Windows 8: More EULA, Fewer Rights. 470
sl4shd0rk writes "Microsoft has adopted a brand new licensing scheme for Windows 8 which effectively removes your right to file a class-action lawsuit against them should you feel the need. '...Many of our new user agreements will require that, if we can't informally resolve the dispute, the customer bring the claim in small claims court or arbitration, but not as part of a class action lawsuit.' Class-action lawsuits are intended to help individuals stand up to corporate law-breaking but this new EULA model simply nullifies that course of action for the consumer."
not sure (Score:5, Informative)
Re: (Score:3)
Many of these types of EULA's note that legal matters will be handled via Arbiter not Court.
I think CA has overturned them, but IDK the exact details.
Re:not sure (Score:5, Interesting)
It may well depend on what state you live in.
Personally, the better option would be to just not bother with Windows 8, and demand a refund (or if the OEM allows it, demand a non-Windows 8 preload). If Microsoft refuses to refund your money, take them to small claims court for that refund [linuxjournal.com].
I wonder though - can an enterprising lawyer raise up a class-action lawsuit over the EULA clause itself?
Re:not sure (Score:4, Informative)
If you havent clicked "Accept", for sure.
Lawyers can't write laws, only contracts, and even then this whole court nullification business tends to be treated as *VERY* fishy by the courts.
One sided contracts are contracts. (Score:5, Informative)
Theoretically you could break a contract of adhesion, hire a lawyer, and get away with it. But that lawyer will charge you more than you would have to pay for windows (unless he's a very cheap lawyer, or you get a really bad deal on windows). So, click accept little sheep, go down the ramp into the windowless room now please.
Re: (Score:3)
Not sure when this law came into effect, but I do remember around 1995 or so that I was asked to sign an agreement before taking a job interview that I would waive my rights under a certain specified California law. It was just so blatantly obvious too, not even in fine print.
Similarly I've been asked at some jobs to sign arbitration agreements in return for being able to take stock options. And I turned them down. These arbitration agreements all translate to "we will win, you will lose" (ie, if they lo
Re:not sure (Score:5, Informative)
There was a recent Supreme court case that made this legal.
Now all 3 of our branches of government have officially sold out. We might as well replace all civil courts with a comparison of the defendants and plaintiffs net worths. Would not change the outcome much and save us a lot of tax money.
Re:not sure (Score:5, Informative)
>>>There was a recent Supreme court case that made this legal.
Which one?
I find it hard to believe. During the Paypal case, the U.S. judge crossed-out most of the EULA saying customers can not sign-away legally protected rights..... such as the right to sue a company for stealing money (that's what Paypal was guilty of).
Re:not sure (Score:5, Informative)
Hopefully you can get through the paywall ... here [nytimes.com]. Failing that, google for "AT&T Mobility v. Concepcion".
SCOTUS ruled on this last year.
Re:not sure (Score:4, Interesting)
Re:not sure (Score:5, Funny)
"I don't wish someone would die very often"
Oh, don't worry. Dying just once is usually quite enough.
Re: (Score:3)
Re:not sure (Score:4, Insightful)
Oh wait, he was one of the (ahem, so called) justices that ruled that corporations are people.
While this is accurate to say, it's like saying that he's one of the justices that is a human being. All justices, judges, and magistrates accept that corporations are legal persons. This is neither surprising, nor debatable, and is a fundamental part of Common Law tradition. Why are corporations people? Because otherwise, they couldn't own property, and could not be sued.
Let's have a hypothetical. Let's say that corporations are not people in our new world. Alice, Bob, and Charlie are working together in a Corporation, ACME. Now, ACME is not a person, so someone has to own all the assets that would otherwise belong communally to ACME, and the three decide that Alice should be the person of record for ownership of materials. Now, someone has to run the company and be on the line for any legal messes, and the three decide that Bob shall do the actual operations of the company, and direct Charlie in his work, while Alice just sits at home, and collects a paycheck just for not walking away with the money and property. Now, Bob tells Charlie to dump some toxic waste in Derick's yard. Derick is upset, and goes to sue ACME in court, however, since ACME is not a person, he cannot sue ACME. So, he has to sue the people responsible for the toxic waste dumping. Well, obviously, he'd like to go after Alice, with the deep pockets, but she had no hand in causing the harm. Bob would also be a nice choice, because as the director, he has a reasonable salary, and it was his policies that directed Charlie to dump the toxic waste. Except that Bob only ever told Charlie in verbal communication that was never recorded to dump the toxic waste in Derick's yard. Leaving the only person that Derick can sue as Charlie, who is really just a lowly employee with no salary, and no real power. Derick sues and throws Charlie into bankruptcy with the tort finding, while Alice continues to maintain all the company assets that have not been touched, and Bob continues to direct the company however he sees fit with no accountability for his actions.
