those who say that MySQL led everyone along until it became popular, and then decided to cut off their developers.

      I have four choices now:
      1) Release my application under the GPL, which grants redistribution rights to anyone I sell it to (i.e. anyone could buy it once and put up the application on Joe Blow's Download Site for free). I don't consider this a viable option because I don't want to allow redistribution rights for free.
      2) Pay $220 per server to MySQL for my application. That is to say, pay $220 for our database server, and force my clients to pay $220 if they don't want to use our database server and hosting service. I don't consider this a viable option either, because I feel that it's blackmail.
      3) Only use old versions of MySQL with my application.
      4) Switch to PostgreSQL.

      Obviously, #3 and #4 are what I've decided on. This means porting over 2500 lines of code to ADOdb [weblogs.com] (a database-independent PHP layer which I have used before with great success) and then testing everything with PostgreSQL instead. It means learning an entirely new database, and it means pulling ALL of my existing customers to a new database.

      So while you may say that "Microsoft suxx0rs" because of their EULAs, I say that open-source often does the same thing. Look at Red Hat's absurd EOL policy. Why? Because they've finally figured out what step 2 in the following equation is:

      1) Release open-source software
      2) Charge people money for your product after you've locked then in, since they've already decided to base a business/software product around it
      3) Profit!!

      Only this won't work for MySQL, and it won't work for Red Hat either. I'm switching away from both. They've both been great for me, but I don't consider blackmail a viable business plan.
      • by darkov (261309) on Friday August 29, 2003 @01:43PM (#6826739)
        Why don't you write a little adaptor that connects to the mysql db that your app connects to (without linking to it) and GPL that?
      • by earlytime (15364) on Friday August 29, 2003 @02:46PM (#6827515) Homepage
        SlashChick,

        I think your frustration with mysql and the GPL is based on common misconceptions about free software and teh GPL. First off, "free software" is more like "Freedom" than "zero cost". Look in google for the old discussions about free software vs. free beer. They're not the same thing. Also read Stallman's musings about "software libre" and "software gratis".

        Secondly, the GPL's requirements for redistribution are not as all-encompasing as you might think. A program that uses another program that is GPL does not need to be GPL. Consider that many vendors (i.e. Checkpoint, Tivo, Google, VMWare) use linux as a core part of a commercial software product. Some elements of those products, generally modifications to GPL source code, are required to be GPL. However the majority of the product is not at all GPL.
        Because MySQL release the client software as a library, you may choose to structure your application so that those portions that directly access the GPL client software are distributed separately, and are released under GPL. The rest of the program would go through your client app to access the mysql cliet library to query the database.
        Note that the FSF advises that passing data to & from a GPL program does not normally constitute a derivative work. You would be passing data in a way that is consistent with simply using the program.
        see:http://www.gnu.org/licenses/gpl-faq. html#TOCGP LAndPlugins

        Consider these examples,
        1. I write a shell script that uses bash, I release that script as a commercial, non-free software product. This is an acceptable distributon of GPL software in conjunction with non-GPL software.

        2. I write an extension to bash, that via changes to the bash source code, adds a new capability to bash. Distribution of this extension must be under the terms of the GPL.

        Remember that by design, the GPL tries to protect the original rights of the developer, not to attempt to extend those rights onto to new programs not authored by the developer. Don't believ the MS hype about viral software, it's misinformation, and it harms both sides of the free software debate.
    • Remember those "required patches"? When I installed them, there was a EULA. This one said, "You are not allowed to publish the results of benchmark testing of the .NET Framework." What the f*** does that have to do with installing a required security patch?

      For what it's worth, Network Associates lost a lawsuit [zdnet.co.uk] over this very issue (benchmark banning). Companies will write whatever they want into EULAs but that doesn't make them enforcable... the sad thing is that a lawsuit typically has to be involved
  • yeah sure. (Score:5, Interesting)

    by garcia (6573) * on Friday August 29, 2003 @01:05PM (#6826222) Homepage
    Now, they figure no one reads the EULAs anyway, so why bother even providing a copy?

    Duh!

    First off, I have worked in customer service/tech support and have heard exactly "who reads those things anyway?" "you just click ok." Right.

    Second, you are surprised that CSRs don't have ALL the information they need to do their jobs? Policy changes daily and even though the CSRs are the "front line" they are never told until it's too late.

