8 ms·

How were these users able to file lawsuits without the arbitration they agreed to? The Windows 10 License Terms (Last updated July 2015 ) => https://www.micros

How were these users able to file lawsuits without the arbitration they agreed to? The Windows 10 License Terms (Last updated July 2015 ) => https://www.microsoft.com/en-us/Useterms/Retail/Windows/10/UseTerms_Retail_Windows_10_English.htm https://www.microsoft.com/en-us/Useterms/Retail/Windows/10/U... ..explicitly states the following agreement. So do these lawsuits have any merit? > 10. Binding Arbitration and Class Action Waiver if You Live in (or if a Business Your Principal Place of Business is in) the United States. > We hope we never have a dispute, but if we do, you and we agree to try for 60 days to resolve it informally. If we can’t, you and we agree to binding individual arbitration before the American Arbitration Association (“AAA”) under the Federal Arbitration Act (“FAA”), and not to sue in court in front of a judge or jury.

TAForObvReasons 10y ago
> According to the complaint, Windows 10 installed itself onto plaintiff Stephanie Watson's computer without her consent If the claim is true, then the previous version's terms would govern the situation. I haven't looked, but it's possible that auto-OS upgrades are somehow covered in the windows version she was using before windows 10
- yuhong 10y ago
  Not in Windows 7's EULA I think.
- Piskvorrr 10y ago
  Nope, no such thing in Win7 (perhaps this is the reason why there will only be WinX from now on: everything is just an update). There's WU, but nothing about "oh, and we'll force-feed you a completely different OS whenever we feel like it". Plus, the GWX program played fast and loose with user consent; quite a number of people claim that WinX installed without any user action. In other words, that would mean "we take inaction for consent"; way scary.
15charlimit 10y ago
>They agreed to If someone does not understand or read the entirety of a (double-digit-pagecount-with-single-point-font) document that has been intentionally written as obtuse as possible, is that document actually legally binding? Especially when a single click is all it takes to keep using the (generally expensive) software locked behind such a document? No "normal" people read or care about these kinds of documents, nor should they have to. Judges are starting to realize this, and react accordingly. "Forced" EULAs and License Agreements have failed to stand up in court numerous times before, and I expect this will happen more frequently as cases keep popping up. I, for one, am looking forward to seeing how big of a slap on the wrist Microsoft will get from cases like this.
- 2bitencryption 10y ago
  So what would you say if a company violated the GPL? (I'm not trying to antagonize, I just want to extend this thought experiment.) I'm guessing the argument is "Well a big legal entity of a company has access to lawyers and legal advice that would interpret the GPL and advise, whereas the average individual simply does not have that knowledge or resources." I think that makes sense? Not sure what happens in a court of law, obviously.
  - mikeash 10y ago
    The GPL expands the licensee's rights. If they never agreed to the GPL then normal copyright terms apply, i.e. no redistribution of the work or of derived works outside of the limits of fair use.
  - ploxiln 10y ago
    That's a common misconception about the GPL. You can use GPL software for yourself with no restrictions. The license requirements come when you redistribute the software. By the way, you can't redistribute copies of Windows arbitrarily either. In fact you can hardly redistribute it at all.
  - kakarot 10y ago
    I can read the GPL and know immediately the limitations of anything invoking that license. I cannot do that with every single blackbox terms and services agreement. This is why I firmly believe the only way out of this mess is an international standard of common "service / license guarantees" and "terms and services" and hell, even "privacy policies" patterns that can be reused across software and services to immediately illuminate freedoms, limitations, and guarantees.
HenryBemis 10y ago
I really LOVE it that in the U.S. of A., a contract can be stronger than Justice!!! So if the contract says "if we screw you, you don't get to seek Justice", then you don't get Justice. (Oh how large corporations have completely taken you for a ride!!!) (aaaand there goes my karma)
- tekklloneer 10y ago
  Part of justice is enforcing a contract between two people who can and do consent. Would it not be an injustice if one person abused that system and hurt another?
  - Piskvorrr 10y ago
    Ah, that's the issue. "You have left your computer unattended; that's consent enough for us to install WinX. Too bad, sucker, you should have purged GWX and aggressively prevented it from coming back; anything less, and we consider it as consent." There have been incidents of rogue upgrades to WinX despite a lack of consent; in such cases, your argument is moot.
    - Arizhel 10y ago
      That's really not the reasoning. The real reasoning is: "You consented to allow us to automatically install software updates on your computer. Windows 10 is a software update, se we installed it automatically." Basically, people want to trust Microsoft to install updates it thinks are good and necessary, and then they get mad when they disagree with MS about what's good and necessary.
      - titanix2 10y ago
        Windows 10 upgrade, no matter how Microsoft words it as an update, is actually a whole system replacement. So while most users trust Microsoft for keeping their system up-to-date, I don't think they approve its deletion and replacement by something else.
yuhong 10y ago
The upgrade might have been installed without the user agreeing to or seeing the EULA.
- vetinari 10y ago
  Wasn't disagreeing with the Win 10 EULA on the first boot the last chance to rollback the installation?
  - orionblastar 10y ago
    You got 30 days since the Win 10 upgrade to revert back to your old Windows before Win 10 deletes the uninstall files and backup data. Might be a factor in lawsuit. User is responsible to back up their own files on a periodic basis which might be another factor in the case.
    - kogepathic 10y ago
      > User is responsible to back up their own files on a periodic basis which might be another factor in the case. This. I understand the frustration around the Windows 10 upgrade program, and I agree that Microsoft was overzealous in pushing the upgrade. However, you had the choice to ignore the prompts and not install Windows 10. Yes, they were obtuse, but it was possible to avoid upgrading to Windows 10. It is always the user's responsibility to have a backup of their data. I also find it very difficult to believe the plaintiff's claims that Windows 10 caused hardware damage. It is extremely rare that an operating system would cause hardware damage. [0] Operating systems, especially ones as well tested as Windows, don't generally wreck hardware. I don't think Microsoft should be on the hook for third party drivers which were incompatible with Windows 10. [0] https://www.extremetech.com/computing/240309-apples-bootcamp-audio-driver-can-permanently-damage-speakers-new-macbook-pro https://www.extremetech.com/computing/240309-apples-bootcamp...
      - Macha 10y ago
        There was a period where closing the GWX dialog counted as consent. Imagine arriving to your computer after that and seeing the win 10 EULA and we have updated to Windows 10, please accept this eula or go through the time consuming and potentially unsuccessful rollback procedure. Hardly counts as uncorced
deleted 10y ago
[deleted]
mirimir 10y ago
If Microsoft installed Windows 10 without explicit instruction from a user, the license terms are irrelevant.
- Arizhel 10y ago
  But they didn't. The user specifically allowed Microsoft to install software updates, at its discretion, on the user's computer. That's what they did, except this one was a really big update.
  - mirimir 10y ago
    I doubt that judges will accept that Windows 10 was an "update".
- mark212 10y ago
  No they're not. If the previous version of the license has a class action waiver and arbitration clause then all future disputes are covered under that provision. Failure to consent to the Win10 license means nothing. (Might be a great individual claim in arbitration but who cares?)
loeg 10y ago
Arbitration agreements are probably bogus. I don't believe it has actually been tested much in court, but from what I've read, I wouldn't expect them to hold up in court.
- mark212 10y ago
  Sadly, it's the other way around. Arbitration agreements are almost always upheld and enforced. It's rare for a plaintiff to win when the defendant brings a motion to compel arbitration
ams6110 10y ago
Anyone can pretty much sue anyone for any reason, especially in the case of contract disputes. It's up to a judge to decide if the case has any merit.
yifanlu 10y ago
Contracts have many terms that haven't been legally tested. The idea is that you put in words that will protect you in court if it ever comes to it. It gives them more options to pursue a legal argument--chances are though if their best argument involves this clause, the case is their's to lose.

