Slashdot Mirror
Man Sues Gateway Because He Can't Read EULA
Scoopy writes "California resident Dennis Sheehan took Gateway to small claims court after he reportedly received a defective computer and little technical support from the PC manufacturer. Gateway responded with their own lawyer and a 2-inch thick stack of legal docs, and claimed that Sheehan violated the EULA, which requires that users give up their right to sue and settle these cases in private arbitration. Sheehan responded that he never read the EULA, which pops up when the user first starts the computer, because the graphics were scrambled — precisely the problem he had complained to tech support in the first place. A judge sided with Sheehan on May 24 and the case will proceed to small claims court. A lawyer is quoted as saying that Sheehan, a high school dropout who is arguing his own case, is in for a world of hurt: 'This poor guy now faces daunting reality of having to litigate this on appeal against Gateway...By winning, he's lost.'"
Doesn't a new Gateway (or any other major OEM) also come with driver CDs, manuals, etc., that have the EULA in print?
How thoroughly have these agreements been tested in court prior to this event?
Nobody actually reads EULA's, right? I'd say at least 99.9% of EULAs are just clicked on through without any consideration for the implications.
Does the reality of 99.9% of cases over-rule the law?
I am government man, come from the government. The government has sent me. -- G.I.R.
Heh, my sentiment exactly when I read that line. If Gateway sends a lawyer to small claims court with "vast legal and financial resources" the judge is likely to put Gateway's lawyer into a world of hurt. As a small claims court judge its more likely that the judge will be unimpressed by big lawyer shenannigans in a common sense small claims court.
Yeah, who reads EULAs?
Lawyers read EULAs, Law School graduates read EULAs.
Any user gets bored after the first 3 lines of an EULA. They seem to be deliberately unintelligible for the common user.
Most of them, not all, are worded in such a manner that it will take a judge or a team of solicitors weeks to make out it's real consequences.
How on earth is a mere mortal supposed to defend himself (or indeed understand what he's defending himself from) from the implications of a cryptic document which takes you 4+ years in law school to understand?
I'm not entirely sure about a staff attorney, but if he is employed by the same company that is being sued you can probably get away with it - however, it's not an altogether shut and dry decision.
1) The staff attorney has no direct bearing on the matter in his employment capacity and can offer little in terms of evidence in the case.
2) The staff attorney will have to travel to the court location
3) The judge might not be so friendly with a lawyer in the courtroom (small claims judges are a different breed)
In any case, Gateway will be hard pressed to produce an employee who knows all the details of this situation AND who is willing and able to travel to El Dorado. The total judgement in the case at the high side would be less than $5,000.00 and they've already put time, money, and energy into the case that turns further investment into a bad business decision. If he wins the appeal and it still gets kicked to small claims, I expect gateway either will not show up, or they will settle with him prior to trial.
Gee, I wonder which costs more? Give a man a win in small claims court, or spend about a bijillion dollars to bring in the attack dogs. Heaven forbid you should set a precedent where a customer actually gets what he wants, then everyone will want satisfaction. We certainly can't have that...
Ya know ... I'm not a big fan of lawyers and stupid lawsuits ... but I'm getting a little sick of giving up all my rights every time I turn around. I've seen this "agree not to sue, and instead, go to binding arbitration with an arbiter of the company's choice" on all sorts of things lately.
... EVER ... not just in respect to the immediate business. Hopefully that won't stand up in court.
The other day, the cable guy came out. He drops off my HD DVR. He hands me his handheld PC and says "sign here". The thing I'm supposed to sign says something like "I agree to all the stuff above". Of course, I can't scroll up and read anything. So, i ask what I'm signing. He tells me it's that I received the DVR. Grr. OK. So I sign. Then it prints out this huge receipt. Among other things, i've given up my right to sue them.
To make it worse, they often are worded such that you can never sue them for anything
So the take home lesson is that the little guys should never attempt to sue big companies? that even if they have a chance of winning, the big guns will put them "in a world of hurt"? this is how the legal system is supposed work?
Actually I had the understanding that a lot of installer makers force you to have an EULA,
So why not use an open source installer? On Windows Inno Setup is very good; it doesn't force you to do this. (R offers the GPL in an information screen, with instructions saying "Please read", and "When you are ready to continue, click Next". I think that's about the right level: you want users to be aware of the GPL, but they don't need to accept it to do an installation.)
I thought the main reason they did that was for the:
"this software is not guaranteed in any way"
part, rather than the
"if you distribute, then..."
parts. ie. it's more a disclaimer of responsibility
I think that this site is relevant to the discussion about EULAs: http://reasonableagreement.org/
In some states, one is not allowed to be represented by a lawyer in small claims court. In others, one needs special permission from a judge in order to use a lawyer. Who will Gateway send? Seems to me that whomever the plaintiff named in the complaint will have to represent their case. IANAL, of course.
I actually wonder if such a screen puts the distributor in violation of the GPL.
The GPL requires that users be given the software under the terms of the GPL, with no further restrictions.
The GPL does not require users to accept it to use the software.
Software which DOES require the users to accept the GPL to use the software is enforcing a restriction not listed in the GPL.
