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California EULA Lawsuit
burgburgburg writes "News.com has this story about a California woman suing Microsoft, Symantec and others, seeking class-action status on behalf of all Californians who've bought software including Norton Antivirus 2002, Norton Systemworks and Windows XP Upgrade. She claims that the companies have devised a scheme to sell software licenses without allowing purchasers to review the license prior to sale. She also claims that people who reject the license cannot return the software to the store. She bases this on her rejecting the EULAs for the software mentioned above, going back to CompUSA and being told she couldn't return them because the boxes were opened."
So does purchasing the software imply agreement now?
This is a long time coming. Wonder what the results will be?
Is it just me, or is there a legal movement in the IT field right now? RIAA case, Verizon counter-action, now this...
I had thought that EULA's were deemed illegal, but companies still used them because consumers didn't know any better. Can anyone shed some light on this, doesn't really matter the jurisdiction (one ruling in a country is enough for a precedent).
Do any companies, which do not sell exclusively downloads?
A feeling of having made the same mistake before: Deja Foobar
What kind of brain dead store policy doesn't allow you to return software? It's not like it gets dirty or something. (though I suppose that may not be true for all work environments.)
Four fifths of all our troubles in this life would disappear if we would just sit down and keep still. -C. Coolidge
She claims that the companies have devised a scheme to sell software licenses without allowing purchasers to review the license prior to sale
but there is a flaw in that statement. that implies that people actually read the license to begin with...
xao
xao
http://TheHillforum.hopto.org
Is it *store* policy that opened software can't be returned? Or do the software makers (Microsoft, Symantec, etc.) insist on it? Or both?
Inquiring minds want to know.
-Teckla
Imagine if they tried to print it out on the outside of the box.... of courese then they'd have to raise the price for the tree & a half of paper they'd use.
-aoasus
Only in California... since there's no lack of questionable business practices regarding Microsoft and Virus software makers (namely if MS software weren't so full of holes there wouldn't be much of a need for virus protection) one wonders why she picked this issue.
---If you can't trust a nerd, who can you trust?
*sniff* Smells like troll... But anyway, the argument is not about the CONTENT of the EULA, but the access to it and the ABILITY to reject it.
Ill kick in 20$ or so.
All Troll + "offtopic" mods are meta moderated as "Unfair", because you abused the system.
Stores will now offer EULAs at the end of the aisle and make you sign a reciept saying that you have read the license and accept it. Does anyone honestly think that in a capitalist system that the consumers are going to be protected? come on.
I live in California! Think the settlement (assuming it goes class action) will be enough for me to retire on? :P
I like the idea of getting the software manufaturers and distributers to change the licensing, but does anyone really believe that the settlement will be anything worth reporting? Or is it just another way to keep the lawyers getting paid?
Chaos, panic, disorder...my work here is done.
Of course, it's extremely likely that this suit will be promptly settled -- none of the software makers want a EULA case to go forward in California.
-- http://www.MarkWelch.com/ Pleasanton California
--naked
Very popular slashdot journal for adul
I'm far from being "an open source zealot" (I'm using Win2k as I type this) and I do see some merits to EULAs (especially when considered from the side of the software developer/distributor).
That being said... these things are flimsy legal contracts, at best, which I feel should not be binding. It'll be nice to get some precedent(s) set that declare click through EULAs to be the worthless shit that they are (despite previous precendents to the contrary).
Let's all hope she wins.
Down with Saudi Arabia!!!
If this goes well, this could be the beginning of the end for EULA's...
Better hope she has a good lawyer and can set a _good_ precedent (if she loses, this could backfire on all of us.)
At least it sounds like she has a lot of free time to dedicate to the case!
It doesn't sound "clichayed" (?), just trollish. A customer's rights shouldn't be taken away simply because they choose closed software.
ich muß mehr Kuhglocke haben
You tried to keep your end of the bargain: you tried to return it the the place of purchase for refund as specified on the license. If Microsoft or Symantec doesn't keep up their end by letting you return it then the EULA should be null and void and you should be able to install it on all your computers or whatever you wish.
Of course if the license says the software will install spyware and thats the reason why you don't want to use it, well......
I think the suit makes a lot of sense!
Power tends to corrupt, and absolute power corrupts absolutely.
Is it that you're happy that people can bring all kinds of lawsuits, so that the EULA issue will get litigated...
ASA
All employees must wash hands before seeking equitable relief.
Interestingly enough, I dislike silly law suits, but I like this one.
I think this has been in the making for a long time.
These days, software makers are quick to inform you that you have purchased a license for use, nothing more and nothing less.
Now we all know [nearly] nobody actually reads those EULAs, but it is (the manufacturer would have us believe) part of our licensing agreement we've just purchased.
This is a big deal. This woman is absolutley correct - certainly she will not be given a refund after opening the boxes - and she certainly didn't know what she was buying until she opened the boxes.
She might have a case, but if not, she's at least got a really good point.
I've had this same viewpoint for a very long time. I for one am glad to see someone doing something about it.
..mork
I know this sounds clichayed, but if you can't take the EULA stay out of the propritary kitchen.
And what it this proprietary piece of software is exactly what you need and works perfectly? Should you not buy a product because the terms are unacceptable? Strange also that these things are accepted in the software market and not in other markets (suppose you buy a car and the dealer tells you you cannot lend it to a friend or transport some specific stuff in it).
-- The Internet is a too slow way of doing things, you'd never do without it.
Emotionally, I'm in sympathy with her, because depp in my heart, I hate these restrictive EULA's. And, in fact, I agree that the companies intentionally make it as difficult as possible to make an informed decision.
As a practical matter, though, the woman certainly knows before she purchases the software that it will come with an EULA that any reasonable person will find objectionable. Further, when it comes to Microsoft, at least, she's dealing with a monopoly, so it's not as if she can shop around.
But more to the point, isn't her real cause of action against the retailer who refuses to take it back?
I know many stores have this policy with software, but CompUSA in particular has a very anti-consumer policy.
Anything you try to return that's been opened is subject to a 10-15% return fee. That's just ubsurd for a retail chain. Presumably they are trying to stop people from doing the old buy-swap with broken item-return thing, but it's more likely to hurt people who bought a product that didn't work the way they expected it to.
Being able to return an item is essential to the workings of a capitalistic society. Not only does it protect the consumer from getting bad merchandise, but it also allows them to say to the manufacturer, "hey, this is crap, I don't want it". You don't usually know it's crap until you get it home and open the box.
Many online stores of course charge a restock fee for returns, but that's for some big warehouse where it's more complicated to re-enter something into the tracking system, not a retail store where it just goes back on the shelf.
Would posting it to a website be sufficient? That would require web access to read the license your buying prior to your buying it? That would be especially difficult to do if you are purchasing an OS to enable you to get web access in the first place.
I can only assume that their no-return policy is an attempt to keep people from buying software, installing or burning a copy, then returning the software for some contrived reason.
Of course this doesn't leave you with any options for refusing a license for purchased software.
--- If stupidity got us into this mess, why can it get us out?
Unless I'm mistaken, you can request a hardcopy of the EULA in a product before you purchase it.
I agree with her lawsuit, however. My Windows Operating System has become a liability for me, since I don't agree to the terms of the Service Pack EULAs (becuase of the whole Windows Media Player fiasco) and since I can't get the security packs in any other way, I'm forced to do without them. Luckily for me, I don't use Internet Explorer or Microsoft Office - considering that the majority of flaws originate there (IMO).
I wish her all the best in this, and hopefully we can get back some of our consumer rights.
Don't think that a small group of dedicated individuals can't change the world. It's the only thing that ever has.
If EULA's are indeed the legally binding contracts that their creators claim, then this would seem to be a straightforward case.
I just wish that it wasn't a class-action lawsuit, because we all know that the best possible outcome is: A few lawyers will get millions of dollars, while all the of consumers will get, what? A couple of dollars, or maybe a discount on their next purchase of propietary Microsoft software.
Time was that the disks/CDs came inside a seperate envelope with the EULA printed on the outside, with a seal sticker that had printed on it that"by breaking this sticker you agree to the EULA" and any retailer would accept a return of a product with this envelope unopedned, because the software could not have been copied, which is why CompUSA et. al. will not accept opened software nowadays. Typically, the CD is just in a jewel case without even shrink wrap, and the EULA is displayed prior to install, but well after the package is opened past the point of No Return. Going back to the envelopes, while a pain, would get them back out of this legal grey area. I think he plaintiff here has a good, solid case.
You are not the customer.
As with most people here, I don't agree with this assessment. I wish this group success.
Says Joe User: "So I would have to purchase the operating system to access the Internet to read the EULA on the operating system I just purchased..."
Posting on-line is an argument that ain't gonna fly.
Everyone will start to cheer when you put on your sailin' shoes.
First off, if the EULA changes, which it does fairly often with most software in terms of upgrades, they'll have to have a history of EULA's available. So if you bought Half-Life Game of the Year edition with the orange box and not including this mod, here is your EULA, but if it has this mod and you bought it on a Tuesday, here's your EULA. It will get convoluted quickly.
Second, that implies that it is the users responsibility to check the company website before making a purchase.
- gtaluvit (prnc. GOT-tuh-LUV-it)
It's always been a catch-22 that you can't return opened software, but you have to open the box to read the licence agreement. This isn't new, and i'm surprised no one has really complained about it before. As it stands now, you have to agree to something you haven't read to buy proprietary software. I've never seen a single store that lets you return opened software, and i've never seen a single program that didn't put the EULA in the box. This is certainly true anywhere, not just California.
With software on floppies, they were probably also concerned about viruses.
that someone finally did this. The catch 22 the software vendor and the retailer put the consumer in is IMHO illegal. i.e. the retail store agrees to carry the software with the license inside that states if terms are not agreeable then return it to the store. But the store knowingly has a policy that refuses to refund the money. This is a conspiracy to screw the customer and is shameful. It would be interesting to know if the software vendors actually will not allow returns of opened software. If so they are going to pay.
It is odd that no state attorney general that I know of has pursued this... yet. But that $50,000,000,000.00 M$ has in the bank sure could solve a lot of states budget woes.
"Don't Follow Leaders." Bob Dylan
About time!
This is exactly my complaint about software licenses.
A software license is, in theory, a contract. But most contracts require both sides to review the license, both sides to sign off the contract, and both sides end up with a copy (so that either side can prove the existance of the contract in court). In general no product, licensed material, money, or knowledge flows from either side to the other until the contract is reviewed and signed off on. (Yes, in some places handshake agreements are legal. They're also much easier to contest because of the lack of documentation.)
Mass marketted software EULA is a cruel parody of this legit process. You give them money, but you don't know the terms until you've gotten it home and try to install it. When you install it they suddenly try to change things from sale of a copyright protected into into a licensed product. If you disagree you're supposed to spend your time and money to take the product back for a refund. Naturally no store will actually take the product back. If the store is in a good mood you'll be directed to the publisher. Of course the publisher will happily direct you back to store.