    Third, I just dealt with someone today (not computer related). They clicked through a document they should have read. It explained the policy they were trying to excuse themselves from. The exact quote was, "I saw the thing I clicked through, I never read those, no one does. You can't expect me to now agree to that." Sadly, this is commonplace. It's not advantageous to read them or ignore them. If you do read them, you have to go through a lengthy process to return what you disagree with (no company expects that more than a handfull of people will ever decline), if you do agree what good does it do you? You either a) didn't read and comprehend the rights you were signing away or b) you did know, you knew it probably wouldn't matter, and when it did matter, you already sold your soul.

    That's why these things should be illegal.

    That's my worthless .02
    • Duress (Score:3, Interesting)

      by Anonymous Coward
      If you do read them, you have to go through a lengthy process to return what you disagree with (no company expects that more than a handfull of people will ever decline), if you do agree what good does it do you? You either a) didn't read and comprehend the rights you were signing away or b) you did know, you knew it probably wouldn't matter, and when it did matter, you already sold your soul.

      How much worse do things have to get before EULAs reach the legal standard of "agreed to under duress" for unenfor
  • Wow. (Score:3, Funny)

    by Saint Aardvark (159009) * on Friday August 29, 2003 @01:06PM (#6826228) Homepage Journal
    Let's start a pool on how long Dell takes to respond to this. I've got fifteen minutes from post-time. Anyone else? Prize: oh, I don't know, karma or something...
  • by joeldg (518249) on Friday August 29, 2003 @01:06PM (#6826236) Homepage
    all I can say is "press yes" or "I agree"

    hey.. I always agree..

    whatever, what on earth can a license from them accomplish anyway?

    Perhaps I have been using open source software for too long and am out of the loop, but do these things honestly matter in hardware.. You get a warranty, that is all I care about..

    Maybe I am missing something here, but to agree with these stupid licenses on websites that all state they can be changed at any time for any reason would be the legal equiv of suicide in the real business world..

    Guess I am just agreeable.. too much floride in my water or something..

    • by Soko (17987) on Friday August 29, 2003 @01:21PM (#6826415) Homepage
      You: Hi. My Inspiron laptop is busted - the PC-Card slot is fried.
      Dell: OK, service tag?
      You: 8xchyyw
      Dell: OK. What do Windows diagnostics say?
      You: Windows? This is running Linux.
      Dell: Sorry sir, your laptop is supposed to be running Windows, and is now out of warranty.
      You: What? How could running Linux possibly void my warranty?
      Dell: Please read your EULA again, sir. Have a nice day. *click*

      I'd read all of the agreements if I were you, friend. Lawyers can be nasty creatures.

      Soko
  • by mopslik (688435) on Friday August 29, 2003 @01:07PM (#6826242)

    I'm finally connected to a Customer Care representative... She insists she doesn't have copies of the agreements, and that I'm supposed to go online and look them up myself. (?!) She says to use a public computer if I have to.

    I think we've reached a new low for customer support!

  • Any Key? (Score:4, Funny)

    by blackmonday (607916) * on Friday August 29, 2003 @01:07PM (#6826245) Homepage
    Any key?

    The worst part is that they wanted him to press a key that doesn't even exist on his keyboard!

  • Um... (Score:3, Informative)

    by Chicane-UK (455253) <chicane-uk&ntlworld,com> on Friday August 29, 2003 @01:07PM (#6826246) Homepage
    Dell have something similar to this already.. its an agreement that you have to accept which is part of their BIOS - first time you switch the machine on it comes up with a whole bunch of T&C's which you have to 'hit any key' to accept.. the machine then resets itself (removing that screen) and the system will boot through the BIOS as normal.

    They have had this for at least the two years we have been buying their workstations & servers.
    • Wrong (Score:3, Informative)

      by Andy Dodd (701)
      That's not in BIOS. It's in a small hidden partition on the hard drive that is initially toggled bootable, which un-toggles itself after you accept.

      If you fdisk the hard drive and completely reformat it, you will never see the clickthroughs.
  • Enforcement (Score:5, Interesting)

    by Godeke (32895) * on Friday August 29, 2003 @01:07PM (#6826247)
    If this guy documented the steps he took, I suspect if he was to go to a judge, the judge would consider any agreements past that point unenforable. An "agreement" is just that. If one party is not given even a portion of the agreement's content, the entire agreement can be found to be invalid. If they can't provide agreements after that much work, any legal enforcement of those agreements would be in serious question.