Re: (Score:3)
I do not think the arguments are over those points. The real argument should corporations be artificial people with all the rights of natural people. I think many reasonable folks could conclude that they should not have all the rights of natural people. Even if they might have some subset of those rights.
Re: (Score:3)
Sorry, but your example is terrible. We already have other ways of creating companies (such as partnerships) and these companies can be sued just fine. The only thing corporations bring to the table is that mommy government protects the people involved from losing everything they own when they do billions of dollars of damages to the environment or sign a bunch of contracts that say they'll pay trillions of dollars to people if housing prices go down or they pay themselves big bonuses and forget to leave
Re:not sure (Score:5, Insightful)
All of this is utter nonsense, quite frankly, and persists for no good reason (and keeping lawyers employed is not a good reason.) If there's ever been an entity where it is not merely acceptable but utterly essential to mark as being subhuman, it is the corporation.
It should be for corporations the inverse as it is for actual humans in this country: while people are free to do as they wish unless explicitly prohibited, corporations should not be able to do anything unless explicitly permitted. Otherwise they abuse the rights we as citizens have and eventually leverage that confusion (and other associated nonsense) to even greater heights of power above actual people.
Re:not sure (Score:5, Informative)
> All justices, judges, and magistrates accept that corporations are legal persons. This is neither surprising, nor debatable, and is a fundamental part of Common Law tradition.
Total nonsense. Corporations became legal persons OVER time.
Date Decision, Legal Right Affirmed
1889 "Minneapolis and St. L. R. Co. v. Beckwith", Right for judicial review on state legislation
1893 "Noble v. Union River Logging R. Col", Right for judicial review for rights infringement by federal legislation
1906 "Hale v. Henkel", Protection "against unreasonable searches and seizures (4th)
1908 "Armour Packing C. v. United States", Right to trial by jury (6th)
1922 "Pennsylvania Coal Co. V. Mahon", Right to compensation for government takings
1962 "Fong Foo v. United States", Right to freedom from double jeopardy (5th)
1970 "Ross v. Bernhard", Right to trial by jury in civil case (7th)
1976 "Virginia Pharmacy Board v. Virginia Consumer Council)", Right to free speech for purely commercial speech (1st)
1978 "First National Bank of Boston v. Bellotti", Right to corporate political speech (1st)
1986 "Pacific Gas and Electric Company v. Public Utility Commn of California", Right against coerced speech (1st)
Reference:
http://cnx.org/content/m17314/latest/ [cnx.org]
Also see:
http://www.thecorporation.com/index.cfm?page_id=314 [thecorporation.com]
Specificaly, "The Corporation complete film transcript (PDF)"
http://hellocoolworld.com/files/TheCorporation/Transcript_finalpt1%20copy.pdf [hellocoolworld.com]
http://hellocoolworld.com/files/TheCorporation/Transcript_finalpt2%20copy.pdf [hellocoolworld.com]
> Because otherwise, they couldn't own property, and could not be sued.
At one time in America they couldn't OWN other corporations. This limited the collateral damage they could do. This was a GOOD thing.
> Let's have a hypothetical.
The fact that OWNERS wanted to separate their liability is based on thing: Greed.
Corporations pay no death tax (estate tax) because corporations NEVER die. That fact right there is a HUGE problem. It slowly strips the wealth (power) out of individuals and consolidates it -- total anathema to the original intent of State and Federal separation and balance of power.
It would behoove you to watch "The Corporation"
Re:not sure (Score:4, Informative)
Oh wait, he was one of the (ahem, so called) justices that ruled that corporations are people
Corporate Personhold is at least two hundred years old in American law.
Since at least Dartmouth College v. Woodward (1819), the U.S. Supreme Court has recognized corporations as having the same rights as natural persons to contract and to enforce contracts.
In Santa Clara County v. Southern Pacific Railroad, 118 U.S. 394 (1886), the Supreme Court noted in dicta in a headnote that corporations as persons for the purposes of the Fourteenth Amendment. In a headnote --- not part of the opinion --- the reporter noted that the Chief Justice began oral argument by stating, "The court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of the opinion that it does."
The basis for allowing corporations to assert protection under the U.S. Constitution is that they are organizations of people, and that people should not be deprived of their constitutional rights when they act collectively. In this view, treating corporations as "persons" is a convenient legal fiction that allows corporations to sue and to be sued, provides a single entity for easier taxation and regulation, simplifies complex transactions that would otherwise involve, in the case of large corporations, thousands of people, and that protects the individual rights of the shareholders as well as the right of association.
Corporations as persons [wikipedia.org]
Re: (Score:3)
Alice, Bob, and Charlie are working together in a Corporation, ACME. Now, ACME is not a person, so someone has to own all the assets that would otherwise belong communally to ACME, and the three decide that Alice should be the person of record for ownership of materials.
