[Gllug] Getting Microsoft off a Dell purchase - anyone done this?

[Doug Winter]

Tethys wrote:
> Is this actually true? I mean, I know it's what the large software vendors
> want you to believe, but is there anything in UK law that governs how you
> may or may not use a particular item that you own? Copyright law controls
> duplication of that item. But which law says "even though you bought this
> item from me, you can't use it unless I give my permission"? Essentially,
> they're trying to claim that all software is leased, rather than sold,
> and that you're only buying the physical medium. But has this ever been
> tested in court?

Whether they can hold you to the terms of an EULA in court or not
depends on how you are told about it, how they require you to accept it,
and what the terms are.

The key bit here is acceptance I guess - if you had to sign a bit of
paper before they gave you the disks you'd probably not dispute that you
were governed by the terms.  The legality of clickwrap and boxtop
licenses has been tested in court a few times in the US, with
conflicting results.  It hasn't been tested in the UK to my knowledge.

I'd expect the courts in the UK to uphold that you were bound by the
EULA if you clicked-through or opened the box in the knowledge that this
was a license-accepting action.  They might well even hold you to the
EULA even if you didn't click through, on the grounds that everyone
knows about such things these days.

One of the rulings in the US drew a parallel with airline tickets, which
you buy without being informed of the myriad restrictions on flight
beforehand, but this doesn't mean you aren't held to those restrictions.

Courts in the UK tend to be even less interested in defending the little
guy than those in the US (specifically for this case, courts in the US
tend to look far more unfavorably on 'contracts of adhesion' than those
in the UK).

If you fancy trying your luck, I'd recommend not clicking through (or
box-opening or whatever) yourself, but getting a child to do it for you.
 Since they aren't legally able to form a contract, you might be able to
argue that no contract was formed and you are free to do what you like
with your own possessions (except copy it of course).  You could also
use someone legally insane, if you have such a person handy.

Good luck though, I'd not bet on you winning ;)

doug.

-- 
"When they lose their sense of awe, people turn to religion.  When they
no longer trust themselves, they begin to depend on authority."  --
Lao-Tzu
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