TAForObvReasons 10y ago

> According to the complaint, Windows 10 installed itself onto plaintiff Stephanie Watson's computer without her consent If the claim is true, then the previous version's terms would govern the situation. I haven't looked, but it's possible that auto-OS upgrades are somehow covered in the windows version she was using before windows 10

yuhong 10y ago
Not in Windows 7's EULA I think.
Piskvorrr 10y ago
Nope, no such thing in Win7 (perhaps this is the reason why there will only be WinX from now on: everything is just an update). There's WU, but nothing about "oh, and we'll force-feed you a completely different OS whenever we feel like it". Plus, the GWX program played fast and loose with user consent; quite a number of people claim that WinX installed without any user action. In other words, that would mean "we take inaction for consent"; way scary.

15charlimit 10y ago

>They agreed to If someone does not understand or read the entirety of a (double-digit-pagecount-with-single-point-font) document that has been intentionally written as obtuse as possible, is that document actually legally binding? Especially when a single click is all it takes to keep using the (generally expensive) software locked behind such a document? No "normal" people read or care about these kinds of documents, nor should they have to. Judges are starting to realize this, and react accordingly. "Forced" EULAs and License Agreements have failed to stand up in court numerous times before, and I expect this will happen more frequently as cases keep popping up. I, for one, am looking forward to seeing how big of a slap on the wrist Microsoft will get from cases like this.

2bitencryption 10y ago
So what would you say if a company violated the GPL? (I'm not trying to antagonize, I just want to extend this thought experiment.) I'm guessing the argument is "Well a big legal entity of a company has access to lawyers and legal advice that would interpret the GPL and advise, whereas the average individual simply does not have that knowledge or resources." I think that makes sense? Not sure what happens in a court of law, obviously.
- mikeash 10y ago
  The GPL expands the licensee's rights. If they never agreed to the GPL then normal copyright terms apply, i.e. no redistribution of the work or of derived works outside of the limits of fair use.
- ploxiln 10y ago
  That's a common misconception about the GPL. You can use GPL software for yourself with no restrictions. The license requirements come when you redistribute the software. By the way, you can't redistribute copies of Windows arbitrarily either. In fact you can hardly redistribute it at all.
- kakarot 10y ago
  I can read the GPL and know immediately the limitations of anything invoking that license. I cannot do that with every single blackbox terms and services agreement. This is why I firmly believe the only way out of this mess is an international standard of common "service / license guarantees" and "terms and services" and hell, even "privacy policies" patterns that can be reused across software and services to immediately illuminate freedoms, limitations, and guarantees.

