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Comment by justboxing | Hacker News Reader

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/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.

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>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.

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.

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.

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.

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.

If I write a program, that launches (the GNU version of) /usr/bin/ls and uses its output, did I just create a derivative work of "ls"?

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?

> did I just create a derivative work of "ls"?

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. [...]

> would my program that calls [a library derived from GPL licensed program] also be a derivative?

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

[4] https://www.gnu.org/licenses/gpl-faq.html

I wasn't expecting the output of 'ls' to be covered, however by making my program dependant on calling the 'ls' program, it could be that we now have a combined work of the two. Arguably, this is no different than calling a hypothetical "lib-ls" function, but if "lib-ls" is GPL (not LGPL), then that is usually considered a combined work.

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.

Do you consider python scripts invoking libraries derivative works?

It can be -- that was part of my point. Good example is the GNU readline library -- this is GPL, not LGPL. So you can't call it without making your work a derivative. Or maybe you can in some cases. Again, it is not really clear by just reading the license (and the license can claim on thing, but the courts may not agree)

Requiring other people's tools in your build process doesn't necessarily make your tool derivative. Just dependent.

Its a poor argument to blame "the fine print" if you enter a train without a ticket. When the default is no permission it is pretty common understanding that you can't do it unless granted permission.

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.

A license to distribute software has nothing to do with an EULA, you're comparing apples to oranges.

So what would you say if a company violated the GPL?

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 GPL is not a license to possess and use. It is a legal hack that suspends copyright restrictions for those who comply with its terms. If you aren't distributing anything, the GPL (v2) has no bearing on what you do with the code.

In quebec those agreements are not legally binding.

> a single click is all it takes

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.

I am a lawyer and yes it is

A lawyer in the US presumably because they aren't in parts of Europe, EULA's specifically have been hammered back repeatedly in Germany and other countries.

> 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?

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

no contract was signed, and often/usually no button was even clicked to get "upgraded" to windows 10

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)

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?

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.

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.

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.

Then they misplaced their trust and should have picked a vendor they agree with more, because MS does think of it as an update. What "most users" think is irrelevant in court.

Well then. "We have changed your system so that your business-essential peripherals are no longer working (because vendor does not have drivers for Win10 just yet)" is good, yes? I sort of prefer to make such decisions in a non-automated and in-house way, so that the business case for upgrade can be considered on its merits. Instead there's unplanned downtime, because someone in a completely different company had to fill their quota of Win10 upgrades. Good and necessary for that person to get their KPI bonus, customers be damned.

(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.)

I believe cases like this hinge on the notion of informed consent (they were not informed the product is defective) and reasonable expectations (it's reasonable to expect that by now, after so many years, Microsoft would have learned how to make an operating system that does not destroy user data).

I could pretty easily counter with: it's reasonable to expect people to backup any files that are important enough to them they'd sue over it.

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.

No they don't. Failure to read the entire agreement is not a defense. It's binding if you did some affirmative act (including using the product) after notice of the terms, even if it's only a link. Reasonable expectations mean nothing in this context. Will likely be sent to arbitration on an individual basis.

If using every product requires reading a dozen pages (at the very least), then how do you expect to use literally any mobile phone you can buy in a store?

Yeah, that's why I used consent. Consent is a messy topic that requires a best effort and careful deliberation. I definitely agree that EULAs like that are in a dangerous gray area.

A contract cannot violate laws, but there is nothing illegal in fact many courts may order arbitration and most suits use the affidavit and disclosure periods for arbitration between the legal teams.

Also "justice" is a very subjective and relative term unless you mean legal justice which based on your rant you do not.

Would most courts also say "You can't have a class action, go do individual arbitration instead."

Arbitration is one thing, taking away class action rights though.

See Concepcion v. AT&T Mobility LLC (April 2011) where the US Supreme Court ruled exactly that: class action is incompatible with arbitration so head over to arbitration as a lone individual.

5-4. What a surprise. ugh.

It's perfectly ok for courts (or law) to order arbitration. It's completely not ok for contracts to order them - even less ok if it's between "people" with different power levels.

IANAL, but as far as I know, the law always takes precedence over contracts. You cannot sign a contract that makes you a slave, or that gives somebody else the right to kill you, for example.

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.

The GP was talking about arbitration clauses. It's an absurd that any democracy would accept those (and favored forum ones), and they don't seem to be restricted to software companies in the US.

Absurd it is, but they are legally binding and have been used to screw consumers since 2011. Thanks Scalia!

You can't make a contract that violates the law. Come on.

> 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

Not in Windows 7's EULA I think.

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.

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

Wasn't disagreeing with the Win 10 EULA on the first boot the last chance to rollback the installation?

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.

> 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...

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

I remember installing some version of windows (a server version? can't recall, but it was 2008-ish) that presented the EULA in a four-line-high window. Of course you just click through, but I went back later and found the text - it was 5000 words long! Yes, MS lawyers "expect" you to read 5000 words of technical legalese in a four-line window...

The damage might be done before the EULA is even displayed.

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

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.

I doubt that judges will accept that Windows 10 was an "update".

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?)

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.

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.

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.

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

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