[Full-Disclosure] RE: Computer Sabotage by Microsoft

From: Connor, Ethan M. W (emconnor_at_hendersonbrothers.com)
Date: 09/12/03

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    To: "'Ansgar Wiechers'" <bugtraq@planetcobalt.net>, Nicholas Weaver <nweaver@cs.berkeley.edu>
Date: Fri, 12 Sep 2003 17:21:26 -0400

    If I understand things correctly, the EULA is PART of the sales contract.
    If you do not agree to the license agreement, than the purchase never was
    legitimized, and therefore there is no sales contract - which by the way is
    what entitles you to a complete refund if you desire it (since legally the
    sale never happened).

    So, you can't say that the terms of the license agreement modify the sales
    contract or prevent you from using something that is yours, because there is
    no contract and it isn't yours. Once you agree to the EULA it is yours, but
    only under those conditions that you agreed to. There is no modifying of
    anything, and that is the rub.

    Besides, even if you did want to pursue this, the best outcome you could
    expect is: You get your $200 back and they take your XBOX (which was
    probably moded anyway), or if you really could pursue it to the extreme,
    Microsoft stops selling the XBOX in your country. Would you be happy in
    either of those circumstances?

    Unfortunately, like the last post says, the argument over allowing or not
    allowing signed code to run on the Xbox is something we can all waste lots
    of time with, and it would be really nice to do... But the future holds
    code updates as a regular part of a vendors obligation to the end user to
    keep their product performing the function it was sold to do. After all,
    when they sold it to you they have entered into the contract with you to
    make a product that works as advertised - and I'm sure you would hold them
    to it.

    -----Original Message-----
    From: Ansgar Wiechers [mailto:bugtraq@planetcobalt.net]
    Sent: Thursday, September 11, 2003 7:14 PM
    To: Nicholas Weaver
    Cc: Stefan Esser; full-disclosure@lists.netsys.com;
    bugtraq@securityfocus.com
    Subject: Re: Computer Sabotage by Microsoft

    On 2003-09-11 Nicholas Weaver wrote:
    > On Thu, Sep 11, 2003 at 08:30:39PM +0200, Stefan Esser composed:
    >> well it finally happened. I came back home after work, connected my
    >> XBOX to the internet and went into the XBOX-Live menu configuration.
    >> Well what happened. The XBOX started automaticly downloading the new
    >> crappy XBOX-Live dashboard, which is of course fixed.
    >>
    >> This is IMHO an act of computer sabotage. I have never allowed MS to
    >> modify my dashboard or to auto update my dashboard.
    >>
    >> Is any lawyer on the list who can point me to the right paragraphs? I
    >> do not believe this computer sabotage is legal in any european
    >> country.
    >
    > Read the End User Liscence Agreement that you agreed to with the X-box
    > (its probably somewhere in the box).
    >
    > Dollars-to-doughnuts says that Microsoft maintains the right to
    > update/change the software regardless of your wishes.
    >
    > All your Rights are belong to Bill (tm)

    No, they don't. In Germany it is not legal to unilaterally modify a sales
    contract that has already been agreed on (if the result of not agreeing
    would be not being able to use the product). So EULAs are simply not
    effective in almost every case.

    Stefan, you might want to read into the AGBG [1] and consult a lawyer, but
    (IANAL) I'm not sure how much of a chance this would have in courts.

    [1] http://dejure.org/gesetze/AGBG

    Regards
    Ansgar Wiechers

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