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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?
Seriously. Have you? Can you keep a straight face and tell me you read all those legalese crap? I didn't.
First of all, it can be summed up into "We may do everything, you may do nothing, essentially, you're a dork for using our software". And second, almost all of them violate our consumer protection laws.
So, why bother wasting time?
We used to have a Bill of Rights. Now, with the rights gone, all we have left is the bill.
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.
Dont companies these days thing its a bad thing to sue their own customers? Let alone make headlines for doing? Really what do they gain?
B5 71 ED FB 55 D6 4E 68 07 25 E2 FA CA 93 F0 2F, is mine! All mine!
I'm sure someone will set me straight if I am wrong, but in small claims court, doesn't the complaintant always represent themselves? And that court is structured to deal with such?
"To those who are overly cautious, everything is impossible. "
This was actually a pretty big win for him, and it means that the case will not drag on for years as the article suggests.
In California Small Claims (which this case was just kicked down to), an employee or executive of the company must be present at the trial - not a lawyer, and not somebody hired specifically for the purpose of defending the small claims suit.
If the defendant loses, there is exactly one possible appeal. At the appeal (to superior court), lawyers can appear, but the case is still treated as a small claims case (i.e. you aren't going to get out of it based on a legal technicality if that technicality violates the basic fairness of the case).
If Gateway doesn't send an employee, the appeal is going to be much harder because they have some pretty serious explaining to do as far as why the appeal should be heard. If they do send an employee, it is still tough because no new evidence can be presented at appeal so they will basically have to say that the judge was wrong and why.
Either way, this guy will have resolution within 120 days at the far side - as the appealin California for small claims must be filed within 30 days of the case being heard and if the appeal is approved, they put it on the docket pretty quickly.
I believe that we may be approaching critical mass (in decades or centuries, not years) within the imposition of legal absurdity upon humankind. I expect that the populace will ultimately become so oppressed by the duress of corporate greed that uses legal thuggery as it's enforcer, that humanity will just quit accepting it and reject the entire premise of law.
If there is wisdom within the world of corporate law, someone will realise that this is approaching and will work for internal reform, before external reform arrives as a consequence of insults to humanity like this.
I don't think the legality/enforceability of EULAs in general is being disputed here. Gateway is saying Sheehan can't sue because it's forbidden in the EULA, and Sheehan is saying he never saw or agreed to the EULA. I think all we could use this as precedent for is enforcing a EULA that the customer simply may have seen and agreed to, and I doubt that will fly here.
(IANAL)
"The use-mention distinction" is not "enforced here."
However good this guy may be, he's gonna have a hard time handling this without a computer!
Everything and everyone is an aspect of Gd. So remember to show proper respect!
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.
Exactly. He's already made Gateway spend money not only on his tech support calls, but on a lawyer who doesn't come cheap. At some point, it will be in Gateway's interest to just cut their losses and refund the money. The longer he holds out, the more likely that will happen.
poor guy?
Poor guy? Yes, create more pity for him. After all, you sold him a defective computer, then refused to fix it. Then let the situation make it all the way to small claims court. You've got him right you want him.
Being a computer user is really tough sometimes: Not only do they expect you to be a computer expert, but they also expect you to be a legal expert.
Jumpstart the tartan drive.
> the EULA, which requires that users give up their right to sue
;) I don't know much about US law system but the whole idea looks awkard. In my country you can state whatever bullshit you wish in license agreement or whatever - but it is void unless it is valid with the law. So I could make a license that you own me your liver if you use my software while not drinking milk - but it would be pointless.
Is it even possible in US to get in such agreement? I am Polish.
It is possible in US to just make a license that disallows you to sue by the other party? That is kind of retarded - even if it is possible - what it is for?
I thought that you _ALLWAYS_ have a right to sue (fight for your rights) and nobody can take it from you?
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
i've always had the opinoin that eula's are not legal, and are just used as a bully tactic. i hope this guy wins.
If you mod me down, I will become more powerful than you can imagine....
Abraham Lincoln would have been proud then.