That is not necessary. All three can own the materials jointly. Just as all 3 could own ACME jointly. But lets say Alice owns it all, to fit with your hypothetical.
Now, someone has to run the company and be on the line for any legal messes, and the three decide that Bob shall do the actual operations of the company, and direct Charlie in his work, while Alice just sits at home, and collects a paycheck just for not walking away with the money and property.
As owner of property Alice is the one who decides everything. And she is effectively the employer. Bob is not paying her a paycheck, but rather she is paying Bob a paycheck. On the other hand if all 3 co-owned the assets then they would be partners and none of them are employees.
The burden of proving who is responsible for Charlie dumping toxic
Re:not sure (Score:4, Interesting)
When you can put a corporation in prison for life or better yet, publicly execute it, then we can start talking.
Actually, you can do both (if any judge would have the cojones to actually do it):
Analogue to imprisonment? We got options:
* Legally require a company to fire its executive employees (from the CxOs down to VP level or so) minus any severance or other compensation, and replace them with new hires from outside the company, and approved by a court trustee.
-or-
* Require that all stock trading in the company (we'll call it "CORP") be suspended for n years.
-or-
* Require all stock holders of CORP to pay a fine of x% of the aggregate value, with all trading on CORP frozen at the time of verdict. If you own 100 shares of stock of CORP at $10/share, and the fine is 10%, you then, personally, owe the court $100.00. Hedge/mutual finds are treated the same way. What, not fair? Well, you're a shareholder, you partially own the company, you are therefore partially responsible, in proportion to your holdings. Suck it down and use your head the next time you buy stock.
Analogue to the death penalty? No problem:
Revoke any and all corporate charters. Terminate all positions outside of whatever you absolutely need to handle the corporation until all assets are sold. Put the assets up for public auction. Dissolve the value of any existing stock to $0.00, with no compensation given. The sale, jobs, etc. are supervised by a court-appointed trustee until the final asset is sold or destroyed.
Re:not sure (Score:4, Informative)
The problem with any of those is that they affect J.Random employee far more than they affect the people who actually caused the problems. Firing the entire executive staff? Well they'll have a temper tantrum over losing their huge bonus for the year, but chances are they've already got more banked than us average people earn in a lifetime so while they might not like it, it won't particularly harm them unless they've been totally stupid with their money.
On the other hand, a full corporate shakeup rarely bodes well for the folk in the trenches. The odd few lucky ones might get promotions, but for the vast majority of any decently large corporation, the best they can hope for is status quo. And more than likely they'll at least be reassigned if not outright laid off.
Same goes for slapping shareholders around. The big guys (the ones you really want to hurt) will just shrug it off and hide the loss behind a hedge fund. The people you'll actually hurt are the people with $10-20k in a retirement fund that they're trying to grow. The stock market is already pretty stacked against anyone who can't do sub-millisecond trading, there's no reason to add even more of a burden on those people. Stopping trading all together in particular would be a fairly horrible thing to do (the stock price would be tanking and they wouldn't even be able to bail on it.)
I could see fining shareholders as a little less painful -- especially if you limited it to only fining people with more than say, 5% (or even 1%) stock in the company. That would protect the little guys who are just trying their luck, while still applying some damages to the people who have enough say that they should at least be getting heard even if the board/CEO ignores them.
And for your extreme "death penalty" case. That's probably never going to fly. We already refuse to let corporations die of their own free will (see: $700b bailout and "too big to fail" actions) so the chance that we'd go out and kill them off ourselves is pretty damned small. And with good reason. Killing off a patent troll that has 3 employees and a small novel full of consulting lawyers probably won't hurt the world too much, but killing off a major industrial manufacturer can easily dispense with thousands or even tens of thousands of jobs. Again, its the little guy working the lines who gets really fucked, and they don't have any say in these matters -- they're just trying to provide for themselves and their family.
Penalizing corporations is, generally speaking, a pretty difficult thing to do. Even without the "corporations are people" concept, the fact of the matter is that the people who have enough power to make serious decisions are also the least likely people to be seriously injured (financially..) when the shit hits the fan.
I've got no idea how to deal with that. I can't even suggest some sort of utopia where corporations don't exist, because there are many aspects of the modern world that simply couldn't be done without the kind of resources that a Ford or a General Electric can bring to the table. The government could fill in somewhat, but rampant communism hasn't exactly proven itself to be a shining beacon of hope and prosperity.
Fill in somewhat? (Score:5, Insightful)
many aspects of the modern world that simply couldn't be done without the kind of resources that a Ford or a General Electric can bring to the table. The government could fill in somewhat
Hi. I'm a child of the 20th Century. You might remember us. We fixed a Depression, killed Adolf Hitler, held Stalin in check, invented the atom bomb, rebuilt Europe and Japan, built a national infrastructure of highways and electricity, got Jim Crow off the books at least, added a Moon rock to our mood ring collection and then watched Al Gore invent the internet -- all without a single corporation as the driving force.
