Why I haven’t read mine
Windows XP EULA in Plain English
This is the EULA for Windows XP Home Edition. EULA stands for “End-User Licensing Agreement.” Let’s break that down:
* End-User – The person who purchased and is using Windows XP Home.
* Licensing – When someone buys Windows XP Home, they do not own anything. Instead they are licensing it from Microsoft.
* Agreement – A legally binding contract between the person and Microsoft.What does this document contain? Most people don’t know, because it is written in legal-speak. Still, you are expected to read it and are required to agree to it before using Windows XP Home. Even if you don’t read it, you are still bound by it, so it’s good to know what’s in there.
Let’s take a look at just what rights a user of Windows XP Home has given up. In the “What it Says” column we have reprinted the text exactly as it appears in the EULA (obtained from Microsoft’s website at http://www.microsoft.com/windowsxp/home/eula.mspx). In the “What it Means” column, we summarize what it means in plain English.
You agree that at any time, and at the request of “content providers” Microsoft may disable certain features on your computer, such as the ability to play your music or movie files.
You agree that Microsoft can automatically and without your consent put new software on your computer.
If Microsoft chooses, they may pay you for any damages, but never more than the amount you paid for software (and curiously, never less than $5).
For some reason, none of the software companies include the cost of carefully reviewing (or having your attorney review) the EULA and advising you of its implications when the company refers to the total cost of ownership (TCO) of its product. For some programs, the time it takes to read and understand the license could double the cost of the product. So we all tell that little white lie and say “Yes, I read and I understand it,” and they in turn pretend to believe us.
I lie better when I’m drunk, but they never even buy me a beer.
Sorry, but that’s a pretty poor reading of the EULA, specifically meant to make Microsoft look bad. The problem with any legalese is that it’s entirely open to interpretation and unless clear descriptions are provided in the contract (and the EULA is a contract), what exactly the words and phrases mean are entirely open to debate in court. So simplifying something like section 2.3 (I won’t bother quoting it all) into “You agree that Microsoft can automatically and without your consent put new software on your computer.” is ignorant, inflamatory and wrong.
Hmm … still … I seriously think some of this stuff is illegal … like, aren’t there laws that say you have to live up to claims you make in advertising …. ?
Well, everything I read in the EULA is entirely legal. And it’s nothing you have to read, really. (Except, if you want to sue Microsoft for whatever reason for using Windows XP Home, the bit at the end that was mistranslated in the article as “you will be bound by the decisions of a court” actually reads “If you go to court in the U.S., Washington State laws will apply regardless of which jurisdiction you’re in” – which while you can challenge this clause [as you can any clause in any contract you sign], the law is pretty clear that this is allowable. I think this is fairly useful information anyhow.) To actually determine if anything in the EULA is specifically illegal, you’d have to research the law of the particular place you’re in (Washington state for the U.S.), and if it is in fact illegal (I can guarantee you none of it is, if only because MS would have lawyers to have checked it out and made sure it’s kosher by now given their legal history) then the particular clause or section wouldn’t apply.
As to the truth in advertisement thing, well, 1) I don’t see how they’re advertising anything they’re not delivering and 2) that law only applies to hard, provable facts. So they can still call Windows XP Home the greatest OS in the history of OSes in an ad, and it’s still kosher.
Yeah, windows sux, but it’ll run damn near anything, and if you don’t want a bunch of stuff streaming into your machine then turn off automatic updates. You want to read a scary EULA, then read the one Google attaches to Sketchup. Sounds like somebody over there read Orwell and thought hell, that’s a pretty good idea.
I especially like this part:
“You may not reverse engineer, decompile, or disassemble the Software, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.”
How many countless people do this every day? Isn’t that what hacking is all about? I would think game designers couldn’t do half the stuff they do without some reverse engineering being involved.
I would like to see the same de-legaleeze done on the Apple EULA to see what is in that one as well.
So, does Linux even have a EULA? Anybody know what’s in it?
Finally, the M$ EULA reads:
“The Software contains components that enable and facilitate the use of certain Internet-based services. You acknowledge and agree that Microsoft may automatically check the version of the Software and/or its components that you are utilizing and may provide upgrades or fixes to the Software that will be automatically downloaded to your Workstation Computer.”
Does this mean that new software can be installed automatically? This seems to indicate that it is merely downloaded but not necessarily installed. I would think that M$ has a back door that allows for mandatory updates but I have not seen proof of this.
But you bought Windows XP Home not other software that you don’t know what it is? It is advertised and on the box of what you bought. There’s no EULA on the box. Don’t agree and take them to small claims court for travel time, mileage, and don’t forget pain and suffering. If you don’t agree the terms of the EULA it doesn’t apply to you.
These EULAs haven’t been challenged in court with proper attorneys. Who has the money to go up against MS? Even the DOJ turned yellow.
I think any challenge will come in another country first, government funded of course.
Europe is not Washinton State, neither is China…
Are these considered contracts of adhesion and more or less unenforceable?
My 4 year old clicks all the Agree buttons for me and opens those pesky EULA envelopes.
Don’t know how binding they are to me.
To answer the questions posted:
You can’t take them to small claims court for this because you have no claim – if you don’t agree with the EULA, you can simply say to Microsoft “I don’t agree,” send the software back and get a refund. (They are legally bound to giving you a refund, otherwise you CAN take them to court.) You cannot, however, continue using the software, as that implies you have consented to the EULA and any claims of “No I didn’t” will be laughed out of court. (At least in the U.S. I’m pretty sure in all of Canada and Europe, too.)
You can try to challenge them in court but you will loose.
And yes, you are totally bound to the contract. It’s completely enforceable. The fact that you didn’t read it is not a defense. The fact that your 4 year old didn’t read it and clicked it for you might be a defense, but that’s far more complicated and I certainly don’t want to get into it. (Though if you are using the software, chances are you’re bound to the EULA anyhow, as using the software would constitute implied consent.)
As to whether it’s a contract of adhesion (I just couldn’t let it go…) I doubt you can make the argument. That’s only a defense if there’s something in there to the effect of “You will sell Microsoft your soul”. As most of the provisions are simply to cover MS’s legal assetts in case someone else does something bad to your computer (or if you download illegal music and movies apparently,) or if you do something bad to your computer, I can’t see a judge finding any of them particularly harsh.
That’s the way it works. If you don’t like, write your own OS!
(I never read the EULAs because I already know what they all say: No illegal copying or distributing, no reverse engineering, no illegal hacking, and if you want it, pay for it!!)