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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."
by reading this post you agree not to moderate it down. only moderations of +1 insightful will be allowed.
What's next? Will we have to read and agree to the EULA before we can buy?
i can't wait to put this to the test at frys
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
She sounds like an iritating biddy but she makes a good point. Seriously though, how many people actually take back the software because they don't agree with the EULAs? I click 'ok' all the time. I could be agreeing donating my left nut to Microsoft but that doesn't mean I'm going to.
So I guess this means I get to save a few hundred bucks the next time I buy a PC that "luckily" comes bundled with a $200 copy of Windows XP that I have "purchased" by opening the top of the box?
What this probably means is that the EULAs for all the products in the store will be available to be read before you buy the software. (If not on the outside of the box, that being too wordy for most pieces of packaging.) In other words, if you think you might have a problem with what the EULA is going to say, you'd better spend 15 minutes poring over it at Fry's.
It's about time. Companies have gotten away with this for a very long time. What if someone buys a box with software and don't agree with the EULA. They can't return the box and they might have to go trough hell to get there money back. It wasn't right and I'm glad the government sees this now. Most likely other states will follow this ruling.
I've purchased a shrinkwrapped software package. It includes an installation program which requires me to accept the EULA to run. Instead, I snoop around on the CD and find the files I need, or otherwise find a way to make use of the software without using the install/eula program(me). I in any way bound by the EULA indirectly, or is my use of the software then only bound by copyright?
If I am EULA free... anyone feel like writing a program that will install Windows from a CD?
Trying to use sarcasm in text-based forums does not work.
By Ed Foster, Section Columns Posted on Mon Dec 20th, 2004 at 08:02:57 AM PDT
Having so often been the bearer of bad news from the legal front, I am thrilled to have some good news to report for a change. The old-fashioned shrinkwrap license appears to have suffered from what may well be a mortal wound. Microsoft, Symantec, Adobe, CompUSA, Best Buy, and Staples have agreed in the settlement of a California lawsuit to change their ways, and you can already see the first results at the software retailer nearest you.
In January 2003, California resident Cathy Baker walked into her local CompUSA store to return copies of Windows XP and Norton AntiVirus she'd purchased there. When trying to install the programs, she had of course been confronted by all the obnoxious terms in the Windows and NAV End User License Agreements. Instead of clicking OK, she took them back to the store for a refund, as the EULAs said she was supposed to do if she refused to accept the terms.
At CompUSA, however, Baker was told the store's policy was that it could not give refunds for software once the customer has opened the package. Even though Baker had no way of seeing the EULAs until after she purchased the products, took them home, opened the package and tried to install the software on her computer, she was now told she could not get her money back even when she rejected the terms. (In a somewhat bizarre twist, after she protested enough, one CompUSA employee told her that they had "secret instructions" from Symantec to provide refunds in such circumstances.) So, like many others before her, Baker was confronted with the classic shrinkwrap license conundrum: She could only see the terms by opening the box, and opening the box meant she was stuck with it. But Baker did something most others before her had not - she went and got a lawyer.
"When Miss Baker came to us, we felt it was an important case to bring for the benefit of the general public," says Baker's attorney, high tech litigation specialist Ira Rothken. "In our research, we found that it hadn't been discussed before - there was no guidance on it in the literature. Here you have a multibillion-dollar industry that is using improper business practices as a consistent policy, in violation of federal and California consumer warranty statutes. As a practical matter, the consumer couldn't review the terms and conditions prior to the sale and couldn't reject them with any certainty they could get all their money back."
After Rothken first filed the lawsuit in February of 2003, ensuing news coverage brought more consumers forward with similar stories of their own. An amended complaint to the case Rothken filed in May of that year added a second plaintiff along with Baker and also included Adobe, Staples and Best Buy as defendants with Microsoft, Symantec and CompUSA. Ultimately the parties entered a mediation process and in April they reached a settlement under which the six defendants had up to 120 days to make the agreed-upon changes to their procedures. The entire settlement along with the amended complaint and exhibits can be read in a PDF file on Rothken's website, but it reads in part:
"The Settlement Agreement provides to the General Public of California, amongst other things, the right of consumers to return applicable Symantec, Adobe and Microsoft software for full monetary refunds even if the shrink-wrap has been opened ... In addition, Symantec, Adobe, and Microsoft agreed to provide EULAs for the applicable software products on their web site and notices on their respective software packaging of the web addresses to such EULAs so consumers can review such EULAs prior to purchase of the software." CompUSA, Best Buy and Staples "agreed to provide such EULAS to consumers upon request prior to sale of the above software at their retail stores in California and to provide notices to consumers in such stores to effectuate the above."
