[IP] the Vista EULA allows self-help
Begin forwarded message:
From: L Jean Camp <ljean@xxxxxxxxx>
Date: November 22, 2006 12:02:34 PM EST
To: David Farber <dave@xxxxxxxxxx>
Subject: the Vista EULA allows self-help
So if Microsoft thinks maybe you violated your license it can shut
down your machines. And they have extremely limited liability.
>>
http://www.securityfocus.com/columnists/423/3
>>
Now if Microsoft breaches the contract it wrote, the Vista EULA, what
are your rights? Well, according to the terms of the agreement you
agreed to, “you can recover from Microsoft and its suppliers only
direct damages up to the amount you paid for the software. You cannot
recover any other damages, including consequential, lost profits,
special, indirect or incidental damages.” 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.
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