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The Self-Modifying EULA? 279

Posted by Cliff
from the stuff-to-think-about dept.
An anonymous reader asks: "Years ago, when I first installed Windows 2000, I accepted its EULA. Despite serious defects in the product, I resisted installing Service Packs because they modify the original EULA. Now even Homeland Security is on my back to upgrade and install a fix. I would be happy to install SP4 and all the security patches BUT ONLY IF IT IS DONE UNDER THE ORIGINAL EULA. Otherwise, Microsoft has made me an unwilling zombie. The clear fact is that Microsoft delivered a defective product- should not allow them to redefine our agreement. I cannot think of any other market that successfully browbeats its customers in this manner. Can this be legal? Has it been tested in court?"
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The Self-Modifying EULA?

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  • Is it possible (Score:5, Insightful)

    by ack154 (591432) on Saturday August 12, 2006 @11:15PM (#15896752)
    That certain parts of the update required some sort of change to the EULA? Possibly a new feature or option that was not covered by the original?

    Then again, you could always just not accept the EULA and not install it... despite what DHS says. That's why there's another option to select.
    • Re:Is it possible (Score:2, Insightful)

      by kfg (145172) *
      That certain parts of the update required some sort of change to the EULA? Possibly a new feature or option that was not covered by the original?

      " Microsoft has made me an unwilling zombie."

      And thus we see how a newer generation blithely accepts as the normal status quo that which the previous generation finds abhorent.

      And now you see how our "culture" has gotten where it is and how the next generation will accept that which the parent will find abhorent.

      Ave Caesar!

      KFG
      • Re:Is it possible (Score:5, Interesting)

        by plasmacutter (901737) on Saturday August 12, 2006 @11:50PM (#15896892)
        "And now you see how our "culture" has gotten where it is and how the next generation will accept that which the parent will find abhorent."

        EXACTLY!

        just look at the unreasonable crap they cram into EULAs.

        When companies tried this in the old days american workers were willing to stand up and strike, even in the face of direct threat to their familie's lives [wikipedia.org]

        This generation is one of mindlessness, cowardice, and greed.

        This is because of the way our schools and news are used to bombard us as citizens and our children, to teach us to be "good little consumers", to teach us that anyone who questions what the news outlets say is a "tinfoil hatted nut-job", and to persuade us not to act on the mountain of evidence that a wealthy few are impeding and keeping down the lower 95% of us by pounding in this false message that "you too can become rich if you work hard and play by our rules"....bullshit. The people whom these eula's represent are above the laws, they write the damn laws, and they write them with the specic aim of making sure they never have to share their power or money with we the peeons.
        • Re:Is it possible (Score:2, Insightful)

          by kfg (145172) *
          "you too can become rich if you work hard and play by our rules"....bullshit.

          Work your fingers to the bone, what do you get?
          Boney fingers. Boney fingers.

          -Hoyt Axton

          This is because of the way our schools and news are used to bombard us as citizens and our children, to teach us to be "good little consumers"

          Here's an interesting site I found after my last round of dissing our schools. I don't completely agree with him, but he's got the gist of it:

          http://www.johntaylorgatto.com/underground/toc1.ht m [johntaylorgatto.com]

          KFG
        • Most people aren't willing to put their families' lives at stake for the right to run Windows.
        • Re:Is it possible (Score:3, Interesting)

          by babbling (952366)
          You sound like a tin-foil hatted nutjob, to me! ... well, not really. You're exactly right. I'm probably a part of the generation that you're talking about. I'm not sure why we're like this. (I like to think that I'm not)

          I think part of the problem is that we've already lost power. Anyone who gets too vocal or decides to stand up for themselves against government or a big company will be thrown in prison, labelled a terrorist, and none of their fellow citizens will stand by them.
          • > Anyone who gets too vocal or decides to stand up for themselves against government or a big company will be thrown in prison, labelled a terrorist, and none of their fellow citizens will stand by them.

            That's exactly why almost no one has heard of this guy named Michael Moore. Hopefully you can find a page or two about him through Google, although Big Brother may have wiped away all record of him by now. He tried to make a conspiracy-theory movie a few years back, but was jailed before he could finish
            • Re:Is it possible (Score:3, Insightful)

              by NoMaster (142776)

              That's exactly why almost no one has heard of this guy named Michael Moore.

