Microsoft: Too Big To Lose In Court – Windows 10 Legalese Favors Microsoft

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I have just downloaded Microsoft Windows 10. Easy Peezy!

Microsoft says to read the legalese. Thanks Microsoft!

There are several sub-documents forming the total “agreement” between the user and Microsoft as “retailer” when Win10 is downloaded to a computer a user already owns.

I tried to read Microsoft’s documents, got bored with the one-sided clauses, and decided to write this guide and preview.

Not Always Plain

Some terms are not exactly plain common US English.

And, not all links are clickable! Instead, a reader has to cut and paste a shortened-URL into a browser’s address field.

I cut-and-pasted the URL between parentheses (aka.ms/msa) and started to read the Microsoft Services Agreement, Section 15 (Service Specific Terms). Under Sub-section “g” about Outlook.com, Microsoft was telling me that if I wanted to use Win10 and I am an Outlook.com user, I have to agree that:

“The Outlook.com (or @msn, @hotmail, or @live) email address that you use to create your Microsoft account will be unique to you for as long as your Outlook.com inbox or Microsoft account is still active. In the event your Outlook.com inbox or Microsoft account is closed either by you or by Microsoft pursuant to these Terms, the email address or username may be recycled into our system and assigned to another user.”

There is no grace period.

If Microsoft closes the account, for any reason, they can “recycle” your email address – apparently at any time.

Problem is: Not all email addresses are fungible.

windows10 legalese
Windows 10 Legalese is all Microsoft’s way

Taking Someone’s Identity

Some email addresses are closely tied with a user’s identity.

If the Outlook, MSN, Hotmail, or Live account happens to be an email address that the global digital community uses to communicate with a particular user, this provision can affect many people around the world.

There does not seem to be much a third-party can do about this. The world has to rely on the individual user to maintain his or her methods of contact.

So, what can an individual do if they go on hiatus and miss Microsoft’s many messages requesting payment or otherwise warning about Microsoft’s perceived failure of a user to abide by the email account’s terms of use?

Sue!

Oh, no. That’s not allowed.

According to Section 15 about “Binding Arbitration and Class Action Waiver” if someone wants to use the software they are downloading from Microsoft, they must first read how nice Microsoft says it is, wanting to avoid disputes:

“If You Live In (or If a Business Your Principal Place of Business Is In) the United States. We hope we never have a dispute, but if we do, you and we agree to try for 60 days to resolve it informally.”

And, then the user must agree that they will not sue in court but will use the well-worn alternative of arbitration through the American Arbitration Association. This is a well-respected organization that usually uses highly-esteemed arbitrators.

“If we can’t, you and we agree to binding individual arbitration before the American Arbitration Association (“AAA”) under the Federal Arbitration Act (“FAA”), and not to sue in court in front of a judge or jury. Instead, a neutral arbitrator will decide …. Class action lawsuits, class-wide arbitrations, private attorney-general actions, and any other proceeding where someone acts in a representative capacity aren’t allowed. Nor is combining individual proceedings without the consent of all parties. …”

Whew! That sounds like a lot of legalese for a little dispute over an email address. Perhaps it does not apply to such a small matter?

Apparently, Microsoft considers any claim under $75,000 to be a small matter and sub-section “15.a.” makes clear that this arbitration provision applies to any such controversy with Microsoft, except intellectual property claims:

“Disputes Covered-Everything Except IP. The term “dispute” is as broad is it can be. It includes any claim or controversy between you and us concerning the Services, the software related to the Services, the Services’ or software’s price, your Microsoft account, your Skype account, or these Terms, under any legal theory including contract, warranty, tort, statute, or regulation, except disputes relating to the enforcement or validity of your, your licensors’, our, or our licensors’ intellectual property rights.”

Well, there it is. If you want to be part of the digital revolution and not be left on the wrong side of the digital divide, you have to agree.

Fortunately, Microsoft has chosen a well-respected organization with time-tested rules of arbitration.

Microsoft Trumps Rules of Arbitration

Microsoft chooses the forum: arbitration rather than court.

Microsoft chooses the arbitration organization: the well-respected AAA.

Microsoft chooses the rules. Sub-section 15.f. says that if Microsoft does not like the rules of the AAA, Microsoft will unilaterally change the rules:

“Conflict with AAA Rules. These Terms govern to the extent they conflict with the AAA’s Commercial Arbitration Rules or Consumer Arbitration Rules.”

Fortunately, as we have seen, the document says the arbitrator will be neutral.

Arbitrators Without Life-Time Tenure Are Not Necessarily “Neutral”

A neutral decision-maker would be a good check in the balance between one of the largest companies in the world and an individual user who is not allowed to join with other users.

After all, this applies to disputes in the United States where the role of an independent judge is so important it is written into the constitution. The very smart and very human people who wrote the US constitution in the sweltering Philadelphia summer of 1787, and the people who ratified the constitution in the various states, understood that someone does not cease being human when they don judicial robes.

Just because someone becomes a decision-maker in a given dispute, does not make them immune from their own hopes, dreams, aspirations and fears. How neutral could an arbitrator be when one side is a potential future employer or contractor and the other side is an individual user upset by a relatively small matter?

The framers of the US Constitution recognized the continuing systemic nature of dispute resolutions and provided that Federal judges have life-time tenure, which means that deciding disputes is their career and they do not have to worry about feathering their own nest when a decision in a particular dispute might upset one side or the other.

An arbitrator typically does not have life-time tenure.

Squarer-deal Where You Are?

Fortunately, this applies only to disputes in the United States. Perhaps users in other countries are getting a more conscientious squarer-deal?

Moral

Wherever you are, since there is nothing to be done about the terms Microsoft demands we adhere to when adopting their software, their proffered “Agreement” might as well be fun summer-time reading.

Steven Blumrosen is an author, foreign correspondent, Journalist, OpEd contributor, computer DIYer, photography enthusiast, president of a FL Democratic club, jack attorney and orphan. He is working on a book about Edward Coles, who believed Tom Jefferson’s battle-cry for equality.