The honest solution is to ship software with EULA seperate, put a stack of EULA next to the software, and require me to sign off on it, right there in the store, before I fork over my cash. That would be fair. Of course, it means more citizens would take the EULA seriously and start wondering if it's really a fair trade, and I'm sure the software industry isn't interested in that.
Search 2010 Gen Con events
The so is really any license now isn't it?
Therefore GNU would be illegal
Never mind that fact that her legal beef is with CompUSA not the software manufacturer.
This case seems very trivial really. Although, it brings up a point that has needed voicing for a long time. The solution I am sure for the companies will to just post a fold out license on the front, post it on the back, or put a nice bright sticker on the front stating that you must go to the website and read the EULA before installing.
I do agree, that it is deceptive. I am sure in the recent months people have been asking the same question as this woman. Why don't they have EULA displayed? it seems very foolhearty, and a sheer oversight for these companies to leave it out of plain site.
I just hope she is doing this because she is a true User Rights Advocate, and not someone who found a loophole for money and her 15 minutes of fame.
Yeah, right, like Joebob's garage could successfully sue [M$|Sun|Oracle] in the same situation.
With GPL software, YOU can fix the problem YOURSELF.
Further, the suit claims that people who don't accept the terms of the agreement cannot return software to the stores.
This is the crux of the matter. She, and many others, don't want the bundled Windows software, and want to install Linux (or perhaps a pirated version of Windows.) Furthermore, they want cash money forked over for returning the unused product to the store.
Funny how it has value when they want to charge you for it, as part of the product, but when you want to return it, it's basically worthless since they buy it for virtually nothing, it's not easily re-wrappable, and the overhead of dealing with it at all is more than it's worth, in fact, they probably take a loss. Obviously they'd take a loss on such returns - if not, they'd probably allow it to make customers happy. But they don't, and here we are.
So, while the EULA of the items says they can return it, I recall that CompUSA trumps it with another agreement that says you can't return part of the product (IE, just the software, not the computer.) This is indeed a scheme to ensure that:
1. They can charge you for the software you don't want
2. They don't have to take returns on worthless items and issue refunds
While this makes sense business/cost-wise, it's not very good from a customer service angle.
But then again, customer service has been degrading to the point of absurdity for years.
# Erik
First of all, it's about time someone did this. I wish I had thought of it first. Is she going to make money on this or what?
What if the software you've purchased is the thing that will allow you access to the website/EULA? Installation of the software implies acceptance of the EULA, but you can't read the EULA without the software.
Kind of like some of the early VCR's that shipped with a video tape.... you betcha... showing you how to hook up the VCR.
Quomodo cogis comas tuas sic videri?
A local hacker filled up his hard disk while untarring a copy of the Linux kernel v2.5. Being unable to read the license before untarring the package he was not able to reject the "NO WARRANTY" section of the GPL. While he has decided against joining a previous class action lawsuit, he has decided to never upgrade his Linux kernel or any other sizable free software package again.
I believe the general trend in not allowing you to return opened music, software, videos etc came about because nothing prevented you from taking it home, copying it and then returning it. Times have changed. We now have "copy restricted" media and software activation codes that prevent such a thing (well in theory). The media that is restricted or key coded in some way should have the same product return policy consistant with the stores "other" return policy which is generally less restrictive. This problem is two fold for the consumer. Without such a policy, the media companies can downplay or forget to mention the restrictions placed on the media, and can still get the more restrictive return policy limiting returns. This story is really not much different then the issue with trying to return your unsed preinstalled OEM copy of Windows to your vendor.
Bad boys rape our young girls but Violet gives willingly.
Might I suggest you use "havening" as well?
I hate liberals. If you are a liberal, do not reply.
Fact is that you cannot even if you want , read the lcience and give back the software if you refuse it , sicne you have to open FIRST the package. That you do read or not is beside this fact.
C. Sagan : A demon haunted world:
http://www.amazon.com/gp/product/0345409469/
visit randi.org
it shouldn't be too difficult to get change/money. If people are to be held to EULAs like contracts, then they need the rights associated therein. I don't know if she'll win necessarily with the software companies since they'll simply say it's the stores policy, and the stores will turn it around to say the software co.'s won't take the software back, but regardless I don't think the consumers will get hit on this one.
- gtaluvit (prnc. GOT-tuh-LUV-it)
But seriously, why don't they just print the text of the EULA either on the back of the box in tiny font size 1 print, or else seal the contents of the box in shrink wrap and provide a copy of the EULA between the box and the shrink wrapped product. You could then return the software if the product remained sealed.
I think that this is a problem with the Retailers and the Software Manufacturers. Granted that the EULA's are a bit restrictive, but they made the software and are allowed to make whatever demands that they wish in the EULA.
The retailers are also within thier rights to make all purchases final on opened products. In fact many retailers have that very policy on hardware as well.
What needs to be done is the Software makers and the Retailers need to sit down and make an effort to make the EULA available BEFORE the sale is made. Perhaps with every case of the software, the EULA should come on a lamanated card, ready for display. This way the customer has the option of reading and agreeing to the EULA before they buy it.
This way no one can be sued if John Q. Sillyperson can't be bothered to read the EULA. To really cover one's butt, you can have a notice on the sales floor and on the sales slip stating that you are bound to the EULA even if you were too stupid to read it.
I'm in retail and I make sure that before the person buys a copy of XP that they know that you are bound to one copy, one machine only BEFORE they sign the invoice. Many once told just shrug and buy it anyway, others scream, yell, bitch and complain and leave...But at least MY ass is covered
If they have access to the License Agreement, don't read it and buy it anyway...I've no sympathy for them at all. However if they're dragooned into it because the agreement is not available until it is purchased (and most are assumed as agreed when purchased) then I feel sorry for them and stand behind them in a suit
-- Wiccan Army, 13th Airborne Division "We will not fly silently into the night"
That's a pretty nasty implication, IMHO.
I have nothing against software license agreements, but they shouldn't be legitimized in the context of conventional retail sales. Terms should be negotiated before the sale, as a part of a the sale. Once you've paid your money and received the software, that transaction is over. Any new terms the creator want from the user, should come with consideration for the user. If the creator doesn't like doing business that way, then the convenience of the conventional retail store situation, isn't for them.
If your software is so special and expensive that you need a special contract from your users, then you can afford to meet them.
As copyright owner of this comment, I authorize everyone to defeat any technological measure which limits access to it.
She could NOT read it without PURCHASING it. See, not so hard to understand after all. She then chose to not enter into the "contract", as allowed by law. Now she wants her money back. So easy and simple of a concept.
Up until yesterday I hadn't reached age majority. IANAL, but doesn't that void any contract I signed?
If anyone is a lawyer, what is the ramification of a minor "agreeing" to a EULA? I would think it would void the agreement, like any other contract.
CitrusTV (http://www.citrustv.net): the Nation's Oldest & Largest Entirely Student-Run Television Station
This could have far reaching effects on the 'hide it in the EULA' attitude of many vendors. However, this lady needs to stick to her guns and refuse to settle out of court. Up until now, most claims have been quietly settled this way. End result, a check for the plaitiff but no change in the law. I'm sure these companies can afford to be very financially persuasive to convince her to drop the suit.
Would I settle for say..a million bux and miss the opportunity to change a law that would benefit consumers everywhere?...yea, probably
I purchased a copy of Symantec Systemworks (or was it Disk Doctor?) not too long ago trying to fix a screwed up NTFS partition. Long and short of it is, it didn't work on NTFS (having found that out inside the manual, not on the outside of the box!). But even though all that was a pain in the ass, I simply filled out a form, and got my money back. No questions asked. Symantec just said, "Make sure you destroy the disks." It was painless, and very fair.
If I had tried to bring it back to Staples where I bought it, I have a feeling I would've gotten the same deal this woman got though....
Yeah, ya can't live with 'em, and you can't trick 'em with long, boring EULA's...
Eeeeeewwwwww! Then she'd have a bunch of computers with Windows on it!
the preceding comment is my own and in no way reflects the opinion of the Joint Chiefs of Staff
The concept of a defense fund is for people who are being attacked. She would have something like a Legal Aggression Fund or a Legal Riteousness Fund.
This lady will win if she can prove that they refused to take a return.
Me too.
Eat at Joe's.
cliché also cliche Pronunciation Key : (kl-sh) n.
1. A trite or overused expression or idea: "Even while the phrase was degenerating to cliché in ordinary public use... scholars were giving it increasing attention" (Anthony Brandt).
2. A person or character whose behavior is predictable or superficial: "There is a young explorer... who turns out not to be quite the cliche expected" (John Crowley).
Actually, these EULAs are the manufacturer's way of giving free software to those who don't want to pay for it. You just open the box and copy want you want. Then take it back to the store. They will take it back, although often you have to talk to a manager and be sure you're talking loud enough for the people in the back of the store to hear you. No 15% restocking charge either, and if they waste your time too much fighting over little issues like this, get aggressive and get them to pay for your gas for the return trip (it can be done). It also helps if you can make the veins in your forehead pop out a little and otherwise look like you're not exactly the calm type (of course, much of life gets easier if you can cultivate this way of dealing with retailers). A good suggestion here is don't go to the store with someone who is going to give you a hard time for embarrassing her when you draw a little attention to yourself.
I'm an American. I love this country and the freedoms that we used to have.
Why do people continue to pay for and support closed source software companies, ecspecially after the well publicized msft anti-trust cases. It makes more sense for the people of the world to "wake up" and stop supporting tryanical software companies.
The shrinkwrappy allows them to do what they do{which they cannot read prior to purchase}, the courts and legislatures won't do anything to stop them, so it only makes sense for people to stop running proprietary code alltogether, eh?
it says if you don't agree take it back to the place of purchase for a refund. It seems like the makers are putting the onus on the sellers without giving them anything but grief for doing it, and as usual, the 'consumer' loses.
The local COMP-USA, has a LAN game room, and for games in particular, they will either open one or already have it installed on a machine and will let you try it out...
errr....umm...*whooosh* *whoosh* Is this thing on ?
Here here! Maybe the EFF should jump on this one!
This could easily be solved by the retailers by having a printed, laminated copy of the EULA attached to the shelf next to the box. It may make people actually read them and pay attention to them so they realize how little rights they have with commercial software.
Hopefully, at least in my mind what this should come down to is that Software and hardware companies will be forced to disclose their license agreements on the box, in font size 12 print, understandable by a sixth grader terms that also are legal tender. None of this hidden 20 page long text that takes a paralegal to understand.
If what you are reading sounds funny, or sarcastic, lame, or stupid
it is because it is supposed to be. just laugh
I hope they 'upgrade' the lawsuit to include all USians, and all consumers worldwide for that matter.
