Professor Michael Geist on Vista's Fine Print 314
Russell McOrmond writes "With Microsoft's Vista set to hit stores tomorrow, Michael Geist's weekly Law Bytes column (Toronto Star version, homepage version) looks at the legal and technical fine print behind the operating system upgrade. The article notes that in the name of shielding consumers from computer viruses and protecting copyright owners from potential infringement, Vista seemingly wrestles control of the "user experience" from the user. If you are a Canadian and think that the owner of computers should be in control of what they own, rather than some third party (whether virus authors or the manufacturer/maker), then please sign our Petition to protect Information Technology property rights."
Re:EULA's and click thru's (Score:3, Informative)
The only way around it is to remove bits of the software, like Windows Defender (sounds like a misnomer, more like "MS Monopoly Ensurer" to me) which are technically forbidden by the EULA. Now, recall that most that install this won't be savvy enough to disable/remove Windows Defender, or the other "services" that need removing, and you'll see why this is a Big Deal[TM].
edit (Score:3, Informative)
I meant to explain that I was browsing at Best Buy and tried out their main display computer running Vista. It was set up at the end of an aisle with signs and speakers proclaiming what a great step up Vista was.
I guess I need a marketing department of my own to vet my posts before I click submit.
Re:EULA's and click thru's (Score:5, Informative)
The concept is referred to as a "contract of adhesion," where insofar as the terms in the contract are those that can be reasonably expected to be found in similar contracts for similar purpose, the contract is considered binding whether or not a "meeting of the minds" has occurred over the material details of the contract. I actually don't like contracts of adhesion at all, and wish they didn't exist. But they do.
In many states, and I believe now in at least one federal appellate district, EULA's have been ruled to be contracts of adhesion. You can imagine my alarm. So what I'm telling you is that that EULA you didn't read is likely legal. Evil, but legal.
C//
Re:That stampede sound you are hearing.... (Score:3, Informative)
Petitions are not futile... (Score:4, Informative)
Our existing petitions have already had an important effect, letting politicians know that there are more constituencies in this issue than the incumbent industry associations. Our new petition tries to move away from the myths that DRM is about "content control" when in fact it is about "hardware control". This "hardware control" impacts your usage of hardware you own, regardless of whether you are using "premium content" or not.
This is also not a Microsoft and/or Apple issue, as these bad laws impact all users of technology whether or not they are ever a customer of Microsoft or Apple.
http://www.digital-copyright.ca/petition/ict/ [digital-copyright.ca]
"THEREFORE, your petitioners call upon Parliament to prohibit the application of a technical protection measure to a device without the informed consent of the owner of the device, and to prohibit the conditioning of the supply of content to the purchase or use of a device which has a technical measure applied to it. We further call upon Parliament to recognise the right of citizens to personally control their own communication devices, and to choose software based on their own personal criteria."
Re:That stampede sound you are hearing.... (Score:5, Informative)
Amazon Software Bestsellers (January 29 12:45 PM ET)
2 Microsoft Office Home and Student 2007
4 Microsoft Windows Vista Ultimate Upgrade
5 Microsoft Windows Vista Home Premium Upgrade
12 Microsoft Office Professional 2007 Upgrade
13 Microsoft Windows Vista Ultimate Full Version
14 Microsoft Office Student and Teacher Edition 2003
15 Microsoft Windows Vista Home Premium Full Version
Microsoft has twenty titles in the top fifty.
I'd say these numbers suggest that Vista is going to do just fine in the domestic consumer market.
Re:EULA's and click thru's (Score:3, Informative)
But what about performance? (Score:4, Informative)
Re:EULA's and click thru's (Score:5, Informative)
In order to have a contract you need:
1) Offer
2) Acceptance
3) Consideration
4) Intention
5) Capacity to contract
Of most interesting is consideration. When you purchase an item from a store there's consideration. I offer my $5 for your pack of cigarettes. Their needs to be consideration on both sides to have a contract.
What I find interesting is that there is no consideration in a EULA; it's one sided. You've already paid for the license, and now you're being asked to agree to the terms after the contract has been made. At no point has any more consideration happened on your part.
Agreeing to an EULA IMO is like making a promise. If I promise someone a trip to Vegas for nothing in return, there is no contract, just a promise and it's unenforceable. I'm quite surprised no one has challenged an EULA under contract law asking where the consideration is when you agree to the therms? Simply agreeing to terms of usage without offering up any consideration is quite interesting because the money is paid to the store, and the store then sends money to the manufacturer.
Of course the problem lies in convincing a judge that a click-through agreement after a contract has been made is not binding, and who wants to battle Micro$oft? I for one don't.
Re:Futile petitions aside (Score:1, Informative)
Rubbish (Score:3, Informative)
The fact that people are still making a big thing over the Vista DRM limitations is amazing. Yes MS are spineless and evil for adding what the movie industry wants, but if you want to ever be able to play this content on your Apple, Apple are going to have to add the exact same restrictions. Guess what, if you don't play this DRM content on a Vista PC, which you can't play on an Apple currently anyway, then there is no difference whatsoever. Vista is only evil in it's extra functionality, so if you don't like it, don't use it. I've been using a freely provided copy of Vista for a few weeks now, and I'm happier than I've ever been on a Windows OS (and I'm generally a linux fanboy), which must say something. As soon as this new crappy DRM starts being used in high def content, the situation will be the same on Vista, OS X, even linux if you want to play it, and assuming you don't go for a "cracked" approach.
