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Comment by DannyBee | Hacker News Reader

FWIW, As a lawyer, I have a lot of trouble believing that assent to a contract you can't avoid, done specifically for the purpose of removing the contracted software, would ever be held to bind you to the terms and conditions of that contract.

In fact, i'd go so far as to say that if Microsoft ever actually tried to enforce, it would run them into serious regulatory trouble.

If push came to shove, i'm sure they would take the position that this was a hardware issue, and not their legal intention.

(I completely agree this is a ridiculous situation, and you shouldn't have to agree to anything. But it actually makes for great facts to fight a clickwrap fight on)

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Thanks for that. That leaves just one legal issue that really needs to be raised:

How is it legal to _deny_ me full access (defined by the removal of all Microsoft software, something the European Commission has repeatedly upheld) until I have completed some Microsoft-controlled procedure? I don't want Windows on the machine.

Assuming I buy from the 3 largest vendors, excluding Apple, is it not anti-competitive to _lock_ me into it since no other option is offered?

Note: I realize that it may seem redundant to beat this dead horse again, but there's a really good reason so many are upset about Secure Boot. Of course, Microsoft mandates that Secure Boot can be disabled for Win8 logo compliance, which is neatly avoided in this case.

You seem to be under the impression that this setup was created for the express purpose of denying you access to the hardware until you have agreed to the EULA.

However that is a direct contradiction of the person you are responding to, who mentions that this is a vestige of a certain set of configuration options that are common on Windows 8 machines.

This is not intended, and will likely be patched if enough complaints are heard. Remember they are just requiring that you accept their EULA to boot their OS, denying you access to the firmware was never their intent.

No, I'm not countering DannyBee. I'm collecting the list of legal arguments that might be used if/when this is litigated.

Lovely as it is that Microsoft didn't mean for it to work like this, they're the one who will get the service of process saying "please appear in court and defend your position," if/when this is litigated. That is the kind of complaint they might actually "hear" that would get a response.

I don't care about their good intentions. Get out of my hardware, get out of my life, Microsoft.

> denying you access to the firmware was never their intent.

Unlikely. With a new person or company it's sporting to give them the benefit of the doubt. With Microsoft if you're still ignoring everything illegal and anti-competitive they do you're on the payroll.

Microsoft specifically modified its products to sabotage a competitor, and lied about it. Microsoft faked evidence to use in Federal court and Bill presented that evidence though it was clearly wrong to anyone who'd used windows.

Why on Earth would anyone give them the benefit of the doubt?

The BSA, which they support, wouldn't give you the benefit of the doubt.

It's generally legal (at least in the US) to contract for almost anything. Consideration does not have to be money, it can be foregoing something.

So for example, a contract for sale that said "i give you a copy of windows, and you agree not to marry anyone for 3 years and give me $50" would generally be valid, at least in the US.

Everything else is an argument about whether the contract is "against public policy", or whether the use of that contract constitutes "anticompetitive behavior".

These are two very difficult questions, and in general very fact/doctrinal specific. The Sherman Antitrust act in the US is a very vague piece of law that, if read strictly, outlaws all contracts (Since it outlaws contracts in restraint of trade, but basically all contracts are restraints on trade in one way or another)

Fun fact: Technically you can get 10 years in jail for violating antitrust law.

I still think a case could be made, since the purchaser of a computer has not entered any sort of contract with Microsoft, but is forced to navigate a Microsoft-controlled maze.

> In fact, i'd go so far as to say that if Microsoft ever actually tried to enforce, it would run them into serious regulatory trouble.

And Microsoft probably knows this, and would avoid it at all costs. But having an overly broad EULA helps them push around the n00b Linux installer who doesn't know any better.

And the big corporation with too much to lose to feel safe rolling the dice even on a sure thing.

I completely agree that they would do this, right up until the point it got hairy for them.

It's too bad they can choose to stop once they've started. Like the patent trolls new-egg is fighting.

New-egg should essentially be able to take the trolls to court and part them out for sale, down to their CEO's organs, for trying this in the first place.

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