However, with the transition to an 'information' service economy I expert this suit to slowly fade away like a tabled bill of consumer rights in an economic business conference, c.f., UCITA laws - politicians never met a business they didn't like, even shady ones. Maybe especially shady ones, since the politicians get to run all of the liquor, gambling, prostitution and enforcement racket, and don't like unauthorized encroachment on their turf.
try { do() || do_not(); } catch (JediException err) { yoda(err); }
Now I know why I stick with MacOSeX.
BSD is also good.
Someone tackled this issue:
A D- 00105A5E1DA8}Version]@="2.0"
"I had the same problem! You have to change setting in the registery. Change from "Version = 1.0" NTSC only to "Version = 2.0" NTSC and PAL!
To Do:
1. Open RegEdit ( type it in Run...)
2. Select "HKEY_CLASSSES_ROOT\CLSID"
3. Scroll to {58B973C1-5580-11d3-AEAD-00105A5E1DA8}
4. Open the "Version" and change it to 2.0.
[HKEY_CLASSES_ROOT\CLSID\{58B973C1-5580-11d3-AE
5. Know you have the Europe version (PAL/NTSC)
Don't wait for answer from PINNACLE becouse you will get NONE!!!"
No guarentees.
That sounds like a woman I would date but I'm too afraid of being sued for not having a description of my package before dinner.
"no one knows how to fill in the void called america" --the discovery channel
I know it's wasting time and off topic, but SHEESH! ITS - the possesive form for IT IT'S - a contraction of IT and IS THEIR - the possesive form of THEY THEY'RE - contraction of THEY and ARE How do you expect people to think you know something if you don't know these simple rules that I learned in 4th grade? NOw to put it back on topic - how 'bout a Beowulf CLuster of those and Windoze sucks.
Vote Quimby!
I can't read your EULA until I connect to the Internet. I can't connect to the internet until I use your software. And I can't use your software until I read your EULA.
The only viable solution is to either a) have hard copies of the EULA included with all software, on the outside of any shrink wrapping, or b) get retail outlets to accept opened software for EULA-disagreeing companies.
Maybe if the CD was shrinkwrapped in its jewel case, then put into the box with the EULA, and the box was sealed. Then you could read the EULA, disagree, and return the product without actually opening the box. I'm sure Joe Pimply who works at CompUSA won't grasp the subtle difference, but it's a start.
Should be interesting to follow this lawsuit.
Tuus crepidae innexilis sunt.
When I worked at a video store, we had this shrink-wrapping machine. Man it was sweet. You couldn't tell the difference between a new DVD and a used re-wrapped one(I guess that was the point).I wish I had one. All you would have to do then is re-wrap your software, games, etc, and bring them back to the store. Problem solved.
and buying software does not imply agreement
for those of you who still buy software.. it still comes wtih one of those stickers that sayz if you rip the sticker off you've agreed to the eula..
stupid people making stupid law suits with no merit...
this one ranks up there with the mcdonalds lawsuit... as in I ddin't know eating burgers could make me fat..
or I didn't know ripping the sticker that says i agree to the eula would say i agreed to the EULA..
Lawyers only thrive because there are even more stupid people in america
Now, if I was defending CompUSA et al in the case, I'd argue something like this:
"We would have been HAPPY to show her the EULA, if she had just asked us to open the box before making the purchase. It says clearly on the box [which it probably does] that this is licensed software. Since she obviously made the purchase with full knowledge that a EULA existed, then she clearly decided to accept the license. Alternatively, the EULA is clearly available on the manufacturer's web site, so if she was concerned she should have done her due diligence.
"Your honor, she obviously bought the software WITH THE INTENTION of launching this nuisance lawsuit with no regard for actually doing proper consumer research. We move for dismissal."
"Case dismissed". :)
P.S. Not that I'm *morally* defending this practice, mind you...
Sometimes it's best to just let stupid people be stupid.
Any Symantec or Microsoft software has a manufacturer's guarantee. She can return to either manufacturer for a refund. I returned a Symantec product once and got a refund -- and I didn't even need to return the software. They just told me to destroy it.
..the manufacturers themselves could accept the returned product.
Pesronally, I do not see how the manufacturer foisting return responsibility on to the vendor is even legal.
Why should it be considered legal to essentially say in a EULA "If you don't like the terms of this agreement, go see a third party to collect a refund." The third party really has nothing to do with it. If the third party chooses to assist the consumer as a favor both to the manufacturer and the consumer, wonderful. They certainly shouldn't get penalized for that as they do now.
No, the issue is between the copyright holder and the licensee. A third party has every right to refuse to deal with it, in which case the original copyright holder had better step up to the plate.
If this means said copyright holder can't afford to make "all-or-nothing" deals with pc manufacturers because the return rate would be too high, so much the better. It'd give the pc manufacturers more freedom which means giving consumers more choice.
That Jesus Christ guy is getting some terrible lag... it took him 3 days to respawn! -NJ CoolBreeze
despite store return policies. Talk to the store manager. This may be the only person in the store who really cares about your happiness as a customer. Exlplain the situation whatever that may be. If he says he can't take the return, explain how much you like his store and that this is the first place you go when looking for software, computer equipment, home electronics, what ever fits. Then explain, how much you've bought there over the years and if he want's to break a good customer relationship over such a small matter, then you can just take your business elsewhere and never return. While you're at it you'll do your best to convince all your friends to do the same. I've yet to meet a store manager that wouldn't take an open return under those circumstances, especially since he'll just send it back to the publisher as defective.
This assumes that you're telling the truth and haven't tried to return your fifth defective CD ina s many days. It also helps if you really are a good customer.
Shop smart, Shop S-Mart.
"Euthenize" is a derivative (verb form) of the word "euthenasia". When you perform euthenasia on somebody, you are euthenizing that person....dictionary.com doesn't have everything.
This was a sarcastic comment aimed at the poster's nick "Amsterdam Vallon" -- euthenasia is a Netherlands thing.
EULAs are just intimidation by software companys laywers. Ok, you don't own the copy, you only get a licence to use this copy. Very similar if you rent a car. When you rent a car you sign a agreement. When you "rent" a software, you don't sign anything. You just "buy" it just like you buy your CD or book. When did you sign the rental agreement for the software?
And besides, the laywer language in all EULAs is just plain silly. If I may use the carrental analogy, the terms and conditions are in plain english, not this corporate mumbo jumbo laywer-speak. If Avis can do it to rent you a $20.000 equipment, that can actually cost people lives, then Microsft surely can do it for $100 software!
You shouldn't need corporate laywer to read your licence agreement.
J.
When I buy software the CD comes in a sleve that has a seal. Once the seal is broken it is assummed you agree to the EULA.
According to Microsofts site the EULA can be found in either the User Manual or on a separate piece of paper. She should have read that before breaking the seal.
If CompUSA won't take it back because the Shrink wrap was opened then it is their policy not M$.
Ah... I believe that is called the "Slashdot Effect".
Did you ever think, for one single moment, the a return policy is an optional program put together by retailers as a service to their customers? You cannot returned opened music, or candy. If you have a bad experience, GOOD retailers will give you a gift certificate of something, but not a refund.
Our legal system is governed under the principle of Caveat Emptor, let the buyer beware. You went to the store. You handed them your money. You walked home with the product. The product operated in the manner in which it was described.
(Yes, people will argue that they didn't understand they needed to buy a subscription to make the software work. To me that sounds like WHAT? 40,000 for a car and I have to pay $20 to fill it up every 200 miles? And what is this insurance that I have to pay, and this registration?)
It is shady, yes. Illegal, certainly not. I'm waiting for the class action suit against Casinos.
"Learning is not compulsory... neither is survival."
--Dr.W.Edwards Deming
Good on her!
Does she have a website for contributions to her legal fund?
To mail me, remove the 'mailno' from my email addy.
"Yeah. It smells, too..."
I'm not sure about the latest versions, but the version of Norton Systemworks Pro I purchased last year had a 30 day money back satisfaction guarantee written on the box.
After I purchased it from a local FutureShop (canada), I installed it and found that the Ghost wasn't suitable for my needs. The next day when I returned it, I only received a bit of grief regarding their open box policy. The notice written on the box superceded that.
Happily I took the money, then went to the software section to buy the cheaper 'non-pro' version.
The moral... If you aren't happy satisfied with the EULA, the store should still accept the return based on the Satisfaction Guarantee written on the box. As far as I know, this only applies to Symantec stuff though.
-
Rod
lies with there being no quick turn-around way to send the software & a copy of the receipt to the publisher for a refund. You must jump through hoops with a gerbil up your ass to get a refund from Symantec or MS directly, and that's only after playing phone tag for months.
Of course, it'd be trivial to actually read the EULA on one of the demo machines in CompUSA but I guess that would be too easy for the eager consumer.
I've been waiting for a suit like this to happen. I've never been able to fathom why a license agreement will state in black and white that if you don't agree then return the product. But if you try this no one will give you your money back. In the case of Windows Refund Day, it blew my mind with the vendors saying Microsoft would have to refund the money and Microsoft saying that you had to deal with the vendors. If they won't live up to the agreement why should the users have to. I hope the judge in this case blasts the EULA process to pieces.
You just posted to
I'd patch it now dude :-)
apparently talking about whether the url link to the EULA is on the software box or not is off topic.. gee what a concept..
Don't Tread on OpenSource
Solves the problems.
I'm not a minor but I completely agree. The EULA should become null and void if entered into by a minor, particularly if said minor was not permitted to view the license before making the purchase.
I'd rather be a conservative nutjob than a liberal with no nuts and no job.
They change all the time anyway!
I walked into CompUSA to purchase a copy of Visual C++.net, and as I was reading the box cover, it said:
You must accept the enclosed License Agreement before you can use this product. If you do not accept the terms of the License Agreement, you should promptly retrun the product for a refund.
Seeing, this, I thought, "cool, any stupid tricks like the last SP on XP, and I can rid myself of this scourge with no problem." Then, as I finished paying for it in the checkout line, I glanced down at the bottom of the receipt, where it basically said that they do not accept returns on opened software.
Dilemma, dilemma. I then proceeded to ask the checkout clerk what I should do if I didn't agree with the enclosed license. She didn't know, so she fetched someone else. After waiting for a bit, a gentleman showed up, to whom I reiterated my concern. He took me over behind a counter, where he attempted to have me read the license online (on Microsoft's web site), and agree to it in the store before I left with the software. As he was rifling through the various links on the site (unable to find what he was looking for), I told him I really didn't understand what the issue was- the box says I can return it if I do not agree with the license, and that as a Microsoft retailer, I'd think they were bound to this policy. He said they wouldn't honor it because too many people buy software, install it, and then return it. Just then, a third gentleman walked up, at which point he too was apprised of the situation. He suggested that if I wanted to return it, I should return it to Microsoft. At that point, I was pissed, and I told him that perhaps it would just be best if I let them keep it and get my money back.
