[Linux-aus] Last chance to critique...

[Con Zymaris]

On Mon, Feb 10, 2003 at 03:21:17PM +0800, Leon Brooks wrote:
> On Monday 10 February 2003 01:00 pm, Con Zymaris wrote:
> > A Comparison of the GPL and the Microsoft EULA
> 
> Page 9: s/tweaks to the fact/twigs to the fact/
> 
> For others on the list, Word Of The Day:
> 
> http://dictionary.reference.com/search?q=twigs
>    twig(2) Pronunciation Key  (twg)
>    v. Chiefly British twigged, twig*ging, twigs 
>    v. tr.
>      1. To observe or notice.
>      2. To understand or figure out: "The layman has twigged what the
>         strategist twigged almost two decades ago" (Manchester
>         Guardian Weekly). 
>    v. intr.
>      To be or become aware of the situation; understand: "As Europe is now
>      twigging, the best breeding ground for innovators who know how to do
>      business is often big, competitive companies" (Economist).

you wordsmith you ;)

> 
> Page 10: automated updates that kill other software: IIRC, Microsoft have 
> already done this, deliberately disabling or removing some piece of 3rd party 
> software during an update, but can't remember the exact circumstances. Put it 
> this way, it's a temptation that I can in no way see them resisting. 
> Anybody...?

Indeed they have, on numerous occasions. However, I'm trying to keep the 
tone and language of this document as neutral and as even as possible, 
thus avoiding anything accusator or inflammatory.

> 
> Page 11: `substantially' is an arguable term, and would in practice make 
> closing a claim against Microsoft for non-performance or error well nigh 
> impossible, even without the many other clauses to help them.
> 
> Page 14 (fixme): perhaps more important even that denial of any right of 
> title, quiet possession or enjoyment, is the exclusion of `CORRESPONDENCE TO 
> DESCRIPTION OR NON-INFRINGEMENT' - which seems to imply that Microsoft can 
> lie their collective butts off about what XP Pro is and does, even if it's 
> illegal, and you've just accepted responsibility for that. The M*A*S*H theme 
> drifts across the landscape of my mind...

ack. have added the following:

ALSO, THERE IS NO WARRANTY OR CONDITION OF TITLE, QUIET ENJOYMENT, QUIET
POSSESSION, CORRESPONDENCE TO DESCRIPTION OR NON-INFRINGEMENT WITH REGARD
TO THE PRODUCT.

Analysis

Here, by excluding implied covenant of 'quiet enjoyment', the EULA is
removing the user's rights to use the software as they see fit, and
neutralising the right the user has to be left alone in the 'quiet
enjoyment' of the use of this software. The covenant essentially states
that a user has the right to use the software without interference by the
software publisher.

By excluding the the right to quiet possession, the EULA is removing the
user's right to privacy and peaceable usage of this software.

Also, Microsoft disclaims that this software will not infringe on the
intellectual property rights of others



> 
> Page 15: the absolution of `FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH 
> OR OF REASONABLE CARE, FOR NEGLIGENCE...' seems to me to be particularly 
> onerous, and you don't touch on that. In essence, they're saying that they 
> can be as careless or as treacherous as they like, and in accepting their 
> licence you are effectively _warranting_ that they haven't; that is, if 
> someone dies, is maimed, loses their life savings because of a fault in 
> Microsoft's software, you hold yourself responsible for that.


this is covered elsewhere in the document, but I'll re-iterate here.

> 
> Really, this is a Microsoft warranty, not a product warranty. In claim after 
> claim, they are handing responsibilities traditionally and at law covered by 
> them over to you, the user.

> 
> Page 16: s/attempt to bear/attempt to bring to bear/
> 

ack.


> Page 18: IMESHO, you should make an oft-overlooked point here. (-:
> 
> Although the GPL says that it `is intended to guarantee your freedom to share 
> and change free software', it actually achieves this by making guarantees 
> which amount to the right of _the_software_itself_ to be unencumbered, 
> although think that the GPL couldn't say this outright with any legal power. 
> User freedoms are an almost inevitable consequence of this guarantee of 
> freedom for _the_software_itself_.
> 
> It's kind of like underwriting the freedom of a country by defending the 
> freedom of each individual in that country instead of defending the country 
> as a whole and directly.

good point. Mind if I use a slightly modified form of these two 
paragraphs?

many thanks. Your credit is in version 1.3, out soon ;)

con

-- 
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