'Windows 10 destroyed our data' Microsoft taken to US court
theregister.co.uk
theregister.co.uk
Wow, that is some BS. There are plenty of people who had no choice and screen shots in the article showing that some people had no choice.
If the OS didn't cost money it would be one thing to not guarantee data loss, but these people paid for software that destroyed their data.
That's not much of a comparison.
The Windows 10 License Terms (Last updated July 2015 ) => 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.
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.
(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.
By the way, you can't redistribute copies of Windows arbitrarily either. In fact you can hardly redistribute it at all.
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.
What if I take the source code for "ls", turn it into a library, so that I could do the same thing but more directly -- the library is obviously a derivative work, but would my program that calls it also be a derivative? (note, in this case the hypothetical library would be GPL, not LGPL).
And, if I want to link to a GPL (not LGPL) library, if I write a wrapper for it that turns it into a stand-alone executable (sort of like how you can call openssl functions, or you can run the openssl executable passing command line arguments), does one form of calling create a derivative and the other form not?
No, output of a program isn't the program itself, so it doesn't fall under copyright[1]. Why would you expect that it would be a derivative work? It should be obvious that e.g. when gcc outputs a compiled program it doesn't automatically become tied to the GPL.
The only exception - which is mentioned[2] in the GPL - is if the output of a GPL licensed program is part of the licensed program. (quines, other rare utilities)
2. Basic Permissions.
[...] This License explicitly affirms your unlimited permission
to run the unmodified Program. The output from running
a covered work is covered by this License only if the output,
given its content, constitutes a covered work. [...]
Probably[3], but see the FAQ[4] for answers to common situations and a real lawyer for actual legal advice.
> does one form of calling create a derivative and the other form not?
Correct. They are different. The intent is that the GPL licensed code is still open. Users that receive copies of the new stand-alone executable can exercise their right to examine and modify that code. They can easily replace it with a version they have modified without touching your other programs that merely use the output.
[1] https://www.gnu.org/licenses/gpl-faq.html#GPLOutput
[2] https://www.gnu.org/licenses/gpl-3.0.en.html
[3] https://www.gnu.org/licenses/gpl-faq.html#IfLibraryIsGPL
My point, however, wasn't these specific scenarios, I was using them as examples as examples in response to the parent's comment inferring that you know exactly what it means. "Consult a lawyer" kind of just reinforces the point.
Of course, I do agree that most community licenses such as the GPL are infinitely more readable than most proprietary software licenses.
I don't know the law where this particular action is being brought, but speaking generally, it's not unusual for different safeguards to apply for private citizens and for businesses. For better or worse, the situation where I am tends to heavily favour the private citizen when it comes to standard form contracts or other similar agreements with businesses, while businesses (no matter their size) are basically assumed to know what they're doing so it's their own fault if they agree to something they shouldn't.
It's not a great analogy anyway, for the reasons others have already explained.
The legal argument around fair contracts is that a customer should not be tricked into agreeing to a unfair or hidden condition. For example, I can't sell a car and have a shrink wrap license that gives me permission to still use it after sale (ie, steal it back). Such contract condition would very fast be found to be illegal, and common sense say that a "sale" implies that I as a seller do no longer enjoy rights such as using the sold car after sale, regardless of trickery I might try with shrink wrap licenses.
To go back to the GPL case, its not a unfair contract condition that you need copyright permissions to distribute a copyright protected work. For the first thing there is no contract, and the second reason is that the condition is created by society and not the copyright holder.
Yup — at least if you're in the U.S.; I can't say as to other jurisdictions. (IAAL.)
Indeed, in the U.S. it's close to an iron-clad rule: You're presumed to have read the contract you signed — and even if you didn't, with rare exceptions you're still stuck with its terms.
> 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.
In the U.S., historically that's been true only in an extraordinarily-narrow set of circumstances. Look up "unconscionability" and note the distinction between procedural and substantive unconscionability [0]. I've seen no evidence of any general trend otherwise.
In summary: (A) RTFC. (B) "Ought to be" ≠ "is."
[0] See, e.g., https://www.law.cornell.edu/wex/unconscionability and https://en.wikipedia.org/wiki/Unconscionability
IANAL but can't imagine that a mouse click can be given the same weight as the usual execution of a contract, normally involving verfied ID, a notary public, and written signatures.
