the Vista EULA allows self-help

[David Farber <dave () farber net>]

Begin forwarded message:

From: Seva Batkin <sbatkin () gmail com>
Date: November 22, 2006 3:51:07 PM EST
To: dave () farber net
Subject: the Vista EULA allows self-help

Hi Dave,

I just wanted to point out that the following portions somewhat  
exaggerate the issue:

"Now if Microsoft breaches the contract it wrote, the Vista EULA,  
what are your rights? Well, according to the terms of the agreement  
you agreed to, "you can recover from Microsoft and its suppliers only  
direct damages up to the amount you paid for the software. You cannot  
recover any other damages, including consequential, lost profits,  
special, indirect or incidental damages." So if your entire network  
is shut down, and access to all your files permanently wiped out, you  
get your couple of hundred bucks back - at most. And, as far as I can  
tell, there are no warranties on the license, no assurance (like the  
kind you would get on a toaster oven or a lamp) that the thing  
actually works or does any of the things advertised. "

In reality, if you use Microsoft Windows to run your mission  
critical, or for that matter virtually any corporate network, your  
rights and obligations in relation to Microsoft are not governed by  
the EULA, but by the contract that your firm signed with MS or its  
distributor. Just like contracts with ISPs and Telcos, these provide  
for SLAs, for damages for non-compliance, etc. Frankly, why would  
anyone expect otherwise? Why would a company that sells you something  
for $200 want to assume a multi-million dollar risk? It wouldn't, and  
no other company does, AFAIK.

"What is worse, if you just want to get your money back (assuming  
Microsoft doesn't want to give it to you) then you have to file a  
lawsuit (probably in Redmond, Washington) under the laws of  
Washington State, and if (and only if) you can prove your case, and  
your damages, can you get your money back. "

I don't know if the EULA also contains a forum selection clause, but  
if it doesn't the rules for where it can be filed are rather broad,  
and more chance than not that you can file it wherever you live. Even  
if there is a forum selection clause, there is still a good argument  
to be made for filing a law suit in your own jurisdiction.

"You aren't entitled to, upon your belief that there was a breach of  
contract, simply walk up to the cash register at your local Fry's or  
Best Buy and take a couple of hundred bucks from the till. This is  
called "self help" (or theft) and is not generally allowed as a  
contract remedy."

When ARE you entitled to do that?

--
Thank You,

----------
Seva Batkin B.Eng.
Technology and Legal Research Services
Tel: (778) 389-7382
Fax: (604) 677-5345

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