2011 Top 10 IP Cases in China’s Software Industry:the tenth

Key point: challenging network hegemony

The Court Partly Supports Zhengzhou User against Microsoft’s “Overreaching Clauses”, Challenging the Network Hegemony

Case summary: Guo Li, a citizen of Zhengzhou City of Henan Province, bought an official version of Windows XP for 750 yuan, only to find that if he refused to accept the End User License Agreement, he could not continue the installment.
 
Guo Li therefore sued Microsoft in the Beijing No. 1 Intermediate People’s Court, asking the court to invalidate 28 articles in the Agreement, and demand Microsoft to make a public apology. In July 2011, Beijing No.1 Intermediate People’s Court delivered the first instance ruling, holding that 4 articles in the Agreement should be invalidated for enabling Microsoft to avoid responsibilities, but rejected Guo’s other requirements.
 
Expert comments: Why do these companies set such over reaching clauses while they knew clearly the legal provisions? The answer is that they know that although these clauses are invalid theoretically, they will still be assumed as valid until a complainant files suit and a court determines their invalidity. Should any dispute arise, if the counter party fails to doubt the validity of the agreements, these clauses may serve as references for the final judgment. Even if the validity problems arise, under the current status of the law, the judgments may still differ from court to court. From this point, common computer users and network users are still in an unfavorable position. This case is, to a certain extent, a common case because this problem is rather common. Consumers should learn from Mr. Guo and challenge these unfair articles in time so that they will not become victimized by a hidden rule in the industry or software agreement.