And these blokes need to re-evaluate what they are doing in life
Having said that Abe Lincoln probably would have preferred to finish/receive an education.
Semi-automatic amateur armchair Australian philosopher; conjecture ready at any moment...
On the other hand, those guys are generally bought-and-paid for, and many corporations seem to feel that it's in their best interests never to be seen losing.
The higher the technology, the sharper that two-edged sword.
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?
From the article:
"On Monday, Attorney William Portello, a partner in a Concord law firm, and Sheehan, a high-school dropout who has argued his own case, faced off in a Cameron Park courtroom."
It saddens me that courts can be manipulated more by credibility rather than facts. I hope that the judge can look past the 'high-school dropout' and listen to the claims. I'm not sure why Hudson Sangree (Bee Staff Writer of this article) deemed necessary to introduce a David vs. Goliath scenario but I hope it won't influence the decision.
Also, why is there a quote from some unknown source given?
From the article:
"This poor guy now faces daunting reality of having to litigate this on appeal against Gateway," Palefsky said. "By winning, he's lost."
After reading the article, the writer shows many discrepancies. I've actually felt the need to dismiss the article and read up on this story from a different source.
Does anyone else get the impression that the way this article was written, the writer was laughing at Sheehan the whole time?
A black cat crossing your path signifies that the animal is going somewhere. -- Groucho Marx
i seriously doubt gateway will win this. you can't tell someone they have no right to legal recourse either, to allow that strips the courts of their power and doubt they will be happy about that attempt.
If you mod me down, I will become more powerful than you can imagine....
From the previous link (an appelate court decision):
A contract need not be read to be effective; people who accept take the risk that the unread terms may in retrospect prove unwelcome.
A vendor, as master of the offer, may invite acceptance by conduct, and may propose limitations on the kind of conduct that constitutes acceptance. A buyer may accept by performing the acts the vendor proposes to treat as acceptance." Id. at 1452. Gateway shipped computers with the same sort of accept-or-return offer ProCD made to users of its software.
HS Dropout or not and I don't care how you look at it he wins no matter what. Just for a lawyer to show it is gonna cost the company 10 times the cost of a new system. When you sue one of these big co's in small claims court they loose no matter what. On top of this ad the bad publicity and they loose 100 times any little monetary claim involved.
So he goes in and does a crappy job arguing his case and looses, well so what he still cost them
100 times the cost of a new system, goes home empty but still stuck it to them.
Got Code?
Actually, Gateway won litigation over just that. They had a EULA on the box, the couple who purchased the computer ignored it, and a judge ruled if they didn't like the EULA, they could have shipped the computer back. If I had my casebook with me, I'd give you a cite. But EULA's printed on the outside of computer boxes are legal. For software, see the ProCD case, which held the same thing.
http://bgcommonsense.blogspot.com
I think that this site is relevant to the discussion about EULAs: http://reasonableagreement.org/
Think about it. The legal system is often not about right/wrong or justice. It's about business tactics and business advantage. And that's what Gateway's EULA is about, too. And Gateway doesn't have lawyers write them or defend them out of any sense of justice. It's all about business advantage. So, the weird question is how Gateway expects to win any business advantage. They've already lost a lot of good will on this issue alone. They used to be the underdog goodguy. And now, for any of us who cultivated any sense of denial that they've turned to the dark side, the denial is gone. Whether or not the plaintiff prevails, Gateway loses big. The EULA was the right cross, and the lawyer's intemperate remarks were the knockout punch. This is self-inflicted, Gateway. Bye bye. Sadly.
Here's an anecdote for you: my business partner (50/50) earns $USD 2,000.00 profit per day, every day, from our joint venture.
He's a high-school drop-out.
The problem is, if they cave in it may set a dangerous precedent for the rest of the general public to mimic. Then every Tom, Dick and Harry would think they could sue their manufacturers as well (which may very well be their right). No company needs THAT kind of idea getting out.
In all likelihood, however, you're probably right and they'll wind up settling once the media has lost interest.
That would risk a counter suit for misusing the EULA. The EULA is a license, not a means of suicide.