HenryBemis 10y ago

I really LOVE it that in the U.S. of A., a contract can be stronger than Justice!!! So if the contract says "if we screw you, you don't get to seek Justice", then you don't get Justice. (Oh how large corporations have completely taken you for a ride!!!) (aaaand there goes my karma)

tekklloneer 10y ago
Part of justice is enforcing a contract between two people who can and do consent. Would it not be an injustice if one person abused that system and hurt another?
- Piskvorrr 10y ago
  Ah, that's the issue. "You have left your computer unattended; that's consent enough for us to install WinX. Too bad, sucker, you should have purged GWX and aggressively prevented it from coming back; anything less, and we consider it as consent." There have been incidents of rogue upgrades to WinX despite a lack of consent; in such cases, your argument is moot.
  - Arizhel 10y ago
    That's really not the reasoning. The real reasoning is: "You consented to allow us to automatically install software updates on your computer. Windows 10 is a software update, se we installed it automatically." Basically, people want to trust Microsoft to install updates it thinks are good and necessary, and then they get mad when they disagree with MS about what's good and necessary.
    - titanix2 10y ago
      Windows 10 upgrade, no matter how Microsoft words it as an update, is actually a whole system replacement. So while most users trust Microsoft for keeping their system up-to-date, I don't think they approve its deletion and replacement by something else.

yuhong 10y ago

The upgrade might have been installed without the user agreeing to or seeing the EULA.

vetinari 10y ago
Wasn't disagreeing with the Win 10 EULA on the first boot the last chance to rollback the installation?
- orionblastar 10y ago
  You got 30 days since the Win 10 upgrade to revert back to your old Windows before Win 10 deletes the uninstall files and backup data. Might be a factor in lawsuit. User is responsible to back up their own files on a periodic basis which might be another factor in the case.
  - kogepathic 10y ago
    > User is responsible to back up their own files on a periodic basis which might be another factor in the case. This. I understand the frustration around the Windows 10 upgrade program, and I agree that Microsoft was overzealous in pushing the upgrade. However, you had the choice to ignore the prompts and not install Windows 10. Yes, they were obtuse, but it was possible to avoid upgrading to Windows 10. It is always the user's responsibility to have a backup of their data. I also find it very difficult to believe the plaintiff's claims that Windows 10 caused hardware damage. It is extremely rare that an operating system would cause hardware damage. [0] Operating systems, especially ones as well tested as Windows, don't generally wreck hardware. I don't think Microsoft should be on the hook for third party drivers which were incompatible with Windows 10. [0] https://www.extremetech.com/computing/240309-apples-bootcamp-audio-driver-can-permanently-damage-speakers-new-macbook-pro https://www.extremetech.com/computing/240309-apples-bootcamp...
    - Macha 10y ago
      There was a period where closing the GWX dialog counted as consent. Imagine arriving to your computer after that and seeing the win 10 EULA and we have updated to Windows 10, please accept this eula or go through the time consuming and potentially unsuccessful rollback procedure. Hardly counts as uncorced

deleted 10y ago

[deleted]

mirimir 10y ago

If Microsoft installed Windows 10 without explicit instruction from a user, the license terms are irrelevant.

Arizhel 10y ago
But they didn't. The user specifically allowed Microsoft to install software updates, at its discretion, on the user's computer. That's what they did, except this one was a really big update.
- mirimir 10y ago
  I doubt that judges will accept that Windows 10 was an "update".
mark212 10y ago
No they're not. If the previous version of the license has a class action waiver and arbitration clause then all future disputes are covered under that provision. Failure to consent to the Win10 license means nothing. (Might be a great individual claim in arbitration but who cares?)

loeg 10y ago

Arbitration agreements are probably bogus. I don't believe it has actually been tested much in court, but from what I've read, I wouldn't expect them to hold up in court.

mark212 10y ago
Sadly, it's the other way around. Arbitration agreements are almost always upheld and enforced. It's rare for a plaintiff to win when the defendant brings a motion to compel arbitration

ams6110 10y ago

Anyone can pretty much sue anyone for any reason, especially in the case of contract disputes. It's up to a judge to decide if the case has any merit.

yifanlu 10y ago

Contracts have many terms that haven't been legally tested. The idea is that you put in words that will protect you in court if it ever comes to it. It gives them more options to pursue a legal argument--chances are though if their best argument involves this clause, the case is their's to lose.