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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.'"
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.
Generally, yes. Gateway has traditionally included its agreements in the box. Practically this exact same case has been tried before:
http://www.badsoftware.com/hill.htm
Javascript + Nintendo DSi = DSiCade
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.
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.
IANAL but I believe that the EULA must be read and 'agreed to' before it takes effect. So even if he read the paper document if he was not able to "click" on "I agree" ( or whatever ) then they can't claim he gave up his rights.
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.
if you even read the summary, you'd see that he in fact, could not see an "I agree" button.
~/.sig: No such file or directory
I never boot up a new PC without a Linux installation CD in the CDROM/DVD drive after having first checked the BIOS to make sure that it's set as the first boot device!
So, because I did it this way, I never get to see Gateway's boot screen EULA, therefore I am never bound by it? Or does blowing away the contents of their HDD also violate some obscure law?
I killed da wabbit -Elmer Fudd
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?
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.
The only possible way in which a EULA would be legal would be if it granted you some right that you didn't already have. The legal technicality that is used by software is that copying the program from the install media to your disk and then to RAM requires extra rights (not valid in all jurisdictions). For hardware, there is no such loophole. If you didn't agree to the contract before sale, then they can't enforce it afterwards.
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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?
... that have the EULA in print?
.WAV of the EULA played through the speakers (including the motherboard P.O.S.T speaker) as well as read it on the screen.
Actually, thanks to this guy, every Gateway purchaser will have to listen to a
-- 3 events that reshaped the world in the 20th century: WW1, WW2, and WWW
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.
Three words: Uniform Commercial Code
It's a modification to contract law that is intended to make in-box agreements legal. The point of the law is to speed up transactions in cases where the cost involved in drafting a proper contract would negate the value of the transaction. Therefore the law provides the consumer the opportunity to review the contractual information in the form of a pack-in contract, which the consumer is free to reject by returning the product. Using the product constitutes acceptance of the contract.
Given that courts have ruled this legal several times (see: ProCD, Inc. v. Zeidenberg, Carnival Cruise Lines, Inc. v. Shute, and - of course - Rich Hill and Enza Hill, v. Gateway 2000, Inc.), consumers should BE CAREFUL WHAT YOU AGREE TO. If the terms of the contract are considered reasonable, you may be held to them in a court of law.
Caveat Emptor.
Javascript + Nintendo DSi = DSiCade
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.
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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.
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!
I hate the parent's comment. It shows up in every slashdot thread whenever the story is about a contract question. The problem is that it's not legally, or even practically-speaking, accurate. Moreover, the fact that it gets modded up to +5 is really frustrating.
I have no idea why people think that one actually has to sign anything to form a contract. Most US states have no such requirement. The closest thing to any such requirement is in the statute of frauds, but the statute of frauds is applied very narrowly (the US doesn't typically like formalities).
Contracts are formed all the time without signing anything. More often than not, the only questions for a court in a contract between businesses and consumers are: 1) was there proper notice of the terms and 2) are the terms unconscionable?
In this case, there is a good argument there was not proper notice.
Nevertheless, I think anyone that posts "he didn't sign anything" should be modded like "first post"ers.
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.
No it isn't. You're thinking of UCITA, which only ever passed in Maryland and Virginia. The UCC itself long predates the sale of commercial software.
Ooh, a sarcasm detector. Oh, that's a real useful invention.
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 >+
A better argument is that since the sale was completed before he was presented with the EULA, you don't have to agree to it, regardless of whatever stupid human tricks the computer makes you do.
Even if he could read the EULA, he would never understand it. How can anyone be expected to give informed consent to legalese gibberish? A team of lawyers might not even agree on exactly what it means. All anyone really understands is that we must click on "Yes" or "Agree" to continue. All EULAs should be thrown out in court.
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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
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.
In this case, there is a good argument there was not proper notice.