Later on that day, I attempted to locate another copy locally, but was unable to do so. I then called a CompUSA store at a different location, and after explaining my situation to the Manager on Duty, he gave me an entirely different story: he said that I could return the software if I didn't agree with the license, so long as the seal on the CD wasn't broken. This is what I expected to hear in the first place. I then went back to CompUSA to purchase the software a second time. Funny thing is, as soon as I returned home and opened the box, I discovered that this software wasn't packaged in sealed CD cases like I'd seen before. After reading the license, I decided that it was ok - but I do wonder what would have happened had I decided that I wanted to return it.
All I have to say is this: this little catch-22 makes it very difficult for consumers who want to make sure they're acquiring and using software legally. I hope this class-action lawsuit will put a stop to this mess.
What if we want this case to LOSE on a technicality?
The end result could well be that EULAs are rendered irrelevant, but what I mean is this:
What if a judge says, 'Look, this EULA is forcing a retailer to do something against its own policy of return merchandise. A company cannot be expected to do this, if it posts, in advance, its own return policy. Based on the complaint in the case, I am dismissing the suit. However, CompUSA is within its rights to sue software manufacturers over the legality of this term in the EULA. On second thought, that makes no sense either.'
This is to say that the suit 'technically' has nothing to do with consumer rights, and actually specifically refers to the EULA bindings between retailer and manufacturer. If CompUSA refuses to accept the return, THEY are in violation of the EULA, not Microsoft, the guys that wrote it. The theoretical lawsuit path here should be Microsoft suing CompUSA for not taking software returns with 'Did not accept EULA' as an excuse.
What I'm trying to say is that this woman may lose this case and still prove that an EULA is an unenforcable entity. A 'win', requiring CompUSA to take the returned software, is actually enforcing the idea that an EULA means something.
I think I may actually be in a camp hoping this case LOSES, but insodoing, proves the irrelevance of an EULA.
What can we do?
:)
It sounds like there's a ton of people who agree with this lawsuit but don't believe it'll succeed.
I'm sure there are people out there who do read the EULAs and can site many specific examples that could possibly help in this case.
What about a way to help with attorney fees?
Perhaps an even better question to encourage people to help is:
How do we get in on this class-action lawsuit?
Is there a website where we can sign up like many already have for the CD price-fixing settlement?
If the EULA states that you may return the software to the retailer, then CompUSA is at fault.
CompUSA is selling you the "contract" along with the software that clearly says you may return it to the retailer. Seems like CompUSA is violating the agreement if they do not honor the return.
If CompUSA agree with the licensing terms, then they are not permitted to sell the software. Plain and simple.
I'd rather be a conservative nutjob than a liberal with no nuts and no job.
It is about time that somebody started making at least some noise over EULAs.
Companies force you to enter into what they think of as an agreement, yet, you do not get to read the terms of it before you pay. Also, companies would like us to believe that we can't do anything with their boxed software even if we did not open the box and agreed with EULA! So, from their perspective you are entering a service agreement just like a cable or a phone contract.
So software either has got to become like true service, where you do sign real papers and have some grace period to cancel the contract if you do not like the software. Or, it becomes like normal merchandise and then there should be no stupid EULAs, and you can do with your copy whatever you want and sell it to however wants it without any restrictions. As is consumers get the worst of both worlds.
It seems like software companies should not have their cake and eat it too.
Or Legal Offensive Fund
Legal Attack Fund
Legal Smite-Evil Fund
Legal Assault Fund
Legal Operation Infinte Suing Fund
Legal Anti-Defense Fund
Oh, the posibilities
When do I get my deposit back?
"Learning is not compulsory... neither is survival."
--Dr.W.Edwards Deming
If court will order that it's now required to print the entire EULA on the outside of the box, we will surely see a sharp decline in average EULA-length & word count. If half the package is consumed by lengthy bs saying that you can't pick your nose while the software is running in 4pt arial, the customers won't be pleased and the marketing dept. won't be, either.
Not so improbable consequence: EULAs will become short and clear
Other possible consequence: big yellow warning sticker: read the EULA before opening and a 4pt arial microfiche.
but other printed documentation as well. I once bought a copy of "Hunt the Woozle 3D" from a national retailer and it would crash upon running it. After looking at the troubleshooting section in the manual it said that there were known problems with Brand X video cards. Nowhere on the outside of the package was this information presented and I met all of the listed system requirements. Only after opening it and reading the manual did I find out otherwise. When I went to return it, they gave me the standard no returns if opened speech.
Bing, CompUSA is no longer the problem. The software companies just have to step up now.
Replace the EULA with a "Use at Your Own Risk" label on the box (maybe in a a yellow triangle with an exclamation point.)
IIRC, EULA started out as a way for the software maker to protect himself from lawsuits caused by by mis-behavior of their code. I know *I* certainly don't want to be sued by someone with a weird-ass configuration that, when combined with software I've written, causes data-loss, seg-faults, etc..
But now, software makers have been sneaking in more and more "restrictions" on the use of their products. What started out as a no-liability clause for software makers has become a "no-rights" clause for end users.
1) Intention to create legal relations (huh? When I go to a store an buy a product, I don't intend to create legal relations)
2) Agreement, offer and acceptance (huh? When did I agree to the contract? Oh, after I bought the software and opened up the box. But if I don't accept, that doesn't change the fact that I own the software and can use it as I please, within the bounds of copyright law)
3) Certainty of Terms (well, they are certain, but only after you've already made your purchase) and
4) Consideration - as far as I know, most EULAs provide no consideration - you don't get anything in addition to the rights you would get to use a normal product or copyrighted work (like a book or piece of art) as you see fit, as long as you don't redistribute except as permitted by first sale doctrine, etc.
In short, unless you are in a UCITA state, EULAs are meaningless. Not only are they contracts of adhesion (i.e. non-negotiated and non-negotiable), but they aren't signed, and they fail to meet pretty much all the other standards for what makes a contract a contract.
the software companies can use the same method that pesticide makers use. there is a little booklet affixed to the outside of the box. a little adhesive keeps the booklet closed, but it can easily be opened and resealed. the pesticide makers include msds info and usage info for each type of plant you could apply to. there is no reason why a software vendor couldn't put their whole eula inside such a booklet.
I worked at CompUSA for a couple months and know this inside and out. The restocking fee is 14 percent (no idea how they picked that number) but is does not apply to broken or deffective merchandise.
The restocking fee applies only to those who come in and say "I don't want it." I'm not saying it's fair, but if there's something wrong with your purchase they will replace it.
Also, for people who have some pipe-dream of a 30 day return policy on software: it will never happen. The warez kiddies would put a store out of business in months if they could buy boxed software and return it for a full refund.
- Go to CompUSA (or other retailer)
- Find the section for the software you want
- Locate shrinkwrapped software box
- Open shrinkwrapped box and RTFEULA
- If you agree, but the software. If not, put it back on the shelf.
It would be incredibly amusing to see opened boxes piling up on store shelves. How long would it take before the manufacturers modified their behavior? Of course, you'd probably get arrested as for some newfangled USA PATRIOT cyber terrorism offense if you did that at Comp USA..."You done taken a wrong turn."
-Bill McKinney, in Deliverance
This may be a bit more expensive in the long run but its just an idea. Maybe the software manufacturers should encase their Software in a tamper-proof case inclosed in the box itself. Also enclosed would be the EULA. They would have to place a sticker on the case telling the user not to open the case if they do not accept the EULA otherwise no refund will be granted unless it contains defective software, etc. also noted should be an address to request a new copy of the EULA by Snailmail and a URL to view it if possible. im sure there are other things that should be added as well such as a peel off sticker that covers a Cd-Key if required(only needed if the case is transparent). It would cost them a bit more to do this extra work, but im sure it would cost them more in the long run to put up with the lawsuits such as this one.
Does anyone else have a problem with mass produced contracts?
Excluding software, I can't remember the last time I dealt with a contract when buying something at Walmart.
"Only one thing, is impossible for god: to find any sense in any copyright law on the planet." Mark Twain
right, ebay should be sued also.
It's eBay's right to refuse to host auctions of used software nor of used CD-R media, even when such resale is permitted under 17 USC 109, because eBay has not been shown to hold market power as a web-based auction venue.
Will I retire or break 10K?
Software stores will start acting more like car dealerships. An associate will walk you through the EULA and get you to sign it before you get to take home your purchase. It will become an even bigger hassle as licenses get longer. People will yearn for the old days, when no one really cared about buying software. Who wants to buy a game for Jimmy when you have to sit through an hour of "you do realize the consequences of your actions..." crap.
or maybe I'm just being bitter and negative...
I hope she gets class action stauts. EULA's are BS as most are written. Someone needs to fight the good fight against these contracts. I for one will join that class should it be granted.
Well, yes, but the only way to fight them in court may be to legitimize them. There are three possible outcomes:
1) The court says 'tough noogies', and says the EULA is binding, software companies aren't responsible for making sure the retailer will actually take the software back. Probably the worst case scenario.
2) The court says that by selling software with these 'take back to retailer' licenses, they implicitly agree to take back the software and must do so, with "I disagree with the EULA" being enough reason. NOTE: if the software is in a seperate seal, they may still refuse.
3) They specify that the license is only bindable if it can be read without breaching the seal on the media, whether or not you have to purchase it first. This would eliminate the piracy issue, and retailers would have to reword their software policy. It may also force software companies to redo their packaging, and put the EULA OUTSIDE the sealed media bag.
Personally I think a variation of 3) is likely, that courts rule that if the software media itself isn't openned it doesn't violate its unopenned status. This would make the least change to the status quo.
Mind you, this really wouldn't settle some important areas, like EULA's on preinstalled software or click-through downloaded licenses on software/security updates. However, it would directly address the case at hand, so the software companies could take this position and leave CompUSA out to dry.
(2) and 3) got a little muddled, but I think I've made my point: All this may accomplish is force the EULA outside the media seal, and retailers redefine "open packages".)
R: That voice. Where have I heard that voice before? B: In about 365 other episodes. But I don't know who it is either.
1) Buy windows software.
2) Open package.
3) Discard useless plastic disks.
4) Replace plastic disks with favorite Linux Distro.
5) Re-shrink wrap and return to store.
Been there, done that (I researched EULAs in )... EULA's have been validated in court many times over. This lady will be told she's suing the wrong party and in a couple of years she'll get a refund for the purchase price.
This same new-to-computers-lady bought a computer game for her kid, and it didn't work on her computer. Oh, well, she shrugged. That happens.
She's right, of course, and it infuriates me that even a complete newbie to computers believes this -- broken hardware is covered by standard consumer-protection stuff, but if you buy broken software, you're out of luck.
And that brings me to this lawsuit. Of course software is going to suck if consumers aren't allowed to return software, or even post reviews about it! In what other sort of consumer product would this sort of thing be even remotely acceptable? ``I'm sorry, sir, but yes, your riding lawnmower will occasionally experience `explosive events'. No, we won't take it back, and by the way, the Buisness Lawnmower Alliance will come and `audit' you if you consider writing a poor review of our product.''
