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California EULA Lawsuit

Posted by michael on from the props dept.

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."

53 of 717 comments (clear)

  1. Implication? by DasAlbatross · · Score: 5, Interesting

    So does purchasing the software imply agreement now?

    1. Re:Implication? by ejaw5 · · Score: 5, Interesting

      sometimes just buying hardware implies agreement to software terms. For example toshiba laptops have a sticker on the plastic wrap stating that just by taking the computer out, you've accepted the EULA for ALL software bundled with the computer. I had a time trying to find an 'official' MS EULA, only to find a generalized 'over-encampassing' license devised by Toshiba buried in the stack of the manual, and other junk. (AOL, trial MS Games)

      --

      $cat /dev/random > Sig
    2. Re:Implication? by flatt · · Score: 3, Interesting

      Better yet, does purchasing the software mean you own it now?

      We'll have to wait and see I guess.

    3. Re:Implication? by the_2nd_coming · · Score: 5, Interesting

      that is the entire issue...it can not be a contract if it is not reviewable before purchas...and for it to be a legaly binding agreement the user must sign something.....I am sure what will come of this is every copy of software will have licensing that will print out and the user must sign it and give it to the cashier before they are alowed to take it home.

      --



      I am the Alpha and the Omega-3
    4. Re:Implication? by ShavenYak · · Score: 4, Interesting
      I am sure what will come of this is every copy of software will have licensing that will print out and the user must sign it and give it to the cashier before they are alowed to take it home.

      If that happened, I wonder if the consumers would:
      • a) start looking for software that doesn't have a binding license attached, or
      • b) just complain constantly about having to sign for their software

      Unfortunately, a look at the average consumer makes me think that b) is the more likely outcome.
      --

      Hey kids, there's only 5 days left 'til Yak Shaving Day!
    5. Re:Implication? by macrom · · Score: 3, Interesting

      and for it to be a legaly binding agreement the user must sign something

      Oral and implied contracts are perfectly enforceable in many (all?) states. Perhaps it is this mindset that the EULA is derived from.

    6. Re:Implication? by 4of12 · · Score: 2, Interesting

      I am sure what will come of this is every copy of software will have licensing that will print out and the user must sign it and give it to the cashier before they are alowed to take it home.

      I bet you're right. Sign this credit card receipt here and sign this long contract here.

      Reminds me of the last time I bought a DirecTV receiver (my old one got fried by lightning).

      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. I had my old access card and I was planning on continuing the service anyway, so it was no skin off my nose to sign the contract.

      But it goes to show you. I can only guess they must have been having problems with people buying the receivers and then inserting counterfeit access cards.

      --
      "Provided by the management for your protection."
    7. Re:Implication? by rmohr02 · · Score: 3, Interesting

      Well, people generally click through agreements on their computers because those agreements seem distant. If they have to sign the agreement, they'll at least think about reading through it before accepting it.

      And if enough people stopped to read through license agreements at check-out lanes stores would start putting a lot of pressure on software vendors.

    8. Re:Implication? by jackb_guppy · · Score: 5, Interesting

      I had a hardware store try that on me.

      After paying for the items with my credit card and signing the credit card receipt. The "Final" receipt prints out a return policy form, for the customer to sign.

      I refused to sign a contract after the fact. The store said, I could not return the items if I do not sign. I laughed and pointed out a forced contract after the fact changed the terms of sale. Since the sale was complete - ask the Credit Card Company - You are holding my property without my consent, forcing me to sign a contract. I picked up my cell phone and started to dial the police. They said that the police would not be of help. I noted that they had my property and I am reporting to the police that I was subject to fraud and thief, and that this clerk and you are responsible parties. Then I will call the Credit Card Company Security Department to report the fraud and thief - your merchant id will be deactivated by this afternoon, and the audit will begin with in the week.

      The manager gave me, my products value over 3K, signed receipt noting that I would not be subject to the terms. The next two customers did the same.

      A week later the extra contract was not longer printing.

    9. Re:Implication? by racermd · · Score: 2, Interesting

      Warning: I am not a lawyer. Nor am I anal. That said, let's continue...

      It's been argued that the "backup" copy for "archival" use is the original media the software was shipped on because the working copy resides on your computer's hard disk. I've found this to be a rather weak arguement, but it apparently holds up pretty well when challenged (I don't have experience fighting this, so I don't know first-hand). It doesn't seem to violate the section of law that you cite.

      I'm not trying to prove this point is correct because I don't believe it myself. However, I am just trying to shed a little light onto an area that, to my knowledge, nobody else has covered in this discussion. This point of view stinks, IMNSHO, and it should be addressed in further reviews of the copyright laws. Will it? Probably not.

