FBI, Pentagon Quiz Microsoft on XP

dailynews.yahoo.com ^

[Brad C.]

Yes, I did read the legal posts that were posted. The thing is, the feature works; it allows network devices to be configured by the system without user interaction. Is it MS fault that the person using the system does not have enough knowledge or skill to make proper use of it? Just because I was stupid and didn't close the window on my house, doesn't mean that I can sue the builder for water damage resulting from the rain pouring through it. Like wise, if a user leaves the back-door open on their computer...

[Dominic Harr]

Is it MS fault that the person using the system does not have enough knowledge or skill to make proper use of it?

One last time, I'll try honest reason:

The law clearly states they HAVE to disclose the defect. They did not disclose the defect. Therefore they comitted fraud.

This is as open-and-shut a case as you can get! What is it in that simple, straight-forward reasoning that you disgree with?

[Brad C.]

There is no reason to shout here, I thought we were discussing an issue. My point is:

There is no defect. The feature does what it is suppossed to do. It configures network devices.

[Dominic Harr]

A merchant is obligated under the law to disclose any fact, the disclosure of which may have influenced the buyer not to enter into the transaction to start with.

I'm sorry for 'shouting', but it seems you missed this the first 2 times I posted it.

This 'defect' (and the fact that others can take control of a machine *is* a defect) would certainly have influenced buyers.

MS was legally obligated to inform consumers of the defect.

[TechJunkYard]

Zeidenberg tried to make it a copyright issue, because the product had aggregated non-copyrightable material. But the circuit court saw through that charade. The ruling is clear. There WAS an agreement and Zeidenberg unwittingly violated it. Read the case. It's there.

[Dominic Harr]

On reflection, I *am* sorry for shouting.

It just gets frustrating, like dealing with Clintonistas. This defense of MS is like saying, "it depends on what 'is' means".

[Dominic Harr]

I read the case, which is how I realized that the case didn't apply to product liability.

There is no law stating that copywrite has to be on the cover. He was trying to apply 'product liability' law to a copywrite case, and rightfully lost. His case didn't have anything to do with the 'EULA' but with the copywrite protections.

You would *win* in this case. The EULA doesn't protect a thing.

[TaRaRaBoomDeAyGoreLostToday!]

Yes but there is I am sure a privacy act issue involved and prior knowledge of a serious glitch in a product.

[TechJunkYard]

I was just responding to your point that the EULA was worthless if not disclosed before the sale.

I have no position on the product liability issue. Based on past history, XP users should have known there would be problems with this software release, as with past releases. They pays their money, they makes their choice.

My opinion: Wrong Choice.

[Brad C.]

12. DISCLAIMER OF WARRANTIES. The Limited Warranty that appears above is the only express warranty made to you and is provided in lieu of any other express warranties (if any) created by any documentation, packaging, or other communications. Except for the Limited Warranty and to the maximum extent permitted by applicable law, Microsoft and its suppliers provide the Product and support services (if any) AS IS AND WITH ALL FAULTS, and hereby disclaim all other warranties and conditions, either express, implied or Statutory, including, but not limited to, any (if any) implied warranties, duties or conditions of merchantability, of fitness for a particular purpose, of reliability or availability, of accuracy or completeness of responses, of results, of workmanlike effort, of lack of viruses, and of lack of negligence, all with regard to the Product, and the provision of or failure to provide support or other services, information, software, and related content through the Product or otherwise arising out of the use of the Product. ALSO, THERE IS NO WARRANTY OR CONDITION OF TITLE, QUIET ENJOYMENT, QUIET POSSESSION, CORRESPONDENCE TO DESCRIPTION OR NON-INFRINGEMENT WITH REGARD TO THE PRODUCT.

Please note that as part of the EULA, there is a "As is and with all faults" phrase. I did not capitalize it, it came that way from a previous poster.

[Brad C.]

13. EXCLUSION OF INCIDENTAL, CONSEQUENTIAL AND CERTAIN OTHER DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL MICROSOFT OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS OR CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE, AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE PRODUCT, THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT OR OTHER SERVICES, INFORMATON, SOFTWARE, AND RELATED CONTENT THROUGH THE PRODUCT OR OTHERWISE ARISING OUT OF THE USE OF THE PRODUCT, OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS EULA, EVEN IN THE EVENT OF THE FAULT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF CONTRACT OR BREACH OF WARRANTY OF MICROSOFT OR ANY SUPPLIER, AND EVEN IF MICROSOFT OR ANY SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

Please note that in this article of the ELUA, disclaiming the "loss of privacy" as well as any number of other things.

[TechJunkYard]

... if the retailer refuses to accept a return on the opened software package?

Quote from an old girlfriend: become familiar with the store's return policy before making a purchase.

Females are born shoppers... they know these things. ;-)

[zog]

--probably the worst one from a causal users reference might be to have your machine taken over and used as a zombie in an attack. And these days it might just not be some kiddies attacking and fooling around, it could be very serious, as in national security serious. And the average schmoo wouldn't even know it was happening until the infrastructure started to shut down maybe.

[Dominic Harr]

I was just responding to your point that the EULA was worthless if not disclosed before the sale.

That case had nothing to do with the EULA. That was about the copyright.

The defendant *tried* to claim that since the EULA was unenforcable, the copyright didn't apply to him.

A demonstrably silly point, in my opinion, and he lost.

[itsahoot]

Consumer protection laws do apply to MS, don't they?

NOPE, just the poor people have laws to obey.

[Dominic Harr]

A merchant is obligated under the law to disclose any fact, the disclosure of which may have influenced the buyer not to enter into the transaction to start with.

From the EULA:

11. LIMITED WARRANTY FOR PRODUCT ACQUIRED IN THE US AND CANADA. Microsoft warrants that the Product will perform substantially in accordance with the accompanying materials for a period of ninety days from the date of receipt.

If an implied warranty or condition is created by your state/jurisdiction and federal or state/provincial law prohibits disclaimer of it, you also have an implied warranty or condition, BUT ONLY AS TO DEFECTS DISCOVERED DURING THE PERIOD OF THIS LIMITED WARRANTY (NINETY DAYS). AS TO ANY DEFECTS DISCOVERED AFTER THE NINETY (90) DAY PERIOD, THERE IS NO WARRANTY OR CONDITION OF ANY KIND. Some states/jurisdictions do not allow limitations on how long an implied warranty or condition lasts, so the above limitation may not apply to you.

Let me guess -- you're an employee of the company?

You're excusing obvious illegality, looking desperately for a loophole to let MS get away with violating product liability laws.

That's why so many of us appear to be 'MS-haters'. We have the *nerve* to suggest the law should apply to MS, while ya'll try and excuse any lawbreaking MS engages in.

[Dominic Harr]

NOPE, just the poor people have laws to obey.

That is the claim of several here.

They're down to trying to claim that the clear and concise laws don't mean what they clearly say.

What is the meaning of 'is'?

[TaRaRaBoomDeAyGoreLostToday!]

It is obvious it means that if you buy a computer using Microsoft Windows and go on AOL and give your password to a hacker tricking you-or all other scenerios similiar-THEN they are not responsible.But when there software causes the security breech it is a different ball game.

[TechJunkYard]

Uh-huh... roger... 73... out.

[Dominic Harr]

Sorry if I've been a bit shrill.

It's dealing with the MS version of 'Clintonistas' that does it to me. Not you.

Have you ever tried to discuss Clinton's criminality with a 'Clintonista'? Did it make you frustrated?

I'm there, with this.

Again, forgive me.