    Of course, lots of software has the agreement in the box, and you can only view it after breaking the seals (making the software unreturnable). Most companies try to get around that by saying you can get a refund if you don't agree to the terms, and then fail to provide a channel for such refunds. Again, as they have broken the agreement, I doubt any further terms would be enforcable.
  • getting absurd (Score:5, Insightful)

    by prichardson (603676) on Friday August 29, 2003 @01:08PM (#6826259) Journal
    Ok, an EULA for hardware? We're venturing into the land of the absurd here. What's next, installing new components in your computer is reverse engineering? I can understand software EULAs, but hardware? Hardware isn't just a license, it's tangible. I really should be able to do with it what I want (excluding using it to beat someone or something like that).
  • Already slow (Score:5, Informative)

    by Anonymous Coward on Friday August 29, 2003 @01:08PM (#6826260)

    Dell's Software License Policy

    Dude, you're getting screwed

    28 Aug 2003

    Kat and I just received the Dell Inspiron 5100 notebook we ordered from Dell Canada. We quickly ran across problems.

    I pushed the power button to turn on computer. I got the Dell POST screen, then a screen from Dell (Photo [slashdot.org]):

    SOFTWARE LICENSES

    - Before using your computer, read all of the software license
    agreements that came with each program that you ordered.
    There may be several agreements to examine. To comply with
    the terms and conditions of the software license agreements,
    you must consider any CD or diskette set of Dell-installed software
    as BACKUP copies of the software installed on your computer's
    hard-disk drive.

    - If you did not order Dell-installed software for this computer,
    or if you do not accept all the terms of the licenses, please call
    the customer assistance telephone number listed in your system
    documentation.

    Press any key on the keyboard to indicate that you have
    read all of the software licenses and agree to their terms.

    Be Direct TM
    Dell TM
    www.dell.com

    But there are no license agreements in the box that the computer came in. [There are some shrinkwrapped CD containers, but the "Terms and Conditions of Sale (CANADA)" that came with the invoice says:

    "7. Software. All software is provided subject to the license
    agreement that is part of the package. Customer agrees that
    it will be bound by the license agreement once the package is
    opened or its seal is broken. Dell does not warrant any software
    under this Agreement. Warranties, if any, for the software are
    contained in the license agreement that governs its purchase
    and use."

    I've never agreed to those Terms and Conditions, to my knowledge, but I assume they think they're enforceable, so I can't open up the shrinkwrap to see if the license agreements are in there, without automatically agreeing to them.]

    So I called the only Dell number I could find on my documentation (1-800-847-4096) and spoke to a customer support representative. I told her what was on the screen, and told her I couldn't find the license agreements I'm required to read and agree to before pressing any key.

    She put me on hold while she looked into where the license agreements might be, and eventually transferred me to technical support. The tech support agent told me her database was down, so she couldn't look up anything at all (I hadn't even told her what the problem was yet), and I'd have to call back in an hour.

    I call back, and speak to a tech support woman. She says: "press Tab." I explain that I can't without saying I've read and agreed to documents I don't have. She says "press page down". Same problem. She says "scroll down". I explain it's not a Windows screen. She says "insert any Dell-shipped CD". I exlpain the problem of opening the CD packaging.

    She insists I have to press a key. I ask her if she really means that I have to agree to the licenses before it's at all possible that i've read them. She says "yes". I explain that that's not acceptable, and ask for her supervisor.

    Her supervisor insists it's a Customer Care issue, and not tech support, and that there's nothing he can do. He can't explain why they sent me to him. He enters my info into the call log databse, and I go to call back Customer Care.

    So back into the hold queue I go.

    I'm finally connected to a Customer Care representative. [Pretty much each sentence in the following was interspersed with long, long times on hold.]

    She looked up the call log to get the background info. She insists she doesn't have copies of the agreements, and that I'm supposed to go online and look them up myself. (?!) She says to use a

  • by sphealey (2855) * on Friday August 29, 2003 @01:10PM (#6826280)
    Well, the article is now Slashdotted so I can't get the exact quote. But in there somewhere he says the manager of customer service would not accept his complaint and would not give him a mailing address.