      --
      My sources are unreliable, but their information is fascinating. -- Ashleigh Brilliant
  2. Are EULA's legal? by Irishman · · Score: 3, Interesting

    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).

    1. Re:Are EULA's legal? by Anonymous Coward · · Score: 1, Interesting

      You're working with a faded memory. The major EULA breakthroughs (from a consumer POV) are the ones that cover OEM software bundles and click-through license agreements.

      The bundles labeled "only to be distributed with a new computer" have been deemed resellable. The logic being that the consumer has purchased a physical item and that physical item can be sold/bought/whatever just like any other like item. You can legally resell books, CDs, cars, trucks, etc. The same applies to software.

      BTW, that ruling extends farther than just OEM bundled software when you take a few moments to think about it.

  3. Who is responsible? by Teckla · · Score: 5, Interesting

    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

    1. Re:Who is responsible? by Lxy · · Score: 4, Interesting

      I think you nailed it.. store policy vs. maker policy.

      Most stores have a policy. If you open the software for any reason, you can only exchange it. No refunds, no store credit, nada. The article doesn't mention whether she tried to contact the vendors directly. If she were to contact Symantec or Microsoft, and they refused a refund, now you have a case. If the makers don't uphold their end of the EULA, why should the users have to?

      --

      There is no reasonable defense against an idiot with an agenda
      :wq
    2. Re:Who is responsible? by hackstraw · · Score: 3, Interesting

      Two "wrongs" don't make a right.

      If the EULA is that important to the software maker, then the EULA should be on the box. I mean the hardware and software requirements are on the box, why not end user requirements?

    3. Re:Who is responsible? by taphu · · Score: 3, Interesting

      One interesting point here is that when you buy a piece of software, you actually own the physical media along with instance of software copy contained on that media. You own this and you bought it from the store (not the software maker, normally). The EULA is just granting you a right to distribute a copy of that software to your computer (or whatever it says in the EULA). This is where copyright law comes in. A copyright holder can insist on any type of agreement they want in regards to letting you copy and "redistribute" the material (to your computer). The store is not necessarily involved in this agreement in any way, no matter what the copyright holder claims.

      The real problem here is not that stores and/or software makers are keeping you from reading an agreement before you supposedly agree to it (although this is a problem). The real problem is that it is currently considered a copyright violation to use a software product, because this normally involved "redistributing" the product onto your computer (from the physical media). I might also point out that it is not possible to use in any way (other than as an expensive coaster) the instance of the copy that you do in fact own, much less use it for the purpose for which it was intended, without violating copyright law.

  4. Give em hell. ANd wheres her legal defense fund. by Unknown+Poltroon · · Score: 3, Interesting

    Ill kick in 20$ or so.

    --
    All Troll + "offtopic" mods are meta moderated as "Unfair", because you abused the system.
  5. Go for it! by markwelch · · Score: 4, Interesting
    This is definitely a lawsuit with merit: it is simply not proper for stores to sell software, then after the sale make disclosure of highly restrictive license terms that violate public policy (like Microsoft's no-review policy) and then refuse to accept return, insisting that the consumer "accepted" the terms of the UNDISCLOSED agreement by opening the box (which contains the agreement inside the sealed box).

    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
  6. On top of that... by $$$$$exyGal · · Score: 4, Interesting
    If you disagree with the EULA, you can't even sell the software on E-bay. If you try, E-bay will promptly remove your listing. I tried to sell an old unused Windows 95 CD on E-bay, once, and it was removed within 12 hours.

    --naked

    --
    Very popular slashdot journal for adul
  7. Re:CompUSA is at fault here by Hamster+Of+Death · · Score: 2, Interesting

    It's common practice for a select group of people to go buy the software, take it home, copy it then return it to the store for a refund. I used to run into these people all the time when I worked selling computer games. We would only take back defectives (which we would verify) if the box was opened.
    Cut down dramatically on our returned software.

  8. I hope she wins. by I'm+a+racist. · · Score: 3, Interesting

    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!!!
  9. Re:Seems ... by Entrope · · Score: 2, Interesting

    Companies could post EULAs on their web sites, but this does not mean the customer has read or agrees with them. If the retail store does not allow the customer to return opened software, they have a responsibility to ensure that the customer reads and agrees to the license at the point of "sale" -- or else they become vulnerable to this kind of lawsuit. You can imagine how long it would take for Best Buy to rethink a policy that meant any customer, making a routine purchase, can tie up a register for 5 or 10 minutes :)

  10. Which way do you want it? by ArsSineArtificio · · Score: 2, Interesting
    Yup... pretty sweet that someone is finally doing it. Now wait 10 years for the result of the lawsuit... pfft... am I the only one who feels that something is wrong with this system?