Mozart wrote his operas, Shakespeare wrote his plays, Nobunaga conquered Japan, Genghis Kahn ruled an empire, Rome took Europe, the Mings handled China, and Ogg invented fire all without a single patent or copyright protection to their name.
Re:not sure (Score:4, Insightful)
>>>scotus coup on Gore in 2000
According to USA Today, NY Times, and other papers that performed independent ballot counts (using multiple methods), it would not have mattered if the SCOTUS had allowed Florida to continue counting. Bush beat Gore by ~1000 votes, mainly because of the western republican counties. Therefore Bush would have had FL's electoral votes and won.
>>>Scalia is an asshole
That may be but he has consistently applied the laws as written. (Unlike that other justice: Sotomayor who ignores that law & makes random decisions based on her beliefs.) If you don't like the laws don't blame the judges who merely enforce them. Blame the Congress for producing bad law.
Re:not sure (Score:5, Insightful)
According to Wikipedia's page on the Florida Election Recount [wikipedia.org], in a state wide recount, Gore would have won. Additionally, the New York Times determined that poor ballot design cost Gore a little over 8000 votes, which is a big difference when Bush's victory margin was 537. In percentage terms Bush's victory margin was 0.009% of the Florida vote.
Now Gore had not (yet) asked for a state wide recount, although the Florida director of his campaign has said that they were about to request one when the Supreme Court ruling came down staying the recounts.
There facts seem clear that Gore should have won Florida and the presidency.
Re: (Score:3)
According to USA Today, NY Times, and other papers that performed independent ballot counts (using multiple methods), it would not have mattered if the SCOTUS had allowed Florida to continue counting. Bush beat Gore by ~1000 votes, mainly because of the western republican counties. Therefore Bush would have had FL's electoral votes and won.
Actually, it was mainly because Jeb Bush (Florida governor and GWB's brother) and Kathleen Harris (Florida Secretary of State - in charge of voting - and GWB's Florida campaign manager) purged over 180,000 people from the voter rolls just before the election - supposedly for being convicted felons. Turns out that these voters were predominately black or hispanic, and most of them turned out not to have been felons (some misdemeanor convictions, but you don't lose the right to vote for that).
Re:not sure (Score:5, Insightful)
If a law says, "Promotion of fire fighters shall be determined based on the outcome of written examinations," and the judge named Sotomayor then turns-round and cancels the promotion of those men who legally-passed the exam, the judge is NOT enforcing the law. Or interpreting the law as written. They are arbitrarily acting with no reason or rationality, except their own desires to make law from the bench.
Scalia may very well be an asshole, but at least he reads and judges based upon what law the Congress passed. Sotomayor does not. She admitted it during her testimony.
Re:not sure (Score:4, Informative)
The link is right there in TFA.
http://www.nytimes.com/2011/04/28/business/28bizcourt.html?_r=2 [nytimes.com]
Re: (Score:3)
"bust a deal? face the wheel!"
maybe that would be more fair. I'd take my chances with even a real, actual mafia boss (corleone style) than the current US 'justice' system.
the US has sold out. it does surely seem that way, doesn't it? to give up a right to sue and be forced into a 'corporate owned court' is just an admission that our 'justice' system is fully broken, at this point.
we used to be the policemen to the world. but now that *we* need fixing, who will come to OUR aid?
Re: (Score:3)
Time to move to Iceland? Imagine a land of Vikings and Geeks, as far as the eye can see, and all the halibut a man can eat!
Re:not sure (Score:4, Insightful)
There was a recent Supreme court case that made this legal.
Good. Class action lawsuits are nothing but a wealth stockpiling program for the 1%'ers that went to law school instead of Harvard Business. It doesn't help the consumer "class" that gets nothing but a coupon, while the lawyers make millions.
You're better off in small claims court. That's what I do whenever I get one of these "you may be part of this class" letters. I immediately send a letter requesting to be left out of the class, and file in small claims if I think it's worth it. It's way better than getting one of those "settlement" packages with dollar-off coupons or a check for $2.34. Especially when I know the lawyers got $234 million for their "work".
Re:not sure (Score:5, Insightful)
The point is to punish the company doing harm. If the lawyers could not make money doing it they would not. If I take a day off for small claims court I will probably lose more money than the court awards me. I would rather know the company had to pay out for its transgressions then let them get away with it, even if I do not get the money.
Re:Self interest (Score:4, Insightful)
Or course not, but they at least kept up the pretense. They no longer even bother with that.
Re:Self interest (Score:4, Insightful)
There absolutely was. When George Washington was President, we could be absolutely sure that at least the Executive branch hadn't sold out. Unfortunately, the quality of Presidents have been going steadily downhill since his terms.