There's a l
For those who can't see the article:
Mirrordot Mirror
N.
"Nothing strengthens authority so much as silence." - Charles de Gaulle
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.
like any of us is going to pick "I Dissagree" AFTER WE HAVE PAID FOR AND TAKEN THE PRODUCT HOME???
It's pretty silly, Hurray for the courts!
(If at first you don't succeed, do it different next time!)
Our intelligent designer has never created an animal that we couldn't improve by strapping a bomb to it.
doesn't this mean that if I lived in california I could go out, buy software, copy the cd, and then take it back?
seems like its an incentive for companies to implement online activations, hardware keys, etc.
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...
Not only is it ridiculous to attempt to change the terms of sale after sale with hidden EULAs, AFAICT it is generally not legally binding to do so, unless specifically legislated to do so. I seem to recall specific legislature in some state in America, easy mod points to those who know it.
IA-definitely-NAL but in a very-very-light commercial law subject I took at Uni we looked at cases where terms and conditions were displayed inside a carpark (which you can't see unless you purchase the ticket). When something went wrong, the ones trying to enforce the terms and conditions lost their cases quite convincingly.
Morally (and with any luck legally) you shouldn't be obliged to go to the hassle of returning something because it contained a EULA or similar that you didn't know about (or weren't told about) that you disagree with. The transaction of cash for product ended when you handed your money over for the product and got the product in return. You shouldn't have to chase your money back because they chose to alter the deal afterwards. *does best Vader breath*
Of course things may be very little different if you obtained something for free or were presented with the agreement before purchase. A new trick used in car parking is to say it is subject to the terms and conditions, and if you don't agree, you can leave without charge in the first half hour. These were the first car parking terms I ever actually bothered to read, as they may actually stand up in court. I am guessing the GPL is pretty solid too, being a distribution license that gives you rights above what you already have, should you choose to accept it.
What's with the "by request" crap? I don't want to go into Best Buy and chase down an "associate" every time I want to know about licensing of a product. If the software company lost, and consumers won, how come consumers are running around looking for help?
Post the license stuff right there on the shelf with the software, or better yet, put it on the box in the first darn place. If its so complex that it won't fit with readable fonts, maybe its better to go buy something else.
Good grief, we aren't winning, we are getting punished for objecting....
I
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/
"But Baker did something most others before her had not - she went and got a lawyer."
I mean this is the US right??!? And NO-ONE had gotten a lawyer before...? I thought you guys sued if someone looked at you funny. Or made posts like this... Ooops..
Seriously though, it's a great point but EULA's aren't ever in plain english. I accept that the legalese is to an extent needed due to interpretation worries and the like but you could get the folks at he Plain English Campaign http://www.plainenglish.co.uk/ to turn these damn things into something that we might actually read and understand. EULA's might not be something most of us want/need to 'get by' on a daily basis but it'd certainly increase the chances.
Although this is great for the prospective buyer who simply doesnt like the EULA, it is also a blow for others. Why? because Adobe, Symantec and microsoft are now going to have to implement greater security measures to keep out piraters.
Or, if they are smart:
They could create a program for these retailers, where they would enter the product's serial number, and it would instantly check if that product had been regestered, hence installed. This would be easy for M$, seeming as how they already keep tracks on each product key issued.
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
Quote: Also under
You want a signature? You can't handle a signature!!
Because a shrinkwrapped jewel case is *way* too easy to reshrinkwrap. Shrinkwrap isn't that hard to come by and all you need to find to make shrinkwrap work is hot air (hairdryer).
