full-disclosure - Re: Computer Sabotage by Microsoft

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From: computer at jacox.net (James A. Cox)
Subject: Re: Computer Sabotage by Microsoft

Gregory A. Gilliss wrote:

>IANAL, however I have studied contract law in America. In America, EULA 
>is construed as a contract by the American courts. It is not part of a
>separate contract, it is its own contract. Courts consider contracts to
>be valid if, among other things, there is "bargain for legal detriment".
>In this case, the court would likely construe the payment for the software
>in exchange for the rights, as defined in the EULA, to be a contract,
>and would consider "opening the package and using the software" as tacit
>acceptance of the EULA terms and conditions. In order to win a case where
>the software user was arguing the terms and conditions of the EULA, the
>users would have to abstain from opening and using the software . . . .
>
Right.  There are numerous cases in which courts have enforced EULAs 
(license agreements), even though the end user had no opportunity to see 
the terms of the agreement before the purchase.  For example, there was 
a case involving a Gateway computer in which the court held that the 
user had "agreed" to the license that was *inside the box* and that he 
never saw until after he paid, the computer was delievered, and he 
finally opened the box.  The court held that he could have returned the 
computer within 30 -- as permitted by the license agreement (!) -- if he 
didn't agree to its terms.