              Actually, it's exactly the reason you've only heard of Michael Moore (and, OK, a small handful of others).

              Always keep a few voiciferous opponents around - it prevents the merely discontented from becoming your enemy; lets them blow off steam. People feel like they've achieved something and done their part by just listening to them, rather than doing deeper investigation themselves. Having just one (or a few) around makes them easy

          • Re:Is it possible (Score:3, Interesting)

            by Jerf (17166)
            Expanding on Hesiod's point, if you can manage to avoid threatening to kill the rest of us for disagreeing with you, you'll find that most people aren't going to label you a terrorist.

            If, on the other hand, you have a belief set where you think you do have the right or the need to make that threat... well, you would be a terrorist and the system would be correct to so label you!

            I'm not going to sit here and tell you that nobody has been falsely labelled a terrorist lately, but I will tell you the number is
        • Hey! (Score:3, Funny)

          by RingDev (879105)
          "you too can become rich if you work hard and play by our rules"....bullshit.

          I became rich by playing by their rules you insensitive clod!

          -Rick (Just kidding!!)
      • No kidding... I know this isn't the same level, but I made a post on a game message board last week advocating the idea that people shouldn't be so enthusiastic about acting like deputized members of its admins and reporting back users who break a ridiculous rule intended to cover their asses from a frivolous lawsuit.

        Imagine my surprise when I got an openly hostile reaction from people citing law incorrectly, saying that they just report them and Big Pappa Authority is responsible for what comes next, and
  • If you want the software patch, you accept the new licensing agreement. If you don't want the new EULA, no one is forcing you to download anything. Sounds like a perfectly valid contract to me, but IANAL.
    • Sounds like a perfectly valid contract to me, but IANAL.

      I agree. I'm not sure why this would NOT hold up in court (also NAL*). They're giving you the changes and notifying you of it before you accept or install anything... what's the big deal?

      * some things should not be made into acronyms
    • by mabhatter654 (561290) on Saturday August 12, 2006 @11:41PM (#15896854)
      you purchase a car with a 70,000 mile warranty, but when you take it into the shop they automatically "upgrade" you to a 60,000 warranty because you recieved "consideration" in form of warranty service? In a court of law that would never hold for automobiles.. and yes, they've tried it.. it's amazing those cases aren't applied to software just as easily.
      • There is a lot of things not applied to software. Software is this weird sort of product where people will let them get away with a lot of things. It starts when they are young. You see it on forums like The Sims 2 BBS. Who cares if the game is a bug-filled piece of garbage, making games is really hard and if you can't do any better you should shut up. These people boggle my mind and its amazing they made it out of the womb, and yet they will shape tommorrow's world.
        Awesome.

    • No, you're quite right. The patch constitutes a new product, and as far as I can tell, there's nothing in the original EULA that guarantees its legality perpetually. New product, new agreement. If you don't want the new agreement - and you haven't explained why you don't - then you don't get the new product. Weird.
    • by babbling (952366) on Sunday August 13, 2006 @04:29AM (#15897460)
      You're ignoring the fact that the patch exists to fix flaws that are defects in the original product. The patch is released because the original was not as it was supposed to be.
      • The promise that a product is defect-free or suited to a specific purpose is called a warranty. The EULA you clicked through when installing, like nearly all software, limits any warranty rather severely. You can't get something for nothing, because you expressly agreed that you wouldn't get something for nothing.
  • Talk to your lawyer. Depending on the circumstances, there's a good chance that those EULAs aren't enforceable anyway, regardless of what Microsoft tells you.
    • by The MAZZTer (911996) <megazzt AT gmail DOT com> on Saturday August 12, 2006 @11:46PM (#15896872) Homepage

      I think it's just on products that you already bought where the EULAs' validity is questionable. The reasoning was that the terms of the transaction were already finalized... you paid money and got your product. The EULA tries to add on additional terms on top of that, when the transaction was already finalized WITHOUT those terms, or so they say (IANAL and all that). Add onto this the fact that many places won't let you return opened software, and you can see that anyone who CAN'T agree to an EULA for whatever reason is in an unfair position.