Many, many, many years ago I worked for a regional computer retailer (way out of business). They had a roll of shrink plastic and mounted blow dryer. They had nicknamed it the relicenser.
Paper containers with gummed flaps are a much better way of detecting an opened package.
eric
Ever wonder what happens when an irrestible force meets an immovable object?
I can't wait to see how this pans out.
File under 'M' for 'Manic ranting'
Daylight is that last things they want.
If you look at some of the outrageous EULAs out there, I can't help but to believe that some of these companies would be embarassed to 'publish' them.
If you (or especially your company) was evaluating products and you could get a copy of all the EULAs up front, don't you think that would be outstanding?
And as far as web publishing, it seems to me that for it to be a legal document, it might have to be digitally signed.
On the other hand if you buy software around the time a EULA changes, there may not be a good way to determine which EULA is in effect. A given package (product, version, release, etc might have to be hardcoded to a special EULA).
I think this is outstanding.
The more opportunity people have to see this crap, the tougher it will be to sell.
eric
Could a store post a sign at the front door or somewhere in the aisle that says "All EULAs are available at the service counter"?
Now you don't have to open the box, you just have to go to some counter and ask specifically for the EULA. Though, what happens if someone gives you the software as a gift? You would now have to go to the store and get the EULA prior to opening the box as the giver of said gift, probably didn't read the EULA...
Its kind of like the "Nutritional Information" signs at McDonalds... you really have to press to get the information... then once you do, you don't want to eat there.
HockeyPuck ---> .
It would almost be better to have people bringing the unopened software back saying something about reading the terms online and not agreeing to all that. When EULA's start translating into lost business they will change.
Big software buyers are also starting to demand changes in the licensing agreements. When confronted with a "if you don't like it get out" from a big buyer companies will roll over. You don't hear about it as much but it's happening more and more. Not as much with MSFT, but if was a deal breaker I'd bet money they'd roll. If anyone else has pushed them on that I'd love to hear about it.
That's our life, the big wheel of shit. - The Fat Man, Blue Tango Salvage
bigger screens on the electronic signature capture pads so they can display the EULA.
"We make our world significant by the courage of our questions and by the depth of our answers." Carl Sagan
(written on the back of a check prior to entering CompUSA)
"By cashing or depositing this check, CompUSA agrees to give me anything I want in the future for free, or, if they refuse to fulfill that requirement, to pay me five million dollars."
"If CompUSA does not agree to this requirement, they should send the check back to the address printed on it without cashing or depositing it. If they do so, they will not be bound by this agreement."
Raise your hand if you seriously think such a thing would stand up in court.
To fight the war on terror, stop being afraid.
It's a good job that you can't sign away your rights here in Europe.
I just ignore them, European law also sides with the signatory not the author if there's any doubt as to what was meant, since it's the authors responsibility to make sure the signatory understands the contract.
thank God the internet isn't a human right.
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
(I've intentionally listed terms out of order and added emphasis to make a point.)
In short, Microsoft has the right to change your system in any way they see fit without your knowledge or consent. This includes, but is not limited to, removing your root access. Once they change your system, it is not legal to downgrade to the previous system. Spyware of any sort is perfectly legal if the spyware company is Microsoft or one of its affiliates.
With a license like that, why would anyone use the OS? I did RTFA, and it only shows that the software vendors are being forced to be more upfront with their licenses in stores. Nothing has changed the legally binding status of the EULA. It does not change the fact that Microsoft will ambush you with its licensing changes in security updates and service packs. Perhaps it's time to consider Linux or Mac OS X, eh?
To those who modded the parent down: Please voluntarily stop modding posts. This was not only on topic, but funny as well. It points out how ludicrous the current EULA situation is. I have to agree to things which are not rational if I want to do the most mundane things.
See my journal for slashdot ID's by year. Mine created in 2005. http://slashdot.org/journal/289875/slashdot-ids-by-year
What's the guarantee that the EULA you read online is the EULA that's presented by the software?
What happens if it's revised between the time they print the software, and the time you take it home? What happens then?