    In this situation, one needs to write a letter stating one's problem or complaint in clear, calm, non-abusive language. Look up the corporation's VP of Customer Service, Chairman of the Board of Directors, and Chief Legal Counsel (all names should be available through finance.yahoo.com). Send the letter to each of them at the address where the company accepts legal correspondence (also available from public sources). That course of action is far more likely to get results in difficult or complex circumstances than endlessly e-mailing or calling worker bees.

    Remember, the worker bees aren't fibbing: they really can't do anything outside corporate policy if they want to keep their jobs

    sPh

  • Invalid license! (Score:5, Informative)

    by Anonymous Coward on Friday August 29, 2003 @01:15PM (#6826336)
    Uhm, licenses you are forced to agree to before reading them are null and void! Under contract laws, these arrangements are illegal. A contract entered into under misleading or coerced circumstances is broken. Even severability clauses may not apply ( IE, if some part of this contract is found to break a law, then only that part of the contract is broken, and the rest of the terms are still binding ). Since you can't even read that clause if it existed, it doesn't exist.

    Essentially, the defaults of copyright, customer service, and warranty laws would then apply.

    Bad move for Dell, as whatever rights they want you to throw away, you can't! Since the 'License' is non-binding, well. MUHAHAHA!

  • By Coincidence... (Score:3, Interesting)

    by Orne (144925) on Friday August 29, 2003 @01:15PM (#6826347) Homepage
    My dad's Dell PC arrived on August 11th... by late afternoon I assembled it and had him hooked up to a new ISP [earthlink.com]. And one day later (if you recall [slashdot.org]) the PC was hit by the Blaster worm.

    My dad was not happy... The thing was fresh out of the box, and here I was explaining to him that the patches had been available at microsoft.com since mid-July, and Dell was shipping unpatched software.
    • Re:By Coincidence... (Score:4, Informative)

      by MImeKillEr (445828) on Friday August 29, 2003 @01:24PM (#6826462) Homepage Journal
      Having worked at Dell, I can tell you why.

      They use an in-house software installation applet called RIATA (don't ask what it stands for, I never knew).

      Here's how it works:

      The systems are built using the same hardware. Each system is tracked by internal code name (laptops usually follow a cigar theme, desktops another, etc). Once a working profile is created for a particular line of hardware, its stored on the imaging server. Network-enabled DOS-based bootdisks are inserted into the systems and predefined scripts are run that will automatically install the OS and all bundles. If all is successful, the DOS window's background changes to green. Remove the disk, shutdown and move to the next one. If it fails, there's a warning buzz and the screen changes to red. Look at the logs and find out why, restart.

      Now, this all sounds relatively easy, but searching for the latest available packages and drivers based on X, Y, Z hardware types and versions is a regular PITA. Fortunately, RIATA replaced FIDA (similar program, developed by the same group) which was a lot shittier.

      I worked in a lab. We were CONSTANTLY having to build new RIATA packages for the laptop line.

      They probably *do* have the production images updated on a semi-regular basis. Anyone who installs a system or gets a new PC needs to check for the avilability of updates regardless.

    • Re:By Coincidence... (Score:4, Interesting)

      by TeddyR (4176) on Friday August 29, 2003 @01:24PM (#6826466) Homepage Journal
      someone would say that since you hooked up the PC, and did NOT do a windowsupdate to get the latest patches installed, then you might also be partly to blame.. the patch WAS avail. [also you seem to foget that the cycle between imaging the drive and actually shipping can take at LEAST a couple of months]..

  • Text mirror (Score:5, Informative)

    by soulsteal (104635) <soulsteal@NOSPam.3l337.org> on Friday August 29, 2003 @01:18PM (#6826383) Homepage
    Here [3l337.org].
  • Something New? (Score:5, Informative)

    by LamerX (164968) on Friday August 29, 2003 @01:22PM (#6826432) Journal
    My inspiron 2650 came with this feature almost a year ago. I called Dell and asked them "What if I don't agree with the license?" He said, "Boot off of your new OS CD and format the hard drive."

    I was like OK. That was what I did. If you do format the hard drive, then you're not bound to the terms. If you never use that OS, then you are fine.

    Okay maybe it wasn't a click-through process. But it said "Press the space bar to agree to the terms of the license agreement."

