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."

Comments

Implication?

[DasAlbatross]

So does purchasing the software imply agreement now?

Re:Implication?

[ejaw5]

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)

Re:Implication?

[flatt]

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

We'll have to wait and see I guess.

Re:Implication?

[the_2nd_coming]

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.

Re:Implication?

[ShavenYak]

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.

Re:Implication?

[macrom]

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.

Re:Implication?

[rmohr02]

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.

Re:Implication?

[jackb_guppy]

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.

Are EULA's legal?

[Irishman]

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).

Who is responsible?

[Teckla]

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

Re:Who is responsible?

[Lxy]

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?

Re:Who is responsible?

[hackstraw]

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?

Re:Who is responsible?

[taphu]

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.

Give em hell. ANd wheres her legal defense fund.

[Unknown Poltroon]

Ill kick in 20$ or so.

Go for it!

[markwelch]

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.

On top of that...

[$$$$$exyGal]

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

I hope she wins.

[I'm a racist.]

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.

finally!

[doowy]

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.

You can view the EULA before purchase

[bergeron76]

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.

Legitimizes EULAs?

[Sloppy]

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.

Under 18 Anyone?

[IcEMaN252]

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.

Simple Solution

[Cipster]

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.

Re:That is her point

[Sloppy]

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.

Never had a problem returning software

[BigGar']

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.

Suing them over the EULA

[TygerFish]

Good on her!

Does she have a website for contributions to her legal fund?

Haha...I had a similar experience...

[symbolic]

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.

Eh?

[Fnkmaster]

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.

Missing the point

[putzin]

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.

Re:That is her point

[ckaminski]

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

Re:Mr. Chicken, meet Mr. Egg

[Anonymous Coward]

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.

If there is a will, there is a way....

[bgehman]

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.