Shrink Wrap my EULA ?

[kurttrail]

Amazing how consumers always figure their side of the story is the
only valid side. Say you are a retailer. Are you going to comply
with every contract (EULA) contained within every piece of software
that you sell? Yeah, right, especially since the contract was never
between you, as the retailer, and the buyer. The contract was
between the software author and the buyer, so it is up to the buyer
to reject the contract (which must be performed BEFORE the install
has completed) and seek to return the product or service to the
author of that product or service. Go call Microsoft to return their
product which you have rejected their terms in their contract.
Microsoft is with whom you have a contract or rejected it. The
retailer only warranties the product isn't defective, and you're lack
of education or pre-knowledge in understanding the product which you
purchase from them is not their responsibility.
Go read http://www.microsoft.com/info/nareturns.htm. And don't give
me that "But I wouldn't know within 30 days of purchase" that I would
reject the terms of the contract. Your complaint is that the retailer
wouldn't accept your attempted return and even you know that retailers
always have an expiration on returns. They aren't going to have
revenue remain indefinitely in jeopardy until you finally decide to
get around to using the purchased item some months or years later.
You'll need to call Microsoft to find out what their return policies
are in non-North American regions.

Note that you and Woody are not arguing the same point. You are
arguing that all retailers should honor all contracts contained
within all software they sell although the retailer was never the
author of that software and those contracts are not with the
retailer. The retailer warranties against defects in merchandise,
not regarding some 3rd party contract between the buyer and someone
other than the retailer. Woody's "argument" is that he wants
Microsoft's permission to legally make duplicates of the single
license that he got (i.e., he wants to pirate the software). That
has nothing to do with his copy of Windows being an OEM version. Even
retail FULL versions still limit the user the number of licenses
included in that sale. He doesn't want to pay for the software. He
wants to steal it by installing the same copy on his multiple home
computers. Woody's argument is, "NOWHERE on the cover does it say
ANYTHING about it being a licence for just one pc". That is not a
requirement of just the OEM version. That applies to ALL versions of
Windows. He wants to buy just one sandwich at Subway and thereafter
be given another free sandwich on every day that he visits Subway.

Piss poor analogy. A sandwich isn't copyrighted material. Individuals
have fair use rights with a copyright work.

--
Peace!
Kurt
Self-anointed Moderator
microscum.pubic.windowsexp.gonorrhea
http://microscum.com
"Trustworthy Computing" is only another example of an Oxymoron!
"Produkt-Aktivierung macht frei"

 

[kurttrail]

Consider it disputed!

LOL! Consider you are too!

--
Peace!
Kurt
Self-anointed Moderator
microscum.pubic.windowsexp.gonorrhea
http://microscum.com
"Trustworthy Computing" is only another example of an Oxymoron!
"Produkt-Aktivierung macht frei"

 

[Snuffy]

You MVP guys all sound like we users are all supposed to be certified
lawyers.
I buy and pay big bucks for all the software i have , but i don't agree with
all the BS you guys put out here either.
You MVP guys put out a lot of good info here and i am greatfull but i just
don't believe all the stuff microsoft is sticking us with either.

 

[Woody]

hey mike wtf should i return anything ?


i bought it , i'm using it and NOWHERE on the package says ANYTHING about it
just being a licence to use it on only ONE computer . . youre a systems
builder . LOOK and see . mine i purchased over 2 years ago and it is genuine
MS OEM !!!!!!!!!!!!!!!!!!!!!!!!!!

 

[Snuffy]

Why won't the reseller warrinty it ?
If i buy a new car, say new Dodge , and it has Goodyear tires on it and one
goes to hell on the way home , Dodge surly will warnty that tire.

 

[Al Smith]

the only thing it says on the shrinkwrapped booklet is "For Distribution

only with a new PC " .

NOWHERE on the cover does it say ANYTHING about it being a licence for just
one pc . would you like me to post the front and back covers ?

That's the problem, isn't it? The biggest restriction in the use
of the software, and it isn't mentioned on the box. You only get
to read about it after you open the software, thereby making it
impossible to return to the store.

 

[Woody]

vanguard , sorry , tommorrow i'll read your novel . and maybe even reply to
it .

i purchased a product and NOWHERE on the cover does it say that its just a
licence to use it on ONE pc .

I purchased a toaster the other day and when i plugged it in it didn't tell
me that i could only toast wheat bread .

 

[Woody]

gee you really do have a point there , but then again expressing that point
makes you a troll and you will be forever denounced as a thief here .

 

[Vanguard]

vanguard , sorry , tommorrow i'll read your novel . and maybe even
reply to
it .

i purchased a product and NOWHERE on the cover does it say that its
just a
licence to use it on ONE pc .

I purchased a toaster the other day and when i plugged it in it didn't
tell
me that i could only toast wheat bread .

When you buy a car, where on its cover (i.e., its body) is the warranty
printed? You have to look "inside".

 

[DJ Borell]

Ok, it doesn't say anything on the outside of the package about your
being able to use it on only one system. So what? The EULA does.

