New Dell Clickthrough Software License 1003
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.'"
Problem with that... (Score:5, Insightful)
Re:Problem with that... (Score:5, Insightful)
getting absurd (Score:5, Insightful)
Dude, you are over-reacting. (Score:0, Insightful)
Do they force you to sign the license or click accept? NO
Can you return the laptop, get money back and buy another product? YES
And really, how problematic is this license really, to me it looks like a ordinary Windows EULA.
Re:Problem with that... (Score:5, Insightful)
Re:Dude, you are over-reacting. (Score:2, Insightful)
how problematic is this license really
The problem is he had to agree to the license terms in order to be allowed to read the license terms! And the customer support line wouldn't give him the license terms when he called. How is that NOT problematic?
Re:What an Ass (Score:2, Insightful)
"You must be new here."
People on Slashdot regularly fight incessantly for pedantic, yet idealistic goals, because they have nothing else to do with their time. I'd get used to it.
Re:It's good that nobody reads them. (Score:5, Insightful)
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?
Such a joke (Score:2, Insightful)
Re:Problem with that... (Score:2, Insightful)
Re:Spectacular. (Score:2, Insightful)
Re:What's the big deal? (Score:3, Insightful)
Re:What's the Point of this? (Score:5, Insightful)
This is more of an issue if you are in fields like medical, defense, and other such data / privacy oriented environments. Agree to a EULA that lets a third party monitor data on your computer in these environments and you could conceivably go to prison if not get sued. The factory images can't be trusted, and are always unsuitable to business use. As a result most business or government systems are imaged before ever being put into use.
The other problem is the license agreements are forced to be agreed to blindly without an option to decline. It would be different if the message on boot brought you sequentially through all software liceneses, with an opportunity to decline and still use the hardware. Afterall, it's the hardware that I'm buying, especially if I want to use Linux. The license agreements may be commonplace and ignored, but unfortunately there also presently considered legally enforceable contracts. Makes me wonder when someone will prove a point on this by making a license that requires the turnover of a persons' estate when they die.
Re:It's good that nobody reads them. (Score:5, Insightful)
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?
Re:What's the Point of this? (Score:1, Insightful)
Re:What's the big deal? (Score:5, Insightful)
Really? Are you a lawyer? How did you reach that decision? What country are you discussing when you say that?
For Canada, you're quite wrong [ualberta.ca]. There have been cases and EULAs have been upheld.
In the US, it's more questionable. There have been judgements either way, but from my reading of this article [lawnotes.com] it would apear that they are more likely enforceable than not. The ProCD case is pretty damning from the POV of the average consumer. You don't even need to be able to read the license before agreeing to it as long as you can return the software afterward. Isn't that fun?
There are exceptions. The license cannot violate the law, nor can it be "unconscionable" (yeah, there's a term that'll be fun to define, just like "pornography"). The appellate court's ruling is not binding except inside of it's perview, and even then only specifically to Wisconsin. But it's apparantly a well regarded Federal appellate court and its decision is going to be cited/referred to in any other cases regarding EULAs.
IANAL. But I'm at least willing to do a Google search rather than spout my opinion on this kind of thing. I find most of the more absurd T&C's in EULAs to be "unconscionable", as I'm sure many
Re:It's good that nobody reads them. (Score:5, Insightful)
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.
Re:Already slow (Score:5, Insightful)
That's how to fix this problem. If enough people were calling about it that Alan Burley spent 4 hours a day on this issue, the problem would be solved next release.
Re:from reading that article.. (Score:2, Insightful)
India.
The reason I pulled you over... (Score:3, Insightful)
" 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 opening the box, then you would be right. But, as you are given the opportunity to not agree to the terms, logic (not Law, since Law and logic are not always in sync) dictates that the terms are, in fact, binding.
Re:It's good that nobody reads them. (Score:5, Insightful)
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
Re:It's good that nobody reads them. (Score:5, Insightful)
What would be very helpful is if you could establish the "looks like a duck, quacks like a duck" precedent that as a matter of public policy it is indistinguishable from a sale, so that your comment would apply.
Re:Contacting publicly traded corporations (Score:3, Insightful)
They should write a letter to the Delaware Attorny General [state.de.us] (according to the SEC web page Dell is incorporated in Delaware) and the Better Business Bureau [bbb.org].
Let them know the customer service manager at Dell told you to lie and accept the conditions of a legal document that they refuse to send you.Re:Problem with that... (Score:2, Insightful)
Problem with that is RTFA!!! Damn it, I know it's slashdot, but it says right in it that they tried this.
Sorry, I don't always read them, but I do if I'm going to comment on it.
I know, flamebait.
Why EULA's are unenforcable. (Score:2, Insightful)
"The software is installed" is not good enough, as there is nothing to say that:
A) I installed it, caused it to be installed, or accepted it's installation.
B) Even if I did any of the former, there is no proof that the software did not in some way malfunction (perhaps due to a temporary computer memory glitch) and thus did not present the EULA, presented it in an unreadable format, or presented a modified EULA that did not match the terms they expected.
C) Even assuming that I installed it, that the EULA was presented in a reasonable format, and that the terms were as they specified, there is nothing to say that the software did not malfunction in such a way that caused it to continue with the installation even after I indicated that I would not accept the agreement.
