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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