You HAD to agree to the EULA before you actually installed it, you
were given several opportunities to *decline* the EULA before you
installed...so who's fault is it? MS for making a license agreement
you don't like, or *yours* for not bothering to read it before
agreeing to it?

 

[DJ Borell]

Actually, if you read the link provided in Vanguard's post, you'll see
that Microsoft DOES refund shipping.

 

[Vanguard]

Piss poor analogy. A sandwich isn't copyrighted material.
Individuals have fair use rights with a copyright work.

Yeah, screw the fact that you actually agreed to a contract with the
software author. Just because software is an easily copy-able item
doesn't change the fact that it IS property that is covered by the
conditions of sale. Yeah, of course, anything that is easy to do should
be allowed, uh huh.

Please provide links to information where copyright law actually
protects the *user* of the copyrighted material. Maybe you saw
something at http://www.copyright.gov/ that I missed regarding the
presumed "rights" of users of copyrighted materials (where the user(s)
is NOT the copyrighted item of that user). I did find mention of "fair
use" at
http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter9/index.html.
So how does fair use of copyrighted material have anything to do with a
separate contract to which you agree regarding your use of a product or
service? As defined, fair use grants you the right to comment or
criticize on a copyrighted item. Yeah, so you've done that here without
cause for legal retribution by the copyright holder. Fair use is any
copying of copyrighted material done for a LIMITED and "transformative"
purpose such as to comment upon, criticize or parody a copyrighted work.
Well, that doesn't apply to making a full copy of a software product,
either. So which part of "fair use" lets users pirate software?

 

[Vanguard]

That's the problem, isn't it? The biggest restriction in the use of
the software, and it isn't mentioned on the box. You only get to read
about it after you open the software, thereby making it impossible to
return to the store.

Where on the contract (EULA) did you see the store's name mentioned?
When you buy insurance from an agent, is it the agent with whom you have
the insurance contract, or is your contract with the insurance company?
The store never wrote that contract so they are under no legal
obligation to comply with any of its terms. Your disagreement of the
contract is with the other parties involved in that contract, and that
doesn't include the store where you bought it since they were never an
included party. In this case, the other party is Microsoft, so return
the product to Microsoft for a refund; go read
http://www.microsoft.com/info/nareturns.htm (call them for other regions
regarding their return policy). Just because you choose not to bother
returning the product doesn't mean you were barred from doing so. You
tried to return your product to the wrong party. Microsoft does accept
returns.

 

[DJ Borell]

I think you're using the wrong analogy...

You didn't purchase the software, you purchased a license to *use* the
software. There's a difference and it's a difference that's been
tested, and upheld, in numerous court decisions (don't ask me to cite
them, do your own research). At no point do you *ever* own, or have
any interest in, the software itself. Among other things, if you
owned it, you'd be entitled to the source code. Try calling MS and
asking for the code...let me know what response you get.

You didn't purchase a license to use your toaster -- you purchased the
toaster. It's yours. You can do with it what you want. Feel like
letting your neighbor use it? Go ahead. Wanna put it in a different
house? Knock yourself out. It's yours, you own it.

Now go rent a car. You don't own the car. You have a rental
agreement to use the car under specified conditions (ie, a license).
Can you let someone else (who isn't a part of the agreement) drive the
car? Yes, but you would be violating the agreement if you do so and
you would be personally liable for any damages incurred as a result.
Even if no damage occurred, the rental company could take civil action
against you if they found out. You *can't* do whatever you want with
it, you *don't* own it.

Now comes your argument that you can see the rental agreement before
you take the car. Quite right, but the only difference with the
Windows EULA is that, in certain circumstances, you have to open the
package first. However, you've got several opportunities to read it
before you install, both in hardcopy and electronic versions, and it
states right at the top the conditions under which you should return
it (not agreeing with the EULA) and how. If the retailer doesn't take
it back, and I will agree that many will not, Microsoft will.

As I've said, the bottom line is that the only person to be aggravated
with is yourself.

 

[Vanguard]

Why won't the reseller warrinty it ?
If i buy a new car, say new Dodge , and it has Goodyear tires on it
and one goes to hell on the way home , Dodge surly will warnty that
tire.

So what does YOUR copy of the Dodge warranty actually say? Does it say
the tires are covered by Dodge? Or did you get a brochure stuffed into
your glove box for the warranty as provided by Goodyear?

I visited http://www.dodge.com/crossbrand/warranty/ and picked a model
(Grand Caravan 2005) to see their warranty. What I saw was, "There is
no list of covered parts since the only exception is tires." Under
"Items Covered by Other Warranties", tires were listed. So Dodge does
NOT provide warranty coverage on tires. If you have a manufacture
defect for your tires, you'll have to call Goodyear. Note that if you
got those specialty mag wheels which don't come factory standard then
Dodge won't cover those, either, and you'll have to file a warranty
claim with whomever manufacturers those after-market mag wheels. As to
whether or not the distributorship or reseller offers to provide
replacement tires, that is their choice but not their obligation.