Re:Old and busted: Bill Gates New hotness: Steve J (Score:3, Informative)
Really? I'm not sure I agree with that. I guess you are saying that Microsoft would bury them but that might be harder than you think giving the potential for anti-trust lawsuits.
Are you kidding? MS has too much money for the laws to apply to them. Notice how they've been forced to un-bundle IE, WMP, XPS, .doc, etc. since they are obvious violations of antitrust law? Notice how they've been forced to open up their secret protocols that tie to their server offerings? The courts have done nothing to stop MS and they outright killed several OS's (see BeOS). I have no doubt Apple might win a lawsuit about 8 years after they completely lost their OS and hardware market, and they'd get a big settlement, and MS would have mode more than that because of the abuse, in that time.
Apple makes their money off of hardware.
In a non-monopolized market, Apple could not afford bundling their hardware and software. They don't have a monopoly. The only way they get away with it now is because all the other options are Windows. If MS's monopoly was broken up and consumers could pick from a marketplace where monopolistic lock-in was broken, they could choose from hardware vendors and choose WindowsA, WindowsB, several Linux distros, and Apple who bundled. Apple would lose quickly. They would stop bundling out of necessity, and the necessity for being bundled would be gone.
The second reason is that by controlling the hardware Apple can provide an OS that only targets a small subset of x86 hardware. This means that it is much easier to create an OS which is stable and consistent versus the Windows situation where a single bad driver can cause system instability.
For Windows the onus of creating drivers is on hardware vendors. In any case, this is by no means insurmountable. More robust driver architectures could and would appear to provide more stability.
The problem for me is that Apple, in controlling their hardware, has created very strict market segments for their computers. They don't want iMac sales to inch in on their Mac Pros, so they limit the RAM slots and any form of upgrading. I need the expansion of a Mac Pro but it's out of my price range and to be honest dual Xeons is over kill for me. Steve won't make a nice mid range expandable desktop Mac any more.
What would you have them do? If they enter the OS market by itself they will die. It is simple market economics, even without abuse. There are too many lock-ins to Windows. Apple would kill a huge chink of their hardware market, lose their reputation for stability, and incur huge costs writing drivers, that MS does not. Having a better OS is not enough when you are against a monopoly because they can create artificial barriers to entry. To risk the entire company on that gamble would be criminal, literally. As a result you are unlikely to ever have as large a choice of hardware for OS X.
Seriously, I think the key is simply to restore the market. MS can't abuse monopoly power they don't have. Split them into at least two companies, both with full rights to the patents and codebase. Forbid them from collusion and let them battle it out for customers. Everyone wins as prices drop, innovation speeds up, and lock-ins evaporate since they drive customers away. Without a monoculture we will be able to choose among many more, better OS's in a healthy competition with one another and all of which have a need for compatibility and portability.
I blame our current situation on MS's criminal behavior, but also upon the corrupt courts that have not stopped that behavior. If our legal system was not for sale, cheap, we wouldn't be in this mess.
No unintended consequences. (Score:2, Informative)
Content is encoded so that it is only interoperable with a subset of devices, but that is the extent to which DRM relates to content. All the controversy relating to DRM relates to the locking down of devices by people other than the owners of the devices, and the treatment of these owners as a threat that third parties (manufacturers of the devices) need to protect against.
The first part of our petition is a clear protection of property rights, and is accomplished in two ways. The first is to not have anti-circumvention legislation, which is the status-quo in Canada. There is no obligation for Canada to ratify the 1996 WIPO treaties, and it is largely foreign special interests (Major labels and studios, USTR, USPTO) that are calling for Canada to ratify these treaties.
This first part also suggests simple labelling requirements, in support of a free market, such that consumers will be able to tell before they purchase content whether it will be compatible with their hardware. The doesn't say that companies can't encrypt content to deliberately break interoperability (a "feature" of all DRM), but that if content is encrypted that it will be lawful for a Canadian to decode the content with the hardware/software of their choosing, and that the deliberately non-interoperable content require labelling. This is consistent with existing Canadian law, and the laws of many other countries, and is not radical at all.
The second part talking about "conditioning of the supply" is part of anti-trust or competition law in many countries, and is often called "tied selling". This is also not radical at all. Again, content can be encoded, but citizens must be free to convert the files to a format compatible with the devices that they own.
There is no conflict in having Canadians being able to legally device shift their content regardless of any technology used to deliberately reduce interoperability, but US citizens not being able to. There are many laws where Canada and the USA is different. This is no different than the fact that in Canada copyright is only life+50 rather than life+70, meaning that Canadians have access to public domain works a full 20 years before citizens in the USA. This is no different than how Canada has crown copyright (The Canadian government is a massive copyright holder), but the US government more fairly releases government works directly into the public domain. US citizens also benefit from a comprehensive Fair Use regime, while Canadians only have a much more limited Fair Dealings regime.
The last sentence should be an obvious recognition of the property rights of owners of computing hardware. While I would prefer to have all citizens of all countries have their basic property rights protected, there is no harm for Canadians to have their rights protected even if the rights of people in other countries are not.
This isn't a case of excessive regulation, given what we are proposing isn't new regulation at all but the application of existing regulations, and objecting to radically new regulations against our rights.