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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."
And how is a consumer to read a EULA on a website if they do not have internet access? If they live in a remote area and can not find public internet access?
This would all be fixed if there were no private "licensing". For instance, I can drive my car anywhere without Chrysler being able to tell me not to. There is nothing they can do. At all. Period.
How about a new concept: when you buy something, you own it.
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.
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.
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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
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"
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.
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.