Fascism trolls keeping me up every night. When I starts a preachin', he HITS ME WITH HIS REICH!
Nobody can "sign away" their statutory rights. You can't make a contract whereby you agree to be someones slave, because freedom is a statutory right - one granted by statute. Similarly, in a lot of places, consumer legislation gives you the right to sue any manufacturer for a defect - as a statutory right, you can't waive it, and any contract that includes such wording is void.
That's why you always see wording like "Any provision of this agreement that are contrary to local law are excised. You may have other rights depending on your state or province ...." You can't "waive" those rights with an EULA - even one you signed, never mind a post-purchase popup that you never saw and never agreed to.
Also, it'll be fun seeing Gateway try to appeal this one ... they're out of luck here. Asking people to waive their rights to redress just means you think your product is so crappy that there's a good chance that people will sue you out of business.
Stupid Gateway! Remember the old saying - a happy customer might tell 2 peope - a p*ssed-off customer will tell 100? Try a MILLION, because you can be sure that everyone's going to hear about this one - the competition will make sure of it, if nothing else.
Kevin Smith on Prince
You guys must sell a whole lot of weed.
You're using her as bait, Master!
you'd see that he in fact, could not see an "I agree" button.
Even if he could have pressed that button, he'd still have a defective computer if that's all he could do with it. You can't sign a contract that violates the law any more than you can sell yourself into slavery.
Friends don't help friends install M$ junk.
"This poor guy now faces daunting reality of having to litigate this on appeal against Gateway...By winning, he's lost.'"
What is the cost to Gateway in bad PR?
Either he got a replacement PC or he didn't - I would assume that on delivery someone would have needed to sign for it...
Rule out any shipping mistake or some hare-brained fraud on the customer's part and move on. Sounds easy. Why
send in the lawyers and turn it into a big deal?
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.
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
Unfortunately, the courts might tend to view a EULA as a Contract of Adhesion. In other words, it's "take it or leave it".
There's nothing that can be done about these types of contracts that force you into binding arbitration in the context of software other than what this man has argued and similar. In fact, your best realistic choice is to exercise your rights and use the option of not agreeing to the EULA, and shipping the machine back at their expense.
By doing this, the company incurs significant restocking and repackaging expenses and will eventually (hopefully) learn that such agreements are not worth the cost. This is especially true when you specifically tell them that binding arbitration terms are the primary reason you are returning the unit. Only in this way do we have any hope of stopping these kinds of unfortunately increasingly common practices (other than, of course, legislation).
The only real benefit of finishing high school is not getting stereotyped by morons like the OP. Myself, I dropped out of high school and started working at 15, as a Lotus Notes developer and network admin. Some people need institutionalized teaching, others find it far too limiting and stifling. If you need an institution to learn something, you really haven't learned anything.
I guess if we call Gateway at 800-369-1409 and say something to the effect that you're not going to buy a f**king Gateway PC because of the way they treated customers like Dennis Sheehan, I wonder if they'll rethink things.
Unlikely.... But I'm gonna call them anyway.... Just for sport.
Place nail here >+
That is by far the funniest thing I have read all week. And I've been going through documents, so I see a lot of funny things (and a million boring things).
All the states have enacted the UCC, and they did so decades ago. It actually is pretty useful and does a lot of things. It's a good law on the whole, and the bad bits, like UCITA have been flops. Just fix this particular issue rather than throwing the baby out with the bathwater.
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
This is America. We've been surrendering our rights for the past 50 years with a dumb smile on our faces.
I'm sorry, I believe you misspelled "about 225".
Myself, I dropped out of high school and started working at 15, as a Lotus Notes developer
Wow. You should make a PSA. If that doesn't scare kids into staying in school, I don't know what will.
See my journal for slashdot ID's by year. Mine created in 2005. http://slashdot.org/journal/289875/slashdot-ids-by-year
although it is true that small claims judges are much more fair to the average joe, once he wins this case, it will be appealed to a higher court. It is here where he will be "in a world of hurt". My sister sucessfully sued and won against GE in a case in small claims court with regards to a fire that started in her apartment. Although the small claims judge was convinced based on the evidence that the GE adapter started the fire, they just appealed it up to a higher court, requiring a lawyer. Corporate lawyers are already paid for, so this wont cost Gateway anything...
