Computer Question:Windows Updates?

[Pappy13]

And if it is the situation where the parties settled out of court it is completely meaningless. 

Meaningless as a point of law.

[MyGodWearsAHoodie]

The plaintiffs agreed to drop the lawsuit a month after the Judge ruled they couldn't make the case a class action suit which is what they were wanting.  When you are the plantiff and you agree to drop the lawsuit, you know you have lost or at the very least the odds are stacked against you and it's not worth pursuing.  If it's so clear, why did they drop the lawsuit?  Strange thing to do when it's so clear wouldn't you say?

Very simple reason.  There are costs involved in suing someone. And in a suit like this it cost lots of money to pay attys, experts, etc.

The plaintiffs wanted this case to be class action because that allows them to sue on behalf of everyone who has ever purchased the product.  Lots of $$$.  The judge said…nope.  You can only sue on your own behalf.  Very little money, not enough to even cover the legal bills of the suits.  Plaintiffs drop the suit.  Says absolutely nothing about whether the plaintiffs would have won on the merits.  It just wasn’t worth the money to pursue it anymore.  If it was class action the legal costs would have been spread out over everyone in the class.   

[Spider-Dan]

Meaningless as a point of law.

That was your entire point in mentioning that lawsuit!  You were claiming that THE LAW said that WGA is not spyware!

If we don't care about points of law, then (once again) by Microsoft's own definition, WGA is spyware.

[Pappy13]

That was your entire point in mentioning that lawsuit!  You were claiming that THE LAW said that WGA is not spyware!

If we don't care about points of law, then (once again) by Microsoft's own definition, WGA is spyware.

You misunderstood what I meant when I said it's meaningless as a point of law.  What I mean by that is that it can't be used in a court of law.  You can't in a court room argue something based on a case that was dismissed.  You can only argue based on something that was actually ruled on.  So from a court of law perspective it's meaningless.  It's absolutely NOT meaningless outside a court of law.  They tried to sue and they failed.  Pure and simple.  You can spin it any way you want, but the fact of the matter is they realized they weren't going to win the lawsuit.  That's meaningful outside a court of law, just not inside one.

[Pappy13]

Very simple reason.  There are costs involved in suing someone. And in a suit like this it cost lots of money to pay attys, experts, etc.

The plaintiffs wanted this case to be class action because that allows them to sue on behalf of everyone who has ever purchased the product.  Lots of $$$.  The judge said…nope.  You can only sue on your own behalf.  Very little money, not enough to even cover the legal bills of the suits.  Plaintiffs drop the suit.  Says absolutely nothing about whether the plaintiffs would have won on the merits.  It just wasn’t worth the money to pursue it anymore.  If it was class action the legal costs would have been spread out over everyone in the class.   

That's a nice way to spin it.  They would have gotten all their costs back and more if they won so what does that mean?  It means they figured their chances of winning were small, so they dropped the suit. 

[MyGodWearsAHoodie]

That's a nice way to spin it.  They would have gotten all their costs back and more if they won so what does that mean?  It means they figured their chances of winning were small, so they dropped the suit. 

Not necessarily.  Plenty of people have won and lost money on the deal. 

Dropping a case is meaningless for precedent.  Heck even winning at trial is meaningless.

The only way thing that creates precedent is an appeal. 

[Spider-Dan]

Pappy13, if I am to understand you correctly, you are saying that any time someone drops a case, it proves that the other side was right?

P.S. I notice that you have yet to address the fact that WGA meets Microsoft's own definition of spyware.

[Pappy13]

Pappy13, if I am to understand you correctly, you are saying that any time someone drops a case, it proves that the other side was right?

P.S. I notice that you have yet to address the fact that WGA meets Microsoft's own definition of spyware.

No, it doesn't prove the other side was right, but I think it does say something about the strength of their case.  If you think you can win the case you don't drop it.  To suggest anyone would is silly.  Now maybe you don't bring the lawsuit in the first place even if you think you can win because of money, but once you start heading down that road you don't simply give up if you think you can win.  You give up when you don't think you can win.

Obviously Microsoft's definition is wrong if it defines WGA because it's not spyware.

[Pappy13]

Not necessarily.  Plenty of people have won and lost money on the deal. 

In his January ruling, the judge had also said that Microsoft could demand compensation for the money it spent contesting the class-action charges. At the time, he gave Microsoft until Feb. 12 to come up with its expense report.  As part of the stipulation to dismiss the case, however, the plaintiffs and Microsoft agreed that each would pay their own attorneys' costs and fees.

Perhaps they were just worried that they would eventually lose the case and end up having to pay Microsoft's fees?

[Spider-Dan]

How about "they were worried that even winning the case wouldn't provide them enough money to pay for their own attorney's fees"?

Litigation is expensive.  Even if you think you can prove that WGA is spyware, unless you can also prove that the damage caused by it was great enough that you can get a substantial judgment in your favor, it's a waste of time to proceed with the trial.  The amount of legal fees they would run up (for going through with the entire trial) could greatly outstrip the money they get from MS.

Even if they could get their attorney's fees as part of the judgment, there's still the issue of the time involved vs. what you expect to get in return.  Do you think it's a pure, random coincidence that they agreed to drop the case right after the judge said that they didn't have the standing to make their lawsuit class-action?  Did WGA somehow magically become less intrusive because of that ruling?