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)
Less extreme examples likely (IANAL!) are that you signing a contract that gives you a job that pays below minimum wage or gives away your right to vote isn't enforceable, and makes the entire contract containing such a clause null and void (some contracts have provisions to prevent such things from making the entire contract void)
Contracts can only operate in the space that the law leaves open for them.
Back to this case: for software licenses sold to consumers, AFAIK, there's little jurisprudence about whether they are enforceable. That probably applies even more to the Windows 10 upgrade because Microsoft, using 'innovative' tactics, made it extremely easy to upgrade.
At the rate cheap spinning laptop hard drives fail, you are literally an idiot if you aren't backing up important files. It's not IF they will fail, it's when.
There have been incidents of rogue upgrades to WinX despite a lack of consent; in such cases, your argument is moot.
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.
(Also, your attempt at doublethink fails because of GWX: how many other updates had a special pop-up notification "please give us consent to specifically do this"? Oh wait, zero, throughout the existence of WU.)
Also "justice" is a very subjective and relative term unless you mean legal justice which based on your rant you do not.
Arbitration is one thing, taking away class action rights though.
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
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...
No, and fuck you. People want control over whether Windows 10 is installed at all. "Install now"/"Remind me later" omits a key option: "leave now and never come back."
I'm not a Windows person, but a non-techie friend of mine complained last year about the constant GWX pestering, and I did my best to get rid of it for the moment. I haven't asked him recently, but I can only assume that he's unhappily dealing with Windows 10 on the cheap laptop he used for email and a few web things.
I'd love a 'leave now and never come back' check box because every day for two months it tries to install a features update at a random time and always fails. And the 'click here to fix' doesn't.
I'm on Pro, use group policy and it has in months never installed an update without my explicit approval.
When the 'accept' dialog comes up it'd already been grinding away for 1/2 hour. I've cancelled MS installs before and there's always sh*t left behind.
It is even worse when you consider how many billions of dollars they continue to make by selling software. If you can take all that money, you should be willing to spend some of that money to make experiences that are actually worth all that money.
And this wasn’t even that hard to predict. It’s clear that caution is advisable in any updating system simply because there are too many possible combinations of hardware and user apps: there are too many things that can go wrong. You need to assume that a particular user’s combination might not be something you anticipated so the user should be in control of whether and when to update. And yet, they didn’t keep users in control; they didn’t update things carefully on a side copy; and Windows 10 even had the audacity to outright delete things that it deemed unnecessary. On top of it all, instead of taking baby steps, they changed just about every damned thing that was possible to change in Windows! And if even that wasn’t enough, they basically lied to the user using language like how it would always be possible to go back, everything would be preserved, etc.
>It is even worse when you consider how many billions of dollars they continue to make by selling software. If you can take all that money, you should be willing to spend some of that money to make experiences that are actually worth all that money.
Why should they care? As you point out, they continue to make billions of dollars selling software. Why should they spend one red cent to improve the user experience? Is it going to improve their profits? No, of course not. So it's wrong for them to worry about any problems their users might have. These users are perfectly willing to throw money at MS no matter what, and aren't going to leave MS no matter what, so MS is right to just take their money and do the bare minimum.
>And if even that wasn’t enough, they basically lied to the user using language like how it would always be possible to go back, everything would be preserved, etc.
Yep, and despite all this stuff, the users keep coming back for more. It's just like whining about an abusive boyfriend: "why won't he treat me better? Waa!"
When windows 10 was announced I was optimistic. New leadership, a new OS Microsoft were really in a position to be an OS for the people.
Its not, it sucks, I have so many problems with 10 I cannot count them all. Not to mention the forced updates, the privacy games and all of the other things that make it into the media.
For the first time ever, I am seriously considering a new OS for my work.
In the end both types just make their computers breeding pits of worms and viruses, which is why windows strives to hobble both of them.
What amazes me is how many people still don't understand why MS isn't "nicer" and doesn't care about doing QA. Why should they? It's just going to cost more money, and only hurt their profitability.
And that is when it all started to go seriously wrong....
You have an urgent meeting or concall at the specific time Windows decides to update, you need to reboot and get back to urgent work and Windows decides to update. It updates behind your back and things that were working now don't. For a person who just needs their system to just work this kind of breakage and time sink is simply not acceptable.
Technical people working around it without disruption is besides the point. For supporters of automatic updates its important to first ensure it's seamless, a technical problem that is your core skill set, before trying to blame users.