And by just taking it up the wazoo, he has lost as well.
I find it hard to believe that the company would claim they sent him a second computer. Is there not a record of shipment? The plaintiff said he didn't receive a replacement computer. If he had signed for a delivery, surely he wouldn't be stupid enough to say he didn't.
But here's the thing I'm having trouble with: Company waste. They are paying their attorneys and the courts system way more than the value of system in question. Shouldn't someone be complaining to the board of directors over crap like this? Not only is the direct accounting of the situation bad business, but the potential for further loss through bad faith dealings and bad word of mouth (not to mention appearances on slashdot) presents such a negative value to the shareholders that someone on the board should be voting some executives out of a job.
I have heard it time and time again on slasdhot that corporations are required by law to create value for the shareholders. Well, here's an example of a corporation acting in a pretty aggressive and vindictive manner costing the company more in direct fees and probably 100 times that in bad word of mouth.
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.
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
He did it was a joint venture.
Self-taught pros are a rare exception, most people would be completely helpless without some sort of organized brainwashing like the kind that happens in western schools. In any case, the classroom teaches social interaction (to some extent). It might result in highly social morons, but at least they're social :P People who are moronic AND antisocial are in tough shape.
-Billco, Fnarg.com
If he didn't pay with a credit card, he's an idiot for that.
There are people who buy things that don't have a credit card. I know a few who aren't idiots; in fact, some of them are clearly smarter than you, because they'd never make a ridiculous statement like this.
I've even purchased a computer in cash myself, because there was a 2% discount for doing so--credit cards aren't free for the vendor. On a $3K sale, I saved $60.
So, how do you decline a EULA?
Do you just send the item back to the seller?, who pays shipping?
Imagine if a few hundred people each ordered a new PC, and found they disliked the EULA, so returned them all?
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.
Interesting article but I would have to say that it hardly has any substance to back up the fact that some high school drop outs are successful. First of all, most of those dropouts in the article are people who dropped out at a college/university level. Secondly, could they only find 6 successfully dropouts? On top of that one of them dropped out of college in the 50s! Many people didn't even attend college in the 50s. I don't think that article could argue that dropping out of high school leaves plenty of opportunities in current times because in all reality, it doesn't.
Try getting a job without a high school diploma... I'll be seeing you at McDonald's.
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.
You must be new around here.
The concept of "proper notice" is a matter of state code and prior court rulings. It is not what you as an individual think proper notice should be based on a logic or critical thinking. Logic is not used in the court systems and it gets arm chair lawyers in trouble all the time. For example, in my state if I hand my car over to a valet I get a ticket that says if they damage my car or if my items are stolen out of my car then it is not their fault and I can't sue. Well, if I never bother to read the notice or if someone doesn't show me a large sign that has the notice on it and tell me to read it before I hand my keys over, the notice is not enforceable. Just including a notice with a product or service doesn't suffice in most states. The law is not logical, it is written in code and enforced in the most illogical ways though past court rulings. The court will ask you if the notice was properly displayed and if you read it. If I never flip that valet ticket over and read the notice guess what, it isn't enforceable - in my state. Other states have different laws concerning notices.
The more enlightened people have realized already that the current system of education is designed to create a workforce of employees, not leaders. The fact that some leaders emerge from our educational system says more about their individual resistance to 'training' than their benefit of it. After all, if education were responsible for their advancement, there would be a lot more advanced people than there are today.
Dropping out of highschool isn't necessarily to his detriment. He may not be able to "get a good job" but he may be able to give you one!
Heck, try getting one when you can't even spell diploma.
Promote proofreading. Don't mod up sloppy posts.
Another satisfied customer.
All of the most successful people you personally know of are probably dropouts (either high school or college).
Michael Dell is one of them.
The American public school model is meant to grind out factory workers and soldiers. The people that we stole it from don't even use it anymore.
A Pirate and a Puritan look the same on a balance sheet.
"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!