News, tips, advice, support for Windows, Office, PCs & more
Home icon Home icon Home icon Email icon RSS icon

We're community supported and proud of it!

  • Click here to agree

    Home Forums AskWoody blog Click here to agree

    Viewing 15 reply threads
    • Author
      Posts
      • #2366576
        Max Stul Oppenheimer
        AskWoody_MVP

        ISSUE 18.19 • 2021-05-24 LEGAL BRIEF By Max Stul Oppenheimer, Esq. Any time you install new software or a new service, you are faced with a seemingly
        [See the full post at: Click here to agree]

      • #2366587
        Alex5723
        AskWoody Plus

        I am waiting for the first corporation/Enterprise to challenge the EULAs in court.

        4 users thanked author for this post.
        • #2366843

          As the old Amerindian once said,

          “Perhaps you will wait long.”

          Were it not so, but…too much money in this, and it ain’t on the consumer’s side.

          Win7 Pro SP1 64-bit ESU, Dell Latitude E6330, Intel CORE i5 "Ivy Bridge", 12GB RAM, Group "0Patch", Multiple Air-Gapped backup drives in different locations. Linux Mint Greenhorn
          --
          "Civilization is fun! Anyway, it sure keeps me busy["

          -Zippy

      • #2366609
        anonymous
        Guest

        It seems I am not alone in becoming more and more cynical the older I get.

        Seems we don’t own anything we buy these days ! lol

      • #2366617
        anonymous
        Guest

        Excellent piece.  The one condition that many of these have that you failed to mention – “We may change the agreement at any time in any way and you automatically agree to the changes”.

        1 user thanked author for this post.
        • #2366715
          Still Anonymous
          AskWoody Lounger

          This is all a part of EULA agreements that are done (at least in the US) under the Uniform Commercial Code (UCC).  The UCC is what makes boilerplate contracts possible, where a vendor can offer a legally-enforceable contract under “take it or leave it” terms, where there’s no space for negotiation.

          One of the specific things that’s permissible in UCC contracts is what I call the “weasel clause”, where the entity offering the contract reserves the right to change the terms, unilaterally, and without advance notice.

          UCC contracts are pretty thoroughly baked into US contract law, and unless one turns up with terms that litigation considers unconscionable (and that’s common in some spyware and other malware), then it’s all enforceable.

           

          1 user thanked author for this post.
          • #2367966
            wdburt1
            AskWoody Plus

            Whether one-sided EULA agreements are unconscionable is the question.

            1.)  Are they what they purport to be, a license rather than conveyance of title?  For what purpose?  Is that purpose legitimate in the eyes of the law?

            2.)  Are these truly agreements at all, or are they examples of a scheme whereby the vendor commits to nothing and obtains a shield against litigation, while the “licensee” is allowed to believe that he or she has obtained ownership, with its implied rights including warranty (fitness for purpose) and the right to be secure against unwanted downloads modifying or disabling the software.  Is there truly a meeting of the minds, or does the arrangement rely upon the high likelihood that customers, knowing that they have no choice, will click on “Agree” without actually reading or agreeing to the contract?

            Over time, the law evolves to address such issues, UCC or not.

             

            • #2367971
              OscarCP
              AskWoody Plus

              wdburt1: I don’t think the EULA are exactly agreements between two equal parts as many contracts are: MS and potential user, in this case, but a list of, among other things, the arguably unreasonable conditions one must accept to get the license to use the software in question, or make do without the software, as a second and perfectly free choice.

              I do think the conditions imposed on the user by a license such as the EULA, for the latter, in this case, to be allowed to use a certain software product, are like the one-sided right of the owner of a shop to declare and, if necessary, enforce, that he or she intends not to sell to, or serve certain individuals, as in “no shirt, no shoes, no service.” Such rights, in the USofA are limited by existing laws, starting from the Constitution and down from there: gender, race, sexual preferences, religion, etc. are no-no’s.

              The question, to me, is whether the exercise of this right is taken too far in many licenses — and not just in the MS EULA.

              I think they are.

              Far enough to go to court over it? Probably. So, why no test this in court?

              Good idea, if you can get some States behind you to prop you up against a pretty good team of very well paid MS lawyers appearing for the defense. To change this, as I have mentioned earlier, requires government action motivated by irate discontent among the populace: peasants with pitchforks and torches and all that.

