The EULA you click may not be the one in effect

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	TOP STORY[/size][/font] The EULA you click may not be the one in effect[/size]
	By Woody Leonhard When you accept Microsoft’s end-user license agreement as part of Windows’ installation, that click is considered by many people to be as enforceable as a wet-ink signature — at least in the U.S. But I’ve found that the terms in the EULA you agree to during an installation may vary from the license that’s posted at Microsoft’s Web site.[/size]

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The full text of this column is posted at WindowsSecrets.com/2010/02/04/01 (opens in a new window/tab).

Columnists typically cannot reply to comments here, but do incorporate the best tips into future columns.[/td]

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I’m curious….while I was in the process of installing Windows…my phone rang…I went in the next room to have a nice conversation with a friendly telemarketer. However, upon my return I discovered that my cat had crawled across my keyboard and entered into a legally binding contract with Microsoft. If I ever discover that my cat has violated the terms of the agreement should I hire my cat an attorney?

All joking aside…the difference between a “click” and a “signature” is so obvious that all but the most retarded judges should be able to see that a “click” (unlike a signature) leaves no record of WHO the agreement is made with. A real contract has to be a “meeting of the minds”…and you can’t have that condition if you cannot identify the parties. This is why contracts get so absurdly verbose in identifying “the party of the first part” etc.

As for the old “shrink wrap” licensing method…I always used to laugh when I saw those stickers on the CD case that said removing the sticker constituted agreement to their licensing agreement. What a farce! How in the world could they ever hope to prove that YOU were the one who opened the case? If they had placed the installation CD’s inside solid stainless steel, bulletproof, crack proof, vehicle tire proof, chainsaw proof cases with a 16 character digital combination lock that required you to register by name before you received the unlock code…ok…then MAYBE…but a sticker that a dog or child can remove? That was just laughable.

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I’m curious….while I was in the process of installing Windows…my phone rang…I went in the next room to have a nice conversation with a friendly telemarketer. However, upon my return I discovered that my cat had crawled across my keyboard and entered into a legally binding contract with Microsoft.

HA! Yep, and I have more about it coming next week.

Ever hear of Schrodinger’s Cat?

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“Sure, Microsoft and other companies have pursued counterfeiters and others who make money by violating a EULA. Stealing is stealing, and software companies have every right to prosecute people who use their products without paying.”

Come on now Woody, let’s not perpetuate myths. Yes, stealing is stealing, murder is murder, etc. But counterfeiting is counterfeiting, not stealing, and copyright violations are copyright violations, not stealing. I don’t object to the just prosecution of parties for violations of civil or criminal laws they’re actually guilty of. But, when the likes of Microsoft, the MPAA, the RIAA, and others deliberately set out to falsely relabel well defined legal violations as more marketing-friendly federal crimes, my sympathies tend to evaporate quickly. Of course, every time I’m faced with another EULA, I also tend to have that same reaction. I don’t know what the Supreme Court would rule if these vile things ever got properly tested, but they don’t stand the test of common sense (or the laugh test). Anyone may have clicked the EULA button for a given piece of software, including my underage children, and I can tell you that they have on occasion. Since when can minors be held liable for signing a contract? IANAL either, but I’m curious as to what the charges might be for convincing a minor to sign a legal contract in violation of the law.

Now back to that curious notion of yours that counterfeiters make money by violating a EULA. Seriously, you don’t actually believe that counterfeiting software requires the criminal to have signed (excuse me… clicked) the EULA to achieve his goal? I suspect you’ll find that Microsoft can pursue the counterfeiter for counterfeiting and copyright infringement, but not for violating the a EULA. Nor would they want to, for reasons you’ve already alluded to.

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For several years, I have been using the tool called EULAlyzer which is free for personal or educational use.

It is an easy job to analyze any EULA quickly and flag any text of interest as well as to save that EULA within the app.

For WinXP Pro, EULAlyzer included fourteen paragraphs flagged to read and it said:

Details: The license agreement above has a high calculated Interest ID.
It’s extremely long, and there were many detected ‘interesting’ words and phrases.

On addition, you can *submit online* any EULA:

Built by our users, for our users.
The EULA Research Center is built by the kind submissions from users like you. Submissions are used to enhance and improve EULAlyzer’s detection of potentially “interesting” words and phrases, to better the experience for all of our users.

