Legality of Microsoft computer updates

2016-03-16 i Immaterialrätt
FRÅGA
Legality of Microsoft's updating policies??Who owns the files on my computer? Does Microsoft? Do they have the right to delete applications and data without informing me? Windows 10 is so non-transparent I don't want it on my computer at all. And yet Microsoft are harrassing users to install the cost-free version with no option to protect oneself against such intrusion.Gates may be donating huge sums to various charities. But where have these come from? Willing users? I consider myself a compulsory Microsoft slaveFor 2 years I have struggled against MS. I think we need a User's Charter to level the playing field. Just becasuse MS has thousands of lawyers I see no reason why mortal users cannot protect their property against such intrusions. MS turns us into slaves, consider how many people are seraching the internet to find explanations for cryptic incomprehensible codes. Could it be 50% of MS customers? How to Geeks has excellent material on the dangers of using MS products.Brian
SVAR

Dear Brian,

Thank you for contacting Lawline for advice.

Legal inquiry

Unfortunately Sweden has no laws that expressly aim at operative systems, updating routines and handling on files in the computer. Therefore it is very hard to successfully sue for instance Microsoft for the how to operative system works or how the updating routines functioning.

It’s possible to dispute the Microsoft updating routines in two ways depending on the situation at hand. Both ways are very risky and it will probably be extremely hard to succeed without further assistance from a law firm specialized in computer law.

The ground rule is that the files on the computer are yours. But there is very important exception to this rule. If you agree to give Microsoft access to your files or if you approve that Microsoft can change and delete computer files without you knowledge then this means that Microsoft are allowed to do that unless the terms and conditions are unfair in a legal sense.

When you bought the computer you agreed to Microsoft’s terms and condition. The substance of these terms and conditions will, according to the above mentioned, determine which legal possibilities that are available to you. If the “deleting/modifying of data files because of operative system updates” was in order with the terms and conditions then your only way of winning a case against Microsoft is to plea that the terms and conditions are unfair.

On the other hand, if the “deleting/modifying of data files because of operative systems updates” was not in order with the terms and conditions then it may be possible to seek compensation for damages.

The “deleting/modifying of data files because of operative system updates” was in order with the terms and conditions

In this case you may invoke provision 36 of avtalslagen (statute of contracts). This provision basically states that if a term is manifestly unreasonable then that term is invalid. It’s in the end up to the court to decide what terms are manifestly unreasonable. The court shall inter alia take into consideration if on of the parties to the contract has an inferior position compared to the other party and if the term is far-reaching.

At a first glance it may seem like provision 36 is applicable. The problem with this provision is that courts only apply it on contracts that are extremely unfavourable for the weaker party. My conclusion is therefore that provision 36 is not applicable on Microsoft’s terms and conditions.

I recommend you to refrain from a suit against Microsoft based on provision 36.

“Deleting/modifying of data files because of operative systems updates” was not in order with the terms and conditions then it may be possible to seek compensation for damages

If this is the scenario it may be possible to argue that Microsoft has caused you a property damage in the view of chapter 2 provision 1 of skadeståndslagen (statute of torts). If the court agrees with you then it is possible for you to seek compensation for economic damages.

The problem is that is extremely unlikely that a Swedish court would deem the loss of computer files as property damage, because chapter 2 provision 1 of the statute of contracts primarily regulates damages on vehicles, clothes, etc., and not computer files. In the view of this my conclusion is that the court would not grant you any compensation for damages if you would sue Microsoft.

Recommendations

I recommend you to refrain from a suit against Microsoft because you would almost certainly loose. If you would like to get more information about computer law I recommend that you contact a Law firm that specializes in such legal questions, for instance http://delphi.se/ or http://kahnpedersen.se/tag/it-ratt/.

Sincerely,

Fredrik Mattsson, legal adviser

Fredrik.mattsson@lawline.se

Fredrik Mattsson
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