              Windows 7 Professional, SP1, x64 Group W (ex B) & macOS Mojave + Linux (Mint)

              1 user thanked author for this post.
      • #2366645
        jagshemash
        AskWoody Lounger

        I read this agreement 5 years ago when win10 came out, and decided I was having none of it. I “borrow” the OS as part of my employment, and support others that do the same, as I have  my entire career, which is fortunately winding down. I started learning and installing Linux for friends when win10 came out. I’ve still got two win7 machines at home, no updates installed since the great get win X debacle. Bought a new laptop for home use recently, installed Linux Mint and am thrilled with it.

        In a a year or two, I’ll be saying goodby to windows for good. Except for helping the occasional unfortunate friend still borrowing Microsoft’s property. And hacking the registry of MY dual boot win10 play PC at home, come get me M$.

        2 users thanked author for this post.
      • #2366624
        anonymous
        Guest

        You left off the “Click here to agree” button at the end of your article.

      • #2366699
        anonymous
        Guest

        A similar big beastie which also uses impenetrable EUAs is unlikely to rock the boat by challenging one in court. However, I could see a regulator launching a legal case (eg the EU) or simply by-passing it altogether by legislation. Then there would be some kind of stand-off such as the Australian case for news feeds. It would have to result in compromise or the company would lose a huge market and/or the regulator’s jurisdiction would lose IT services.

      • #2366704
        OscarCP
        AskWoody Plus

        The agreement, as described in detail in this well-written article in the Newsletter, strikes me as what is these days pretty much the standard for agreements on many different things, at least in the US of A, from renting an apartment to buying and installing software. I would think that is not just MS that has to change its tune, but many other businesses as well. As I see it, MS is just going along with the overall, and seemingly unstoppable, drift to totally irresponsible and liability-free business deals between those with the power to impose them and those often powerless to say no, but that either take the deal with both hands, for example by clicking “accept”, or by signing on the dotted line, or else go without; I am referring here to those who, generally speaking, now days are described as “users”, or “consumers.” (That also used to be known as “citizens”, as some of us might still remember, because that was such a long time ago.)

        Windows 7 Professional, SP1, x64 Group W (ex B) & macOS Mojave + Linux (Mint)

        2 users thanked author for this post.
      • #2366707
        anonymous
        Guest

        The most insulting restriction is that arbitration will take place before a judge selected by the writer of the “agreement”.

         

        2 users thanked author for this post.
        • #2367373
          Amy Babinchak
          Manager

          This is true of every agreement that you’ve ever agreed to.

          • #2367700
            wdburt1
            AskWoody Plus

            I have done more than a few agreements in my time in business, and most of them specified a state of jurisdiction but not the judge.  Those containing arbitration clauses typically provided that each party gets to nominate an arbitrator, and the two arbitrators thus nominated choose a third, presumably neutral, arbitrator.  Any arbitration result would be subject to the laws of the state of jurisdiction.  Except in cases where the arbitration process utterly failed, it would have been unusual for a state judge to intervene.

            • #2367980
              Susan Bradley
              Manager

              Every engagement letter that I’ve seen prepared for my “day” profession, we set the state and the actual vendor of the arbitration.  We don’t allow anyone to choose an arbitrator.  This is recommended by our malpractice insurance.

              Susan Bradley Patch Lady

              1 user thanked author for this post.
      • #2366816
        PaulK
        AskWoody Lounger

        In Re: Click here to agree

        The last Section of your Article is:
        = = = = = = = = =
        Final thoughts

        There is some question as to the extent to which one-sided “click to accept” agreements can be enforced. On the off chance that they are enforceable, though, by reading this sentence you agree to wash and wax my car. Email me to select a convenient time.
        = = = = = = = = = =

        Mr. Oppenheimer, Sir:
        You omitted (unintentionally, I understand) to include your email address, so I am reduced to contacting you via this public forum.

        I will be delighted to wash and wax your car. Please drive it to my house; I am in the vicinity of Los Angeles, CA. The only opening that I have available this week for this service is this Thursday, 26 May. I hope that 11:22 AM is convenient for you. If you can make it, please let me know and I’ll give you my exact address.