Or what about something nefarious? For example: suppose a MITM attack causes every request you make to (for example) MS's EULA site to return an text that states "you must use the software in accordance with copyright law", but then you go to install it, and the EULA includes all of MS's usual onerous terms. Will the store *still* be required to give you your money back?
Or (even better) what if the forged EULA says "instead of installing it, you may make copies of this software and sell it for $20" - what happens when you get busted for commercial copyright infringement because you decided to sell it instead of install it?
Now, I'm not even that devious, but it seems to me a requirement like this could be used to cause a *LOT* of trouble.
So.. now help out your fellow geeks.
Give the name of the retailer so that we know not to shop there, but to go in and occasionally tell them why we're shopping elsewhere.
That Jesus Christ guy is getting some terrible lag... it took him 3 days to respawn! -NJ CoolBreeze
You don't live in a small town in a rural area. (You might consider Pleasant Hill to be that, for Bay Area standards).
I've witnessed the national chains come in and utterly devastate the local businesses in my home town. I don't blame "just Walmart" though. Even though Walmart did tear down my grandmother's entire neighborhood for their parking lot, and then, just a few years later, close down the store and open an even bigger one just a few miles away. There had been several grocery stores, and lots and lots of independent merchants near that neighborhood -- all pretty much completely gone. There are a couple of automotive shops left, and one or two food places, one of which has been there since 1927, but that's pretty much it.
But I don't hold the people in the town harmless AT ALL. These people do things like sell their timber like there is no tomorrow, and they look at you funny if you say you want to keep your place wooded. If they have more than a couple of acres of land, they cannot seem to grasp the concept of keeping it as a single estate -- they seem compelled to subdivide it.
I'm not even just talking about people who need the money!
When the timber company comes up and says they want to clearcut your 250 acres of forested land and give you 30 grand, these morons take the offer.
You don't *really* have to be a big hippie to see the insanity of that do you?
So it's no surprise to me that when Walmart and all the other big stores, especially the hardware stores, want to buy residential property for cheap and flatten it, people go for it, without hesitation.
I can't really blame Walmart for Americans being insane, stupid, myopic, or all three. (I cannot put "greedy" on this list, because if greed were driving all this, they would be getting more out of it.)
-fb Everything not expressly forbidden is now mandatory.
This is good news, but it won't necessarily eliminate some of the obnoxious terms found in EULAs. I wonder if another approach might help there. One principle of contract law (at least in the Anglo-American system) is that provisions contrary to law or to the public interest are invalid. (See also 17A Am. Jur. 2d Contracts 257 (1991).) For example, here's a discussion of a case in which a couple had signed a contract requiring that they be faithful to each other and providing damages if one or the other was unfaithful. The man was unfaithful again, his wife divorced him, and then sued to enforce the contract. The California courts refused to enforce the contract on the grounds that it conflicted with the public policy underlying California's no-fault divorce law. The crucial thing here is that the contract was not specifically prohibited by any statute; the court's ruling was based on its inference of public policy.
The courts are careful about taking too broad a view of the public interest for this purpose because if they did they'd effectively be legislating after the fact. For example, they will not interpret a life insurance policy as a health insurance policy even though one might argue that it is in the public interest for death to be prevented rather than the survivors compensated. My question is, are some of the provisions of EULAs sufficiently obnoxious that the courts can be persuaded that they should be invalidated as contrary to public policy? It seems to me, for example, that provisions forbidding the user from monitoring his own network traffic should be considered contrary to public policy since they adversely affect both the individual user and the general public.
You're confusing EULA and Copyright- which are completely two different things.
Copyright deals with the production and distribution of literary and other works of art. Nothing more, nothing less.
An End User License covers whatever in the hell the licenseor wants. It covers usage, etc.
Big damn difference there. With pure Copyright, the rules for use are anything that doesn't infringe- including copying snippets and even copying your friend's instance of the work for your own purpose if it's music (American Home Recording Act covers the compulsory license to be able to do so...). With an EULA, they can prohibit you telling anyone you're a user, whether or not it performs as well as they claim, and so forth.
Come on, wise up.
I am not merely a "consumer" or a "taxpayer". I am a Citizen of the State of Texas