And this is without going into the whole questionable legality of presenting the terms after the purchase.
EULA's exist only because they've never been seriously challenged.
Re:The reason I pulled you over... (Score:3, Insightful)
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."
Re:It's good that nobody reads them. (Score:4, Insightful)
The EULA is clearly NOT a part of the sale - this is part of number 3. The EULA is only presented AFTER money has changed hands. For the EULA to be part of the sale, the EULA would have to be presented and signed at the time of purchase. Software companies don't want the hassle and lost sales that actually presenting them as contract agreements would entail, so they treat them like sales but claim they're contracts. Fuck that.
Re:Link to Supr. court decision upholding click-th (Score:5, Insightful)
Re:It's good that nobody reads them. (Score:3, Insightful)
Please note the word "agreement." It is key. That is why the button says, "I agree."
Just what constitutes a legally binding agreement is legally defined. If the law states that you were for some reason or other ( like ignorance. You can't be held to terms that weren't expressed in the contract, for instance) incapable of making a valid agreement ( like you were wacked out on crack at the time. You can try to get a client drunk and then get him to sign, but it won't hold up in court if he chooses to challange it).
Contracts, under law, require legally valid consent.
Damned good thing too as otherwise you'd just be getting bills in the mail for goods and services you didn't request and be liable for them.
Nevermind the fact that sometimes ignorance of the law is even a valid defence in criminal cases, as many crimes require an intent to knowingly commit the crime.
So, ironically, the blanket statement "Ignorance of the law is no defense" is ignorance of the law.
Go figure.
KFG
Re:Happens in Open Source too! (Score:2, Insightful)
Re:The reason I pulled you over... (Score:2, Insightful)
And since you signed and paid them, you've now accepted the contract, and have no legal recourse for ignoring the posted signs.
Re:It's good that nobody reads them. (Score:4, Insightful)
Re:Happens in Open Source too! (Score:2, Insightful)
Re:just another reason... why I put Windows on HD (Score:4, Insightful)
Oh, this is so true. That's why I've been putting a copy of Windows in a subdirectory on the hard drive since Windows 98. It just saves so much trouble, and hard drive space is cheap anyway.
Dell Config, and to bypass the screen/license (Score:1, Insightful)
drive has 2 partitions:
1) Dell Utility Parition
2) whatever OS Dell had installed. (i've seen 2KPro/XPHome/XPPro)
now that first partition is really a partition with a FAT system running all the diagnostic tools, and has the little "license agreement" thingy in there. (load knopix/lnxbbc/any other distro and check for yourself).
On a machine that comes out of the factory (refurbished or not), that first parition is the active partition. and that's what the machine is going to load first.
Normally, that program displays 2 things: the "please read the EULA" and also "this is your DELL tag for support" (if any). Once you have agreed with that, it set the second partition to active (for the next boot) and chainboot the NT bootloader, which then loads NT. Once you restart, the "normal" NT bootloader starts...
So, in order to bypass that license screen, you need to install another OS, and make it bootable with the "bootable flag" so as to boot normaly after being shut down (read: not MBR install).
I hope this clears some questions about what is what, and how it works... Someone with the technical knowledge would be able to bypass the click through, IF THEY KNEW IT WAS THERE.
IANAL--salt applies
(by reading this, you agree not to make me responsible for your own actions...)
LOL - what an annoying bastard.... (Score:5, Insightful)
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"
Re:It's good that nobody reads them. (Score:3, Insightful)
Re:It's good that nobody reads them. (Score:4, Insightful)
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.
Re:It's good that nobody reads them. (Score:2, Insightful)
However, what they try and do is this.
"By copying this product onto the hard-drive of your computer, or into memory at runtime, you are making a copy of our copyrighted work. This is illegal. However, we will allow you to do this, if you agree to this handy End User Licence Agreement. And it is a licence, as you need our ongoing permission every time you install or run our software."
This is very very iffy, legally. In the UK, for example, copyright law specifically allows people to make transient or permanent copies if such a copy is essential to use the software. Other countries in the EU specifically allow backups.
Doesn't stop companies sticking EULAs in software sold in the UK though.
In effect, EULA's are an attempt to fool the gullible into giving up their rights. Clued engineers and lawyers won't be fooled, but the general public, when quoted from the legal agreement they 'signed', will fold.
It should be noted though, things like Terms of Service, where there is an ongoing purchase relationship with the customer, i.e. cable subscription, or virus updates, are significantly more enforceable. Generally, such 'contracts' can have aspects that are invalid, i.e. where they try and get you to void certain inalienable rights, but are still enforceable in part, as a rule.
Dell Intends to commit fraud. (Score:5, Insightful)
What's really troubling about all this is that Dell is selling you a system, collecting your money, and then trying to change the terms of the deal after the deal has been closed. They are not telling you about the restrictions in the licence terms before you pay your money and commit to the deal. You open the box and you find that Dell intended to give you less than they told you about, up front.
THIS IS FRAUD!
No honorable person can do this to his customers. How can we escape the conclusion that there are no honorable people in charge at Dell? I don't understand why we, as a culture, don't treat these dishonorable people like the criminals that they are.
Adrian
Re:Or.. (Score:2, Insightful)