        /s/ PaulK

        Filed at AskWoody.com – May 24, 2021 – 5:10 PM PDT

        3 users thanked author for this post.
      • #2366825
        OscarCP
        AskWoody Plus

        For your further information and dead serious amusement:

        https://en.wikipedia.org/wiki/End-user_license_agreement

        Excerpts:

        Several companies have parodied this belief that users do not read the end-user-license agreements by adding unusual clauses, knowing that few users will ever read them. As an April Fool’s Day joke, Gamestation added a clause stating that users who placed an order on April 1, 2010 agreed to irrevocably give their soul to the company, which 7,500 users agreed to. Although there was a checkbox to exempt out of the “immortal soul” clause, few users checked it and thus Gamestation concluded that 88% of their users did not read the agreement. The program PC Pitstop included a clause in their end-user license agreement stating that anybody who read the clause and contacted the company would receive a monetary reward, but it took four months and over 3,000 software downloads before anybody collected it. During the installation of version 4 of the Advanced Query Tool the installer measured the elapsed time between the appearance and the acceptance of the end-user license agreements to calculate the average reading speed. If the agreements were accepted fast enough a dialog window “congratulated” the users to their absurdly high reading speed of several hundred words per second. South Park parodied this in the episode “HumancentiPad”, where Kyle had neglected to read the terms of service for his last iTunes update and therefore inadvertently agreed to have Apple employees experiment upon him.

        In a 2019 article published by Kevin Litman-Navarro for The New York Times, titled “We Read 150 Privacy Policies. They Were an Incomprehensible Disaster”, the complexity of 150 terms from popular sites like Facebook, Airbnb, etc. were analyzed and comprehended. As a result, for example, the majority of licenses require college or higher-level degrees: “To be successful in college, people need to understand texts with a score of 1300. People in the professions, like doctors and lawyers, should be able to understand materials with scores of 1440, while ninth graders should understand texts that score above 1050 to be on track for college or a career by the time they graduate. Many privacy policies exceed these standards

        Windows 7 Professional, SP1, x64 Group W (ex B) & macOS Mojave + Linux (Mint)

        1 user thanked author for this post.
      • #2366849

        Personally, I fully expect to find, in some EULA, some day,

        “We reserve the right to enter your house at 4 AM and harvest a vital organ for sale on the black market.”

        Hey, it may not be that far away.

        In the meantime, the Bureau of Consumer Protection under the Federal Trade Commission has proved to be ineffective, feeble and weak since it was created…so don’t look to them. The only thing I know is to get the $$ out of politics…and we know when THAT’S going to happen. <sigh>

        Win7 Pro SP1 64-bit ESU, Dell Latitude E6330, Intel CORE i5 "Ivy Bridge", 12GB RAM, Group "0Patch", Multiple Air-Gapped backup drives in different locations. Linux Mint Greenhorn
        --
        "Civilization is fun! Anyway, it sure keeps me busy["

        -Zippy

      • #2366857
        Alex5723
        AskWoody Plus

        Create your own EULA

        EULA Generator

        Generate a professional EULA agreement
        The EULA Generator helps you create a custom and professional End-User License Agreement (also called EULA) for your desktop or mobile application.

        Save time and legal fees with our all-in-one EULA Generator.

        2 users thanked author for this post.
        • #2367102

          …and, of course, THEIR EULA’s last line:

          “You agree to defend, indemnify and hold TermsFeed harmless from and against any and all claims, damages, costs and expenses, including attorneys’ fees, arising from or related to your use of our Website or any Contracts or Services you purchase through it.”

          See? no matter what happens, or how bad it is,  IT’S NEVER OUR FAULT!

          Time to head for the hills. Too damn many sharks and blood in the water around here.

          Win7 Pro SP1 64-bit ESU, Dell Latitude E6330, Intel CORE i5 "Ivy Bridge", 12GB RAM, Group "0Patch", Multiple Air-Gapped backup drives in different locations. Linux Mint Greenhorn
          --
          "Civilization is fun! Anyway, it sure keeps me busy["

          -Zippy

          • #2367239
            anonymous
            Guest

            The disclaimer page is the other “we aren’t liable” tell all, this EULA generator service reminds me of Matthew Lesko’s Free Money books!

            • #2367299

              Oh, Lord, THOSE things, AND him! Aaaargh! I thought I’d purged him from memory! Related:

              Reminds me of one scene in “The Magic Christian” (1969) when Peter Sellers and Ringo cook up a “Free Money” public offering in a vacant lot, which draws an enormous crowd…and the fun begins:

              https://www.youtube.com/watch?v=3Xg2v_T2XH8

              Now THAT’s a EULA! Sorry, kids, but you’ve been anticipated. 🙂

              Win7 Pro SP1 64-bit ESU, Dell Latitude E6330, Intel CORE i5 "Ivy Bridge", 12GB RAM, Group "0Patch", Multiple Air-Gapped backup drives in different locations. Linux Mint Greenhorn
              --
              "Civilization is fun! Anyway, it sure keeps me busy["

              -Zippy

              1 user thanked author for this post.
      • #2367002
        IreneLinda
        AskWoody Lounger

        Max,

        Thanks for your delightful article. It was fun to read and wonderfully tongue in cheek. I plead guilty to rarely reading the blasted things and, when I do, skimming through them pretty quickly.