      But the service packs are free, so this wouldn't apply there.

      • by Schraegstrichpunkt (931443) on Sunday August 13, 2006 @01:01AM (#15897127) Homepage
        But the service packs are free, so this wouldn't apply there.

        I don't think it's quite that simple. For example, if the product was originally advertised as coming with "free security updates", then one could argue that Microsoft is obligated to provide the free updates they advertised under the same terms as the original product. If the EULA isn't enforceable for the original product, then it's probably not enforceable the the service pack. Another example is if you lawfully received the service pack without agreeing to an EULA beforehand (such as if you get an update CD from Microsoft). Or, certain terms in Microsoft's EULAs might also not be enforceable because of their the company's monopoly status.

        I'm not actually saying that I *know* that an EULA wouldn't be enforceable, I'm saying that it's not wise to just assume that it is in all cases. Again, talk to a lawyer in your jurisdiction.

    • Under UK law, the Sale of Goods Act 1979 states that goods must be

      * of satisfactory quality - which means the product you buy should be reasonably reliable.
      * fit for purpose - which means it should perform the function you bought it to do.
      * as described - means it should be exactly what the trader told you it was.

      Those white envelopes containing CDs that state "by opening this, you are agreeing to these terms & condit
      • Depends on what you mean by "enforcable".

        In the UK, copyright law is stricter than in the US. There's no "fair use". You do, actually, need a license to perform any act that requires copying takes place. This includes copying software onto your hard drive (otherwise known as "installing" it) or possibly even into memory.

        Now, if a license doesn't come with a piece of software, it's arguable that you have an implied right, under the Sale of Goods Act, to run it. If you can't run it without installing it

        • >In the UK, copyright law is stricter than in the US.
          >There's no "fair use". You do, actually, need a license
          >to perform any act that requires copying takes place.

          This is not completely true. Although no general "fair use" exists, there is special provisions for computer programs that allows you to make nessecary copies. There is a clause about regulating agreement but it doesn't require such a thing. In the absence of an agreement restricting copying, any copying needed to use the software is allo
  • Interesting... (Score:5, Interesting)

    by aiken_d (127097) <brooks.tangentry@com> on Saturday August 12, 2006 @11:19PM (#15896770) Homepage
    ...what terms have changed that you object to?

    -b
    • Re:Interesting... (Score:3, Interesting)

      by TubeSteak (669689)
      http://yro.slashdot.org/article.pl?sid=03/06/17/1 4 30223 [slashdot.org]

      Microsoft Backs Down on Windows 2000 EULA

      "After the fiasco surrounding the overly intrusive EULA for Windows 2000 SP3, it seems Microsoft has backed down a bit with the upcoming release of SP4. The section concerning automatic updates now states simply "You consent to the operation of these features, unless you choose to switch them off or not use them." The EULA then proceeds to list the five services liable to connect to the internet without explicit
    • Re:Interesting... (Score:3, Insightful)

      by capologist (310783)
      Does it matter? An EULA is a contract. Vendors like Microsoft assert the right to unilaterally change an existing contract. The very notion is offensive.

      The good news is that I'm pretty sure that the new EULA is legally unenforceable. It's a well-established principle in law that you can't do that. Congress seems to believe that anything that content producers do is legal and anything that consumers do is not, but I can't imagine that courts would find any merit at all in that position.
  • by technoextreme (885694) on Saturday August 12, 2006 @11:23PM (#15896788)
    . Now even Homeland Security is on my back to upgrade and install a fix.

    Well there not really on your back to install the fix. It's just the simplest solution for the vast majority of people. If you are not the vast majority read the freaking website on how to plug up the holes. The DHS does in fact post more than one way to ensure you computer is secure but closing up the holes. Of course with the number of holes you will be bashing your head up against the wall. It depends on your stuberness. Here is an interesting question though. Are then infact changing the EULA or just giving you another one for the patch. Im not hip to the jive of the Microsoft's EULA.
  • by Anonymous Coward on Saturday August 12, 2006 @11:31PM (#15896816)
    Quit bitching and bend over. You knew what you were getting into when you installed Windows, yet you have the nerve to complain here?
  • by bananaendian (928499) on Saturday August 12, 2006 @11:40PM (#15896847) Homepage Journal
    Excuse me for thinking you're missing a few nuts but why the hell do you care what it sais in SP4's EULA [corob.net]? Yes, SP4 EULA has its problems [slashdot.org] and I would be inclined to give you the benefit of the doubt if it was't for your inexplicable explanation that you need to update your windows now cause DHS sais so... doh! Where have you been for the last three years? SP4 [wikipedia.org] came out on June 26, 2003!!! And as for MS products being defective - this is surely news to everyone here. Reality is a harsh place for those who can't cope with it.
  • Quoth the release:

