Do Microsoft's EULAs have any real legal basis?

Asking the question is easy...

By David Norfolk • Get more from this author

Posted in Developer, 25th April 2007 15:37 GMT

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I've just had an anonymous comment added to an irrelevent topic with the excuse: "The Drink or die thread seems to be closed so let's continue this here."

Well, I can't find this "Drink or die" thread anyway - it's this one, perhaps. However, I'm posting the orphan comment as a blog entry so you can all comment.

It's all about what you actually buy when you buy software:

[comment starts here]

"Nope. [I, the software vendor] didn't sell you any goods. You have bought a license to use Windows."

What license is that? [our correspondent, Mr Alfred Nonymous asks] The end user license agreement [that] shows *after* the sale?

I refer you to the Unfair Terms in Consumer Contracts Regulations 1999. Terms not individually negotiated in a consumer contract are unfair and hence non-binding. You [the software vendor] did not at the purchase negotiate any such agreement with me.

"[The license in question is] the EULA (which you agreed to by buying a computer with a licensed copy of Windows installed)"

No, the EULA comes after the sale. Microsoft [for example] has no special exemption from contract law or the laws of space-time continuum.

Contracts don't come into force PRIOR to them being agreed and you [the software vendor] did not individually negotiate that license at purchase.

I bought goods; you [the software vendor] sold them to me; no other contract has been agreed; [if] you [the software vendor] desire to change the terms after the sale, [that's] just a desire you have.

"The only way round it is to buy a computer without MS installed, or provide evidence that you do not accept the EULA"

No, the original sale of goods remains in force, you [the software vendor] sold me goods, you're bound by the sale of goods act.

I appreciate that Microsoft wishes it can - AFTER THE SALE - substitute a contract, but nobody reads those EULAs, they bear no relation to a contract negotiation and clicking through them does not constitute an acceptance of Microsoft's desire to change the terms of the sale.

Microsoft has no special exemption from the sale of goods act.

[comment ends]

"Microsoft has no special exemption from the sale of goods act." Well, no, probably not - but it might still be selling you "services" instead of "goods". But the real point to remember is that it doesn't matter a jot what the "logical" position is, it is what the courts decide that matters.

As far as I know, no one has tested Microsoft's EULAs in a UK court and, until someone does, Microsoft will just go on assuming that they work. And I don't fancy the risk of taking on Microsoft's expensive lawyers in court myself... ®

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