I never accept or agree to any EULA without first doing a ‘drag & drop’ of EULAlyzer’s [+] icon over it to capture it for analysis.

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After going through the appeals court decision I noticed something significant. Despite the claims that this was a EULA violation, every example they used was actually a Fair-Use violation.

The short answer is that if you buy a product for an intended purpose then you not only can use it for that purpose but are restrained to that purpose also. Using your drill as a hammer voids all warranties and guarantees.

Zeidenberg bought a copy of ProCD in a private use package and then used it commercially. ProCD may or may not have grounds to protest if Zeidenberg answered telephone calls where he then looked up the information on his own computer. This isn’t what he did. He raided the content and made it commercially available. A simple violation of Fair-Use; the EULA is pointless.

A better example than those given by the courts would be to take a hardcopy book; scan it; then post it on the internet for fees. Just like Zeidenberg, all you’ve done is raid the content and make it commercially available. But because it’s a book we call it a copyright violation. It’s still a basic violation of Fair-Use. You are using someone else’s work. You are reasonably limited by Fair-Use to the product’s intended purpose. And that purpose is typically obvious.

Both the lower court and the appeals court based their decisions around the faulty EULA issue rather than the straight-forward Fair-Use issue. The finding should be for ProCD due to Fair-Use. The EULA issue here should be ignored.

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– Ah, but did you notice what you agree upon as well? You allow Microsoft to gather ‘technical’ data as well and the wording slightly differs from Home to Pro.

http://www.microsoft.com/windowsxp/eula/pro.mspx

6. CONSENT TO USE OF DATA. (Home Version: )
You agree that Microsoft and its affiliates may collect and use technical information gathered as part of the product support services provided to you, if any, related to the Software. Microsoft may use this information solely to improve our products or to provide customized services or technologies to you and will not disclose this information in a form that personally identifies you.

7. DESCRIPTION OF OTHER RIGHTS AND LIMITATIONS.(Professional Version:)
You agree that Microsoft and its affiliates may collect and use technical information gathered in any manner as part of the product support services provided to you, if any, related to the Product. Microsoft may use this information solely to improve our products or to provide customized services or technologies to you. Microsoft may disclose this information to others, but not in a form that personally identifies you.

– Oh one other thing I find semi-amusing. Most users don’t realize they don’t “own” the product on their computer, but lease it.

3. RESERVATION OF RIGHTS AND OWNERSHIP.

HOME: Microsoft reserves all rights not expressly granted to you in this EULA. The Software is protected by copyright and other intellectual property laws and treaties. Microsoft or its suppliers own the title, copyright, and other intellectual property rights in the Software. The Software is licensed, not sold.

PRO: The Product is protected by copyright and other intellectual property laws and treaties. Microsoft or its suppliers own the title, copyright, and other intellectual property rights in the Product. The Product is licensed, not sold.

– As well I didn’t know you could transfer Windows to another machine (of course deleting the it off the original machine), as when I reformat my machines yearly, I end up calling to re-activate it and even though I say I have reformatted the first machine with nothing on it (Linux) they say the copy must remain with the machine, even if I bought the product separately say off eBay. However:

TRANSFER-Internal. You may move the Product to a different Workstation Computer. After the transfer, you must completely remove the Product from the former Workstation Computer. Transfer to Third Party. The initial user of the Product may make a one-time transfer of the Product to another end user. The transfer has to include all component parts, media, printed materials, this EULA, and if applicable, the Certificate of Authenticity. The transfer may not be an indirect transfer, such as a consignment. Prior to the transfer, the end user receiving the transferred Product must agree to all the EULA terms. No Rental. You may not rent, lease, lend or provide commercial hosting services to third parties with the Product.

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- As well I didn’t know you could transfer Windows to another machine (of course deleting the it off the original machine), as when I reformat my machines yearly, I end up calling to re-activate it and even though I say I have reformatted the first machine with nothing on it (Linux) they say the copy must remain with the machine, even if I bought the product separately say off eBay. However:

TRANSFER-Internal. You may move the Product to a different Workstation Computer. After the transfer, you must completely remove the Product from the former Workstation Computer. Transfer to Third Party. The initial user of the Product may make a one-time transfer of the Product to another end user. The transfer has to include all component parts, media, printed materials, this EULA, and if applicable, the Certificate of Authenticity. The transfer may not be an indirect transfer, such as a consignment. Prior to the transfer, the end user receiving the transferred Product must agree to all the EULA terms. No Rental. You may not rent, lease, lend or provide commercial hosting services to third parties with the Product.

