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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."
So does purchasing the software imply agreement now?
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).
Do any companies, which do not sell exclusively downloads?
A feeling of having made the same mistake before: Deja Foobar
She claims that the companies have devised a scheme to sell software licenses without allowing purchasers to review the license prior to sale
but there is a flaw in that statement. that implies that people actually read the license to begin with...
xao
xao
http://TheHillforum.hopto.org
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
Imagine if they tried to print it out on the outside of the box.... of courese then they'd have to raise the price for the tree & a half of paper they'd use.
-aoasus
Ill kick in 20$ or so.
All Troll + "offtopic" mods are meta moderated as "Unfair", because you abused the system.
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.
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
--naked
Very popular slashdot journal for adul
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.
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!!!
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.
Is it that you're happy that people can bring all kinds of lawsuits, so that the EULA issue will get litigated...
ASA
All employees must wash hands before seeking equitable relief.
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
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.
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.
Time was that the disks/CDs came inside a seperate envelope with the EULA printed on the outside, with a seal sticker that had printed on it that"by breaking this sticker you agree to the EULA" and any retailer would accept a return of a product with this envelope unopedned, because the software could not have been copied, which is why CompUSA et. al. will not accept opened software nowadays. Typically, the CD is just in a jewel case without even shrink wrap, and the EULA is displayed prior to install, but well after the package is opened past the point of No Return. Going back to the envelopes, while a pain, would get them back out of this legal grey area. I think he plaintiff here has a good, solid case.
You are not the customer.
As with most people here, I don't agree with this assessment. I wish this group success.
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.
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
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
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?
A local hacker filled up his hard disk while untarring a copy of the Linux kernel v2.5. Being unable to read the license before untarring the package he was not able to reject the "NO WARRANTY" section of the GPL. While he has decided against joining a previous class action lawsuit, he has decided to never upgrade his Linux kernel or any other sizable free software package again.
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"
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.
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
Why would GNU be illegal? GNU is a software movement, not a license.
The General Protection License (GPL) would be enforceable because it explicitly does not restrict how a user can use the software -- it only restricts how a user can redistribute the software. The GPL (at least through v2) is not a EULA; it is a redistribution license, based on copyright law rather than on the applicability of contract law to software sales.
Actually, these EULAs are the manufacturer's way of giving free software to those who don't want to pay for it. You just open the box and copy want you want. Then take it back to the store. They will take it back, although often you have to talk to a manager and be sure you're talking loud enough for the people in the back of the store to hear you. No 15% restocking charge either, and if they waste your time too much fighting over little issues like this, get aggressive and get them to pay for your gas for the return trip (it can be done). It also helps if you can make the veins in your forehead pop out a little and otherwise look like you're not exactly the calm type (of course, much of life gets easier if you can cultivate this way of dealing with retailers). A good suggestion here is don't go to the store with someone who is going to give you a hard time for embarrassing her when you draw a little attention to yourself.
I'm an American. I love this country and the freedoms that we used to have.
it says if you don't agree take it back to the place of purchase for a refund. It seems like the makers are putting the onus on the sellers without giving them anything but grief for doing it, and as usual, the 'consumer' loses.
The local COMP-USA, has a LAN game room, and for games in particular, they will either open one or already have it installed on a machine and will let you try it out...
errr....umm...*whooosh* *whoosh* Is this thing on ?
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.
...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
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
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.
That sounds like a woman I would date but I'm too afraid of being sued for not having a description of my package before dinner.
"no one knows how to fill in the void called america" --the discovery channel
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.
When I worked at a video store, we had this shrink-wrapping machine. Man it was sweet. You couldn't tell the difference between a new DVD and a used re-wrapped one(I guess that was the point).I wish I had one. All you would have to do then is re-wrap your software, games, etc, and bring them back to the store. Problem solved.
..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
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.
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.
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..."
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
Simple solution, use a bigger box!
Of course it will look a little silly to buy software in boxes bigger than the computer.
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.
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.
But the situation was this.