A neccessary step to the wider distribution of non-abysmal commercial software is some minimal negative feedback to companies who write bad code. A perfectly reasonable step in that direction is just allowing people to return broken software.
why don't they just print the text of the EULA either on the back of the box in tiny font size 1 print
A 1-point font does not work for contracts. If I remember correctly, federal and state contract laws stipulate that printed contracts shall use at least an 8-point font.
Microsoft currently does not print EULA booklets because it would add to the cost of reproducing programs. It's a great American tradition called cutting corners.
Will I retire or break 10K?
If these EULAs are legally binding, should there not also be an age restriction on the purchase of software? If a minor is not able to enter into a contract then they are not able to agree to the EULA. If they are not able to agree to the EULA then why sell them the software?
:P
Have your children open and install all of your software...that way there is no legally binding agreement
I should think before pressing "submit"... I researched EULAs in a graduate course I took.
I also don't see why CompUSA should be required to take back opened software. The EULA is not their doing. It's the software provider that decides the terms of the EULA and whether or not the EULA is displayed in software or treeware. The retailer is just a coduit between the software provider and the consumer. If I as a conduit sold unopened software I found I couldn't use to someone and they came back a few days later with everything opened up and wanting their money back, I'd tell them to take a hike too.
I double-dog-dare you to show a court case that decided that opening a sealed package meant assenting to a license printed on it, in cases where the customer already bought the package and the license gives no extra rights.
Ha. That's the beauty- she's seeking class status in California. Which means that, if you live in Califoria at least, you can join the class, it won't cost you (or her) a dime, and if the class wins or even if the companies settle, you can make a buck or two. Unless you're one of the lawyers (for either side) in which case you'll make $$$shitloads.
recap:
1. buy software with EULA, open software, reject EULA, attempt to return to point of purchase
2. Join class-action lawsuit
3. Profit!!!!
Humpty Dumpty was pushed.
That's harder than it seems. Windows and Norton both present a EULA dialog box before they install. Decline the EULA, and nothing works.
And if you don't register it, there are problems with LiveUpdate, getting new virus definitions, calling tech support, and upgrading.
It's also illegal, which can be a critical issue for businesses and contractors. See the BSA posting
Cheers, Joel
I tried Google'ing to find out if this person has some kind of fund set up to pay her legal fees, but to no avail. Anyone know if such a fund exists? I'd like to be able to use my PayPal account for something useful for a change...
A lot of posts are missing the point. The article states that the lawsuit is to argue that software vendors have exercised a loophole in sales practices that makes it possible to enforce a contract never agreed upon by the consumer. This isn't about getting money back for windows, or really even about how legal EULA's are. It's about whether the vendors are breaking the law by using the loophole. If so, they are liable, if not, consumers continue to be screwed.
However, this case will most likely also touch on the legality of EULA's in some aspect. You can't argue that I had to agree to a contract I have never seen without arguing that the contract itself is flawed. CompUSA et. al. don't care about piracy really, they care about selling software. Granted, piracy cuts their profits as well, but not as radically or in as unique a way as it does vendors. If dumping EULA's altogether strengthens the retail position, retailers will stand behind this lawsuit (not likely, I realize). It's the software vendors who don't want their software to be copied. They even have a powerful trade group in the BSA. So, to avoid copying, you can't open and return software. This is reasonable. It doesn't take a software engineer to realize that you can avoid ever having to refund ANY money if you put the EULA in a place where it can't be agreed upon until after the vendors first concern is violated (opened box). Wow, a perfect system.
And this is the actual issue on which the lawsuit is based. You can't agree to the EULA until you actually pay for the obligated items, effectively binding you to the contract (EULA) prematurely. It essentially undercuts everything that US contract law is founded on. I assume if the lawyers can build an adequate case on this fact alone, that there will be at least monetary success (read settlement). Realistically, the consumer can only hope that there is legal and precendent setting success as well, where either the software sale practice in question is deemed illegal, or the EULA system is deemed illegal. A settlement in this case will be a severe detriment for consumers of software in that it doesn't touch on the legality of any of the lawsuit items.
Pray for litigation on this one folks.
Bah
omicoo--
Who in their right mind would actually pay money for Microsoft software?
eBay probably realizes this, knows that the items will get no bids, and will just waste space on their servers.
On the other hand, people -buy- Apple software. People -like- Apple software.
~D
the store has installed it on one station, only one person can play it at a time. I am betting there is a clause for 'DEMO' purposes as well but I haven't the energy to search for it :)
errr....umm...*whooosh* *whoosh* Is this thing on ?
The store is selling boxes with stuff in them. Part of this stuff is a document written by the manufacturer which claims to override the transaction between the store and the customer. As far as I can tell, both the store and the customer can tell the manufacturer to go stuff itself.
How difficult would it be to have a dumb terminal where people can access the software license terms before purchasing? Giving people a little credit for the ability to make an informed decision goes a long way and keeps products from coming back to the store.
Laws are for people with no friends.
Doesn't anyone else remember that they used to seal the software in its own envelope inside the box of software. That way you could open the box read the documention without needing to install. I guess the price of envelopes has gotten too expensive.
I once bought a copy of that Win95 OS which came in something like 25 of these floppys. I started the install. When I hit the 15th one it failed. Well I brought them back to the store and they gave me another 25 floppies. After trying once more to install this Win 95 from floppies it failed again on the 15th floppy.
Never buy anything with a stupid return policy. If they can take your money, thay can give it back if there product is not what was advertised or just plain broken. This store whent belly up. I never saw my money. I still have this stupid credit in my wallet. When I go into a store that has a no money back policy, I try to cash it in.
Isn't this a PERFECT subject to question Eben Moglen about? Are EULAS really even worth the bits they take up in storage space on a CD?
What if you buy it used and there's no sticker? What would they say then I wonder?
"Those who consume the bulk of goods are those who make them. We must never forget this secret of our prosperity."
And then people will eventually get so sick of the process that they'll stop buying unnecessary "upgrades" like Windows XP. Hmm...maybe it wouldn't be such a bad thing if Microsoft started doing this... :)
"Those who consume the bulk of goods are those who make them. We must never forget this secret of our prosperity."
If you hand over cash money to buy software, or a book, or any other copyrighted material, I think it stands that you own the particular pieces of media. As to any software "license", to the extend that copyright law applies, you can't take your book form B&N and start running off a 1000 copies to give to friends. To the extent that the unsigned-at-purchase EULA is stricter than copyright protection, I suppose it is bogus.
So if the store doesn't take the software back, I can sell it to a third if the EULA hasn't been agreed to, correct? So where does it say that I cannot sell or give away an OEM copy I received with a new computer if I never opened the software envelope or agreed to the EULA?
you dont have to agree with the laws, you have to abide by them. The difference between the 'ignorance is no defence' concept in law worldwide, and agreeing to something you have not read, in the context of this thread, is massive.
My other OS is also FreeBSD
I wasn't aware that buying underwear or swimwear forced you to agree to a contract with the garment manufacturer.
I think it's only fair to have the software vendor (MS, Norton) refund full retail price. The retailer has done it's job in selling the software. He's entitled to the margin he makes on that sale.
By having the software vendor pay back full retail price, it will make them think twice before they hide restrictive EULA's in the box.
They must put the EULA on the outside for everyone to read. If it's too restrictive, the software won't sell and the retailer will stop stocking the software. This will help getting software vendors to write EULA's that actually make sense and we can actually agree to.
To Terminate, or not to Terminate, that's the question - SCSIROB
Having worked at a software and electronics retailer while in college, I will tell you with 100% certainty that the returned software ends up right back out on the shelves.
Original shrink-wrap often has perforations, either like those made with a paper-hole punch, or little seams. Replacement shrink does not. Original wrap is often crinkly and has folds in the corners, like giftwrap. Reshrink has melted seams on the edges from where it was heat-cut from the roll. Original wrap sometimes has holograms, or logos etched on the plastic, sort of like a watermark. Reshrink often has non-reflective "etch" patches, like it had been smeared with some sort of solvent, where the heat gun was held too close. A heat gun used for stripping paint is often used to heat the shrink wrap, instead of using a hair dryer, because the gun puts out more heat so you can work faster.
Easiest way to see if a store rewraps their software is to check if the box cover is put on properly. I can't tell you how often the box front gets put on upside down. To read the back, you should be able to turn the box like you would the page of a book. If you have to turn it end over end, it's a reshrink. The same thing applies for any sort of box, like board games, chocolates... You'd be surprised what gets returned and resold.
The REAL jabber has the user id: 13196
What you do today will cost you a day of your life
Microsoft and Symantec are only bound by their offer to accept the return, if you agree to a contract with them. Up until that point, they owe you nothing. (See where this is going? ;-)
Thus, the only way to be given the option to return the software for a refund, is to accept the EULA, so that Microsoft gets their consideration. Then they owe you a refund, per the terms of the EULA. But the terms of the EULA are that you get a refund if you don't agree with the EULA.
By the time you get into a situation where they might owe you a refund, you are already disqualified from receiving it.
(BTW, you have to be crazy to be transferred out of the squadron. But this can only be done if you are sane enough to want to be tranferred. Hope this helps.)
As copyright owner of this comment, I authorize everyone to defeat any technological measure which limits access to it.
Who is this woman? I, and probably many other people on here, would be willing to donate money to her cause to "go the distance" in the courtroom instead of accepting an undisclosed settlement. Any takers?
Cyde Weys Musings - Scrutinizing the inscrutable
You have no right to use the software because you did not enter into an agreement with them to use it.
You're still buying copyrighted content and you're usage would be restricted by copyright law. Yes, you could make copies, but running multiple copies simultaneously might be a stretch (recall Borland's "like a book" license). You definitely could not go handing out copies to other people. Otherwise, feel free to reverse engineer, publish reviews and do all those other things that the EULA "prohibits" and let 'em come after you.
I suggest you get a store manager to sign your receipt and note "return refused" or some such on it so you can prove they wouldn't take it back....
The standard ones tend to say that basically they own the software, and if it breaks your computer, they aren't liable. Seeing as how you can't find anything but open source software that says that, what was her problem with those products in particular? If they have a clause in them that states that they can do whatever they want to your computer, and can monitor/control it, there shouldn't be an issue with the standard eula.
So what was the big deal?
Jeez, aren't any of you people allowed access to sharp items?
Take a razor blade. Carefully slit the shrink wrap on the bottom of the box and remove without ripping. If there is seal on the bottom of the box, cut it too. Remove contents, copy CD, replace contents. Put back shrink wrap and seal, carefully crazy glue back in place. Return for refund. Most nimrods at these stores only look at the top of the box, and just glance at that.