Re: (Score:3)
But surely the court would be more clogged by N thousand individual cases than by a single class action with (the same) N thousand plaintiffs.
Re:not sure (Score:5, Insightful)
Billing issues or service issues?
So you mean the minor details of not being cheated out of money or the service you are paying for?
What other interaction does one have with these companies than getting service and being billed?
Re:not sure (Score:5, Informative)
Not sure that that's even legal -- would be surprised if it held up in court.
Actually, the Supreme court has already ruled [nytimes.com] that this is, in fact, legal.
Re:not sure (Score:5, Insightful)
Ah, the legal wisdom of Antonin Scalia. The man isn't fit to judge traffic court.
Re:not sure (Score:5, Interesting)
As opposed to the infinite "Legal Wisdom" of mbone, I'll take Scalia any day of the week.
FYI: The Supreme Court exists to INTERPRET LAW, not to create it. So unless there is a law on the books that says that you can't put a clause preventing the signatory party from engaging in Class Action suites in a binding agreement, then how can any Court rule that you can't?
If you start letting judges making up laws, what sort of law shall we have? Easy: You get Kangaroo Courts where the laws are made up to fit the ends of the Court.
Re:not sure (Score:5, Insightful)
If you start letting judges making up laws, what sort of law shall we have? Easy: You get Kangaroo Courts where the laws are made up to fit the ends of the Court.
I think you got it backwards, it's the people who write the contracts who'll be making law because they decide what kangaroo court to hear it in. The real law and the real court system will still exist, you've just lost your right to get your contract dispute heard there. This is the rule of law signing off and handing over the reins to the corporations, all that's lacking for a Star Wars moment is thunderous applause.
Re:not sure (Score:5, Informative)
As opposed to the infinite "Legal Wisdom" of mbone, I'll take Scalia any day of the week.
We're talking about the same guy who has extensive ex parte communications with Dick Cheney and then goes on to rule on a case involving Dick Cheney (rather than recusing himself, as any non-corrupt jurist would do), right? He's not the only one, of course: Clarence Thomas has issued rulings on cases where his wife had a financial stake in one of the parties.
Regarding this kind of clause, the legal concept in question is an argument of unconscionability [wikipedia.org], where somebody claims that the contract terms are so unfair that they should not be enforced. Courts, including SCOTUS, have ruled both ways on whether clauses that bar access to legal redress are unconscionable. It's been part of contract law for decades at least.
Utter Garbage (Score:4, Insightful)
I'll say the truth again: worst Supreme Court since the Dred Scott decision.
Re: (Score:3)
The Supreme Court can certainly say that a PRIVATE contract cannot overrule a Constitutional RIGHT. The US Constitution clearly says a person has a RIGHT to a trial in court over their matter, hence the creation of small claims court.
The court would not have been "creating" any law.
On a side note, the Supreme Court can only REACT to CASES files by the EXECUTIVE branch. Congress can make unconstitutional laws all day, but if they are not ENFORCED SCOUS cannot TOUCH them! A LOT of things are going on the cour
Re:not sure (Score:5, Insightful)
>>>What's that a definition of?
Constitutionalist. Almost everyone is familiar with Thomas Jefferson's "Separation of church and state," which is used by the Supreme Court to forbid praying in schools, but few know this quote: "On every question of construction let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or intended against it, conform to the probable one in which it was passed."
Jefferson was our second most intelligent president (estimated IQ of 160). We should listen to him.
I also like this one. People are aware of the checks-and-balances between the 3 branches, but forget that that People's State legislatures are ALSO a check against central government: "...when all government... in little as in great things, shall be drawn to Washington as the centre of all power, it will render powerless the checks provided of one government on another and will become as venal and oppressive as the government from which we separated."
-Thomas Jefferson, 1821
Re: (Score:3)
Constitutionalist.
In this case, Constitutionalist = moron.
I realize there's a group of folks who believe the Founding Fathers were never wrong and can never be questioned, but consider this: Those Founding Fathers would be ashamed to see intelligent officials (like Supreme Court Justices) that refuse to use their own capable minds to decide if something needs a fresh interpretation for a specific time and place.
I agree with listening to the Founding Fathers. When officials in a country far away could not adequately rep
Where did that come from? (Score:3)
That's pretty interesting, since Jefferson lived when IQ tests hadn't been invented. Furthermore, I have to wonder if this "estimate" (based on what, exactly?) takes things like the Flynn effect into account.
In point of fact, Nixon has a known IQ of 143 and therefore the highest IQ of all presidents who were actually tested. That is in no way an endorsement of Nixon as the smartest president.
Considering that
Elsewhere (Score:2)
Elsewhere things are more sane. I believe in EU that enforced arbitration is not allowed, and in BC Canada you can't be forced to give up your rights to class action in this manner.
