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.'"
I get razzed all the time at work... (Score:5, Interesting)
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
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].
yeah sure. (Score:5, Interesting)
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
from reading that article.. (Score:5, Interesting)
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..
This only (Score:1, Interesting)
Enforcement (Score:5, Interesting)
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.
Re:Problem with that... (Score:5, Interesting)
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.
Contacting publicly traded corporations (Score:5, Interesting)
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
Anyone home at dell? (Score:1, Interesting)
I had a problem with my recent Dell Laptop, I should have a $450 rebate and my packing slip only said $100. The only reason I brought the laptop was because of this rebate. I tried calling Dell and they said I needed to talk to my sales rep, his name is Eric Coley at eric_coley@dell.com [mailto]. He apologized and said they would send a new packing slip and that I should not send in my rebate for the $100 yet. A few weeks later nothing, I keep calling and leaving messages and emailing and no answer. Perhaps one of you could get through and tell him Blaine Hilton is waiting his response. You can call him at 1-800-WWW-DELL, choosing option 1 and then entering his extension of 58682.
I've heard other people have the same problem. I guess the next step is to file complaints with the FTC, and the BBB. I also have wasted over 20 hours in this whole mess.
Duress (Score:3, Interesting)
How much worse do things have to get before EULAs reach the legal standard of "agreed to under duress" for unenforcable contracts?
By Coincidence... (Score:3, Interesting)
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:yeah sure. (Score:2, Interesting)
I think a strong case could be made that no one can be reasonably expected to read, understand, and abide by these overlong, overcomplicated, and overrestrestrictive "license agreements". To the average Joe, it's just the button you click to install the software.
Besides, what about the doctrine of first sale? Attempting to make a purchase into a license after the sale has taken place, just doesn't seem legally enforcable.
It's good that nobody reads them. (Score:5, Interesting)
current state of software licenses (Score:2, Interesting)
they figure no one reads the EULAs anyway, so why bother even providing a copy?
This whole incident is a great example of an interesting progression of trends these days - zillions of home users have no idea that software licenses really mean anything, and now a huge vendor (Dell) doesn't even bother providing a copy of a license. But they're still forcing the user to agree to it before they can boot their new computer. What's the point then? What's the legality of forcing the user to agree to something that is actually impossible to agree to (given that it doesn't exist and can't be provided by the company)? When are we going to see an overhaul of the licensing patterns in this country, so that they're not so silly and empty? Next thing you know, SCO is going to try to get in on this Dell licensing issue somehow... Why not just say, "By clicking here, you agree that we can do whatever we want, whatever that may be, whether or not we inform you beforehand"? I can see the follow-up posts now... "they already do that"
Re:I get razzed all the time at work... (Score:3, Interesting)
Thanks.
Re:from reading that article.. (Score:5, Interesting)
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
Hey Dell You're nuts (Score:3, Interesting)
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.
Re:By Coincidence... (Score:4, Interesting)
Re:Wow. (Score:2, Interesting)
I'll have to disagree. There are probably many of us here on
The latter case might also be where the most resistance takes place (wait, who am I kidding?). Single users are probably far more likely to ignore EULA's than large corporations who risk an audit, and fines are multiplied by the number of offenses.
Happens in Open Source too! (Score:4, Interesting)
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.
Re:Boot settings (Score:1, Interesting)
I also first go into the BIOS
What if it doesn't let you go into BIOS configuration but instead goes through an uninterruptible "fast POST" and then shows the "all your base are belong to us" screen?
Re:I get razzed all the time at work... (Score:3, Interesting)
Comment removed (Score:2, Interesting)
Re:Already slow (Score:3, Interesting)
The reason I opted out originally was that Dell ships an OEM version of Windows XP Pro that requires unplugging additional hard drives (to the original PC setup) in order to reinstall XP (a common occurence with developers). Calls to Microsoft garnered the reply that I should buy an "over-the-counter" version of XP Pro. But, I had just purchase XP with my computer. Why was I sold a crippled copy of it, I enquired. It isn't crippled, they replied. Then why do I have to buy another version? Long pause...because it's an OEM version. I sincerely believe Microsoft drones think this is sane logic.
Regardless, the answer was simple. Bite the bullet, switch to Apple and forget applications that don't run on them. I have to say, best decision I ever made. I'll never buy another Dell or Microsoft product again.
See the effect of dicking the customer around, Dell...Microsoft? Hello? Anybody listening?
