full-disclosure - Re: Computer Sabotage by Microsoft

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From: bugtraq at planetcobalt.net (Ansgar Wiechers)
Subject: Re: Computer Sabotage by Microsoft

On 2003-09-12 Connor, Ethan M. W wrote:
> If I understand things correctly,

To put it short: you don't.

> the EULA is PART of the sales contract. If you do not agree to the
> license agreement, than the purchase never was legitimized, and
> therefore there is no sales contract - which by the way is what
> entitles you to a complete refund if you desire it (since legally the
> sale never happened).

The sale *is* legal and the EULA is *not* part of it. An EULA could be
part of the sales contract, if the contract was closed directly with
Microsoft *and* the customer had the chance to read the EULA *before*
closing the contract. Neither of these conditions is true.
Microsoft sells their Product to wholesellers, they sell it to retailers
and those sell it to customers. So Microsoft has a contract with the
wholeseller, the wholeseller with the retailer and the retailer with the
customer. There is _no_contract_ between Microsoft and the customer.
Plus, german law states, that a manufacturer cannot stipulate how their
product should be used, once they have sold it. This is called
"Erschoepfungsgrundsatz".

> So, you can't say that the terms of the license agreement modify the
> sales contract or prevent you from using something that is yours,
> because there is no contract and it isn't yours.  Once you agree to
> the EULA it is yours, but only under those conditions that you agreed
> to.  There is no modifying of anything, and that is the rub.

You are wrong.

[...]
> Unfortunately, like the last post says, the argument over allowing or not
> allowing signed code to run on the Xbox is something we can all waste lots
> of time with, and it would be really nice to do...

Right now I am not wasting my time argueing over this.

> But the future holds code updates as a regular part of a vendors
> obligation to the end user to keep their product performing the
> function it was sold to do.  After all, when they sold it to you they
> have entered into the contract with you to make a product that works
> as advertised - and I'm sure you would hold them to it. 

Please correct me, if I'm wrong, but isn't that exactly what Microsoft
(as well as almost any other software vendor) try to rule out by their
EULAs?

Regards
Ansgar Wiechers