Re:Elsewhere (Score:4, Insightful)
Consumer protection in general is far, far better in Europe than the US.
As with many other areas, we've decided not to support restrictions on people who are trying to fuck us because, damn it, one day we might get to be the ones doing the fucking.
Or, if you prefer, in the US maintaining the purity of abstract ideology wins over demonstrable real-world benefits just about 100% of the time.
See also: health care, mandatory vacation, sick days, and maternity leave, labeling laws, etc., etc.
An EULA isn't a contract (Score:5, Informative)
There are numerous requirements for something to be a contract in US law and the EULA fails a number of them. The biggest is contracts have to happen before the exchange of goods/money. They can't be ex post facto. So if a company requires you to sign a contract before you buy the software, that's a real contract. An EULA that you are introduced to after the sale, not a contract.
Easy to see here at work too. I work for a state university so they are very big on the "only approved people can sign contracts for the university" thing. Any contract has to go through the contracts office and be approved by the lawyers. EULAs? They tell us don't worry just click through. In other words, they are confident the EULAs don't bind us to shit. If they though they did, we'd have to get them all approved.
Re:An EULA isn't a contract (Score:4, Interesting)
If the current Republican-controlled SCOTUS is willing to rule that corporations can take away your right to a jury trial in a contract, and that they count as people for purposes of unlimited political bribes, and that they don't count as people for purposes of being exposed to lawsuits for overseas human rights abuses, what makes you think that they wouldn't also rule EULA's to be enforceable should a case every present itself?
This is the most corporate-friendly court in history. Whenever any case comes before them, you can bet your ass it'll be decided on what will most benefit their corporate buddies. I just hope no EULA-related cases reach the court prior to at least a couple of them kicking the bucket.
Re: (Score:3)
And if anyone's surprised that almost every license will include a "no class actions" clause after such a clause was ruled legal, I have a bridge to sell you.
This is not something specific to Microsoft; legal teams would be foolish not to take advantage of this corporate rights giveaway.
Re:not sure (Score:4, Informative)
Not sure that that's even legal -- would be surprised if it held up in court.
Actually, the Supreme court has already ruled [nytimes.com] that this is, in fact, legal.
Actually, the Supreme Court ruled that a contract can remove the possibility of a class-action arbitration, not a class-action lawsuit. They are not the same thing. Further, there is still wide disagreement over what rights can and cannot be removed by a EULA specifically, rather than a traditional contract.
Re: (Score:2)
Re: (Score:2)
I thought the courts already ruled in favor of allowing this?
I agree it shouldn't be legal, but I'm pretty sure it's too late.
Re:not sure (Score:5, Informative)
Not legal in Canada, or in Germany. Various other parts of the EU either.
Re: (Score:3)
Re:not sure (Score:5, Funny)
Darth Ballmer: "I will make it legal."
Re:not sure (Score:5, Funny)
Next he'll be saying, "I have altered the EULA. Pray that I do not alter it any further."
Re: (Score:2)
Yes ist is. If you had taken the time to read the article you would know that there was a court ruling
Microsoft is capitalising on a 2011 US Supreme Court ruling that upheld a company's right to include a clause in a contract that prohibits customers from suing as part of a class action. The case had been brought against AT&T.
Re:not sure (Score:4, Insightful)
Re: (Score:3, Informative)
in the UK at least contract law forbids you from signing away statutory rights which i would expect to protect me from move ssuch as this. basically any contract contains a clause that removes your rights becomes null and void... but of course IANAL...
Re: (Score:2)
good (Score:5, Interesting)
Good - class action lawsuits are bad for the individual consumers anyway, only make money for the law firms. I'd rather 200 people file small claims suits than someone file a class action.
Value added is perception of legitimacy (Score:5, Insightful)
If one man has a grievance and sues a company he's portrayed in the press as crackpot. A class action takes the same grievance and because numerous people are involved there's the appearance of wrongdoing, no matter if it's real or not. Lawyers representing the plaintiffs try the case in the court of public opinion until a settlement is forced because the defendant feels their reputation is becoming tarnished. A settlement will mean pennies on the dollar for the numerous plaintiffs, and that's after the attorneys take out their costs.
Microsoft thinks they are clever enough to circumvent this cycle. Does anyone think they class action lawsuit industry will let Microsoft's new license stand? Not without a fight.
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Not to mention that though class action suits don't much help individuals they can hurt the corporation if it loses.
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However 200 people in small claims court won't deter any large company from misbehaving. Now a multi-state class action suit would not benefit the class, but it would sure as heck help keep Microsoft in line.
Re:good (Score:4, Insightful)
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"I'd rather 200 people file small claims suits than someone file a class action."