1. Woman goes to CompUSA. Buys retail boxed software.
2. Woman opens box, reads EULA (which she cannot read w/o opening box).
3. EULA contains terms she finds onerous. The EULA specifically says, "return to vendor for refund if you do not accept".
4. Vendor refuses to make refund.
I assume she's suing all of them because MS and Symantec won't give direct refunds if the vendor won't make good, and the Vendors (CompUSA and Worst^WBest Buy) because they have her money and won't make good per the EULA, so she can't get it back.
Fascism starts when the efficiency of the government becomes more important than the rights of the people.
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.
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.
1) Buy windows software.
2) Open package.
3) Discard useless plastic disks.
4) Replace plastic disks with favorite Linux Distro.
5) Re-shrink wrap and return to store.
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.
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
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."
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
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
You have no right to use the software because you did not enter into an agreement with them to use it.
...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
This is an interesting case because, contrary to what she claims in her suit, I doubt that software vendors are working with retailers to trick customers into purchasing their software. Back in the old days, before every household got a cd burner, it was possible to return open software, music, etc. Many retailers had some type of money back guarantee where if you simply didn't care for the product, you could return it. However, what they quickly realized was that everyone and their brother was simply just copying said software/music and returning the original. In order to reduce piracy and theoretically to keep prices on software down, stores have enforced the policy that you cannot return open software/music unless it is defective, in which case you can exchange it for the same exact title.
So my question is, how do you balance the fairness of being able to read the agreement prior to purchasing without sacrificing the very policies which help prevent software piracy? Sure you can print the license on every box, but is that really practical?
How many cases do you want? One? Two? Three? A Google search for "shrink-wrap license court case" turns up these and others; judging from that, more shrink-wrap licenses have been upheld than overturned.
You might argue that some or all of those cases gave "no extra rights" to the licensee. Since you did not specify "extra rights" beyond anything in particular, I assume you wanted wiggle room to squirm out of concrete examples.
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.
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 ----
While we're bitching about licenses, we could also stand to see some lawsuits challenging changing license agreements after we've agreed. Microsoft demands that users accept a new license agreement with more user hostile terms to receive security updates. Sony requires users accept new license agreements to continue playing Everquest. Tivo made their license agreement more restrictive. In all these of these cases the end user has a sunk cost (for the original operating system, game, or Tivo unit) whose value may suddenly be dramatically reduce (An operating system without any security updates) or useless (Everquest or Tivo without service). One side having the unlateral right to completely change the agreement suggests that the agreement is not a valid contract. Contracts require that both sides get something from the deal. If one side can destroy the other side's benefit at will, there was never a real benefit.
I personally was caught by this with my Tivo. I specifically chose my Tivo because Tivo had a very open and friendly service agreement. I purchased a Tivo ($300), and a lifetime subscription ($200 at the time). A year later I'm forced to agree to a new service agreement that forbids things previously allowed, increases what they claim their providing (previously they just claimed to provide guide data, now they claim to provide functionality actually provided by the box I purchased). If I decline I lose the entire value of my investment. Feh.
I suppose I learned a valuable lesson: no matter how nice the company, if the license includes a "we'll rewrite this whenever we want" it will eventually be rewritten "our CEO can come over and loot your apartment when you're not home, and we're cancelling your service you already paid for immediately for no reason." Nothing like getting screwed by a license agreement to drive home the benefits of Free Software.
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Honestly, they're screwed either way. This is a class action lawsuit....if they refund her money, they must do so for everyone else named in the suit who desires it. This also sets a bad precedent for them as people could now buy copies and windows, install or copy them, then return it for a full refund stating rejection of the EULA.
If it DOES go to court, chances are pretty good that she's going to win as when you boil down the nature of a EULA, it's basically a one-sided contract that you cannot see before you complete the transaction (i.e. buy the software) and that the other side can change at will. It's not a good thing for the consumer in any way, and I'm glad it's finally being tested in court for real.
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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.
:)
Either that, or it will make the boxes REALLY REALLY BIG!
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- - You can't take something off the Internet! That's like trying to take pee out of a swimming pool.
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
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
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