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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."
Do any companies, which do not sell exclusively downloads?
A feeling of having made the same mistake before: Deja Foobar
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.
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.
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.
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.
I disagree, this is a good issue, I'm worried however that the courts will rule that CompUSA (or whatever) are to blame rather than Microsoft and Symantec.
I'd very much like to see EULA's be thrown out. I imagine MS and Norton would rather remove EULA's than have people returning software. Let's face it, the only legal terms of an EULA are protected by law already, that leaves only "illegal" terms which no one follows anyhow. "illegal" = Not tested in court.
Even that's a little difficult to verify, if your clientell is clever (which pirates tend to be).
Buy game, copy, microwave for 3 seconds, return "defective" CD, buy different game, repeat.
This situation, though, is certainly a sticky widget. How is a company expected to post a 14 page EULA on the outside of a box and still have room for the product name and logo, but then again, how am I to know what the EULA says if I pay for it, THEN discover that it allows the vendor to make surprise visits to my hard drive every week to ensure that I'm playing nicey-nice?
Maybe software vendors should provide copies of the EULA on paper to the stores and indicate, on the packaging, that the purchaser has the right to request a copy for their review. Simply putting the EULA on the vendor's website isn't acceptable. If I'm purchasing Windows for the first time because I don't yet own a coputer, I can't be reasonably expected to visit their webpage.
BD Phone Home!
Shameless plug. Like you weren't expecting it.
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
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?
It's CompUSA's store policy not to accept returns on opened software. They are named in the suit.
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.
Either the manufacturers are going to have to print the EULA on the outside of the box where you can read it before buying it or they are going to require retailers to accept returns on opened merchandise. Of the two, the former is much more likely.
It won't change the EULA's at all, but you'll at least be able to read it before you buy it.
People's desire to believe they are right is much stronger than their desire to be right.
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"
...LOTS of people were getting the software, burning a $0.05 CD, and returning the software. This led to an extremely high return rate on Windows,
then explain to me how MS became a Multi-billion dollar corporation if somemany user were returning software? or how Retailer make million selling the stuff?
The Kruger Dunning explains most post on
There's a couple of things that could happen. Her case could get dismissed. Maybe the stores will have to carry paper copies that people have to read and agree to. But then what if they have questions? The clerks aren't going to know how to answer legal questions. A new packaging could be introduced, where when you open the box you have a paper copy of the license and a sealed copy of the media, with a big, unmissable note on the media that says read the license, opening this implies you have read and agree it and agree to it. Then you can return the software if the media is still sealed and you have the box and all its contents. More products could follow suit with XP style Activation.
Terms should be negotiated before the sale, as a part of a the sale.
Damn straight. It has been illegal for a *long* time to put one price on the shelf and then try to charge a different price at the register, precisely because store owners used to use this kind of tactic to rip customers off. The law needs to catch up and do the same for dishonest practices like deliberately giving people them impression that they are buying something and then informing them later that they just paid for a severely limited license.
People should be able to tell what they are getting before they even walk up to the register.
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.
i believe the policy is there b/c the stores don't want you to buy the product, install the product, and then return the opened product. they would have a very hard time selling any software at all.
They are just going to have to get used to it. I can buy a book at Borders and then return it. (Even after reading some or all of it! Horrors!)
Any other type of merchandise can usually be returned right away, with receipt. A software product should be no different. Nor a music CD.
The price of freedom is eternal litigation.
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.
What are you on? Yeah it may be within YOUR rights to sell what YOU want, but it doesnt mean they have to let you use THEIR site to do it. Sheesh, why does everyone think they have a right to do anything, go anywhere regardless of who else it involves.
Ebay is well within its own rights to stop you selling whatever it damned wants, regardless of whether they are in so called collusion or anything.
They are not infringing on your rights at all, you can go and sell that same thing in a garage sale, or on the street corner. They can refuse your auction for the same reason a used record or book shop can refuse to buy your records/books.
Remember... with some software companies.. you don't even "own" the software.. example in MS's EULA it specifies that the software is non-transferable
However the argument was that you already own the software before you open the box and read the EULA. Suppose I sell you my house by contract in a realtor's office. You give me the money, I give you the keys, and we sign off on all the necessary papers. When you get to your new home you find a note stapled to the front door, indicating that by opening the door you agree that I still own the house, and you just have the right to live there, provided you follow the rules listed in paragraphs 4 through 247. At any point either of us can terminate the license, and you will be evicted from my residence and receive from me a refund for the sale price (never mind that in the 12 years you lived there it appreciated 4-fold). These are not atypical EULA terms.
This cannot happen legally as I already sold you the software. You don't need a license to live in the home I already sold you - I gave away all such rights when I signed the contract.