Also, you are talking about authorized Dodge distributors that are
dispensing their own product (they are legal representatives of Dodge).
So what Microsoft store did you visit to buy Windows? Maybe Microsoft
does have retail stores, physical or online, from where you can purchase
their software but I haven't seen them. If they do then they would be
required to accept your return after rejecting their proposed contract.
Microsoft doesn't sell single copies to end users. You purchased
Windows through a retail agent who is not part of the Microsoft entity.
If, however, you purchased volume licenses (or volumes of single
licenses) through an authorized Microsoft distributor then indeed you
could go back to them for a return. Normally YOU don't buy from
Microsoft. The reseller bought from Microsoft and then resells to you
(at a markup). The retailer is under no obligation to comply with the
terms of a contract to which it was never a party to, anymore than the
guy selling software on eBay gives a damn about the contract between you
and the software's author.

So when you have sold off something, did you agree to comply with all
warranty terms that may exist between the product's manufacturer and the
buyer? When you buy that Sony television that dies in 6 months, do you
get to return it to the store or do you have to send it to Sony which is
whom you actually have the 1-year warranty contract?

 

[Michael Solomon \(MS-MVP\)]

A system builder knows that he either buys a special license and he images
multiple systems or each user gets an OEM disk with a license for that one
system and a CD key.

Why should you return anything? Because you are admittedly dissatisfied
with the terms. Besides, I wasn't suggesting you do that. You implied you
have no options because you found this information after opening the
shrink-wrap. I was simply informing you and the individual who mentioned
purchasing software at Wal Mart that you indeed have options despite that
detail and regardless of retailer policy.

You can do whatever you want to do, I'm sure you know that, why did you even
post here? Who in the heck at Microsoft is really going to know, especially
if you post your complaint here (Well, now that you've posted here, everyone
knows), why not take it up with Microsoft? A little digging and trust me,
it wouldn't have taken much and you would have found that Microsoft purges
the activation database every 120 days. You want to take it to a new
computer and bust the license, I'd say that's an opportunity through which
you could drive a Mack Truck.

One other thing, I'm not employed by Microsoft, I'm just a volunteer so
don't construe anything I've said as representing Microsoft's policy or
position on this. All I'm saying is, all your huffing and puffing and the
fact is, nothing anyone says in this forum is at all relevant beyond their
opinion. Suppose we all tell you that you are right, then what? You still
have an OEM version that according to the license can't be moved. Everyone
in this newsgroup with the possible exception of Kurt is in the same boat,
albeit many without OEM versions but still the activation issue applies.

Genuine MS OEM means nothing more than the user is purchasing a license to
use the software on the hardware with which it was purchased!

 

[Michael Solomon \(MS-MVP\)]

It would be wrong and irresponsible of us, knowing the terms of the EULA not
to give the information as we know it.

Okay, you may not have known before with regard to the EULA, now you know!

I haven't given the OP any advice. He asked a question and gave his
opinion. We responded with information and I tried to correct some
misinformation. And for your information, it's not my BS, it's Microsoft's!

Had I said, "Look, man, go ahead and do it, everyone else does," would I
then have earned your respect?

It's a public forum and while I don't speak for Microsoft nor do I feel
compelled to shill for them or otherwise defend their position (None of
which have I done in this thread by the way), I do have a responsibility to
at least give the correct information. Not my opinion but information
and/or to correct what I may see as misinformation.

There are many people who lurk here, who never ask questions but who read
these threads. It is precisely because they aren't lawyers that we should
at least provide and explain such things as best we can. It doesn't mean we
are promoting the idea, it means we are providing information. Beyond that,
each individual must make up their own mind as to how they wish to proceed.

 

[Snuffy]

Well guys this is the last of my argument, But you muat have a dam poor auto
dealer.
I have been buying Dodge cars and pickup trucks from my dealer for going on
30 years now and they cover everything on my car or truck,i mean everything.
I have had michelen tires go out with 10,000 miles on and my dealer took
care of me.
Thats all i got to say.
bye guys

 

[Mike Brannigan [MSFT]]

Woody,

The retail box printing is germane in this discussion.
Just read the End User License Agreement.
It is available on the link on Start ... Run ... winver.
It clearly states your rights to use the software and yes it may only be
installed on one PC and may not actually be moved at a later date to another
PC (even if the first one is dead - this is a restriction of the OEM
license)
--

Regards,

Mike
--
Mike Brannigan [Microsoft]

This posting is provided "AS IS" with no warranties, and confers no
rights

Please note I cannot respond to e-mailed questions, please use these
newsgroups

 

[Mike Brannigan [MSFT]]

Your right to decline the EULA also occurs during install - that is why we
present it to your then.
You may refuse to accept it and the install will be cancelled.

--

Regards,

Mike
--
Mike Brannigan [Microsoft]

This posting is provided "AS IS" with no warranties, and confers no
rights

Please note I cannot respond to e-mailed questions, please use these
newsgroups