    DHS Recommends Security Patch to Protect Against a Vulnerability Found In Windows Operating Systems

    [snip]

    The Department of Homeland Security (DHS) is recommending that Windows Operating Systems users apply Microsoft security patch MS06-040 as quickly as possible.

    [snip]

    Windows Operating Systems users are encouraged to avoid delay in applying this security patch.

    [snip]

    DHS recommends that computer users and administrators implement the following preparedness measures to protect themselves ag

    • On the other hand, if you haven't been patching your system, and you're a System Administrator, you're an idiot and should be fired as soon as possible.

      Unless you have to get the legal department to sign off on all EULAs. Some companies have this policy.

    • if you haven't been
      patching your system, and you're a System Administrator, you're an
      idiot and should be fired as soon as possible.

      Only after running the EULA past your company's lawyers. Entering
      into a contract on behalf of your company without doing so is also
      likely to get you sacked. Note that lawyers are likely to say no to
      any contract which allows the computer to be examined or to be
      modified automatically by another organisation.

      However, similar things will happen with Linux soon. If security patches a

  • by Canthros (5769) on Saturday August 12, 2006 @11:55PM (#15896914)
    1. Install Linux.
    2. Get a Mac, use OS X instead. (This message posted from a Mac!)
    3. Disconnect machine from Internet.
      1. You may also wish to remove or disable any and all network devices on the machine, actually. Just in case.
      2. Having disconnected the machine from all possible networks, you may also wish to consider disabling USB mass storage devices and removing all removable storage drives and devices.
      3. Come to think of it, you might want to remove all I/O devices, to be absolutely sure. This means no modems, no monitors, keyboards, mice, etc.
      4. May as well unplug it, and stick that sucker in a Faraday cage, lock the cage. This will eliminate the possibility of van Eck phreaking.
      5. Throw away the key! Now your computer is completely secure.
  • ...says things no sterner than this:

    Copyright (C) 2005 Free Software Foundation, Inc.

    This is free software; see the source for copying conditions. There is NO warranty; not even for MERCHANTABILITY or FITNESS FOR A PARTICULAR PURPOSE.

    Note the complete absence of restrictions on version numbers, other providers and making up one's own mind. And licence-fee auditing. That's how I like it to be. All of the updates come under the same EULA each time.

  • ...EULA accepts you.

    In a market economy (or as close to one as any country gets) you can always decide that a company no longer provides the best option and not use them.

    Many alternative OSes (resisting, resisting, LINUX, oops) offer higher security (seems that's a concern of yours) as well as better licencing/EULAs.
  • One of the things that it takes to make a valid contract are two identifiable parties. It's nearly impossible to prove who clicked a button.

    The originating company has a different problem as they can never say 'that's not our software' where as the end user can always say 'I never clicked on that button, I'm not bound by the contract.'

    Of course if you want to see how much companies believe in their EULA call one up and ask for a refund because you don't agree to the EULA. They all say 'If you don

  • Trucks (Score:5, Insightful)

    by SmallFurryCreature (593017) on Sunday August 13, 2006 @02:21AM (#15897293) Journal
    If you deal with large scale transportation you will have heard this tale:

    Transport company X has a fleet of brand Y trucks. It is time to replace a portion of them. So they buy a handfull of brand Z trucks, park them at the entrance then invite the sales rep for brand Y to come by for a talk. "Well we have been thinking of upgrading our fleet of trucks. We are looking for offers, by the way have you seen those new Z trucks? Nice aren't they? So what kinda of deal can we expect from you?"

    Then ask them wich OS they buy and how they deal with their OS seller. Watch them be confused.