        Your article also made me want to “de-legalize” the one we have on our site even further … and that’s a good thing.

        Linda

        2 users thanked author for this post.
        • #2367374
          Amy Babinchak
          Manager

          I think that you got the point of the article. We need simpler and easier to understand EULA’s. I came to visit the forum here to find out what people thought about this article and what they thought the point was. Microsoft’s EULA is one of the less offensive in the industry. As expected it seems that it instead just fed the paranoid and already angry.

          • #2367456
            OscarCP
            AskWoody Plus

            Amy Babinchak: “Microsoft’s EULA is one of the less offensive in the industry. As expected it seems that it instead just fed the paranoid and already angry.

            So Jack the Ripper, who killed, maybe ten? is less offensive than Stalin or Hitler, who got millions killed, one way or another. Understood. Thanks.

            People don’t have to be paranoid to be upset about this. And, sometimes, if sufficiently upset about something, that something gets changed. Don’t underestimate the power for good of being upset.

            (Although, as Fred used to proclaim: “To be paranoid does not mean they are not out to get you.”)

            The  problem here, as in many other cases, at its very root, is the indifferent attitude of the voting public and the complacent attitude of those they have elected to be in government: the two main factors that allow this sort of thing to happen, and go on happening. And enables MS and all the rest to a least try, and keep on trying to take advantage of it. So some anger instead of total passivity, is good. Legal and legislative action to change the rules of the game could be even better. The first could lead to the second. And a better situation could then ensue.

            Windows 7 Professional, SP1, x64 Group W (ex B) & macOS Mojave + Linux (Mint)

            3 users thanked author for this post.
          • #2367588
            wdburt1
            AskWoody Plus

            “Paranoid” and “already angry?”  What’s next, “basket of deplorables?”

            The article clearly concerns the one-sidedness of the typical EULA and is not principally about simplification.

             

             

            2 users thanked author for this post.
      • #2367342
        Alex5723
        AskWoody Plus

        EULAlyzer

        Making EULAs Easy
        Discover if the software you’re about to install displays pop-up ads, transmits personally identifiable information, uses unique identifiers to track you, or much much more. EULAlyzer can analyze license agreements in seconds, and provide a detailed listing of potentially interesting words and phrases.

        The Benefits
        Discover potentially hidden behavior about the software you’re going to install
        Pick up on things you missed when reading license agreements
        Keep a saved database of the license agreements & documents you view
        Instant results – super-fast analysis in just a second..

        5 users thanked author for this post.
        • #2367346
          Mele20
          AskWoody Lounger

          I used to use EULAyzer and loved it! I haven’t had it in quite awhile and I have no recollection of getting rid of it….so I don’t know what happened. Anyhow, thanks for posting about it as I now have it again.

          1 user thanked author for this post.
      • #2367743

        …and one last thing, very important:

        No matter what the EULA says you’re agreeing to, if it is contradicted by State or Federal laws and/or constitutional rights, they are null and void. Period. You cannot sign away your State or Federal rights.

        As such, a lot of “contracts”, “agreements”, and NDA’s are not worth the paper they’re on. I remember Melvin Belli expounding on this many decades ago, even though he was chiefly a Torts lawyer.

        Changing focus slightly, do you think American Airlines, or Delta, or any other airline “agrees to hold the vendor harmless from whatever problems may occur from the use of their software? H*** no. (BTW, outfits in Aerospace usually have their OWN OS running the ship.)

        Maybe it’s time some of this EULA nonsense we’re “agreeing to” needs to be challenged in a court of law, even if it’s consumer-grade. I wonder what the software agreement on farm equipment says…”…in case the machine goes nuts, and wreaks bodily mayhem, devouring your livestock and workers, you agree to hold us harmless…”

        Anyone know? Some farm machinery is very heavily software-driven these days.

        Win7 Pro SP1 64-bit ESU, Dell Latitude E6330, Intel CORE i5 "Ivy Bridge", 12GB RAM, Group "0Patch", Multiple Air-Gapped backup drives in different locations. Linux Mint Greenhorn
        --
        "Civilization is fun! Anyway, it sure keeps me busy["

        -Zippy

        3 users thanked author for this post.
    Viewing 15 reply threads

    Please follow the -Lounge Rules- no personal attacks, no swearing, no politics or religion.

    Reply To: Click here to agree

    You can use BBCodes to format your content.
    Your account can't use Advanced BBCodes, they will be stripped before saving.