<nettime> Dell & Shrink Wrap Licences!

[auskadi <auskadi@tvcabo.co.mz>]

A friend from Panama just sent me this intersting little tale about
someone's recent experience with shrink wrap licences with the
question:"whats your law view on this:
http://www.cypherpunks.ca/dell.html";.

I have always had that uncertain feeling about the legality of these kinds
of things - how can you agree without knowing the terms? But I have never
really researched the problem.

Anyone out there actually thought about this in any detail? Obviously it
seems another string to add to the bow, another item to put on the current
growing "war over IP agenda" along with the WIPO, SCO and what else.

Any thoughts?

Martin


  Dell's Software License Policy


    Dude, you're getting screwed.


      28 Aug 2003

Kat and I just received the Dell Inspiron 5100 notebook we ordered from
Dell Canada. We quickly ran across problems.

I pushed the power button to turn on computer. I got the Dell POST screen,
then a screen from /Dell/ (Photo
<http://www.cypherpunks.ca/dell_screen.jpg>):

                       SOFTWARE LICENSES

- Before using your computer, read all of the software license
  agreements that came with each program that you ordered.
  There may be several agreements to examine.  To comply with
  the terms and conditions of the software license agreements,
  you must consider any CD or diskette set of Dell-installed software
  as BACKUP copies of the software installed on your computer's
  hard-disk drive.

- If you did not order Dell-installed software for this computer,
  or if you do not accept all the terms of the licenses, please call
  the customer assistance telephone number listed in your system
  documentation.

  Press any key on the keyboard to indicate that you have
  read all of the software licenses and agree to their terms.

                            Be Direct TM
                              Dell TM
                           www.dell.com

But there are no license agreements in the box that the computer came 
in. [There are some shrinkwrapped CD containers, but the "Terms and 
Conditions of Sale (CANADA)" that came with the invoice says:

   "7. Software.  All software is provided subject to the license
       agreement that is part of the package.  Customer agrees that
       it will be bound by the license agreement once the package is
       opened or its seal is broken.  Dell does not warrant any software
       under this Agreement.  Warranties, if any, for the software are
       contained in the license agreement that governs its purchase
       and use."

I've never agreed to those Terms and Conditions, to my knowledge, but I 
assume they think they're enforceable, so I can't open up the shrinkwrap 
to see if the license agreements are in there, without automatically 
agreeing to them.]

So I called the only Dell number I could find on my documentation 
(1-800-847-4096) and spoke to a customer support representative. I told 
her what was on the screen, and told her I couldn't find the license 
agreements I'm required to read and agree to before pressing any key.

She put me on hold while she looked into where the license agreements 
might be, and eventually transferred me to technical support. The tech 
support agent told me her database was down, so she couldn't look up 
anything at all (I hadn't even told her what the problem was yet), and 
I'd have to call back in an hour.

I call back, and speak to a tech support woman. She says: "press Tab." I 
explain that I can't without saying I've read and agreed to documents I 
don't have. She says "press page down". Same problem. She says "scroll 
down". I explain it's not a Windows screen. She says "insert any 
Dell-shipped CD". I exlpain the problem of opening the CD packaging.

She insists I have to press a key. I ask her if she really means that I 
have to agree to the licenses before it's at all possible that i've read 
them. She says "yes". I explain that that's not acceptable, and ask for 
her supervisor.

Her supervisor insists it's a Customer Care issue, and not tech support, 
and that there's nothing he can do. He can't explain why they sent me to 
him. He enters my info into the call log databse, and I go to call back 
Customer Care.

So back into the hold queue I go.

I'm finally connected to a Customer Care representative. [Pretty much 
each sentence in the following was interspersed with long, long times on 
hold.]

She looked up the call log to get the background info. She insists she 
doesn't have copies of the agreements, and that I'm supposed to go 
online and look them up myself. (?!) She says to use a public computer 
if I have to. I ask how to know what companies have software on my disk. 
She goes away for a bit, and says she doesn't have that information, and 
there's nothing they can do. [And there's no supervisor available.] She 
asks why I don't want to agree to the license. I explain I haven't 
*seen* it. She says "it just says you won't copyright any of the files". 
I ignore the mistake, and explain that licensing agreements are long, 
long documents that say much more than that, and that anyway, the screen 
says that I have to have *read* it.

Eventually she does manage to connect me to Alan Burley (Manager, 
Customer Service).

He said he installs things all the time without reading the license 
agreements. He says I should just do that. I ask if he's really telling 
me to lie and to agree to legal documents I haven't seen. He says I 
don't have to, but the only thing he can do is take the computer back. 
He says that it's the first time this issue has escalated. He does 
manage to tell me what software is on the system, and says I need to go 
to those companies' websites to get their agreements. [Never mind that I 
need the OEM version and that's unlikely to be there.] I ask _him_ what 
if this was my first computer. He said I would have to go to a library 
or a friend's house. He really couldn't send me the agreements that Dell 
insists I read and agree to before using the computer.

He said he couldn't give me his phone number or mailing address, and 
that he didn't have a boss who could talk to me.

So we've got nothing left to do but send it back. He says he'll send 
waybills, and will refund the cost of the computer, including the 
original shipping charge, and won't charge a restocking fee. We will 
have to pay for the shipping back to the Oakville depot. I figured we 
could just run it by there ourselves (it's not too far), but he said 
that that's not possible. (I don't understand why. We'll probably try, 
anyway.)

It's crazy that it came to this. If they had said *anything* reasonable, 
we would have been happy to just install Linux on the thing and be done 
with it. But they were saying that anyone who uses a Dell laptop (with 
this startup screen) *has* to just lie about having read the licenses, 
and just blindly agree to them. That's unacceptable enough that it's 
going back.

It's also interesting to note that everyone except Mr. Burley assumed 
that I was talking about a Microsoft screen which included the Windows 
EULA, until I told them otherwise. This was a /Dell/ screen, with no 
EULA, and I'm surprised that none of these people were aware of its 
existence.

After all this, we *did* try to boot off a Linux install CD. That just 
took us to the same screen as before. So we had to go into the BIOS so 
that it would try to boot off the CD before the hard disk, but after we 
did that, /Windows started to boot, without having displayed the "press 
a key to agree" screen/. We quickly powered the machine down before 
Windows started. [Though now you /no longer/ get the "press a key to 
agree" screen when you turn it on, even with the BIOS settings back the 
way they were.]

This took from around 3pm to around 8:30pm today. I'm just bewildered 
that Dell corporate policy is that users need to lie to use their new 
laptops, and to agree to legal agreements that it's completely 
impossible to have read. This is the next level above "click-through" 
licenses. Now, they figure no one reads the EULAs anyway, so why bother 
even providing a copy?

------------------------------------------------------------------------
Ian Goldberg and Kat Hanna <mailto:dell-eula@cypherpunks.ca>


-- 

    _____________________
 __/                     \
/ Victor Brown           |
| Comp Supp Spec         |
| FSU-Panama             |
| Phone: (507)-314-0367  |
| vabrown@mailer.fsu.edu |
\________________________/

-- 
Martin Hardie
/\/\I-I/\/\I-I/\/\I-I/\/\I-I
auskadi@tvcabo.co.mz
hardie@ekno.com
/\/\I-I/\/\I-I/\/\I-I/\/\I-I
Avenida Julius Nyerere 812 7E
Maputo Mozambique 
(don't use the post!!)
(258) 82 449428
/\/\I-I/\/\I-I/\/\I-I/\/\I-II
Artekale 30, 2A
Durango, 48200
Bizkaia, Euskal Herria,
(Spain) 





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