Re:Dude, you are over-reacting. (Score:1, Interesting)
"You will void your warranty if you do not agree to the terms and conditions in the owners manual located in the glove box. You can accept these terms and conditions by unlocking the car door."
Did you have to buy a GMC? NO
Do they force you to unlock the door? NO
Can you return the truck and get your money back? At the added expense of shipping, hassle, and time spent, probably.
He obviously wants the computer since he ordered it in the first place but there was no indication when he ordered it that a catch-22 [infoplease.com] clause existed in the bundle.
Dude, you're confused (Score:2, Interesting)
Well, first off he haven't ordered any programs! Secondly, he ain't got no licenses! So he may consider himself having read all of them already.
It goes like this: If you have TWO licences in the box, you need to read TWO licenses to have read them ALL, right? Duh! Well, if you have ONE liccense, you need to read ONE license to have read them ALL. Right? Well, then, if you have NO licenses...you can see where I'm going...you don't need to read NO licenses to have read them all. Make sense??
Unenforcebale (Score:5, Interesting)
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.
Re:It's good that nobody reads them. (Score:1, Interesting)
Re:You did not understand the article (Score:1, Interesting)
Personally, I would never trust a OEM preload. Who knows what backdoors or rootkits one of the staffers placed on the install. Remember, some one creates the image that is preloaded at the factory.
When in doubt, reformat, in OEM preloads , doubt always!
Re:It's good that nobody reads them. (Score:5, Interesting)
Re:It's good that nobody reads them. (Score:5, Interesting)
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.
Scary thought part 2 (Score:3, Interesting)
Re:It's good that nobody reads them. (Score:4, Interesting)
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.
Re:It's good that nobody reads them. (Score:5, Interesting)
Another important point with contracts: the courts have been known to discard clauses that the signatory could not reaonably have expected to be present. The original precedent - I don't have the actual citation handy, I'm sure someone can google it up - was a case where a man signed a friend into the hospital. He thought he was signing consent forms; there turned out to be a clause wherein he agreed to take financial responsibility for the medical bills if the patient was unable to pay. Well, when the bill came due he refused to pay and went to court, where the court agreed that a reasonable person would not expect to find such a clause in the contract.
Given the nature of some of these clauses, particularly on the security patches, I don't think the courts would hold them valid, completely aside from the other obvious points that have been brought up. (Lack of negotiation, consideration, etc.)
Re:Already slow (Score:2, Interesting)
This sounds like it means that you cannot make a copy of the software in case the "originals" get damaged. Copyright provides for the creation of backup of purchased software but this is the backup.
Re:EULA's are terrible (Score:3, Interesting)
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 reputable local shop where you talk face-to-face with someone about your problems, and their continued existence depends on providing you with a solution.
If you buy a computer from a web site, and you have problems, you are at their mercy -- no two ways about it. Now, they realize they can blow you off or give you the run-around and there is nothing you can do about it (for all practical purposes, anyway). If you return the product, then you aren't a customer, and they don't care about you or your feelings. If you are trying to get them to repair something, they can still nitpick you to death about the warranty and attempt to invalidate it. Should that not be effective, they can harass you with "misunderstandings" and "lost information" until you go insane. Never mind it would be cheaper to help you from the beginning -- it's not about the cost to the company, it's how it's reported. If they can shuffle the cost of not supporting you to a different part of the company, their accounts look even better, in an "WorldCom/Anderson" sort of way.
Re:It's good that nobody reads them. (Score:2, Interesting)
Bullshit. If I bought it, I own it.
You only own a license to use the software owned by the software publisher.
Bullshit. The receipt says that I bought the software. Nothing except the EULA says that it's not a sale. Legally, it's a sale. The contents of the EULA mean exactly squat.
If the store I bought it from has a contract with the software vendor that says that they're not allowed to sell the software, then that's none of my concern. If they didn't make me aware that it's not a sale, then it's not my problem.
No msdn.microsoft.com license? Au contraire? (Score:5, Interesting)
I'd paste some of the Terms of Use, but then I'd be violating the third paragraph. Actually, taking the fascistic bent (hey, when has Microsoft ever been a stickler on the terms?) you can't write a program based on the information presented there, since it'd be a derivative work of the information presented there (again, third paragraph).
Of course, this posting is also a derivative work.
Dang it!!
Re:It's good that nobody reads them. (Score:5, Interesting)
I'd love to see something like this go to court...just to show the sad state things are in.