Therefore, the software-mandated license acceptance is in violation of the GPL.
Not sure if this argument would apply if the GPL were taken apart in detail with regard to its restrictions against adding restrictions. I just thought it was an interesting concept...
Mr. Sheehan has a good chance of winning in small claims court, because of the lack of lawyers. Gateway should be scared of this precedent. Some from Gateway, who isn't a lawyer, is now going to have to trek down to that court room and try to explain to the judge exactly why Gateway shouldn't have to replace the broken system they sold him.
Bearded Dragon
I read everything I sign before I sign it. That includes lengthy contracts a home purchase agreement. Of course, I read much faster than the vast majority of people, but that's mostly just practice. It's certainly not "utterly impossible".
Is general society so bad at reading that most people can't be bothered to look at what they're agreeing to? I suppose so, or else the title company person at my first home purchase wouldn't have had to move us to another conference room once she realized that I was actually going to read things before I signed them. She apparently expected it to take 5 minutes instead of half an hour and had scheduled the room accordingly.
In any case, the law regarding contracts is that for a contract to be valid, there must have been a "meeting of the minds" where both parties knew substantially what they were agreeing to. Of course, nowadays some people probably sign the statement that they've read and understand the contract without even reading that statement, but some people are stupid that way.
I have lots of experience with all sorts of times when actually knowing what was in a contract I'd signed was useful, even when simply looking up and reading the VA state law online that pertained to a specific company health insurance provision and pointing it out to HR made their lawyers drop all their demands and sent a letter of profuse apology once they figured out that technically they owed me 3x the amount of a $25K claim they had illegally refused to pay until I signed a subordination agreement that I refused to sign (having read it and recognized it as obligating me to things that they had no right to get out of me), but since you don't read things you probably aren't still reading this anyway.
Heck, you probably don't read documentation either. You still have that extra set of screws left over from when you built that bicycle that rattles kind of funny?
The party of stupid and the party of evil get together and do something both stupid and evil, then call it bipartisan.
For Windows installers, I like WiX. It's open-source (CPL), yet made by Microsoft and used to package Microsoft software (e.g. SQL server, Office 2007). It also compiles to standard .MSI (or MSI-based .EXE) files, instead of relying on all custom code like some installers do.
"[Regarding the 'cloud,'] ownership was what made America different than Russia." -- Woz
Wow. Lot of comments keep saying how Gateway has nothing to win here and it would just be a drop in the bucket to pay the guy off. This suit is HUGE for gateway. There's 2 pillars of their business on the line, not just a single defective PC. First, without an enforceable EULA, they have to change their entire business model (as would pretty much every other software and hardware manufacturer in existence); the entire concept of "Licensed" software under different terms than the original contract of sale depends on them. And I don't think that even most Slashdotters really want the severability of hardware and software agreements to go bye-bye. Just the number of comments suggesting installing Linux without ever booting the bundled Windows weighs pretty heavily. Second, although this is pretty minor considering there is already a Supreme Court decision (CIRCUIT CITY STORES, INC. V. ADAMS (99-1379) 532 U.S. 105 (2001)), binding arbitration clauses. Binding arbitration saves on the order of billions in litigation costs, even if the arbitrations go against the respondents. This case will probably never be heard in Small Claims Court. Gateway will appeal the Judge's decision to remand it to SCC, and probably, under terms of the UCC, get a Federal court to assert jurisdiction. Every hardware and software company around will either file amicus curiae briefs, or really want to, in support of Gateway. This remand to SCC is just a diversion, and not a real "win" at all for Sheehan.
I read the license agreement for Java 6u1. I noticed it referenced a file called THIRDPARTYLICENSEREADME.txt. So I read that. All 176 KB of it. Some of those licenses referenced yet more licenses, not all of which were included in the third party license file (and those that were included were included by coincidence, it seems). I've hunted down most of those but at least one may not exist in any place that I could find it anymore. A couple interesting notes from this experience:
1) The file is not formatted to be human readable. It seems that Sun doesn't care about it as anything more than a legal necessity.
2) Preceding each program in that file is the statement "The following software may be included in this product: [Some Software's Name] Use of any of this software is governed by the terms of the license below:" Sun says these things may be included. They don't seem to put enough effort into maintaining it to even be able to say that certain programs are not included.
3) I am not a lawyer, but from my understanding, as I was reading it, I recalled realizing that Sun fails to abide by the letter of some of those EULAs. For example, it is not obvious where I can obtain source code for any of the programs that the distributor is required to make it available for. I believe that there are other problems as well.
4) As I noted above I searched the internet for licenses referenced by the third party license agreements. In omitting those fourth party license agreements Sun, it seems to me, has effectively stolen certain software.
5) (The point that makes this post a relevant response to Parent) There are three W3C licenses that I've found in this process. They all require affirmation that the user has read, understood and will comply with their licenses prior to even obtaining the licensed material. As far as EULAs for free software go, this one certainly requires that it is read. At least one of these licenses is GNU GPL compatible, too, so it is, in fact, a free software license.
So as a Java coder who believes that, before God, he should obey the restrictions that the owners of software put on their property I find these things, especially point number five (since I used Java before I read those licenses) to be troubling.
