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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."
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.
The only hold that shrink-wrap or click-through licenses have at all is because customers read them. Courts have not (so far) cared that customers skim or skip the license agreement; they have said that since the customer makes a particular action (opening the sealed package with EULA printed outside, or clicking "I agree" beneath the EULA text box), the customer agrees to the license.
For a shrink wrap license, you cannot agree without opening the external box. For a click through license, you cannot agree without running software from the install media. Many retailers have policies against you returning software after doing the first. Many software manufacturers will say that only pirates want to return software after doing the second. It is this intermediate stage -- you can neither move forward nor back -- that is being challenged by the lawsuit.
The EULA states (usually) that if you don't agree with the terms of the license, to return the software to the retailer. But the EULA isn't binding on the retailer, so they aren't obligated to take it back if it's opened.
This is exactly why a EULA is not enforcable, actually. You buy the software at a retailer, and you are the "owner" at that point. You have created a valid contract of sale by giving cash for goods. The standard argument for EULA enforcability is that the EULA is part of the contract of sale, but that is untenable because the software maker (in this case Microsoft) is not a party to that contract and cannot retroactively modify it. Thus to be enforcable, the EULA must stand on its own. But 17 USC 117 gives the "owner" the right to install software on "a" machine. Thus the EULA gives the owner nothing that he didn't have as a result of "first sale", and the EULA fails to be an enforcable contract due to lack of "consideration".
The world seems to be unaware that when you own a copy of software, you DO NOT NEED A LICENCE TO INSTALL IT ON A SINGLE COMPUTER. This is the black letter law. 17 USC 117
If the license is enforcable then presumable this clause is as well:
IMPORTANT - READ CAREFULLY: This End-User License Agreement ("EULA") is a legal agreement between you (either an individual or a single entity) and Microsoft Corporation for the Microsoft software product identified above, which includes computer software and may include associated media, printed materials, and "online" or electronic documentation ("SOFTWARE PRODUCT"). The SOFTWARE PRODUCT also includes any updates and supplements to the original SOFTWARE PRODUCT provided to you by Microsoft. Any software provided along with the SOFTWARE PRODUCT that is associated with a separate end-user license agreement is licensed to you under the terms of that license agreement. You agree to be bound by the terms of this EULA by installing, copying, downloading, accessing or otherwise using the SOFTWARE PRODUCT. If you do not agree, do not install or use the SOFTWARE PRODUCT; you may, return it to your place of purchase for a full refund.
So, somethings got to give: Either the EULA is enforceable and you CAN return the product for a full refund, or the EULA isn't enforceable.
Oral contracts are only binding if the terms of the contract are orally communicated such that both parties understand what they are agreeing to, or if the agreement itself is orally communicated such that both parties understand that they have so agreed.
Implied contracts likewise only binding if the terms of the contract are clearly implied to both parties, or if both parties clearly imply that they understand the terms of the contract, and are agreeing to those terms.
Since the terms of the shrinkwrap EULA cannot possibly be known prior to the purchase, purchasing the software cannot possibly imply agreement to those terms.
IANAL, so the preceeding was pulled out of my ass, of course. Enjoy!
Any sufficiently well-organized community is indistinguishable from Government.
Pick it up at home depot. Shrink-wrap cellophane is sold as a weatherizer for windows. (Rimshot). Wrap your package like a [holiday] present, and hit it with a hair dryier. Viola. May also work with standard kitchen plastic wrap as well.
"Learning is not compulsory... neither is survival."
--Dr.W.Edwards Deming
But the situation was this.
1. Woman goes to CompUSA. Buys retail boxed software.
2. Woman opens box, reads EULA (which she cannot read w/o opening box).
3. EULA contains terms she finds onerous. The EULA specifically says, "return to vendor for refund if you do not accept".
4. Vendor refuses to make refund.
I assume she's suing all of them because MS and Symantec won't give direct refunds if the vendor won't make good, and the Vendors (CompUSA and Worst^WBest Buy) because they have her money and won't make good per the EULA, so she can't get it back.
Fascism starts when the efficiency of the government becomes more important than the rights of the people.
There is a difference between contacts and the law. A contract is not law, nor is law a contract. Laws typically embody rules society agrees upon, and most likely have some moral backing.
A contract is simply a binding agreement between two parties entered willingly. Its been pretty well esablished that both parties entering the contract must agree to it, knowning what they are entering into. Now, if you get handed some paper and don't read it, thats your fault, but you are supposed to be reading these things before signing. Thats not possible with an EULA.
How many cases do you want? One? Two? Three? A Google search for "shrink-wrap license court case" turns up these and others; judging from that, more shrink-wrap licenses have been upheld than overturned.
You might argue that some or all of those cases gave "no extra rights" to the licensee. Since you did not specify "extra rights" beyond anything in particular, I assume you wanted wiggle room to squirm out of concrete examples.
If you even need to return anything just follow these two simple steps:
1. Tell them the product you perchased was defective. They will give you a new one in an unopened box.
2. Come back some time later and say you don't want it. Since you are now returnining it in a unopened box they will take it back with a smile.
Just rember to talk to different people for steps one and two.
Happy returning!