Wanted: Barrack-room lawyers

My education is so far removed from the legal arena that even TV dramas are sometimes bewildering. Aside from my unforgivable nonchalance regarding most conventional legal systems, my only brush-in with judges and courts involved a traffic ticket, about 20 years ago.

But I do have a question regarding contracts, so if you can offer a tip or a clarification, you’ll be helping me understand things just a little better than I did.

Basically, my question is this: If a contract presents a statement or sets forth a condition that is technically incorrect, but requires the other party to concede to it before the agreement is complete, does that in any way invalidate the contract?

That sounds just as complicated as I imagine it. Let me give you an example instead.

That is the dreaded Microsoft end-user license agreement, presented as part of a Vista installation on an HP laptop. (I’ll pause while the booing and hissing subsides.) The lower checkbox, as you can read, suggests that you will be unable to use your computer if you do not acquiesce to the terms of the agreement.

I’m sure I’m splitting hairs here and I apologize beforehand, but to me that’s patently false. The use of the machine is completely discrete from the presence of a Microsoft product, as any free software advocate would tell you. Suggesting that the computer is somehow incapable of functioning by omitting the software is … well, a lie.

So doesn’t that statement, and the requirement that you acknowledge it, establish the agreement on false terms? Again, my legal know-how doesn’t extend much beyond a once-a-year viewing of Miracle on 34th Street, but if someone misrepresents the usability of a product as a condition of an agreement, it seems like that would invalidate the contract. Or is it just caveat emptor?

If I tell you that your car won’t work unless you use my brand of petrol, you’d laugh and refuse to buy the car. If I told you that your cake wouldn’t bake unless you bought my brand of flour, you’d call me a fool and bake the cake anyway. And in either case, you’d probably hire somebody else to sue me for lying, or just for being stupid. Which is sometimes the same thing.

I don’t know. I don’t have to worry about it because I’ll never buy or install or even use Vista, so personally the question is moot. And it comes as no surprise to me that Microsoft would use what appears to be a scare tactic to coerce someone into agreeing to use their shoddy software. But it does seem that anyone who did click on that box would have some sort of argument that the original premises were false, and that the cake is a lie.


3 thoughts on “Wanted: Barrack-room lawyers

  1. johnraff

    Doesn’t the “(required to use your computer)” bit mean that HP don’t consent to your using anything other than Windows on it, rather than that it’s physically impossible?

    How they would propose to stop you is another question. Maybe they’re just covering themselves against warranty claims from people who’ve installed something non-standard and outside their control. I’ve read that Dell aftersales service will have nothing to do with a computer that’s had Linux put on it. (except one of their Ubuntu models presumably)

  2. Tony

    Laws are different in each country.

    “To me” Microsoft is attempting to make their OS proprietary/a monopoly. To me what Microsoft is doing is illegal because in the USA there are anti-monopoly laws established to help promote capitalism. That’s part of the reason the telephone industry was deregulated years ago.

    If you do not agree to Microsoft’s terms then the M$ software-less computer becomes a heavy paperweight. In some instances I have heard about somebody NOT agreeing to the EULA and the individual sued M$ and won. They were given a settlement of the cash value of XP that the OEM paid – I believe it was $50-$75?

    The way it has been explained to me is that “You really don’t own Microsoft’s OS on your own computer. You are paying to only use it and agree to Their terms and limitations.”

    “‘You can forget about making a case against Microsoft in the USA. They have to many elected government officials on Their payroll.'”

    What I would recommend to anybody who does not want Microsoft installed on their computer when newly purchased is to ask the manufacturer to sell you a system without any Operating System. Most will tell you they cannot do that because of an agreement with Microsoft OR they will charge you extra money to uninstall Windows.

    I’m unsure about this, but this was brought out in an article a couple of years ago. Dell still has to pay M$ for every unit sold whether it is a Dell Windows computer or a Dell Linux computer?? I do question the validity of that statement?

    On a personal note. I bought a new Acer laptop with Vista installed for home use and the laptop barely worked at all. I contacted Acer for several months and was given every conceivable run-around you can imagine. I also contacted the Better Business Bureau, The Federal Trade Commission, and The Office of Consumer Affairs. I was told by each organization they had no control over HOW Acer or Microsoft did business. When I personally mentioned to an Acer vice-president I was thinking about installing Linux on my laptop – he voided my warranty on the spot. The keywords in the previous sentence is “thinking about.”

    To be fair to Acer, they wanted me to send my brand-new computer to one of their service centers and pay for postage both ways. “If” they found nothing wrong with the system they would charge me for labor. I work on computers and Acer has a very bad reputation of trashing a lot of computers they work on. Most laptops comeback with scratches, warped cases, or used parts installed. A lot of times Acer (and Dell too) will lose your laptop and send the consumer a Frankenputer assembled from their used parts bins. The consumer is told this and the consumer will accept Acer or Dell’s ‘offer’ or they are advised to contact their personal lawyer. Needless to say I refuse Acer’s kind offer to work on my new computer. I rarely use it, but – Yes that was sarcasm on my part…

    To make a long story short(to late for that now), I loaded Ubuntu 8.04 LTS and the Acer runs better than EVER. My Acer with Ubuntu 8.04 is great. I could’ve installed 8.10, but I wanted an Long Term Support version.

    At least three ways for you to avoid a Microsoft fee is to buy from strictly Linux computer system builders, build your own computer, buy a used computer and install Linux. In the last instance the seller has already paid Microsoft’s fees.

    Thank You and I apologize for being so long-winded.

  3. iandefor

    IANAL, but…

    There are two different licenses there. The first is the Windows EULA, which you have to agree to to use Windows, but if you look carefully you’ll see the language in the box above the checkbox with the “required to use your computer” remark is referring to an agreement between you and HP- not you and Microsoft. HP wants you to agree to that license as a precondition for using the machine, but for what I’m damned if I know.

    Depending on the nature of the software it almost seems you could make a case for fraud- if it’s just a license to HP crapware then they’re totally lying. Without knowing the nature of the software, though, it’s impossible to tell.


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