EULA

A few points about the EULA argument.

1. You mean the "agreement" that pops up when you install Windows? The one I never saw or agreed to because I bought the box with Windows on it? Not sure if XP/Vista require you to agree on your first login but my install certainly didn't.

2. The fact that Kazaas EULA told everyone that installed it that it contained spyware didn;t do them much good.

3. As has been pointed out EULAs are of dubious value in law - you can't read it until you've removed the shrink wrap, at which point you can't return the item for a refund unless it is faulty. I don't think the courts will look too kindly at that catch-22 if you don't agree with the contents of the EULA.

4. Giving permission for someone to access your computer involves *knowing* you gave permission. For example, if I open a public FTP server with a directory that people can download some of my files from I give permission for *everyone* to access that bit pf my computer. If however I buy a PC with Windows installed and it already has open shares and some nerfarious type accesses my PC using them I *haven't* given permission as I am oblivious to it and so a crime takes place.

Given the complexity of the EULA and the fact that some users may never have even been given the opportunity to see it (see #1) it isn't a given that the courts will accept that you *should* reasonably be expected to know what permission you have allegedly given.

5. The EULA isn't a contract. To be a legally binding contract you need 3 things - offer, acceptance and consideration (basically something of value that passes between the 2 parties). MS can argue that the EULA is an offer and clicking accept, yes, agree, whatever consitutes acceptance, but as you never give anything to MS (you pay the shop for your copy of Windows not MS) there is no consideration so no contract.

Bringing it all back to the article, MS are on extremely fragile ground here by not giving you the opportunity to refuse the changes. Of course nothing will be done about it other than them being told not to do it again, but they have committed a prima facie criminal offence in many countries. In the USA I presume it would be a Federal offence given that they "crossed state lines" (wow, I feel like a gangsta rapper saying that)