    So, I don't see what the big deal is. You're not forced to agree. You're not agreeing by using the laptop, so what?
  • What next? How far in advance can they (conceivably) go? Will I have to agree to the software terms before I open the box?

    Before I may enter the website? Before I walk in the store?

    How about before I get in the car to go to the store? Before I get internet access?

    Before I leave the house in the morning? Before I get a credit card to pay for my ISP?

    Before I wake up? Before the internet is invented?

    Before I was born? Before the great landmass of Pangea split into the continents we know now?

    Before the land that time forgot was forgotten? Before the cosmic dust coalesced into the planets of our solar system?

    BEFORE THE FABRIC OF TIME, SPACE AND DIMENSION WERE TORN ASUNDER BY THE GREAT GOD ALGOROTH AND FASHIONED INTO THE UNIVERSE??

    Fuck it, I'm getting an Apple.

  • by klaxor (702442) on Friday August 29, 2003 @01:23PM (#6826446)
    I'd just send this off via registered mail:

    Dear Dell,

    By opening this letter, you agree to the terms of the revised license agreement herein:

    You agree that any prior End User License Agreements to which I have agreed are now invalid.

    Thank you, ....
    • by jefu (53450)
      This just has me thinking that I'd like to set up a special checkbook with a statement on each check that says something like :


      "By cashing this check you agree to my EULA and all its terms and conditions and you further agree to indemnify me for any legal expenses I may incur if you decide to give me legal trouble. My EULA may be found on my website at .... . "

  • Hey Dell You're nuts (Score:3, Interesting)

    by The Terminator (300566) on Friday August 29, 2003 @01:24PM (#6826460)
    If I read it right they put it in BIOS?

    Then in Germany they have to disable it or refund. Legally it's a defect of the machine. Every EULA and other crap the dudes invent in their hybris is plainly null and void in Germany.
    If you buy something every rules you are forced to accept after the purchase is considered void. And if you are hampered in the use of such a good it is considered a defect and you are entitled for remedy or refund.

  • by alchemist68 (550641) on Friday August 29, 2003 @01:28PM (#6826523)
    I am happy to own an Apple Power Macintosh. Apple doesn't screw around with its users. Apple doesn't put all kinds of weird icons like AOL, MSN, EarthLink on my desktop. The computer comes out of the box with a blank desktop, no gimick license agreements, and best of all, everything works well all the time. Good God, why oh why do people WASTE their time with Wintel?

    My boss just won the raffle for an old company laptop. He went out and purchased a wireless PC card. When he installed it and loaded the software, the software said to install the Windows 98 2nd Edition installation CD. Well, he didn't have one since it was a recently retired company laptop, and installation CDs at the company are VERBOTTEN except for the IT department. I told him if he had an Apple, everything would have worked from the beginning, and he still would not have had to install any additional software. He spent 5 hours playing around with installation CDs at home, calling the wireless PC card company to see if they could just email him the drivers, he's even contacted the company IT department and they haven't gotten back with him yet. By golly, that old laptop sure was a bargain. That's 5 hours he could have used for spending time with his family, having fun, or doing something truly productive. I guess it comes down to "What is your time worth in your life?" Personally, I don't have any time to waste and I need everything to work out of the box with no fuss.

    Apple, it's the way to go for personal computing needs. All you can do with a PC is use it as a space heater, a door stop, or an enclosure for a fireworks event.
  • by buelba (701300) on Friday August 29, 2003 @01:29PM (#6826532)
    The "shrinkwrap license" we all hate is just another example of a long-standing practice by commercial operators. When you park your car, for example, a lot of times the bottom of the ticket says "By accepting this ticket you agree that our liability if your car gets hit is capped at $500," or something like that. These contracts are called "contracts of adhesion" (because they adhere to the ticket or whatever) and terms of these contracts are often found unenforceable by the courts. Any reasonable lawyer, not working for one of the sides in this issue, would say that substantial doubt surrounds the enforceability of shrinkwrap licenses in the United States.

    BUT bad people are trying to change all that. They've come up with a proposed law, called the Uniform Computer Information Transactions Act, or UCITA. UCITA would, among other things, explicitly make shrinkwrap licenses fully enforceable. This would be a very bad thing.

    UCITA is already the law in Maryland and Virginia. If you live in those states, move!

