Microsoft puts the squeeze on NW schools

The Oregonian ^ | April 21, 2002 | Steve Duin

[Bush2000]

In this case, Adobe's EULA was found to be irrelevant.

Completely separate issue. The case involved Adobe and one of its former distributors -- not end users.

[B Knotts]

I don't think you see where I'm coming from. The NEA isn't paying for these licenses; neither is the school board. Because I happen to live in the state of Oregon, it's going to come out of my hind-quarters, and that's why I want them to use Linux whereever and whenever they can, like on all the donated machines they receive (which I believe is the major bone of contention in this case).

[Cable225]

"I have a more simplistic view," said John Rowlands, director of information services for the Seattle School District: "They just want to squeeze every nickel out of us they can."

I have an even more simplistic view, Mr. Rowlands. It rolls around my head saying you know you have waaaaaaayy too many unlicensed copies of MS products on your systems.

WinLan or EMGT could get this inventory for you in a matter of days.

[B Knotts]

But the judge did point out that a number of other courts have found EULAs to be unenforceable.

[SauronOfMordor]

. MS rules the computing world, teaching students how to use Linux won't give them any useful skills in a world where 90+% of the desktops aren't Linux.

If the majority of graduates are Linux-savvy, and thus reflect a preference for Linux when they enter the working world, MS will not rule for long.

This might be what they're afraid of

[Bush2000]

I don't think you see where I'm coming from. The NEA isn't paying for these licenses; neither is the school board. Because I happen to live in the state of Oregon, it's going to come out of my hind-quarters, and that's why I want them to use Linux whereever and whenever they can, like on all the donated machines they receive (which I believe is the major bone of contention in this case).

So call your elected representatives. Donate cash. Complain. Vote. But calling for new laws to promote Linux is just sheer lunacy...

[Dinsdale]

Sorry but you will need to find a much more authoritative source then PCworld to convince me of that. You don't read that rag do you?

They have rarely been tested in court (and are betting about .500 when tested). Unreasonable terms like software audits without reasonable notice would do a lot to undermine the agreement. Enterprise agreements are generally actual paper contracts in any case. And you defininitly have the right to use anything you paid for. I don't have any EULA on CDs/DVDs.

[Bush2000]

But the judge did point out that a number of other courts have found EULAs to be unenforceable.

Sorry, you can't get from "some EULAs are unforceable" to "all EULAs are unenforceable", no matter how hard you try.

[Bush2000]

Sorry but you will need to find a much more authoritative source then PCworld to convince me of that. You don't read that rag do you?

You made the original statement that EULAs are unenforceable. I don't have the burden of proving the converse. I merely provided an anecdotal rebuttal.

They have rarely been tested in court (and are betting about .500 when tested).

The reason they're rarely tested is that they are contracts, pure and simple. Contract law is as dry as dust.

Unreasonable terms like software audits without reasonable notice would do a lot to undermine the agreement. Enterprise agreements are generally actual paper contracts in any case.

Contracts are as reasonable as the parties who enter into them. And the resulting enforcement (if there is a disagreement) is up to the courts.

And you defininitly have the right to useanything you paid for. I don't have any EULA on CDs/DVDs.

The mere fact that you don't agree with a EULA doesn't confer upon you an exemption to the liability clauses; that is, you can't sue MS or Adobe or other vendors because of lost work product or time, etc. Those companies can't "repossess" the media but, by the same token, the terms of the EULA are enforceable if challenged in court -- which is solely where the practical impact of EULAs becomes apparent, not in your home office.

[Dinsdale]

So did you forward the click license 'virus' to all the people in your address book? Did you delete half the files in your system directory?

Contract law is hardly dry. Contracts are invalidated every day and a huge source of income to lawyers. (e.g. never sign a new non-compete untill they threaten to fire you. It is now worthless as it was signed under duress.) The fact on the ground is that EULAs are a grey area, can go eather way. MS has staff lawyers so you better have lots of cash. Shrink wrap licenses were found invalid. (notice you don't see them anymore)

With 25,000 machines I would expect an actual contract to have been signed.

My point about right to use is to counter the arguement that if the EULA is invalid then you have no right to use the software, you do in any case. As you already have the right to use the software there is a question of consideration r.e. the EULA. Without consideration the contract is not a contract.

[HiTech RedNeck]

With 25,000 machines I would expect an actual contract to have been signed.

That's what Microsoft wants.

What has happened is the school has receive a bajillion donated PCs from people who (it is hoped) duly transfered the licenses and other materials for whatever Microsoft products they had to the school at the time of donation. If the school didn't keep up with all of these license transfers (or if there was bootleg Microsoft software on any donated machine) then it's in trouble.

[HAL9000]

It's a contract, Knotts. I know that that's inconvenient -- you know, signing a document and actually having to live up to the terms -- but it's reality.

[AFreeBird]

But Microsoft has put a new spin on the agreement, requiring an "institution-wide commitment." That means the district must include in its count not only the PCs, but all the iMacs and Power Macs that might conceivably use Windows software.

This is rich, but its not new. Micro$$oft did this to the OEM's years back when it extracted a fee on systems without an OS because users might put a copy of dos/windoze on it.

[Dinsdale]

I doubt most of the machines are donated (except perhaps by the Gates foundation).

With current pricing the cost of making an old machine useable exceed the cost of a new machine (been this way for a couple of years now).

I bet the problem the school has is unauthorized upgrades. (by students under 18 and hence unable to enter into contracts...hum perhaps I should look into hiring a high school intern to do software installs)

[ThinkDifferent]

The reason they're rarely tested is that they are contracts, pure and simple. Contract law is as dry as dust.

Yes, and for a contract to be valid there must be mutual consideration. What does Microsoft (or any other software publisher) give you when you "agree" to a EULA? The right to use the software? They can't, because you already had that right. See 17 USC 117; if you have legally acquired a piece of software, you don't need the copyright holder's permission to run it. The EULA is an attempt to remove your rights and give you nothing in return.

[Dominic Harr]

I bet there's no 'problem' at all.

The request came from the marketing dept, with brocures about their other contract.

This is what MS calls 'marketing', and others call coercion.

The coercion goes, "You pay us for this other license, the one that makes you pay for all machines, even Macs, or else you have to encur the expense of an audit.

This kind of thing is illegal, and is exactly what has gotten them into trouble in the anti-trust case. Extortion is not 'marketing'.

[Dinsdale]

High school kids have had access to these machines.

It's a very safe bet there is some warez on these machines. Mostly games.

However, that is still only the club being used by MS. It's mostly extortion.

However earlier on the thread I did a little napkin scratch financial analysis. This might not be that bad a deal assuming they get more then just windows.

[ContentiousObjector]

Been there, done that, told microsoft to sue us or go fornicate with themselves.

They appear to have chosen the second option

[Doug Loss]

I doubt most of the machines are donated (except perhaps by the Gates foundation).

I'm afraid you're wrong. I don't have the message in front of me (it's on my computer at work), but Paul Nelson sent a message to a mailing list I'm on which indicated that a fair number of the 25,000 computers in question in the Portland Public School District were donated.

[TechJunkYard]

That's my question. What happens if the school district simply tells Microsoft to Go Away?

Where in the EULA (assuming one actually "accepts" it) does MS assert the "right" to enter your property to "conduct an audit"? Where else would this be codified? And what prevents the school from having any auditors who do show up arrested for trespassing? ;-)