What kind of contract includes a provision that one of the parties has the right to violate the contract with impunity? Well, the Windows XP EULA for one, as an interesting analysis of Microsoft's legalese points out.
Several readers have justifiably praised LinuxAdvocate.org's "Windows XP EULA in Plain English" page in which each section of the current Windows XP Home EULA is printed side-by-side with a clear explanation of what it means. Given the fact that most of us have "agreed" to it or a very similar Microsoft EULA, the LinuxAdvocate's analysis is definitely worth reading. But the plain English description of one section in particular caught my eye.
The XP EULA's section on limitation of damages reads:
17. EXCLUSION OF INCIDENTAL, CONSEQUENTIAL AND CERTAIN OTHER DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL MICROSOFT OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS OR CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE, AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE SOFTWARE, THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT OR OTHER SERVICES, INFORMATON, SOFTWARE, AND RELATED CONTENT THROUGH THE SOFTWARE OR OTHERWISE ARISING OUT OF THE USE OF THE SOFTWARE, OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS EULA, EVEN IN THE EVENT OF THE FAULT, TORT (INCLUDING NEGLIGENCE), MISREPRESENTATION, STRICT LIABILITY, BREACH OF CONTRACT OR BREACH OF WARRANTY OF MICROSOFT OR ANY SUPPLIER, AND EVEN IF MICROSOFT OR ANY SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
In plain English, what this paragraph means of course is that Microsoft isn't responsible for any damages caused by their software. But because the list of things the company is not responsible for includes breach of contract, LinuxAdvocate's article points out that this also means "Microsoft is not liable even if they break the terms of this agreement." I must have read this damage limitation paragraph half a dozen times, since it's common to many of Microsoft's EULAs, but that little irony had escaped me.
A quick look at EULAs from other software publishers shows that some do disclaim damages for their own breach of the license agreement and some don't. Now, considering how one-sided software EULAs usually are, you might wonder what terms are in any of them that the software publisher could violate. But in the case of the Windows XP EULA, Microsoft promises not to collect personally identifiable information in the product activation process and not to share user information it collects with third parties. Could that be why Microsoft's lawyers decided it would be a good idea to be able to breach their own license agreements?
The real point here though is just how absurd it is talk about software EULAs as if they were real contracts. An agreement that one side can go back on at any time is no agreement at all. That is the real plain English message of the Windows XP EULA - if only a few more judges would get it.
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12:25:41 AM 
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