    For more information on why UCITA is bad, click here. [4cite.org] Find your state representatives here. [vote-smart.org] Tell them what you think.

  • Arrgh! (Score:3, Funny)

    by vonFinkelstien (687265) on Friday August 29, 2003 @01:41PM (#6826713)
    Pharisee: The next person who says, "Dude!" is going to be stoned!
    Person A: You said, "Dude!"
    Crowd: Stone him! Stone him!
    Person B: He said, "Dude!" too!
    Crowd: (Yells and throws stones at everyone)
  • Unenforcebale (Score:5, Interesting)

    by taustin (171655) on Friday August 29, 2003 @01:41PM (#6826719) Homepage Journal
    This took from around 3pm to around 8:30pm today. I'm just bewildered that Dell corporate policy is that users need to lie to use their new laptops, and to agree to legal agreements that it's completely impossible to have read.

    If you can't read it, legally, you can't agree to it. It is unenforceable, period. Since it is unenforceable, and invalid on its face, that means the user is bound only by Title 17 copyright law.

    Very simple situation.

    Perhaps Dell is doing it on purpose because Microsoft is forcing them to use an unacceptable EULA, and this is their way to working around it.

    In any event, this isn't exactly a new issue. It's been well covered by contract law for decades, even centuries.

    You can't be held to an agreement you weren't allowed to understand.
  • Scary thought part 2 (Score:3, Interesting)

    by Stonent1 (594886) <stonentNO@SPAMstonent.pointclark.net> on Friday August 29, 2003 @01:53PM (#6826868) Journal
    Dell laptops support embedded HD passwords as do many other brands. They could set the EULA to refuse to unlock the HD unless you agreed. Locked drives will not even function in other computers.
  • by AgTiger (458268) on Friday August 29, 2003 @02:05PM (#6827030) Homepage
    Dogbert: "Please read me the serial number on the inside of the case of your computer."

    End User: 'But that will void my warranty.'

    Dobgert: "Call me if anything changes."

  • by Animats (122034) on Friday August 29, 2003 @02:08PM (#6827066) Homepage
    • Has this happened to you? You plunk down a pretty penny for the latest and greatest software, speed back to your computer, tear open the box, shove the CD-ROM into the computer, click on "install" and, after scrolling past a license agreement which would take at least fifteen minutes to read, find yourself staring at the following dialog box: "I agree." Do you click on the box? You probably do not agree in your heart of hearts, but you click anyway, not about to let some pesky legalese delay the moment for which you've been waiting. Is that "clickwrap" license agreement enforceable? Yes, at least in the case described below.

      decision by William C. Young, U.S. District Court Judge [haledorr.com]

    There are some painful lines in that decision, such as "Money now, terms later" is a practical way to form contracts, especially with purchasers of software."
  • by Cerlyn (202990) on Friday August 29, 2003 @02:15PM (#6827170)

    Not to brag, but I submitted this story to slashdot three years ago [slashdot.org].

    Dell has been doing this for quite some time.

  • by greymond (539980) on Friday August 29, 2003 @03:15PM (#6827829) Homepage Journal
    I agree with his frustration, but honestly, if your buying a namebrand system (especially M$ henchmen Dell) you should expect to agree to every EULA ever written for any and every version of Windows. All name brand systems pretty much have the standard "This is sold with Windows OS and you agree to all Microsoft End User Licenses by using this system because they paid us a lot of money to ship our systems with their OS and you are not smart enough to build your own and/or install something other than Windows"

    The fact that he escalted such an issue shows more of how much time he is willing to waste to prove HIS point. Thats really all this was.

    I can imagine the author thinking - Hay i'm bored so i'm gonna bitch about the most mundain part of a contract I can and see how far I can get with this, then i'll post it to slashdot where everyone hates M$ and Dell enough that it'll get posted and my website will get tons of traffic and i'll become an internet rockstar - look how 1337 I am.

    Besides - how many people "borrow" software from firends - install it, yet obviously had to agree to the EULA that came with it that told them specifically not to do that? And i'm not talking about software "piracy" in the sense of warez, i'm talking about how my aunt gets some cheeseball program and then my cousin says - hay that looks cool can I borrow that to install on my system and so she does - neither one knows/realizes they did anythign wrong - but then again - neither one has that thing called "the internet web"

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