Re: XP or 2000? ... Really about Kurt trolling the group
From: kurttrail (dontemailme_at_anywhereintheknowuniverse.org)
Date: 02/10/05
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Date: Thu, 10 Feb 2005 15:08:00 -0500
Linda B wrote:
> I can't believe I'm going to do this, but...
>
> Regardless of whether or not you think the whole idea of software
> licensing, copyright law, and fair use is legal, the simple fact is
> that, when you install Windows, you agree to abide by the terms of
> the EULA, which is a legally *enforceable* contract between you and
> Microsoft.
Let's take SCO and IBM. SCO CLAIMS that IBM has violated the
UNIX license. Has IBM actually violated the license just because SCO
CLAIMS it? And if is the case, then why have the trial?
Same goes between me and MS. MS can CLAIM I violated the EULA all it
wants, but that doesn't make it so, unless they prove by the
preponderance of the evidence.
> The reason the EULA has not been enforced between MS and any given
> end user is quite simply that it's not worth their time or money to
> go after single users.
Then they are not using due diligence in legally enforcing their
contract.
> When MS goes after pirates, it's *far* more
> cost-effective for them to go after large-scale sources. The
> reasoning is the same as government officials going after drug
> dealers: they can either spend large amounts of time and money going
> after millions of individual drug users, or spend a tiny fraction of
> that time and money going after the source, the dealer. There is no
> benefit for Microsoft to pursue legal action against Kurt, or anyone
> else who pirates software in the comfort of their own home.
Yes there is, to prove that it is legally enforceable in my home. Just
like the RIAA, going after filesharing. The difference between the two
is that I am not distributing windows to others, while uploading music
through file sharing is distributing music to others.
> You keep talking about how Microsoft "doesn't have the balls" to
> enforce their EULA against a case of single-user piracy.
Their is no such legal concept as "single-user" piracy under the law, or
present court precedents.
> It's not
> that they think that they're going to lose -- rather, it's a foregone
> conclusion that they would win that case.
LOL! They could lose the case on their lack of due diligence alone.
Nevermind Section 117 and Fair Use.
> There is no need for them
> to establish that a breach of contract is illegal.
Over a specific term, yes they do. There is no law that makes breaking
a contractual term illegal in and of itself.
We can go back to SCO and IBM again. If there is a contractual dispute,
it is up to the courts to decide, not the copyright owner.
> It's very simple.
If it were, then courts wouldn't be necessary. Nothing is black and
white. We live in shades of grey, and courts settle the differences.
> The EULA states very clearly that you're not allowed to have the
> software installed on more than one machine at the same time, and you
> agree to abide by those terms when you install the software for the
> first time.
And the Supreme Court is equally as clear.
"The protection given to copyrights is wholly statutory, and, in a case
like this, in which Congress has not plainly marked the course to be
followed by the judiciary, this Court must be circumspect in construing
the scope of rights created by a statute that never contemplated such a
calculus of interests. Any individual may reproduce a copyrighted work
for a "fair use"; the copyright owner does not possess the exclusive
right to such a use."
And until MS proves in a court of law that they possess the exclusive
right to use a post-sale shrink-wrap license to strip me of my "fair
use" of the software that I legally purchased for my private
non-commercial use, my opinion is legally valid.
> You also state that violating a contract is not illegal,
> which is ridiculous.
In and of itself!
> How many times have you heard of people getting
> sued for breach of contract?
Just because they have been sued for breech of contract, don't mean
they'll lose. There are perfectly legal reasons to violate terms of a
contract if the term violates the law or is unconscionable. It is my
opinion that MS's One Computer EULA term is unconscionable in light of
the Supreme Court ruling that the copyright owner does not possess the
exclusive right to such a use as "fair use."
If MS doesn't sue me, then I can go on my merry legal way.
That's how contract law works!
> This is exactly what you're doing when
> you install one copy of Windows on two or more computers -- you're
> committing a breach of contract.
That is not evidence that the term I object to is actually legally
enforceable in a court of law! It is a contract dispute, which MS would
have to sue me and win, in order to prove that their One Computer term
is legally enforceable.
> The outcome of these breach of
> contract trials is based on whether or not an actual breach of the
> contract was committed -- not whether or not there is a legal
> precedent for contracts being breached.
LOL! Not if the contractual term is unconscionable or violates the law.
> If there were any benefit to
> MS going after you for piracy, there is no question that they would
> win that trial. Seriously. Think about it. You, and your lawyer,
> against the multi-billion dollar corporate behemoth and their legions
> of hunchbacked, fang-toothed, bloodied, war-hardened robot lawyers.
> And they're made out of carbon fiber and pure evil, and their brains
> are supercomputers from the future. Who's gonna win that battle?
We won't know, until MS sues me to find out.
>
> I'm not saying I like this arrangement, I'm not saying that I think
> that the EULA is a good idea, or fair, or whatever. I'm not even
> against doing what you will in the privacy of your own home. I'm
> saying that, by installing the software on two computers -- with one
> license -- you are commiting a breach of contract.
It is a contract dispute, that is up to the courts to decide whether it
is a breach, not MS, and not you. That's why we have civil courts to
settle differences between two parties.
That's how it works.
> MS won't come
> after you for the simple reason that you're a small fry, you're too
> small a target, and not worth their time.
Sounds like an excuse for not exercising due diligence to me. I wonder
if a court would accept such an excuse?
> If you were duplicating
> CDs and selling them on the internet -- or even just giving them away
> -- your legal troubles might be much more pressing.
And I am against the distribution of copyrighted material to others.
Copyright law.
-- Peace! Kurt Self-anointed Moderator microscum.pubic.windowsexp.gonorrhea http://microscum.com "Trustworthy Computing" is only another example of an Oxymoron! "Produkt-Aktivierung macht frei"
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- In reply to: Linda B: "Re: XP or 2000? ... Really about Kurt trolling the group"
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