Internet Downloads

[Darian]

Hi,
Since you obviously thought about this subject for a while now, may I be allowed to ask a question:

What happens if you know nothing of this EULA thing and just know the brand Microsoft, and buy a PC that already has it preinstalled when you get it?
If I remember right, my Acer came with it preinstalled, and I didn't even have to click OK to any EULA. Can I do everything I want to with it? Like Sell, alter or copy it? (I know it's not that easy nowadays because they only give you recovery cds, but in former days - say Win95).
Thanks, Fragbait
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Aha, a very clever catch of a loophole!

In Softman v. Adobe (2001), a district court in California held that an attempte to impose an EULA without the consumer actively consenting to the EULA (either by using prompts during install, or by specifically opening a package with a clear label stating that opening the package constitutes consent to the terms printed on the exterior of the package) is legally unenforceable. In this specific case, the court held that it was perfectly legal for the consumer to sell the bundled software packages which came with his computer, since he never agreed to the individial EULAs.

A clever read on this would indicate that there is, in actuality, no such thing as an OEM license, unless the terms of the license are clearly spelled out and agreed to by the computer's purchaser prior to purchase... which, as we know, never happens. Because the computer itself is a durable good, you cannot be expected to return the computer to the store because you disagree with the EULA on the software which was installed on it, even if you have to click-through an EULA when you fire it up. That's just a guess on what the court would say, as I don't know of any case law relating to it.

However... and there's always a however.

If you bought the computer with the software pre-installed and without the actual media included (very common these days), what it boils down to is that you could use the software yourself in any way you see fit, and you can of course sell the computer itself -- but there's no way you could possibly transfer the software itself, as doing so would require copying it in some fashion.