While it is true that the sales agreement is between you and the retailer, the license agreement is between you and the software maker. The retailer doesn't own the copyright on that software, and as such, may not distribute the software directly. He may only purchase a license to use the software and then sell that license to you, the consumer.
Personally, I dislike EULAs because they are:
- normally impossible to read before purchase
- Non-negotiable, and
- in the real world, nobody reads them
Regarding their enforceability, this has never been proved one way or another. On the one hand, given the reasons I listed above, it seems clear that an EULA is not a meeting of the minds, so how could they be enforceable?But on the other hand, the end user nonetheless indicated his agreement to the EULA by clicking "I Agree", so can we not assume that when a person says, "I Agree" that he, in fact, agrees?
Judges, in my experience, don't typically like to invalidate contracts unless a party acted in bad faith. But who would appear to be acting in bad faith in this situation? The software maker? Or the end user, who said "I Agree" but in fact, did not agree and further had no intention of following or even reading the agreement that he declared his agreement to abide by?
"Avoid employing unlucky people - throw half of the pile of CVs in the bin without reading them." -- David Brent
"By reading this license, you agree to be bound by it."
Oh, and BTW, by reading this post, you agree to sell me your house and the land it sits on for $1000.
I thought EULAs were required for software, because copyright law prevents you from doing anything at all with the software unless one is there. Eg, if you 'copy' (ie install) the software onto your PC, you're copying the software, so breaking copyright law. The EULA is a *LICENCE* which grants you extra rights (such as being able to use the software) which aren't otherwise allowed. The EULA can thus be used to restrict when those EXTRA rights are possible. It can't restrict things which are required to be allowed by law (eg it can't say 'if the CD is faulty, we won't replace it', because that's required by law in most places).
But, with a PC, you're not breaking any law by using it, so why do you need an EULA?
OK, you could have a CONTRACT, but that's not a LICENCE, so the mere fact that Gateway are calling this an EULA sounds like some lawyer somewhere has got it wrong.
By definition, a LICENCE lets you do something you couldn't otherwise do.
Doesn't seem to apply to software unfortunately, see Q6 in: http://www.dti.gov.uk/consumers/fact-sheets/page38 608.html
If you can read this you've gone too far.
'' This is very ironic because in many states, no-competes aren't enforcible, the company isn't allowed to keep you from earning a living. ''
:-) As a result, enforcement is very, very, very rare.
In Germany, non-competes in employment contracts are enforcible - but only as long as the previous employer gives you reasonable compensation. Like paying the same amount you could earn, without you having to work for it
You are also able to leave the armed forces. These days it's as easy as planting evidence that you're homosexual or saying you object to the practices of the military for personal or religious reasons.
Seriously, I was talking with some military types, and it's REALLY easy to get out. They want soldiers who want to do their job, not disgruntled employees who are issued weapons.
Not a Twitter sockpuppet... but I wish I was.
I called Dell two days ago, and got someone who spoke perfect Dutch. And while my laptop was bought in Netherland, it was no problem that I called Belgian customer service, and they sent a technician to a Belgian address. He couldn't fix it, unfortunately, so I'm waiting for them to call me back in Netherland and hopefully they send another technician to the Dutch address where I am today. I'm pleasantly surprised by the internationality of their support. (Although my wifi still doesn't work.)
I am going to correct you here. My Sister-inlaw is an ADA (Assistant District Attorney) and we have had this discussion.
First, rights are natural rights and not statutory rights.
You can sign away every right you have, Your right to free speech and freedom of the press(NDA), Your right to bear arms (Some rental agreements), your right to be secure in your persons, houses, papers, and effects, against unreasonable searches and seizures (Bail Bonds and some ISP agreements like the ones for Time Warner that give them the right to search your house and computer), Your right to a trial and a trial by jury (Many many contracts require arbitration), your rights ageist cruel and unusual punishments (Some people enter contracts and enjoy the punishments).
Now my response when finding this out was "So indentured servitude is still legal?" The response was both yes and no. Yes you can make a contract that creates indentured servitude (Slavery) and it may or may not be enforceable. It would depend on how the court ruled.
So anyone want to be may slave???
"Dude, you bought a Gateway!"
Gateway has been on the verge of bankruptcy for what, the last ten years? Their stuff is overpriced and underpowered and I've never spent more than a minute examining their marketing material before concluding that they are way behind everybody else in the consumer PC sweepstakes.
Desktops are commodities. Buy them that way. Go to a storefront run by some Chinese guys and buy a white box. You'll get a straight up Taiwan clone with standard parts, a nice Windows full install CD (none of that "recovery partition" bullshit) and no crap on your desktop.
Anybody who buys desktops from Dell, HP, Gateway or any of the other losers is one. Oh, yeah, Dell might actually be able to undercut your local store by $50 or so on the price - but you'll spend that much removing the crap from your desktop - and when removing the temporary McAfee AV hoses your Windows, you'll spend a lot more fixing that problem.
Richard Steven Hack - This sig is TOO GODDAMN SHORT TO DO ANYTHING USEFUL WITH! MORONS!