Software vendors do retain some rights as expressly granted by law - such as copyright. However, to say that software isn't purchased is dubious at best. If I rent a movie at the video store it is pretty obvious I'm renting it - I agree to return it in a set period of time. When I buy software I expect to use it forever - nothing at the time of purchase exists to suggest that I don't own it.
Again, i don't see how that'd be enforceable, since you're not able to read the EULAs until AFTER you've opened the packaging. Common sense dictates that you can't be bound to a contract before you read it.
Also, hardware is different in that you paid for a product which you have the right to use. If you MUST use the suppliered drivers to use said hardware, i'd argue you have the right to use it even if you do not accept the EULA for the drivers.
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
Well, since almost all licenses for software are non transferrable you would buy the hardware without any software. If you received software with your hardware the seller is in violation of the licensing agreement and is responsible for everything.
Now I hope and pray that I will But today I am still, just a bill
You have no right to use the software because you did not enter into an agreement with them to use it.
I've noticed companies are trying to get around this by putting a notice on the outside of the box that there are mystery conditions inside the box that I am agreeing to be bound by when I purchase the software. This seems similar to just about any service contract (ISP, bank, Paypal) today where when you agree you agree to not only the contract as written but anything they put into it in the future.
I greatly wish that there was a lawyer-type that could drop in here or someone who could point me to a thread that demonstrates whether or not such things are legally binding. I don't think there's been anything conclusive on the EULA issue yet.
Try not. Do or do not, there is no try.
-- Dr. Spock, stardate 2822-3.
Wrong. If the EULAs are considered invalid, then they're invalid-- i.e. they're bad contracts from the standpoint of contract law. How does that prevent me from using a product which I have already paid for? I don't need a license to read a book I bought, or to play a CD I bought... neither do I need a license to use software I paid for, unless you can somehow make a case that my use of the software is inherently an un-Fair-Use.... which seems pretty unlikely to me.
I do not have a signature
I had to sign a piece of paper stating that I would absolutely sign up and use DirecTV service for a minimum of 6 months or a year. Was this because you were getting one of theses purchase 6 months service get the receiver for free type deals? I would be interesting if it ever came to having to sign the contract at the store, also if you gave the software away you would need to have the receipiant also sign a contract.
Hey I got the the latest game for your birthday. Please sign this 10 page contract before you open it.
However it would end sales of software to thoses under the age of 18 in the US.
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 ----
No, copyrighted software that was sold for individual use with no further restrictions other than those that come from copyright law - the same restrictions you have on a book or a magazine or a piece of artwork you buy - could be sold with such a sticker. You'd be free to use that one copy however you like (except in public performance), modify it if you could, destroy it, disassemble it and browse the code. You'd even be able (I think) to sell it, which many EULAs prohibit now. What you wouldn't be able to do is make copies of it, but that's prohibited by copyright law, so it doesn't need to be prohibited by a special EULA unless the seller wants you to agree to give up rights you would otherwise have under the law. (In many jurisdictions, it might leave you with an implied warranty on the software that the EULA tries to take away, for instance.)
you bought it and have the right to use it, but you do not have the right to copy it.
:o)
Actually, you DO have the right to copy it for personal use. It falls under the classification of fair use.
Some court case held that loading the program into RAM qualified as copying.
True. The case in question also was also about a third party (in this case a contractor) using the software... the contractor was "making a copy", and since he didn't "own" the software, the "copy" he made when he used the program was considered infringing.
You need additional license to copy the program into RAM
Copyright law has since been revised to remove this loophole. (Limited copies of computer programs can lawfully be made for archival purposes or "as an essential step in the utilization of the computer program in conjunction with a machine." 17 U.S.C. 117.)
I could be completely wrong. Someone please correct me otherwise.
Consider yourself corrected
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
The question is not whether people really agree to it. Unless you sit them down and make them read and sign the EULA, you enter new ground in contract law. It becomes a question of what action(s), in the eye of the law, should bind a customer to the license.
You can argue what should indicate acceptance of the license, but courts may not (in general) enumerate what is allowed; they may only say whether some specific thing is or is not allowed, and then only when it is pertinent to a case in their jurisdiction. Until federal or state governments create laws (such as UCITA) on shrink-wrap or click-wrap licensing, it will be a legal gray area.
Since it is a gray area, and since (again in general) courts would rather err on the side of caution, end users can not expect much relief from court cases dealing with the legitimacy of EULAs.
No, software is licensed.
... yearly) would be a different story.
...
I pay sales tax when I buy software. This defines my purchase as a sale (implying ownership), not a licence, since licences of any kind are not subject to sales tax. Subscription (ie
Things may be different in your country