Or, just download off Kazaa, `cause that crap I listed above is too much like work.
It's a class-action lawsuit, and she's asking for a jury trial.
The way American juries can swing, she could get BILLIONS of dollars in punitive damages. Even BillG would have to take notice.
Can you even find 12 jurors who haven't had microsoft products crash on them? This would be the perfect payback.
...but it's still presented to you after you've paid for the computer. Unless they present you with the full EULA before you commit to the purchase, it has no more legal clout than any other EULA. And no, you're not buying the hardware, you're buying the package... that software doesn't come free.
Kjella
Live today, because you never know what tomorrow brings
On that "try before you buy" thing, I noticed a week or so ago at an FYE store (music and movies) that for all of their CD's, they now have a scan-listen station, where you can scan any CD and listen to any track on it to see if you like it. (at least that's what I thought it was, I only tried to listen to a couple things.) This could be at least ONE step in the right direction for this idea.
As for DVDs, there really isnt much you can do, short of renting it first, where you'll already spend about $5 or so that would be nice towards the purchase of that if you like it. Hey, that would be a good idea, a "try before you buy" DVD rental place. Rent NEW dvd's and decide if you like them, then apply the rental price to the purchase price. TADA! Ok, so it might be a bit difficult. But if you didn't like the movie, and just returned it like normal, they could put it up for sale as used, or just rent it cheaper being used. Or maybe just sell it to blockbuster or someone as a used one. There are a few options.
I'd be suprised if Microsoft, Symantec, etc... can't show that they require software stores to take software back in the case where the customer refuse the EULA; for exactly the reasons mentioned. If stores refused to accept the package back with the consent of the manufacturers then the EULA couldn't be binding since you can't sign a secret contract.
My guess is that the the software companies are forced to prove in court (or probably just in a filling) that CompUSA, et al. violated their contracts with Microsoft, et al.
They are in a real bind. If software companies let stores take returns freely piracy will get pretty bad. OTOH if they don't then the EULAs will get tossed. I think the only solution will be to print the EULA and have the box be returnable as long as the seal of the CD/DVD isn't broken.
I had an experience at Wal-Mart this past Christmas where I bought an educational game for my daughter. I believe it was called JumpStart Kindergarden (or similar). I brought it home, installed it, and watched the piece of junk crash constantly. Of course, the software makers had no patches to fix my problems etc. So, I took it back to Wal-Mart for a refund. They said no refunds on opened boxes, but, they did let me switch it for a brand new copy (unopened) which I dutifully took to another wal-mart and got a refund with.
They'll give her back her money, right away.. They do not want this tested in court.
-jcr
The only title of honor that a tyrant can grant is "Enemy of the State."
There are two rather easy ways of doing this:
1) Ever purchase any insecticides or herbicides? Ever notice how they have a fold-out flap of information that is part of the label right on the bottle? I refer to these every time to be sure I'm buying the right stuff. How about MS (et al) putting a foldout flap with the EULA right on the box?
2) Even better! How about the store purchase just ONE copy of the software they sell, and print a hardcopy of the EULA, laminate it, and put it in a conspicuous place, say, right in front of the shelf that holds the software? That way, the customer could not complain, and MS would have NO say over the matter (Unless, of course, the EULA itself is copyrighted...).
- OrbNobz
Putting up with coworkers driving bass, while dealing with a migraine. Oh Monday, how you mock me!
Cite the stores refusal to honor the EULA return agreement as grounds for non payment.
Let the bit boys, with the big money and expensive lawyers fight it out..
Us little people wont win this fight, but they might. Its great she's trying though.
---- Booth was a patriot ----
While we're bitching about licenses, we could also stand to see some lawsuits challenging changing license agreements after we've agreed. Microsoft demands that users accept a new license agreement with more user hostile terms to receive security updates. Sony requires users accept new license agreements to continue playing Everquest. Tivo made their license agreement more restrictive. In all these of these cases the end user has a sunk cost (for the original operating system, game, or Tivo unit) whose value may suddenly be dramatically reduce (An operating system without any security updates) or useless (Everquest or Tivo without service). One side having the unlateral right to completely change the agreement suggests that the agreement is not a valid contract. Contracts require that both sides get something from the deal. If one side can destroy the other side's benefit at will, there was never a real benefit.
I personally was caught by this with my Tivo. I specifically chose my Tivo because Tivo had a very open and friendly service agreement. I purchased a Tivo ($300), and a lifetime subscription ($200 at the time). A year later I'm forced to agree to a new service agreement that forbids things previously allowed, increases what they claim their providing (previously they just claimed to provide guide data, now they claim to provide functionality actually provided by the box I purchased). If I decline I lose the entire value of my investment. Feh.
I suppose I learned a valuable lesson: no matter how nice the company, if the license includes a "we'll rewrite this whenever we want" it will eventually be rewritten "our CEO can come over and loot your apartment when you're not home, and we're cancelling your service you already paid for immediately for no reason." Nothing like getting screwed by a license agreement to drive home the benefits of Free Software.
Search 2010 Gen Con events
Maybe by the time that this case is over will will finally be rid of the microsoft tax. It would be nice if it can happen, but i doubt that dream will ever come true.
We had a woman want to return an open copy of some Microsoft product because it wouldn't run on her system she found out later. At first we were going to turn her away, but I opened the box and read the manual and there was a page near the front that said you can return the software to the wherever you bought it from.
So I would assume Microsoft ends up compensating retailers if this ever happens. Although I don't know for sure if we ever sent it back or just stuck it back on the shelf.
I don't know about Symantec or the other manufacturers, but I'm pretty sure all Microsoft software has a "Take it back to the store if you don't like it." clause. She may be hosed with them.
No sig for you!!
on behalf of all Californians who've bought software including Norton Antivirus 2002, Norton Systemworks and Windows XP Upgrade
:P
Damn! I'm really starting to wish I actually bought(paid for) a copy of WinXP.
-Jason^H^H^H^H^H^H -Anonymous Coward
Buy a Shrink Wrapper .
NOT COMPUSA's problem. Maybe not MS/SYM either.
1. Woman goes to CompUSA which has signs AND printed receipts saying NO RETURNS ON OPENED SOFTWARE which she refuses to read or accept (why would her implied acceptance of a EULA be any legally stronger?). She stills signs a check or credit card receipt or personally hands over cash to consummate the deal.
2. Women opens box which says, on the outside, you have to agree to the EULA on the inside. It is apparent at this point that she cannot actually read at all. Had the EULA actually been there she would not (could not?) have read it as evidenced by her actions thus far.
3. EULA contains terms that are onerous -- oh, NOW she can read.
4. She returns to vendor who points at the receipts and signs (which she again apparently cannot read or refuses to accept, just like the EULA) and smiles. She was warned. She didn't take the warning.
Caveat Emptor.
When she voluntarily PAID MONEY, she accepted the terms -- no refunds.
I cannot accept that CompUSA screwed her here. It sounds like CompUSA operated within their rights. As a business I can offer NO refunds whenever I want -- you may choose to shop elsewhere and I accept that. It's called business.
Now if CompUSA signed something as a Microsoft vendor that said they would accept Microsoft's refunds then CompUSA is screwed. If Microsoft accepts that the signature of CompUSA is meaningless and they can renege on the refund by posting NO REFUND signs then MS operates as if agreements mean nothing -- how handy!
What is more likely is that the refund should be sought from Microsoft if the box says (as my Win2K box does) "If you don't agree then promptly return for a refund." Doesn't say WHO is on the hook, but I would accept, annoyingly, that it really might not be the vendor!
If the box says "Seek a refund from the vendor" then the vendor STILL has a right to not offer one if they have no other agreements (pending local laws) AND Microsoft is off the hook! Double-extra-spicy Caveat Emptor. Don't compulsion buy anything!
I'm thinking about it, therefore I might be.
When was the last time you saw someone actually look over the credit card receipt they signed?
...
How many people do you think even thoroughly scan the paper work when
Signing a car-purchase contract?
Opening a new bank account?
Signing a mortgage?
If software licences require a signature, people will do it just as blindly.
Frankly I am not too worried about the funds, besides the defense funds would go to microsoft,symantec, best buy etc.
Based on the actions taken I would bet that the woman is a friend/relative/employee of the legal firm representing her.
The license says to return it, the store won't honor that.
So take a picture of you in the store dumping the box on the manager. Then leave and call your credit card company.
I think the real issue is the retailers not being able to sell a CD that may have potentially been installed, making the returned copy unsellable, as it would be pirated at that point.
This is the way it should work:
Somebody buys a software package, opens the box and reads the liscence inside. If they decide not to agree to the terms, and have NOT broken the seal to the actual CD, then they should be able to return it. In this case the software is in resellable condition because the original purchaser did not install it. If the CD sleeve never had that sticker ripped off, then it is obvious that the software was never installed, and that the store can sell it again without fear of selling pirated goods.
it makes sense.
So what.
Blockbuster does this now with newer more popular movies...rent a movie and if you like it, pay them another $10 and you get a brand new copy of the movie. I imagine they could eventually do this for all their movies if you don't mind waiting for it to be mailed to you when you purchase it. I sure like the idea though. You get to avoid paying full price for a stinker of a movie while being able to apply any rental money towards the price of buying it outright if you like it. Everyone wins. You don't see too many "deals" that are mutually beneficial to both consumer and seller anymore.
This message brought to you by the Council of People Who Are Sick of Seeing More People.
Going back to the envelopes, while a pain, would get them back out of this legal grey area.
So where do you find A4.. uhh.. A3.. no A2.. make that A1 envelopes to fit todays EULAs?
Kjella
Live today, because you never know what tomorrow brings
Classic Phonelosers
"Sic Semper Tyrannosaurus Rex."
It is the responsibility of the person devising the contract to ensure that the other party understands that contract.
In therory, all ELUA's would be invalid and you could refuse to pay an irrisposable loan.
but in real life it boils down to:
You know there not mad
and a cooling down period.
Still, I always make sure I don't break the seal, I understand that bit of the ELUA at least.
thank God the internet isn't a human right.
I used to run a computer store (actually 3) a few years ago. Nothing prevents you from bringing back an opened box! It's simply a policy from the store to prevent abuse.
You can bring back your OS, game, application, etc and get a full refund! If the store won't do it, buy somewhere else! Go to mom & pop shops. They need your business anyway. Don't buy at big retailers.
-- Leeeter than leet
1. Agree (perhaps with legal force) on a list of standard licence clauses.
2. Use only those clauses (again potentially through legal force)
3. Just write "Licence terms are 5, 8, 37, and 40." on the box. 5 square inches in a huge font.
4. Consumers can pick up a leaflet at the front desk explaining what 5, 8, 37, and 40 are. May also be included in system manuals, and other places software may be available.
It would be easy to understand because the terms would be predictable. People would research once, *know* that terms 8 and 21 are not suitable for their application, and wouldn't have to worry about sixty slight permutations of it that may or may not be suitable appearing.