    Is it that you're happy that people can bring all kinds of lawsuits, so that the EULA issue will get litigated...

    ... or is it that you're annoyed that people can bring all kinds of lawsuits, so that the courts are overworked?

    ASA

    --
    All employees must wash hands before seeking equitable relief.
  11. finally! by doowy · · Score: 5, Interesting

    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
  12. You can view the EULA before purchase by bergeron76 · · Score: 4, Interesting

    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.
  13. Re:Seems ... by modecx · · Score: 2, Interesting

    I'm not sure, but I do know this:

    I searched MS's site for about 30 minutes trying to find the text to Windows XP's EULA, before I finally got bored, and forgot what point it was that I was trying to prove.

    If it really is there, it's going to take some FBI agents or something to find it (they don't get bored so easily.)

    --
    Constitutional rights may be respected, repealed, or modified; but they must never be ignored.
  14. interesting by erikdotla · · Score: 2, Interesting

    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
  15. Legitimizes EULAs? by Sloppy · · Score: 5, Interesting
    This case seems to be based on the premise that the EULA terms are binding, and that the user can't just use the software under the terms of copyright, even if they decline the EULA offer after they've already bought the software.

    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.
  16. Under 18 Anyone? by IcEMaN252 · · Score: 5, Interesting

    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
  17. Simple Solution by Cipster · · Score: 3, Interesting

    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.

  18. What this hopefully will come down to... by SB5 · · Score: 2, Interesting

    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
  19. Re:That is her point by Sloppy · · Score: 3, Interesting
    No, I think you've missed it.

    She's saying that she declined the EULA's offer and wants her money back, because she can't use the software without agreeing (thus, she was ripped off). But this line of thinking seems to rule out the more intuitive idea of declining the EULA's offer and then just using the software anyway.

    --
    As copyright owner of this comment, I authorize everyone to defeat any technological measure which limits access to it.
  20. Mr. Chicken, meet Mr. Egg by Greedo · · Score: 2, Interesting

    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.
    1. Re:Mr. Chicken, meet Mr. Egg by MrLint · · Score: 2, Interesting

      Well this just occured to me.. If the EULA says that you can return it to the store for a refund if you dont agree with the license, hasn't the store infact agreed to take itback and give a refund by selling the item with that kinda of EULA. The store can't claim they don't agree to their responsibilites under the EULA.

    2. Re:Mr. Chicken, meet Mr. Egg by Anonymous Coward · · Score: 3, Interesting

      The EULA is a contract between the user and the manufacturer; the retailer is not a part of it. If I sign a contract with my friend agreeing that you will give us all your money, it's not binding on you.

  21. OR.. by Kwil · · Score: 2, Interesting

    ..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

  22. Re:If a EULA is illegal... by nolife · · Score: 2, Interesting

    No, copyright laws are exactly that, laws. An EULA is a seperate agreement between two parties above and beyond what is already considered legal. Problem with most EULA's is they are confusing as where the law stops and the agreement terms begin.

    An EULA does not make any new laws, it is a civil agreement.

    I'd suggest marking up your EULA agreement to your liking and sending it back to the vendor with your initials on it. Make sure to line out the parts that claim you can not modify or change the contract and put terms in the modified contract that you can use the software as you wish if they do not respond with a counter offer in a resonable time, send it certified of course!

    --
    Bad boys rape our young girls but Violet gives willingly.
  23. Never had a problem returning software by BigGar' · · Score: 3, Interesting

    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.
  24. Suing them over the EULA by TygerFish · · Score: 4, Interesting

    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..."
  25. On The Box by canowhoopass.com · · Score: 2, Interesting

    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

  26. Haha...I had a similar experience... by symbolic · · Score: 4, Interesting

    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.

  27. Simple Fix: by cK-Gunslinger · · Score: 2, Interesting

    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.

  28. Eh? by Fnkmaster · · Score: 4, Interesting
    Can somebody point me to some case law that implies that EULAs ARE enforceable under current legislation? I fail to see why we need to sit around worrying about it, since to the best of my ability to see, there isn't the foggiest hint of a legal leg to stand on for purveyors of EULAs. I'm not really aware of any situation where these have been considered contracts. They seem to almost universally fail the standards for contract existance -


    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.

