Opening up a new Vista

By Nick Holmes on November 22, 2006
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Filed under Contracts

Computer lawyer Mark Rasch analyses Microsoft’s end user licence agreement (EULA) for the new Vista operating system and finds the boys in Redmond ready to help themselves, leaving you weeping on the floor.

The terms of the Vista EULA, like the current EULA related to the “Windows Genuine Advantage,” allows Microsoft to unilaterally decide that you have breached the terms of the agreement, and they can essentially disable the software, and possibly deny you access to critical files on your computer without benefit of proof, hearing, testimony or judicial intervention. In fact, if Microsoft is wrong, and your software is, in fact, properly licensed, you probably will be forced to buy a license to another copy of the operating system from Microsoft just to be able to get access to your files, and then you can sue Microsoft for the original license fee. Even then, you wont be able to get any damages from Microsoft, and may not even be able to get the cost of the first license back.

… So if your entire network is shut down, and access to all your files permanently wiped out, you get your couple of hundred bucks back – at most. And, as far as I can tell, there are no warranties on the license, no assurance (like the kind you would get on a toaster oven or a lamp) that the thing actually works or does any of the things advertised. What is worse, if you just want to get your money back (assuming Microsoft doesn’t want to give it to you) then you have to file a lawsuit (probably in Redmond, Washington) under the laws of Washington State, and if (and only if) you can prove your case, and your damages, can you get your money back. You aren’t entitled to, upon your belief that there was a breach of contract, simply walk up to the cash register at your local Fry’s or Best Buy and take a couple of hundred bucks from the till. This is called “self help” (or theft) and is not generally allowed as a contract remedy.

But the Microsoft Vista EULA, like many other software license agreements, gives the owner of the software (remember that’s Microsoft because you didn’t buy it, you just licensed it) the right of self-help. They have the right to unilaterally decide that you didn’t keep up your end of the contract, for example you didn’t properly register the product, you weren’t able to demonstrate that it was genuine, and so on, and therefore they have the right to shut you off or shut you down. So, what gives them the right? Apparently, the very contract that they now claim you violated.

Thank’s to John Naughton for the pointer.