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St. Mary's Law Journal

Abstract

Microsoft Windows Vista’s widespread use and influence on the market represents an ideal case study on the enforceability, pitfalls, and future of the End-User License Agreement (EULA). Since the release of the Windows Vista operating system in early 2007, Microsoft consumers often do not realize they are entering into a contract with Microsoft when they install Windows Vista onto their computer. Microsoft consumers probably do not realize that they may be clicking away valuable rights. In analyzing the enforceability of the specific terms of the Windows Vista EULA, Washington law will be the primary source because the Windows Vista EULA provides that “Washington state law governs the interpretation of this agreement.” Windows Vista EULA may not withstand a legal challenge. The Windows Vista EULA is unconscionable under the procedural unconscionability standards set forth by the Supreme Court of Washington. Substantive unconscionability, on the other hand, is likely to support only a finding of unconscionability as to certain clauses of the Windows Vista EULA. Nonetheless, a finding of unconscionability in even one term of the Windows Vista EULA may be enough to hold the entire agreement unconscionable. With the worldwide Windows user base projected to reach one billion by the year 2010, the uncertainty surrounding the Windows Vista EULA has the potential to have an economic impact far beyond the software industry; thus, its enforceability is a crucial issue. Therefore, it falls to the courts and the legislature to strike a balance between the rights of consumers, businesses, and software developers.

Publisher

St. Mary's University School of Law

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