    It is sensible business. If you are a fleet manager and you would come to your boss saying, "Hi boss, I completely standarized on brand Y trucks, our repair shops can repair nothing else, our drivers can drive nothing else, our loading stations can accept nothing else, we are now one hundred procent at their mercy of brand Y. Oh hi Mr Sales rep from Brand Y, why are you grinning like that?"

    Such a fleet manager would be fired in an instant.

    In IT, that is what has been taking place for the last decade. The same trucking companies that do everything to get their trucks with the cheapest discount hand over their IT to companies selling just one solution and totally tie their entire company to just one supplier.

    Insanity but when it comes to IT common business rules do seem to apply.

    In holland the goverment tries to keep monopolies from happening. Market forces can after all only work if there is more then one player right?

    So we get silly stuff like the attempt to run more then one company on the dutch rail system (crowded in a crowded country) or Shell being stopped from owning more highway gas stations. Or even sillier stuff like privatizing stuff like gas and elec even medical insurance. All meant to drive down price and all the price does is skyrocket up.

    And what is done about the ultimate monopoly? Shit all. Forget Shell owning 80% of dutch highway gas stations. Try MS owning 9*% of all the worlds desktops.

    Face it. IT doesn't follow normal rules. No you would not accept a new EULA (or any EULA at all) when your car company recalls your car to have your brakes fixed. In IT MS owns your ass and they can do whatever they want.

    But it easy to buy another brand of truck. For proof, just look at your big local trucking company, they almost always got a handfull of trucks of another manufacturer. Keeps your supplier on its toes and the costs are trivial. Now try doing the same with computers. Oh it used to be done. Only a very BAD IT manager would not make sure that his IBM datacenter did not have a couple of Sun machines installed in plain sight. But when it comes to desktops we have come to accept lock-in (says a linux user and someone who refuses to answer personal ads that accept only .doc cv's) and we all can see the result.

    Accept lock-in and get locked in. Yet the old trick does work. Look at munich. MS sales rep fell all over himself when he came into his clients office and saw the linux trucks parked outside. In fact MS wherever there is a rumor that a linux truck is even passing MS sends its sales reps with freebies and special deals. And still, the majority of sales meetings with MS go like this. "Ah thank you for your replying to my outlook email, can we shedule a meeting in outlook, I will get your details from access, to meet up and discuss us buying 100 more licenses, I will send you the details in a Word document, btw what kind of pricecut can we look forward too?"

    You can hardly blame MS for it can you? Not their fault that everyone has their head up their ass when it comes to IT.

    • Nice scenario, pretend that you've just earned a +1 Insightful. (-:
    • I thought we'd agreed that the internet was tubes ... not trucks.
    • Interesting argument but I think its not completly true. I've been seeing more and more large companies using a mixture of operating systesm. I think the real culprit is the US government, you really don't see much of an attempt at diversity, and you even have groups openly fight when a state mandates open source or open document standards. /Love working under FSU where we made MS bend over and take prices like $346.50 for 2003 server enterprise. On other other hand its just software so they could sell it
  • The clear fact is that Microsoft delivered a defective product- should not allow them to redefine our agreement. I cannot think of any other market that successfully browbeats its customers in this manner. Can this be legal? Has it been tested in court?

    Yes, it should not. However, "should" means nothing to Microsoft. As makes sense, given how they flagrantly violated anti-trust law and received no effective punishment despite being convicted.
  • license != contract (Score:3, Informative)

    by Anonymous Coward on Sunday August 13, 2006 @05:21AM (#15897549)
    It's a license, not a contract.

    Arguments about single-sided contracts do not apply to licenses.
  • by BrunBoot13 (787805) on Sunday August 13, 2006 @09:24AM (#15897917) Homepage
    Here's how I imagine this would work: a web site to which anyone can post a EULA they've encountered, and a group of lawyers who volunteer time to analyze each EULA and translate it into language anyone can understand. Inconsistencies, gotchas and other noteworthy problems would be highlighted, and the overall validity of each EULA assessed. Hopefully there would be enough buy-in that a large database of EULA analyses would be built up. One problem: are there enough lawyers out there who would be willing to donate their time and expertise?

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