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CA Court Strikes Blow Against Hidden EULAs
vsprintf writes "Ed Foster's Gripelog has a story on California's ruling against some of our favorite software producers and software retailers. EULAs inside the shrinkwrap are no longer good enough. Retailers with rules against accepting returns of open software could be in for hefty fines or settlements. Finally, a break for the buyer. May this spread quickly to other states."
I don't care what they say, I just click ok to use the software. I don't abide by what they say. Its all lawyer talk anyway. In case your computer explodes, we don't want to be held responsible.
God spoke to me
Well in this case a few things could happen.
1. Companies will make simple consumer readable EULAs.
2. People will sign away all their rights without checking the fine print.
2a Resulting in a raft of stupid consumer protection.
2b Huge public backlash when the companies try to press their rights.
3. Some people will not accept these agreements and the EULA might become a factor on what software you purchase.
Yup, all it means (from the article) is that the companies are now putting their EULAs on their websites and a sticker or label on the box that says "the EULA is here (insert URL), you may wish to check it before purchasing this product".
Not exactly a vast improvement...
N.
"Nothing strengthens authority so much as silence." - Charles de Gaulle
Either accept returns or disclose the license prior to purchase.
The article says that under the settlement they have to do both.
...says that EULAs should have to be signed prior to the forking over of the loot. I pick up a box containing software, walk to the shop counter, pay my money and from that point on the software is mine to use as I wish (save for the protections granted by copyright to the seller, and various "fair business" obligations that serve to protect the buyer).
If there's some legalese that I'm supposed to agree to before installing and using the software, then it should be presented to me before I hand over the money.
Intellectual property isn't THAT much different to real property: when I buy a washing machine, I don't take it home, plug it in and then find out that it's illegal to use it to wash blue clothes...
Unfortuneately, ignorance isn't an excuse that courts generally recognize. The software is copyrighted, and you, the user, are responsible for understanding the license before you USE it. The issue is that before this ruling, customers were deliberately prevented from reading the EULA before they purchased software, then not allowed to return it UNUSED.
If the EULA's are no longer valid, than spyware can be interpretted as a worm or trojan horse which would make the programmers and companies who write teh software liable for criminal and civil damages.
Ouch. And good for us.
I was under the impression any license agreement was not valid anyway without a notary present for a signature. Clicking a botton can not be interpetted as signing a document. Especially if no lawyer or notary is present.
I think the whole concept of a EULA is bs. MS who started this with average joe consumer knew it too but gave it a shot.
Corporate customers who sign legal agreements is a whole different matter.
http://saveie6.com/
It sounds like here the entire issue was not the enforceability of the EULAs, but the idea that you could be presented with this contract and not be given the ability to return it to the store. This is not a victory; this just predicts a situation where persons objecting to terms in EULAs will be universally responded to with well why don't you just take it back to the store.
A victory would be something saying that first sale rights apply to software, just like they do to books, and if you take a piece of software to the front counter of a store and purchase it you just bought a copy of that software, even if the software vendor includes a piece of paper saying that you didn't.
Irritable, left-wing and possibly humorous bumper stickers and t-shirts
Presumably, one could buy the product, see the EULA url through the clear plastic wrap, go home, read the EULA on the internet without opening the package, and then open the package and use it or decide to return it unopened. Although this is somewhat difficult if the software is an OS and there are no other computers available (knoppix to the rescue?).
Alternatively, stores could put out a net connected computer that customers could use to read the EULA.
As for the EULAs being understandable however as another poster hoped, I would hesitate to place even a penny or two on that bet.
What changed under Obama? Nothing Good
I live in a Wal-Mart-free country, but what's the issue here? Returning unsuitable merchandise is OK just about everywhere, and any store pretending otherwise hasn't got a legal leg to stand on. They can put up all the in-store signs they like, but that doesn't override my right to a refund.
I return opened-but-not-installed software after refusing to accept the EULA terms, and some spotty Wal-Mart checkout person refuses to give me a refund. I then call his supervisor, and continue until I either get someone who says "OK" or I've spoken to the most senior Wal-Mart person in the store. If I don't get the OK, I get my lawyer and we take it from there.
Yep, I'll be potentially taking on the combined legal might of Wal-Mart, so maybe I should be very very scared. However, in such a clear cut case against such a big corporation, I'd have no trouble finding legal representation that'd be happy to work on a pro bono basis - think of all those class actions against huge tobacco and asbestos companies over the years.
Downsides for me, assuming it goes down this path:
- have to search through phone book for legal rep
- pain of dealing with legal people in general
- time, stress and general mental wear and tear (all claimable as damages *when* I win)
- loss of access to my refundable money while it all gets cleared up
Downsides for Wal-Mart, assuming it goes down this path:
- bad PR (and any legal person working on this on a pro-bono basis would be doing handstands to get this case on TV and in print media. "Big bad corp versus downtrodden individual" still makes press headlines...)
- loss of availability of its people while they're tied up with legal stuff
- possibility of a class action suit emerging
- possibility of more serious charges (racketeering?) being brought after they go down this path beyond a certain point
- possibility of consumer-protection government agency intervention (e.g. ACCC in Australia)
With Wal-Mart presumably being staffed by non-drones at some level of seniority, I'd have to think they'd work out that just giving me the refund I've requested in a timely fashion would be much less painful for them.
"If you don't agree you can then bring it back and not have any issues because the package is not open."
Why do some think this is an acceptable business practice?
"Derp de derp."
I guess it's the line of thinking that if you say something enough times it becomes true. Some people are just so used to being mistreated like this that they just accept it as the way things are.
If you build it, nerds will come. Soylentnews.org
Also moron, is every "consumer" expeted to be a lawyer or hire one before each purchase? Have you ever read an EULA from MS or any other big corp? They are not written for the average user to understand. They are written in lawyer-speak. So exactly how is a _customer_ expected to get a fair-shake when they are required to _not_ purchase a product until they hired a lawyer who goes to the companies web-site and interprets the EULA for them?
If Tyranny and Oppression come to this land,
it will be in the guise of fighting a foreign enemy. -James Madison
As much as the funny legal theories on slashdot show up, no you can not circumvent an EULA that way.
If you know there is an EULA in place, and you do some silly thing to avoid not clicking "I agree" like letting your cat or a minor click it or replace the licence text or copy the files directly or whatnot, it doesn't help.
The only plead you can make is ignorance, that you had not been made aware of an EULA at all. If you take an action which will be seen by the court as a deliberate circumvention, you are going to be bound by it.
Kjella
Live today, because you never know what tomorrow brings
Not everyone's online. Furthermore, that is skirting the legal requirements to begin with- how do you know you're reading the agreement that the software's supposed to have, how can you be sure that others didn't get a better deal than you?
Therefore, in order to fufill the requirements of the settlement, they're going to have to prominently place it in a manner that can be read with the ability to return it to a retailer- period. If that means putting it on there so it'll fit on the outside packaging, so be it.
I am not merely a "consumer" or a "taxpayer". I am a Citizen of the State of Texas