RE: Windows XP Service Pack1 problem with activation

["Burton M. Strauss III" <bstrauss () acm org>]

I would suggest a law course.  A contract is final when the required
elements of a contract have been met.

1. An agreement -- includes an offer and an acceptance (e.g. click the "I
Accept" button) (Just because you don't read it doesn't make it less of a
contract - read the back of the receipt at BestBuy or CompUSA sometime).
2. Consideration -- something of legal value (e.g. use of the software)
3. Contractual Capacity -- unless you are legally an idiot or a minor
4. Legality -- for some lawful purpose (e.g. use of the software)
5. Reality of Assent -- Apparent consent of both of the parties must be
genuine.
6. Form - whatever form (including oral) is required by law.

As to your eraser-head, well, that's an agent of yours.  And your continued
use of the software is agency by ratification...

The ONLY hook you MIGHT have is #5.

But, think about this: if your assent is fraudulent, the contract is void
and you have NO RIGHTS OF USE...

Look, I don't like click-wrap contracts and I question whether the parties
really are of equal ability to contract, but the courts seem determined to
uphold them.  Just because you don't like it, doesn't make it any less
legal.

If you can't do the time, don't do the crime -- use open source software...

Finally, keep in mind that real estate is an especially poor choice for
comparison.  The Statute of Frauds requires that real estate contracts be in
writing -- it's one of the few cases where they have to be.


-----Burton



-----Original Message-----
From: J Edgar Hoover [mailto:zorch () totally righteous net]
Sent: Tuesday, September 17, 2002 12:13 PM
To: Deus, Attonbitus
Cc: Nick Jacobsen; Tyson Leslie; vuln-dev () securityfocus com
Subject: Re: Windows XP Service Pack1 problem with activation


On Fri, 13 Sep 2002, Deus, Attonbitus wrote:

> At 01:44 PM 9/13/2002, Nick Jacobsen wrote:
>
> > Now, the way our legal system works, the manufacturer could be sued
> > successfully, even though the car was stolen...  get it, got it, good?
> > Anyone disagree, I would love to hear you...
>
> Not if the thief definitively acknowledged and accepted an agreement (the
> EULA in this case) that explicitly limited his rights to do so.

I once installed windows on 15 computers simultaneously using my
Pocket MCSE (TM)... #2 pencils used to wedge down the enter key.

Mr. Everhard Faber must have agreed to a bunch of EULAs.

I don't think a dialogue box that pops up when when you may or not be in
the room, or an OK box that may have been clicked by you, your cat or your
pencil qualify as "definitively acknowledged and accepted an agreement".

Remember, Windows has about 90% of the market... so it's a good bet that
11 of the 13 jurors will have actually dealt with the crud. My guess is at
least 9 of them are of the "Some error thing popped up and I clicked the
OK button like I always do" school.

A contract is final when they take your money. Would you want to the
seller of a house to be able to renegotiate the price 2 years after you
bought it?