It's just like a fascist dictatorship, without the punctual rail service!
Even if the box is still closed!
It's in the small print in the receipt, and implemented at least here in Honolulu.
That's why I avoid buying from them...
Arizonan: "but it's a dry heat"
Minnesotan: "but it's a dry cold"
Louisianan: "but it's a dry rain"
Need a Linux consultant in New Orleans?
"she accepted the terms"
Which terms?
The terms that say "You agree to terms that we won't tell you until you open it at which point we say you can't return it although we will tell you later you can even though you can't"? Or were there some other hidden terms you thought relevant.
I mean honestly, are you trolling, or just fucking stupid?
Here's 50 cents. Go buy yourself a clue.
In this case I hope she wins. For far to long we have not been able to return software that just sucked..games included. Used to, but then all the warez pirates fucked it all up. YOU KNOW WHO YOU ARE.
Bad software sucks and there is no reason it should not adhere to most compon purchasing agreements on most states.
What about changing the contract at the counter?
Fight Spammers!
Actually some companies still do this; if I'm not mistaken, back when I got Jasc Paint Shop Pro 7 a couple years ago it actually had the CD in a little CD envelope, which was in turn in a big envelope with the EULA printed on it and a seal saying that by opening you agreed... It isn't difficult for Jasc to do this, why can't more companies do it?
It so often DOES come down to size, in a myriad of topics. I as an individual can refuse to sell to anyone I want. However, back in the early 80's AT&T was a monopoly. The US government steps in and changes that forcing them to break up into many separate companies and imposed rules of service on them.
If eBay was large enough to be a monopoly then someone could have a good argument for forcing eBay to carry certain items if the public wants them to. EBay isn't that large yet but could, in theory, become a utility the same as the phone in your home or the power in your house.
What do you say to the man that has nothing? Cast it away!!
Why not put the software in a standard tamper proof bag? They're used all the time to carry currency and valuable documents (to make sure the armored transport/trucking company has not open the bags.) They are cheap, one shot and the only way to open them is to destroy them. Big fat markings on it that opening the bag implies that the conveniently included EULA has been accepted. If the software is returned still in the bag it has not been tampered with and thus it hasn't been duplicated.
;-)
Now all that's left is to buy 10 million piece of microsoft software and return them still in their bags. Lather, rinse and repeat, how many cardboard boxes and printed licenses can 40 billion $ buy?
Alex
Error 23 came out, and everybody copied Error 23.
DVDs were encrypted, and it got cracked.
The real issue here is that companies want control over their products after they're sold. That's what the DMCA and EULAs are all about...
BUT THEY CAN'T....
They shut down one p2p system, another follows. They make a new encryption scheme, it gets cracked/leaked. They copywrite something, it eventually gets figured out.
They just want legal leverage so they can sue people by hitting whichever is the biggest thing they can hit (Napster, 2600) and force them into a juicy settlement.
They must have been so incredibly pleased that Napster were such bitches about helping them out from the get-go, because it gave them a really good vantage point to paint them in a bad light and set a nice precedent that would result in p2p system after p2p system being sued successfully... even if it wasn't settled out of court.
I'm very happy to see lawsuits like this one because it puts a check on the companies' money-grubbing ventures. Sure, Napster and Kazaa and AudioGalaxy and 2600 aren't responsible for all the people illegally pirating and sharing mp3s, DivX rips, etc. but at least they have money that RIAA/Microsoft/MPAA can get from them. Which is, ultimately, what they're out there for... I mean, Christ, they're Corporations. Since when are they concerned about personal rights and freedoms over profits? Has any large successful corporation succeeded with that kind of philosophy?
I'm not saying it's right. I'm not saying I like it. I'm just saying it's true. Selling of Souls = Profits.
Karma: Non-Heinous
.... whoever sold him the source? ;)
What they should do is every service desk at these stores should have copies of these EULAs so that if anyone wants to take a look at it, they can read it or get a copy. That should be what they shoud do right now as of this moment, until companies start shipping them attached to the outside of their boxes.
Mod dat sumbitch up.
I don't understand why a user is required to accept the EULA to use a piece of software they have purchased? When I buy a music CD, I don't have to accept any EULA, I have the right to use the CD in any way I see fit except where restricted by law, this includes playing (running) the CD. If I don't accept the EULA, the EULA contract is not binding, and hence the software is just like a music CD, I can use it in any way I see fit except where restricted by law.
Anyone that has an opinion to the contrary please share, but I never feel obigliged to accept the EULA of software.
I remember back in the day, Symantec had its own 'money back guarantee'... so just for kicks I grabbed a copy of Norton Internet Security 2003... guess what I found on the side of the box:
"Money-back Guarantee
Symantec offers a 60-day money-back guarantee. For return information, please contact Symantec at www.symantec.com/custserv/cs_returns.html. Symantec will send you a refund check, less sales tax and shipping and handling charges collected by your reseller."
I'm all about sticking it to microsoft and giving them a kick in the ass but what are you thinking?
Do you really expect someone at Best Buy, CompUSA, Office Depot, whatever to return Windows XP? it's an activated product. How would they re-sell that? I know they can return it to the manufacturer, but c'mon there are other options (open the box in the store, good ideas posted on here). i really don't know what side to take on this one
First Sale
> I think it stands that you own the particular pieces of media.
Hmm -- as far as the common-sense version of "own" goes, MS disagrees.
I recently bought a copy of MS Visual C++.NET. It's EULA has a "one time transfer" clause.
Basically, it states the product can be sold/transferred (in it's entirity) once only after you purchase it from the retailer. i.e. If I ever resell my retail copy of VC++.NET, the person buying it from me, must agree (as specified by the EULA) to never sell/ transfer it to anyone else. Of course, I'll let the buyer know about this part of the EULA if I ever sell my copy, but I didn't think MS could pull off this stunt *after* selling the product to me.
I'll specify the exact text in the license if anyone's interested.
I just wanted to say something nice about CompUSA. I have been a regular customer for years--though I have never spent more than $300 on any one visit. I was charged a restocking fee and have received a full refund on the two occasions I returned opened software. When I had a rebate denied and they just gave me cash out of the till ($50) when I brought in the denial card. We all benefit from the fact that business can be transacted quickly with trust and respect. Perhaps it is time for me to see if I can borrow Steve's roach clip, but I really don't think life will, on the whole, be better, if we promote a world were business transactions are viewed as adversarial rather than personal. There are just alot of good, honorable, and interesting people clerking and managing computer and other stores who deserve their due--and "no" I am not a relative or personal friend, nor have I any proximal vested interest in the fate of CompUSA or other such ventrues.
... if I wrap "my packge" like a holiday present and hit it with a hair dryer, I'll be out of $100 and any chance at future relationships!
Why doesn't someone simply hand over their money to the retailer for a product but wrap it in a sealed envelope with a SMLA (Start Manufacturer Licence Agreement) which states that, by opening the envelope, the manufacturer agrees to be bound by the follwing conditions.... It seems to me that this is as valid a contract as the EULAs imposed on users.
:)
Someone with the balls to try enforcing such a a SMLA would put the manufacturers in a very difficult position...
I like it
W
-------------------
This is my SIG. There are many like it, but this one is mine.
It's already covered by copyright law. You can do anything you want with the software you bought, except redistribute it. Anything more restrictive than that is bullshit, and infringing on my consumer rights.
Books are a good analogy. Books are ideas on paper, in human-readable form - Software is nothing more than ideas on cd / disk / where-ever, in machine-readable form. When you buy a book, it doesn't come with an EULA saying you agree not to sell it, trade it, lend it to your friend to read, etc. Books don't have two costs depending on how you want to read them.
The current "licensing" we have is ONLY around because software companies have been screwing the maximum amount of cash out of their business clients for the last couple of decades. While that idea might work for custom-written code (eg, these are the terms for us to do this work for you), it doesn't work for commodity software - particularly off-the-shelf consumer stuff.
IANAL, but I am a software developer, who thinks the much of business side of this industry is a farce.
Okay, I'm surprised nobody has mentioned the only sort of precedent that I was able to find. Back around the turn of the century (19th-20th, not 20th-21st), book publishers were complaining about the low prices of used books, so they placed on the first page of the book they placed a notice that it was illegal to resell the book below the retail price. The courts ruled this wasn't legal, as the consumer was purchasing the book, not a license to use it. I would view this the same as the EULA. Heck the EULA is even more restrictive as you can read the first page of a book before purchase (if at a bookstore) but you can't read the EULA first.
Please cite ANY proof you have of any event like this occuring. As it stands now, "warez kiddies" realistically only need to purchase one copy of the software for the whole world to have. It hasn't seemed to hurt the stores or publishers nearly as much as your proposed claim of the coming apocalypse.
What about Bestbuy? You make your purchase you get your receipt, and the return policy is on the back of the receipt. No where were you told officially before the sale that this is "our return policy". And the fact that they use those electronic signature pads - you dont get to read anything prior to putting your sig on it
Well - make a scene and dont buy their stuff - simple enough.. I am sure if enough scenes are caused things will change...
OrionRobots.co.uk - Robots From sol
When you buy the product, your implied or explicit contract is with the shop. The MS EULA expects the shop to act as an agent of MS but does not require it (the shop may be the end of a long, possibly international distribution chain.) MS does not appear to honour return for refund by any other mechanism.
I'd say the EULA contract is void because MS does not intend to honour it's part. This is evident because MS does not offer a refund mechanism in the shop, nor directly with the company.
As somone pointed out above, Wal-Mart has rather lax return policies, and they used to be even more so. During the SuperNES era, games were ridiculously expensive ($50+), and the quality of many of the games released sucked. Fifty bucks is a big deal to a 12-year old kid, and imagine the disapointment of getting a game home and it sucking out loud, and knowing that's the last game you'd get before Chrismas. ;)
One soloution, as mentioned above, is returning one as "defective", getting a sealed copy, and returning it to another store. However, I have heard of Wal-Marts calling other Wal-Marts for slightly suspicious returns.
Anyway, instead we used to visit our local frame shop (no, not a web design firm, a place that frames pictures) and pay $3-5 dollars to have the game shrink-wrapped and return them to Wal-Mart. Even without a reciept they would automatically give us full retail price, cash. Although it's not as automatic now, Wal-Mart will pretty much take back anything that is in salable condition. If the framer ever questioned it, it was a gift that you wanted to test out. ;)
Before I'm flamed, I always made sure the game I returned was in absolutely mint condition, all instruction manuals, etc, minty fresh. And I figure if someone was unhappy if they purchased it after, they could just return it for the same title. Only the evil empire would get screwed. :)
As others have alluded to, this should be fairly simple:
1) On the box of the new software it says something to the effect of "You must agree to the EULA presented before using this product"
2) CompUSA makes it known that you can't return open software.