  29. Missing the point by putzin · · Score: 3, Interesting

    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
  30. What if it's used? by gottabeme · · Score: 2, Interesting

    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."
  31. Re:That is her point by ckaminski · · Score: 5, Interesting

    But that would be illegal. Unless of course the EULA has no force in law, which is not exactly something *I'm* willing to try and get overturned. If said vendor is willing to offer a complete and total refund if the EULA is not approved of, then that should have no impact on the viability of say EULA.

    You can have whatever license you want on your software. Just don't rip me off trying to sell it. Now what I'd *LOVE* to see is mandatory licensing on boxes, like we do with food ingredients. Imagine putting the Windows EULA on the back of the Windows Box, forced to use no smaller than a 1/8 in characters? That ought to make the licenses a little more terse.

    -Chris

  32. They say that you agree... by Kjella · · Score: 2, Interesting

    ...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
  33. If there is a will, there is a way.... by bgehman · · Score: 5, Interesting

    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.

  34. Re:Just buy a shrink-wrapping machine! by TheNumberSix · · Score: 2, Interesting

    This happened to me, I was the doofus that bought the used, junky, re-shrink-wrapped stuff.

    I went to buy my very first Burner, a Creative 4x unit from Best Buy.

    I went home, got out my tools, opened my PC case, opened the box in a geekish squeal of delight, only to find a Memorex 4X cdrom drive.

    Needless to say, this was dissappointing. Someone had bought the box, taken it home, took out the Creative Burner and put in (a probably defective) old CDROM drive and them re-shrink wrapped it up and brought it back to Best Buy for a refund.

    You do not even WANT to know how awful I was treated by the folks at Best Buy over this. I had to speak to the equivalent of the Best Buy Secret Service, give them all my info including my SSN and sign a document just to exchange it for a real one.

    The worst part was that I really just wanted to get the burner. So the Best Buy Secret Agent Man tells me "We will open up a new one here in the store, just to make sure there aren't any problems with the unit." (He so thought I was trying to take them for a ride.)

    --
    Never confuse feeling with thinking.
  35. Re:Seems ... by The_K4 · · Score: 2, Interesting

    This was orignally done. In fact it it was Bill him self that change this. He went to IBM to sell them DOS and then told them he wouldn't sell it to them, he would LICENCE it to them, one copy at a time. The look on the IBM people's faces must have been classic, to them this was something totally new. Today it's the standard..... While I don't like it, i have to agree that if software was something you could "buy" and "own" you would see the price sky-rocket. Dell would "buy" windows and install it on all their PCs. That's great for them, but then if Joe Home-User wants to up grade, he either needs to find someone with install files, or go pay the same to buy them as dell would. Dell can pay Millions for those files, can joe-user? I'm not sure what the best solution would be, but i'm pretty sure it's not what we have, and it's not out-right buying software. Here's to hoping the when MS has to lower their prices to compete wiht Open Source they realize that if a windows disk cost $45 and not $200 people will go buy them (and if it's less more people will buy them). I'm not trying to justify piracy by saying that stuff it too expensive, but I am saying that currently alot of "everyday" software is prohibitivly expensive. If it was $150 to upgrade the Windows OSes on all 3 of my machines I would go do it, at $600 it's just not gunna happen. I know that alot of the crowd here is probably not of that mentality, but i would bet that alot of home users are.

  36. Re:Retroactive license changes by moncyb · · Score: 2, Interesting

    Aiptek is a thousand times worse. In their shrink wrap license, they go way beyond making you agree to new terms only with a software update. In their "hardware product license" (meaning this applies to their cameras, not just the software), they say "Aiptek reserves the right to amend, change, and update this EULA at any time, and without notice. The user agrees to abide by such amendments, changes, and updates should any be made." A straight-up blank contract. They can just "amend" it to say you owe them a million dollars or your first born daughter.

    They also put some other interesting clauses in this "agreement" you don't see until you open the box and bother to read the manual. "Only you and those in your immediate household may use the HARDWARE PRODUCT and its accompanying software." So you can't even ask a friend to take your picture. The license also says you may give the product as a gift, but only if you don't open the package. How are you supposed to know the license says this if you don't open the package?!?

  37. Re:That is her point by _Spirit · · Score: 2, Interesting

    Courts in Germany ruled that apart from those parts of the EULA that are illegal to begin with, only those parts of it apply that can be seen before purchasing. So that means anything not on the outside of the box is not legally binding.

    --

    beauty is only a light switch away

  38. Re:Implication? - modification by leoaloha · · Score: 2, Interesting

    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