Obviously Microsoft's definition is wrong if it defines WGA because it's not spyware.

Since you seem to be certain of what is and is not spyware, please provide me a link to the definition you are using.

Because it seems like the only reason you object to the classification of WGA as spyware is because Microsoft created it.

[Pappy13]

Do you think it's a pure, random coincidence that they agreed to drop the case right after the judge said that they didn't have the standing to make their lawsuit class-action?

Absolutely not.  As soon as the judge told them that they couldn't make it a class action suit they knew that MS was under no pressure to give in.  They were hoping that the possibility of a class-action suit where MS could lose millions would force MS to make a deal.  When that went out the window, the advantage they had also went out the window.  At that point they knew they would have to win the case to get anything and if they lost they would end up owing MS money.  THAT's when they decided it wasn't worth it and agreed to dismiss the case.  I think that says a LOT about what they thought their chances were of winning the case.

The question as to whether or not something is spyware is simple, it's simply a matter of intent.  Microsoft was merely trying to enforce their license agreements with their customers, their is absolutely no evidence that they were trying to do something malicious.  Therefore it's not malware.

If you absolutely must have a link, how about a quote from wikipedia's malware entry. http://en.wikipedia.org/wiki/Malware

"Software is considered to be malware based on the perceived intent of the creator rather than any particular features"

I think this discussion has run it's course and strayed off topic far enough now.  I will drop it.

[Spider-Dan]

Why are you substituting "malware" for "spyware"?  They are not interchangeable; spyware is merely one kind of malware.

Are you seriously claiming that because Microsoft only wanted to "enforce their license agreement" (using a method of questionable legality), that automatically makes it OK?  So I guess you have no problem with Sony's audio CDs installing rootkits on Windows PCs that they were inserted into, because Sony was "only trying to protect its intellectual property rights by preventing people from copying the disc"?

Unauthorized spying is still spying, regardless of the reason.  If Disney thinks I might be distributing bootleg DVDs of The Little Mermaid, that does not automatically give them the right to install a program on my PC that reports my activity to them.  The law does not work like that.

[Pappy13]

Why are you substituting "malware" for "spyware"?  They are not interchangeable; spyware is merely one kind of malware.

No they are not interchangable in all regards, but all spyware IS malware.  Not all malware is spyware.

I'm done discussing this.  We've gone from whether people should install MS updates to WGA false positives to the legality of license agreements to what does a dismissed lawsuit mean to is WGA spyware and now onto what software companies can legally do to protect their license agreements.  I'm not going to get into the DMCA and what you can and can't do legally.

Lets just agree to disagree.

[Pappy13]

Blizzard was selling an account in addition to the physical product. Microsoft is not. Blizzard cannot prevent someone from selling the product. The account is another issue. Perhaps Microsoft could leverage this concept and put essential parts of Windows "in the cloud", I don't know, but that's not what they are doing.

I was rereading some of this thread when I came across the above and I wanted to respond to it.  Sorry I missed this the first time through and sorry for continuing the debate after I said I was done, but I think this is an interesting point you brought up and worth a little more discourse.

I think what you are referring to is the "non-literal bits", not the account.  Never once did I see the account mentioned in the trial transcripts.  MDY tried to argue that Warden wasn't a technological device that controlled access to Blizzard's software because the software itself had no copy protection on it.  You could read the contents of the disk, copy them, even put them in some kind of viewer to view them all without the need for Warden.  The judge ruled they were absolutely correct about that, but he called that the "literal bits" of the software and that what Blizzard was really copyrighting were not these literal bits of software found on the CD but actually the whole package including the non-literal bits you could only access through the servers.  Blizzard claimed that you could only experience WoW fully by connecting to their servers and access to their servers was controlled by Warden and therefore Warden was a technological device that controlled access to the copyrighted game and the judge agreed.

In fact you could argue that WGA is to Windows what Warden is to WoW.  It's a technological device that controls access to the copyrighted material.  In effect MS HAS put a part of Windows (MS Updates) in the "cloud".  You can't access those non-literal bits unless you satisfy WGA.

But this was only pertinent to the DMCA claim, it had absolutely nothing whatsoever to do with the licensing agreement.  I copied and pasted the relevant portion of the judges findings about the licensing agreement and it never mentions the account nor does it mention the literal or non-literal bits.  That's an entirely different argument and has nothing in common with MS and it's licensing agreement.  The ruling the judge made as far as the licensing agreement that Blizzard had with it's users would apply equally as well with the one that MS has with it's users.  You're correct that the EULA cannot overstep the rights granted to the user by law, but only those specific rights granted to the user are immune, any other relevant portions of the EULA would still apply.

[fyo]

I was rereading some of this thread when I came across the above and I wanted to respond to it.  Sorry I missed this the first time through and sorry for continuing the debate after I said I was done, but I think this is an interesting point you brought up and worth a little more discourse.

I thought you were referencing the first-sale case of WoW, not whether or not someone has the right to produce a "cheat" (or, presumably, other application that hooks into and takes control of a WoW account or similar) for an online game.

In my opinion, the case you reference has zero bearing on the topic we were discussing.

And, I *am* done posting in this thread