Here's an example which supports your contention!
http://www.autoguide.com/auto-news/2012/03/honda-civic-hybrid-class-action-lawsuit-settled-tentatively.html [autoguide.com]
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im glad it didnt take long for bad cliches to surface. Cliches are a huge waste of time and all they do is line the posters karma and produce hardly anything worth reading.
Re:good (Score:5, Insightful)
You like the GP are a moron.
Not everyone impacted can take the day off to go to small claims court. This means the company can abuse untold numbers of customers and never pay a dime. A class action is to punish the company while not over burdoning the members of the class as their each individual claim is very small.
Re:good (Score:4, Insightful)
The money grab is the point, it hurts the company at fault it was never meant to compensate customers. Their claims are trivial or they would have their own lawsuits.
The internet does no such things when companies use legal moves to remove such complaints.
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I am no lawyer, but I have been in a class action before. I had to do all of nothing. In fact it would have taken more effort to be excluded from the class.
To go to small claims court requires at least one day off work, several trips to the courthouse and might end up being more than one day.
Re:good (Score:4, Insightful)
They're a much bigger drop than small claims actions though. Since most people don't bother with the small claims stuff.
Sure the money ends up going to the lawyers, and there's no real benefit to those harmed. There is some cost to the company involved though, which they'll avoid almost entirely without class actions and just keep it for themselves.
EULA's are not the law. (Score:2)
Just because something is in a EULA, it does not mean it's actually legal.
I hope to see a class action for allowing class actions.
Class Action Lawsuits suck anyway (Score:5, Insightful)
There needs to be a better mechanism for keeping corporations in line, anyway.
I'm not endorsing MS's attempts to weasel out of liability here (although I guess once Sony took a bite of that particular poison apple, it's only a matter of time before the other tech giants decide that class action immunity is too awesome to pass up).
But class action lawsuits never deliver anything of real value to the people who actually suffered from whatever prompted the class action suit. They often hurt the target company, a lot, but that's vengeance & retribution rather than justice - the only people who actually benefit from the "restitution" and "settlement" are the lawyers.
Really, it would probably be better all round to just have regulators & ombudsmen with real teeth rather than relying on lawyer feeding frenzy class actions to provide a punishment system for corporations. The big problem with that is regulatory capture. I don't have a solution, but I wish I did. The present state of affairs isn't really satisfactory to anyone IMO.
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Anything that has the potential to stop the perpetrator and make them think twice before victimizing someone else again is far better than ABSOLUTELY NOTHING.
Be careful what you wish for. You just got it.
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This is not defending shitty EULA policies by shitty corporations, but it's worth pointing out that there have been several successful suits overturning terms of a EULA. It is not the best policy of course, the best would be to write agreements that were fair for consumers as well as protecting businesses.
The Wiki does a much better job of describing this than I do, so here you go [wikipedia.org].
Class Action Lawsuits are important (Score:5, Insightful)
Yes, class action lawsuits don't help the victims. Neither does putting murderers in jail. But the goal is to give people and businesses a reason to think twice before committing a despicable act. Thanks to SCOTUS's decision that companies can stick a "you can't sue us!" clause in any and all contracts, there is now no mechanism by which companies can be made to pay for abusing their customers. Day-dreaming about alternate mechanisms is pointless. This is the one that we have (or had, at any rate), and for all its flaws, it did work. Companies that abused people were made to pay. But no longer.
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Really, it would probably be better all round to just have regulators & ombudsmen with real teeth rather than relying on lawyer feeding frenzy class actions to provide a punishment system for corporations. The big problem with that is regulatory capture.
The problem isn't just regulatory capture.
It's also that we do not sufficiently fund our regulatory agencies.
They just don't have the money to pursue legal cases that generate mountains of paperwork and require a small army of lawyers.
So instead, we get settlements for a fraction of the real damage and a promise not to do it again... without any admission of wrongdoing.
You sure as shit wouldn't raise a child that way.
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It would probably be better all round to just have regulators & ombudsmen with real teeth
I have to assume you are unaware that any "regulator" or "ombudsman" is beholden to whatever powers that be that employ them and serve solely at their discretion.
And I'm also assuming you are oblivious to the fact that "regulators" and "ombudsmen" are empowered to do fuck all until such severe damage has been done that the Government MUST get involved or be made the culprit by mens of their continued complacence and non-action.
So it doen't matter what sorts of razor sharp teeth you give a "regulator" or "om
Class Action Lawsuits suck less than alternatives (Score:3)
Sure they do, they provide notification of a potential cause of action that they are quite likely to have overlooked on their own. Potential class members are provided notice and an opportunity to opt-out and preserve the right to file individual, direct-action lawsuits.
Class actions are far from perfect, but they exist to deal with an economy of justice problem wit
Waiting for Win9... (Score:2)
Just when I thought I couldn't be less excited about Windows 8.
