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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."

10 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 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
    3. 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.

  2. 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

  3. 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
  4. 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.
  5. 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
  6. 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

  7. 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.