There's also a good argument that he did nothing to enter into the agreement. If you buy a car, and there's a cap over the ignition from which a sign is hanging saying that you agree to various terms and conditions if you use the car, that's a pretty shitty way to get someone to enter into a contract, but someone can point to the moment where you agreed to it, or at least failed to raise an objection. If there's a stack of papers in the back seat that you've never seen before telling you that you've forfeited all sorts of rights and incurred all sorts of obligations, that's thinner stuff.
You may be right about "contract iff signature" bullshit in general, but any printed EULA's that were introduced to him only when he received the computer, not during any part of the sale, he didn't sign, didn't mail in, didn't scratch off any of the boxes to see what he won, didn't connect the dots to see what kind of flower they made, they were just foisted upon him without his consideration or consent. It's the same as if Gateway had randomly stopped somebody on the street and handed him a stack of documents that said he could never sue them. That's not a contract. Oh, right. IANAL. I hope that's not a contract.
Finally modding someone offtopic when they rant about what "Begging the Question" means: priceless.
While this is true as far as it goes, a contract will under normal circumstances only form in a two-way exchange - in legal parlance, there must be "consideration" for both parties. Since these EULAs usually don't grant anything to the consumer that they did not already have, they cannot be presumed to automatically form at the time of exchange, which is the normal basis for these things in the absence of a signature. Some form of explicit hoop-jumping, such as a signature, is required to get these one-way things to activate. Corporations like to play games with forced "I agree" buttons; their legitimacy is actually quite weak, and judges will often (although not always) void them if the user hasn't done anything "wrong" and is sufficiently aware to make this argument. You can't force somebody into a contract, and any agreement made under duress is invalid (and the "but they could have returned it to the store, so they had a choice" line does not amuse very many judges, particularly since the store is not legally required to take the computer back if there's nothing wrong with it)
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
Nah, it would be "An electronic contract isn't worth the paper it's written on." The whole point of the joke is that a verbal contract isn't written on paper.
Check out my sci-fi/humor trilogy at PatriotsBooks.
Agreed. In point of fact, just because you signed a piece of paper, doesn't make it a contract. Here's an example:
You rush your loved one to the hospital emergency room, something terrible has happened and now his/her life is in danger. While you are fraught with distress over the possibility of losing him/her, and just generally trying not to lose it, some nameless person from the hospital business office hands you a stack of paperwork, one of which is a document where you "agree" to pay the hospital bills. You are told "fill these out so we can admit her". Does the fact that you signed a piece of paper make the contract valid? The hospitals want you to think so, but the tactic amounts to "sign this or he dies". One can reasonably argue that you did not agree to the terms, regardless of the fact there is a piece of paper with your signature on it.
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?
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.
Because they want more power over the consumer, and that means restricting the consumer even further.
Finally, EULAs are sometimes just as important to you and "throwing them all out" would be idiotic. They often set out things like your warranty coverage and your rights to use software (your "license") that you otherwise wouldn't have the right. Most importantly, it keeps things CHEAPER for you. If every computer/software company had unlimited liability, you would probably be spending considerably more for your purchases.
Shennanigans. Commerce has operated without EULAs just fine for centuries. I never sign a contract when I buy something from a supermarket, or even a big ticket item like a fridge, and somehow those companies don't suffer "unlimited liability" claims. Plenty of businesses have general terms and conditions that aren't disguised as contracts, and they're just as valid -- in fact, probably moreso, as they don't pretend to be something they're not.
Also, tricking people into agreeing to waive their rights is pretty stupid. Even if it were found that a contract was entered into, that sort of term is often thrown out as unreasonable.
SCO employee? Check out the bounty
Heck, try getting one when you can't even spell diploma.
Promote proofreading. Don't mod up sloppy posts.
Another satisfied customer.
I realize it's de rigeur to say "nuh-uh" to things other slashdotters said that sound legally shaky. Thing is, if you don't know the law either, it turns out not to work very well.
S'pose that's why you were AC, though.
StoneCypher is Full of BS