One more reason to skip it.
Even more unsettling, server 2012 (server "8") will have the same stupid-ass "Start Screen".
Blech.
Secondly, how the hell can this be allowed? AT&T did it, MS did it with the xbox.
How many more ways can they screw us out of our rights?
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You have the right to not buy their crap. Money talks the loudest. So don't do business with companies you don't like.
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Server 8/2012 will be command-line first.
Slashdot spend more than a decade bitching about Windows requiring a GUI, and now that MS is pushing the command line, suddenly Slashdot bitches about how they don't like the optional GUI. This is just one more example in a long pattern f Slashdot constantly moving the goalposts in regards to MS.
Also, Win 8 will be great. Faster, smaller, uses less power, more features, etc. What's not to like?
I like my Zorin linux installation even more... (Score:2)
but I'm not sure it matters. When was the last time you were part of a class-action suite against Microsoft? Moreover, this won't stand up in many other countries so it amounts to an attempt to minimize legal exposure in the USA. Given the increased availibility of Linux/Android/Web applications, we're all at a stage now where we can "vote with out feet" if Microsoft does something too buttheaded, and that's exactly what will happen if they overreach.
Options (Score:2)
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Remember, you don't NEED to use Microsoft Windows. Linux is a viable option. Red Hat Linux works well on the desktop.
You do if you are a gamer.
But if they don't use the same stunt as DX11 is only for teh windows Vista/7 you can keep your old version.
Indie or major label? (Score:3)
Remember, you don't NEED to use Microsoft Windows.
You do if you are a gamer.
If you play indie games, a growing number of those are ported to Linux. If you play major-label games, there are plenty of those on consoles.
Re:Options (Score:4, Insightful)
"You do if you are a gamer. "
That's a "want", not a "need", unless you are a developer or otherwise make money from game.
Games are fun, fun is fine, but a toy is a toy and never forget that.
Windows 8? (Score:2)
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Has anyone read the whole thing yet? (Score:4, Insightful)
As many people pointed out when sony did this... (Score:2)
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...EULAs can't effectively hold up with something like this in court.
Depends on the country. In EU it won't, not so sure about other 3rd world countries.
P.S: We also hate our politicians. :)
Re:As many people pointed out when sony did this.. (Score:4, Informative)
The specifics of that case seem somewhat applicable: The "you can't sue us, you have to use arbitration instead" type of clause was being prohibited by state law in certain states (California, in the specific case), but the Supremes held that Federal Arbitration Act of 1925 [wikipedia.org] takes precedence and overrides state law. That federal law says that binding arbitration is valid if both parties agree, and the presumption seems to be that both parties agree if the user agrees to the EULA by using the product.
IANAL, but it sure looks that ruling supports MS's position on this. If there's some substantial reason why this case is any different than the AT&T Mobility v. Conception, I'd sure like someone to point it out.
Time to put a EULA on everything. (Score:5, Interesting)
So does this mean I can put a sticker on my car that says:
"By Reading this Bumper Sticker you agree to the following Terms and Conditions:
In the event of an accident the operator of this vehicle shall be held harmless for any damage or personal injury incurred to any person involved. You agree to take full personal and financial responsibility for any damage incurred to this motor vehicle and belongings."
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No, but I think the Blizzard judge pretty much established that you can bind someone to a EULA if you sell your car to them. Furthermore, you don't need to disclose the contents (or existence!) of that EULA, until after you already have their money.
If you hate people who buy things from you, then you can probably have some good fun with that.
Forget class action (Score:5, Interesting)
Forget about class action. Go with crowd action. Let 100,000 people file in small claims court at the same time. Assuming the courts can handle the load, I'm guessing even MS doesn't have enough lawyers to appear personally in each suit.
They don't allow plaintiffs to pay out coupons in small claims court.
I'd suggest (Score:5, Interesting)
Just by not buying Windows, Microsoft won't see they lost a sale.
Everyone go out and buy a copy of Windows 8, open the box so it can't be resold, then return it for a full refund with the reason that the EULA you can't see until you try to install it was an unacceptable attack on basic civil rights.
This is about the only way Microsoft would get a clear message and see how much its costing them.
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You must be aggrieved before filing suit usually, no? Good luck proving that the "no class action suit" clause hurts you and hurts a class of people to boot. (Note, proving. Yes, it's obvious to me, but there have been stupid rulings in similar issues.)
Re:Need software only availiable on Windows? (Score:4, Insightful)
Neat trick. Who are you going to have hear the case.... maybe the Supreme Court? Or some court superior to it? Oh, wait, that's right, there isn't one. And then there's sovereign immunity [wikipedia.org], in which you have to ask "Mother, may I?" to any part of the federal government and they have to consent to being sued. I'm sure they'll step right up to that one.
It's a charming fantasy, but really, that's all it is.