Re:Happens in Open Source too! (Score:3, Interesting)
I am very intrigued by all of these mysql complaints. As far as I can tell MySQL is GPL. How do so many people have a problem with GPL software now! Is it because they also offer an alternative license?
I think people have forgotten.
1) It is GPL
2) You do not need to buy a license for it unless you want to sell it!
3) You can still sell your own software that uses mysql. You just need to put "A running installation of mysql" in the requirements of your software!
There are very few instances when you will need to purchase mysql licenses.
On the other hand, I can also understand a lot of the misunderstandings. If you goto the mysql website it is very unclear, and in fact, they make it sound like you need a license for anything commercial!
Re:EULA's are terrible (Score:3, Interesting)
In any case, if your vendor is Dell, they now have a self-ordering system for replacement parts. As long as you know what you are doing, you can get as many parts as you need with just little blurbs on their online form. Four hour response on servers. I haven't talked to a live person at Dell in almost two years.
A law student's take on this... (Score:1, Interesting)
Cases such as ProCD and Hill v. Gateway establish that companies may impose legally enforcable terms upon customers if they break the shrink wrapped seal or show an objective manifestation of assent to the terms. These cases were decided by Judge Easterbrook, who is an economist, and the rationale behind these decisions is essentially that it is more efficient to impose these terms using "shrink wrap" or "click wrap" than having the company read all the terms out to you before you buy or when you buy the product. This is the majority view.
This does go against the general principles of contracts. Klocek v. Gateway was held the opposite way by another judge. However, this is the minority view.
In the immediate case the customer would have a strong case for the reasons that some of you have mentioned. The company should include the terms and conditions. There is no way of really telling what the terms are unless you can get ahold of them. Also, it is a general rule that if something in a contract is particularly unusual or significant it should be brought to the parties attention by means of writing your initails there or having bold letters etc. It should not be hidden away in the middle of the document.
People do actually take these companies to court. The above cases are good examples, as well as Specht v. Netscape which encompasses the general rules on internet liscensing. Basically it boils down to if you had an objective manifestation of assent or not. The terms do not generally have to be provided.
Thats my basic understanding, by no means use this info as rules, its just my opinion. Please comment on what I said if I am wrong etc.
Re:It's good that nobody reads them. (Score:3, Interesting)
Granted, the argument has been made that "using" software necessarily involves copying it -- but IIRC, some recent laws have clarified that argument out of existance.
I have a Dell Inspiron 5100 (Score:3, Interesting)
...and Windows XP Home Edition didn't see the light of day.
A KNOPPIX CD was in the laptop on its first boot, the BIOS was set to boot the CD-ROM directly. The first thing KNOPPIX was used to do was write zeroes over the entire hard disk. Then Linux was installed.
The EULA happens to be on one of the included CD-ROMs. It says if we don't agree to the Windows XP Home Edition license, Microsoft owes us money by way of Dell.
Dell refuses to honor this agreement.
Some shit is going to go down.
And no, there was no paper EULA provided.
Re:It's good that nobody reads them. (Score:3, Interesting)
On many programs, "I Agree" is labelled next. And who are you agreeing to be bound to? Your computer? Because that's the only thing that really knows you've agreed to the terms. No human was present to witness your "signing" (which never happened) and nobody is available to answer any questions you have about the contract.
>Plenty of consideration. It's part of the sale. If not for the EULA, theoretically, software would be more expensive.
Up to now, I've not seen a single piece of software with the EULA ouside the box. More importantly, I've not seen a single piece of software which software vendors feel safe selling opened (thay may get accused of leasing it then, which is illegal without a special, pre-signed contract).
The sale is made without opening the box. AFTER the sale has occurred, you are made aware of new terms to the sale (the EULA) which were never presented pre-sale. New changes to the contract that you _already_ agreed to by the shopkeeper accepting your money. Changes you might not like, but that you have to accept to use what you've already paid for.
This isn't much different than buying a TV, only to find out that if you want it to work, you'll need to contact the manufacturer to give you an unlock code, and, at the same time, agree to terms like:
-- If this TV burns down your house, it's not our fault and we won't pay to fix it
-- If this TV gives you cancer, too bad
-- If you sue us, you have to pay all the manufacturers losses
-- You must tell all your friends this is the best TV on earth, or else we'll come over to your house and smash it up with baseball bats
It seems when it comes to software, though, this isn't a problem. I disagree.
Another couple of problems (Score:4, Interesting)
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.