This sounds like what Microsoft calls a full retail license. Beware. Microsoft has other, cheaper licenses on less generous terms.

Microsoft has an OEM license. You cannot transfer it from one machine to another, unless move the motherboard, too. You can’t upgrade the motherboard (although you can replace a faulty motherboard with the same model). You can upgrade anything else in the box. Microsoft does not provide technical support with an OEM license. You can purchase an OEM license along with hardware; usually it’s around 30% less. However most OEM licenses are purchased from computer manufacturers, or their dealers, along with the hardware.

Microsoft has a site license. You purchase a number of “seats”, say 450. This means you can have at most 450 copies of the product installed on computers in active use by your employees at your company site. (Can you have a few more in storage, ready to replace failing machines?) I don’t know about selling computers or software covered by site licenses.

I believe an upgrade license inherits the rights and restrictions of the original license.

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One day, through some unknown combination of factors, I was presented with a screen that read “EULA Is Invalid”, which I was happy to click on. If I end up in a dispute with M$, do they have to prove that I saw and clicked “I Accept” on the EULA they think is in effect?

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A few years ago I found an app called ”EULAlyzer” and use it on a regular basis. There is a Free version available, as well as a more thoroughly analyzer called EULAlyzer Pro.
I’ve found this app to be both easy and comforting to use, since it looks for common traps in EULA’s and suggests the presence of vagaries, as well!

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Hey, Woody,

EULA changes, a very interesting topic for discussion. My over 30 year experience with contract law, and I might add many of those years as sales to government agencies, indicates Microsoft’s EULA in just another Microsoft bully tactic to intimidate the user. As commented by others Microsoft will be very hard-pressed to identify the “clicker” and hold accountable for Microsoft’s perceived EULA violations. Further, contract law is slightly different than case law; there are differing sets of acceptable standards under “The Uniform Commercial Code” (UCC), regarding merchantability and fitness for use procedures, warranty agreements, etc.

Basically a UCC contract is “what is acceptable to both parties” without being illegal. The crux of this issue regarding a EULA change AFTER the original “click” is that the second party” i.e. the user is unaware of the EULA change and therefore cannot be held accountable for a subsequent violation. In an extreme example, if I were an unscrupulous car salesman, I could therefore write a second sales contract as an amendment, not disclosing to the buyer and hold the buyer accountable for “additional charges”, say another $10,000 in “dealer prep”. In the legal parlance: not cool.

In the true contract sense, the argument would be Microsoft would have to go back to ALL previous “clickers” and AMEND ALL original agreements, with notification of any changes, and have the user “re-click”, acknowledging agreement to the change and the subsequent new EULA contract modification.

Regards,
Bob Peterson
Contract Sales
A Large Aerospace Corp.

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Microsoft has not changed its licensing tactics in years. I am still in possession of an envelope of 3.5″ diskettes for Windows 286. It clearly states “you must accept the terms of the license agreement inside before opening this envelope”. I am not Superman so it was a little hard to do….

Loaner

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So if Microsoft changes the EULA and I find I can no longer abide by it, what recourse do I have? Can I send the product back for a refund? Don’t bet on it!

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Woody, you say that the EULA file in the System32 folder has the date you installed Windows. Mine is dated February 2006, but I am pretty sure I deleted partitions and re-installed everything last winter. Feb’06 is probably when the CD-ROM was made (it is XP SP2-b OEM).

This is disappointing. I would like to have an infallible way to determine when Windows was actually installed or upgraded.

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EULA, how we detest thee.

The fact that we can not ignore, is that if we do not click on “AGREE”, is that we can not use the software that we desire to use. To date, I have never read a complete EULA. I tried early on when I first tested the sometimes murky waters of computers and the Internet, to read EULA’s. What a frustrating exercise in futility. After spending way to much time reading words that made no sense to me what so ever, I came to the conclusion that whether I understood the EULA or not, the bottom line, if I want to use the software, I had to click “AGREE”.

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