Once she opens the software she knows that she can't return it, even if she doesn't like the EULA
Is this fair or not? That is a whole other topic....
There are already many cases where consent forms are printed on receipts the consent could probably be worded so that signing for the credit card purchase constitues the entire areement.
Regradless of the wording or content, the general consumer will without a doubt sign the form. The womwn who is filing the suit probably implied her consent in a number of ways by buying the software. Many consumers seem to think that ignorance somehow constitues immunity from our laws. Our justice system has a different interpretation of the law.
We are given tremendous opportunities to obtain information regarding the law and the policies of corporations and privte companies.
Even if this woman makes some sort of change. The general public will flaunt her efforts by ignorantly signing forms and implying consent in other manners.
Another idea would be to have the EULA on a CD by itself and then lable the CD saying "This CD contains EULA information, IF this is being viewed by a retailer and the customer is returning the rest of the CD's unopened please accept the return. (Or something to that fashion. That would cut the crap right then and there.
--- If the bible proves the existence of God, then Superman comics prove the existence of Superman.
First you did not sign the receipt. So what is written on the back does not count.
But in the end... Do not sign the PAD. Request a paper receipt and you will sign that.
The reason Indentity Theif. Your sig is your last line of defense.
I have held up a line as long as 20 minutes waiting for the store to get a paper receipt printed. No amount of "bulling" on their part will stop me. Also it makes it so there is no contract on the back. A simple sales slip.
My questions for them when the start to imply that I am concerned that that secuirty is weak. My question is "how long will the sig be on file?" "How many new operators and clerks will they hire in that period?" "You do trust them all?" finally "Why should I trust you?"
They all try to push it off to the Credit Card Companies why they are doing this. Did Credit Card processing too long know that is farse.
They all back down in the end.
Also the next time you change jobs. Require that SS# is not used as your medical id. There is no requirement for it. My own doctor office was trying to collect my SS#. When I asked what it will be used for, they said "we just record it and stamp it on all paperwork for the insurance company" I pointed out my medical id was NOT my SS# - so I did not give them that peice of information. They had to change thier software to use the correct piece of information. Just lazy programming.
(previously they just claimed to provide guide data, now they claim to provide functionality actually provided by the box I purchased).
Hey,
I have a Replay and Sonic Blue just did the same thing on their latest software upgrade. My understanding is the company is covering it's back. If these law suits make part of the service provided illegal they can disable that service with a software upgrade and without breaking the previous EULA. With Sonic it is the Commercial advance and the ability to share that may end up dissappearing.
I agree it sucks, and I don't see how EULA's can be indefinatly extended and modified without both parties agreeing, but that was my understanding as to why.
DP
"(I) have this unfortunate condition that causes me not to believe a single thing any politician says when a mic's on.
I've read and re-read this discussion many times here. What i wonder is where companies determine what areas and how i might use and not use software I purchase.
For me this is a purchase of software. If i was going to lease it, or buy a license -- then that should be what is advertised as the purchase. Not the appearant software the box demonstrates.
I can just see it now -- row after row of boxes stating licensing agreements for sale.
For the consumer this is a comodity purchase -- whether it be an office program, a game or other utility. If it isn't something of this nature it needs to be understood clearly up front that it isn't actually a purchase in spite of all appearances otherwise.
d
ok considering EULAs and no review policies... What if john doe was to use software (OS) on a computer in a public setting, say a library or internet cafe etc. He did not buy it, he didn't install it he has never seen any licence, EULA or 'a no review policy.' regardless of if EULAs are binding to begin with, you can't put someone in a contract if they never even saw the thing. Whats next? Every time your computer comes out of standby or screen saver a EULA agreement pops up? Enough already! ____ by reading this post you agree not to sue me for time lost. Furthermore if you get fired at work for reading this, it aint my fault.
http://www.zebpalmer.com
Security flaws are clearly a defect in the product. Doesn't a defective product imply a legal right to be able to return it?
...is easier. Just slice the thing open....c a r e f u l l y....make copies of the disks, then put everything back. Then slowly, with a few beads of superglue, repair the damage to the wrap. Make the cut at the seam to minimize appearance of damage, and that's also the easiest place to re-glue.
-Looking for a job as a materials chemist or multivariat
susan_otter,
I would like to congratulate you upon your attempt to interpret the implicated evidence you received as applicable to the understanding of verbal (oral), written, and implied (unwritten/unseen/implied) contracts. I do not know who implied these definitions of contracts that you have submitted, yet I will correct you where you may have incorrectly perceived by concept of your receival of their implications...
Implied contracts:
That kind of contract wherein the physical acts, rather than spoken or written words, result in the parties mutual agreement to be bound to each other.
Let me be first to advise you that implied contracts, by definition, are LEGALLY BINDING whithout the parties in agreemant(s) understanding or comprehension of the terms/conditions of the said implied contract. Here in the States, some State Governments, not to be confused with States (States are of a people and not the government thereof), may or may not allow implied contracts due to their ability to construe law. Many years ago, the term "Ozium" was used to reference an unseen contract: implied contract. Now, you will rarely see such terminology because the people working against us have burried such words in pretence. However, regardless of the legality of useage of implied contracts, it affects all States by their founding, beyond, and are inexorably recognized and applied internationally (mostly against us).
I *should* not give any example of an implied contract because it is out of reason; they are self-explanatory in our daily existance as we associate our daily actions and agreements we impose on eachother. My merry existance on "Slashdot.org" as "AnonymousCowheard" _implies_ I have accepted the terms-of-use contract that I was presented by slashdot.org's administators or owners; it is not misleading, it is a pain in the ass for people that lack the perception to comprehend the contracts adhesive to their living status (self). Another example would be of you or I contracting the Flu virus while we are sleaping: obviously our bodies agreed to let the Flu virus affect our bodies, we know it is the Flu virus and our bodies accepted its entry and we start hurling our food. As a general rule of implied contracts; the contract must have been presented to your agent before it was implied: implied contracts are presumably bearable by those of us that recognize their useage. Such as those of us that are citizens of the United States, State Citizens, or rarely United States Citizens due to our agreement of law: representative republics tend to be simpler for those of us that need a more competent "representative" to interpret laws while others are sovereign and retain their sovereignty by their retained explicate erudition via representing or comptetently granting fiduciary representation to someone else (voting) or truthfully retaining their sovereignty by acting upon their persona of prescribed foreign policies. The inability to perceive evidence of an implied contract is dismissable in court because of the plaintiff's lack of competancy or breach of a granted agent to AGREE to the contacts that are subjective to you. Sadly, I must give you an example:
A laptop computer is purchased and it is bundled with software. You didn't ask for the software, yet by using the software you have implied acceptance of the licenses (contracts!) that the said patented software has registered!
Now you know how to dispute contracts. They are of an organized administrative jurisprudence, within an institution that has been defined in uniform commercial code, and only applicable should you/persona/company acts upon such code as law. This draws a conclusion on certain *commercial* corporations: Microsoft and Norton are commercial for-profit organizations, while GNU is a commercial non-profit organization that accepts "donations" much as would a church only accepts "donations" yet will upon-demand compensate the employees for their time.
Microsoft and Norton: avoid them, their contracts/end-user-license-agreements disallow ownership of your computer software and grant various non-commercial organizations (cough*United States LLC*cough*illegal*) jurisdiction to infringe upon your "rights" (if you accepted the United States Constitution beyond the 13th ammendment, then you are a slave...re-organize yourself/check-out the Constitution of 1867, as recorded by the Colorado Territory States' Court Archives of the Recorder, as the last and ONLY LEGALLY RATIFIED constitution).
As for my status, I am sovereign...I have not agreed or accepted any contract and I have intentionaly placed contracts upon organizations as they tried to do unto me, just so I may retain my sovereignty and help prevent the religious persecution within this back-country I know as America. Yes, by use of Slashdot, and generaly the acceptance of contracts of the Telephone company and Internet Service Providers, you may think I have expressed or possibly *implied* acceptance of all sorts of contracts and have supposedly granted jurisdiction of some foreign regulative body to the United States' owner of unownable magnetic and RF radiation: Federal Communications' Commission, as well as the FBI and CIA and the IRS; yet I am sovereign and affirm that I am much more intelligent than they and will anticipate their every encroachment on my freedoms as did the T1000 upon the T100 in Terminator 2 (cough*never mind the ending*cough). To operate in daily life and retain my sovereignty is difficult because of all these adhesive contracts, yet I am sentient and especialy competent in this premise and know the laws I must honor as well as their credibility.
Returning to an expression of a state of ontopicn and general informative: this article's dispute of the implied contract of the End-User-License-Agreements perpetuated by Norton; they are consentual: by using the software, its USER has agreed to be bound by the elements of Norton's subjective contracts. Yes, this is controversial; there is a difference between someone who INSTALLS and someone who is USING the software. The INSTALLER acted on your behalf, known as FIDUCIARY RELATIONSHIP, and INSTALLED software that you would be bound by the terms of its useage should you use it (it is considered in-use while not active). Don't use/run the software, if you disagree: uninstall it immediatly as if it were the plague! The status of such End-User-License-Agreements are initialization to the future presentment of such being an implied contract. Yes, read those contracts if you consider yourself an honerable person or individual! Yes, Linux is all about about freedom from AGREEABLY oppressive organizations (United States LLC included)! Yes, get rid of that Microsoft stuff and use somthing licensed under the Gnu Public License becaus the "GPL" is all about freedom! GNU and its GPL is verry kind, fair, respectable, honerable, and LEGAL! The GPL doesn't grant any regulation to any organization, so in effect even it may be difficult to assure its compliance other than GPL::VOLUNTARY FREEDOM. Every peice of software must receive your validation for its install for you to comprehend the subordination against you by the many merciless and disgusting organizations; you are considered chattel property to some organizations.
Good luck!
To quote a great Libertarian:
When they took the fourth amendment, I was silent because I don't deal drugs.
When they took the sixth amendment, I kept quiet because I know I'm innocent.
When they took the second amendment, I said nothing because I don't own a gun.
Now they've come for the first amendment, and I can't say anything at all.
Tim Freeman tsf@cs.cmu.edu
But I'm sure you already Gnu that.
That should be enough to make using and making software interesting.
Also the next time you change jobs. Require that SS# is not used as your medical id.
I work for an HMO. We currently set up all our members with the SSN as part of the unique member number. This is going to become a huge project, as the new HIPAA legislation is going to require this to change. In fact, already one of our biggest groups (IBM) is requesting that we change all their members to randomly-assigned member numbers.
Of course, it was us I.T. folks who suggested that we start generating member numbers the last time we went through a system conversion, but management ignored us. Now it's going to be ten times harder to do. It's not always lazy programming, sometimes it's ignorant management.
Hey kids, there's only 5 days left 'til Yak Shaving Day!
I am glad some one in the gov got a clue.
Right now, get your company plan admin to write random numbers in place of SS#, that will be fun.