Does a EULA that comes with a free OS, have the same impact (in law) as one that is not free?

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This was just posted anonymously on AskWoody, and it poses a question every Windows 10 owner, er, licensee, should consider… Does a EULA that comes
[See the full post at: Does a EULA that comes with a free OS, have the same impact (in law) as one that is not free?]

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The legal issue is not as different from the ordinary business proposition as it might seems at first. Why exactly is Microsoft offering “free” software in the first place? What does M$ get out of this? And what costs did the user incur to sign up? “Costs” are not limited to the nonexistent (for now) license fee, but include other sacrifices made to obtain whatever benefits were offered by Win10.

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Microsoft has development costs and distribution costs. OEM Windows 10 does cost. It adds about $100 to $200 to the prices of all Windows devices. So the “free” aspect only applies to upgrades, and those are subject to the original terms and the new terms together.

So I may transfer my PUL license for Windows 10 because this is now considered Retail. But my older Windows 7 Home Premium license would remain tied to the PC on which it was originally furnished by the manufacturer. That license is now called OEM. Only the upgrade to Windows 10 would be free, as the OEM license added to the cost I originally paid for that PC. Any new PC would have its OEM Windows 10 license tied to that PC, even with a Pro Pack upgrade tacked on.

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Yes.

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The legal concept of “consideration” is the issue that this is trying to get at. You might think that if you’re not paying any money, you’ve not given “consideration” and hence the EULA contract isn’t binding.

But, “consideration” isn’t limited to cash or other money consideration. It can be a promise. Contracts can be formed in fact by promises on both sides: I promise to praise Woody Leonhard in an article in my new book in exchange for Woody traveling from Rangoon to Mandalay – would be a valid contract under general common law principles of contract.

In this case, the EULA offers the use of the software in exchange for the promise to abide by the limiting terms of the EULA.

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I’ll take you up on that. I haven’t traveled from Rangoon to Mandalay in years…

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