63 replies to this topic

[Wonko the Sane]

But  MS Software EULA's (which - I repeat  - I personally think to be vastly null ab initio) never talk about "sale", you know, like:

The software is licensed NOT sold.

 

 

A dedicated blog, JFYI:

http://soldnotlicens...t-licensed.html

 

Wonko

[doveman]

But  MS Software EULA's (which - I repeat  - I personally think to be vastly null ab initio) never talk about "sale", you know, like:

 

A dedicated blog, JFYI:

http://soldnotlicens...t-licensed.html

 

Wonko

Yes and as far as the EU is concerned, selling a licence to use a product for an unlimited time (as opposed to say for one year) constitutes a sale of a product, so it doesn't really matter what MS's EULA says (which I think you already know)

 

Thanks for the link, might be interesting reading

[Wonko the Sane]

Yes and as far as the EU is concerned, selling a licence to use a product for an unlimited time (as opposed to say for one year) constitutes a sale of a product, so it doesn't really matter what MS's EULA says (which I think you already know)

 

Thanks for the link, might be interesting reading

Yep, and the terms for usucaption are near (current terms in Italy is 20 years) for WIndows 95 :

http://en.wikipedia....wiki/Usucaption

 

We could try to re-instate Roman Law (two years).....

 

Wonko

[Wonko the Sane]

OT (but not much), recently the Cassazione (the highest and "final" court in Italy) has definitely condemned Compaq/Hp to refund Mr. Pieraccioli of the cost of the Windows Operating System (that was bundled with a notebook Mr.Pieraccioli bought and for which he did not accept the EULA).

 

The case went to the Giudice di Pace (consider it a "small  claims Court") in 2005 and in 2007 Compaq/Hp was condemned to refund the price of the Operating System and connected bundled software.

HP/Compaq filed an appeal that was rejected in 2010.

Hp/Compaq insisted and filed a further appeal to the Cassazione in 2011.

 

The Cassazione with Sent. Sez. 3 Num. 19161 Anno 2014 on the 11/09/2014 emitted a final decision on the case.

 

The integral text of the sentence can be found here:

 http://avvertenze.ad...rso-windows.pdf

 

Substantially what has been determined is that hardware and software are two distinct and separate items and that an user can decide to buy the first but not accept the license for the second, and since the second was "bundled" with the first, obtain a refund for the non-used software.

 

Besides the decision and it's legal motives, this snippet may be of more general interest:

 

Nell'accertata assenza di controindicazioni tecnologiche, l'
'impacchettamento' alla fonte di hardware e sistema operativo
Windows-Microsoft (così come avverrebbe per qualsiasi altro
sistema operativo a pagamento) risponderebbe infatti, nella
sostanza, ad una politica commerciale finalizzata alla diffusione
forzosa di quest'ultimo nella grande distribuzione dell' hardware
(quantomeno in quella, largamente maggioritaria, facente capo ai
marchi OEM più affermati); tra l'altro, con riflessi a cascata in
ordine all'imposizione sul mercato di ulteriore software
applicativo la cui diffusione presso i clienti finali troverebbe
forte stimolo e condizionamento - se non vera e propria necessità
- in più o meno intensi vincoli di compatibilità ed
interoperabilità (che potremmo questa volta definire 'tecnologici
ad effetto commerciale') con quel sistema operativo, almeno
tendenzialmente monopolista.

 

which translates roughly into:

In the verified absence of technological contraindications,

the "bundling" at the source of the hardware together with the

software operating system Microsoft-Windows (just like it would 

happen for any other commercial operating system) would then

be related, substantially, to a commercial policy aimed at the 

forced diffusion of the latter among the large distributors of hardware

(at least among that, representing the large majority, pertaining to the 

most  established OEM brands), with cascading effects on the imposition

on the market of further software programs, the diffusion of which among

the final users would find strong incentive and conditioning - if not real

and plain need - in more or less intense constraints of interoperativity 

(which we may define as "technological with commercial effects") with the

said operating system, at least tendenciously monopolist.

 

 

 

 

Wonko

[Holmes.Sherlock]

Substantially what has been determined is that hardware and software are two distinct and separate items and that an user can decide to buy the first but not accept the license for the second, and since the second was "bundled" with the first, obtain a refund for the non-used software.

 

Now the hardware vendors will start making buyers sign an EULA prior to the purchase.

[Wonko the Sane]

Now the hardware vendors will start making buyers sign an EULA prior to the purchase.

Or more simply, like they should have done since day one, offer the Operating System as an option, with a specified price for it.

Simple, effective.

 

Wonko

[Holmes.Sherlock]

Or more simply, like they should have done since day one, offer the Operating System as an option, with a specified price for it.

Simple, effective.

 

Their policy is to develop hardware targeted software and sell together to maximize profit, e.g. Apple. otherwise, one hardware and several software giants are tying up themselves to extract the 'juice' out of the buyer.

[Zoso]

is this license a valid contract?

[Wonko the Sane]

Apple produces BOTH the hardware AND the software AND they sell them together.

There is hardly any doubt about what you are buying. and from whom.

 

HP produces the hardware (and NOT the OS) BUT bundles with the hardware a specific third party Operating System (while there are several possible alternatives), for which you have to agree to a specific license that gives you the option to get a refund for the OS should you decide to not accept it.

 

You go to IKEA and want to buy a library but IKEA bundles it with a number of books (in Swedish ) obviously written by someone else and that you are not interested in.

 

The point is that you can (politely) return the books to IKEA and get a refund for the fair market value of the books, as they were artificially included (in order to promote Swedish literature and to spread the use of Swedish as international language) but you wanted only the library of which the books are not an integral and indissoluble part.

 

@Zoso

WHICH license?.

In WHICH country?

 

Wonko 

[Zoso]

@Zoso
WHICH license?.
In WHICH country?

Wonko

does it matter? any license on earth. you said a license is a contract and i agree. would you agree that all law is also contract?

[Wonko the Sane]

does it matter? any license on earth. you said a license is a contract and i agree.

Sure it matters.
A license agreement is a contract.
 
Whether this contract is a valid one depends on the specific contents of the specific contract, on the specific way it was signed or agreed upon by the parts and on the specific Law that is applicable to it (Law in the specific country where the contract was signed or agreed upon and/or produces it's effects).
 

would you agree that all law is also contract?

I may agree (or fully disagree) if I could get what you mean, can you please expand on this?
 

Wonko

[Zoso]

I may agree (or fully disagree) if I could get what you mean, can you please expand on this?
Wonko

speaking specifically on mans laws BTW.


would you agree that absent a contract there can be no law? what is law other than a contract? what makes any contract valid?

[Wonko the Sane]

speaking specifically on mans laws BTW.


would you agree that absent a contract there can be no law? what is law other than a contract? what makes any contract valid?

Taking thread hiijacking to a next level?

Philosophical hijacking?

 

Why not?

http://en.wikiquote....iki/Robert_Bolt

 

 

Roper: So now you'd give the Devil benefit of law!
More: Yes. What would you do? Cut a great road through the law to get after the Devil?
Roper: I'd cut down every law in England to do that!
More: Oh? And when the last law was down, and the Devil turned round on you — where would you hide, Roper, the laws all being flat? This country's planted thick with laws from coast to coast — man's laws, not God's — and if you cut them down — and you're just the man to do it — d'you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake.

 

 

Wonko

[Zoso]

threadjack not intended but i think i comprehend why you might think so.

upon examination of the contract(s) [first, the license contract, then the law contract] one may find the answers to each of the questions in the OP.

what makes the EULA applicable?