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Comment by HenryBemis | Hacker News Reader

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)

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!

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.

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

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