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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.'"
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 am TheRaven on Soylent News
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.
Mod parent up. An author who makes the GPL/LGPL into an EULA for their program clearly doesn't even understand the license at its most basic level.
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.
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.
Amen. Unfortunately, that includes such prominent packages as the Windows binary installers for Pidgin and OpenOffice. OOo is particularly bad in that it forces you to read and accept the LGPL before installing. Stupid, stupid, stupid. I'll read the license when I want to do something that's not already implicitly legal, thanks. Stamp it with an open-source logo or something if you want to advertise the fact that this is OSS and not just freeware. Don't propagate the notion that I need your permission to run your software.
LOAD "SIG",8,1
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
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...
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 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
In most places with a separate small claims court, no lawyers are allowed. Virginia has something similar to what you are describing, which is its General District Court. The GDC sits without a jury and has looser procedural rules than the Circuit Court, which is the trial court that can have juries and has more power. The Circuit Court cannot hear cases from $4,500 down. The GDC cannot hear cases over $15,000. You can have a lawyer in either of those courts. There is also a small claims division within the GDC, which cannot hear cases above $5,000 and where lawyers are not allowed. Even when they let someone other than the actual party go to small claims court on the party's behalf (incapacitated people, corporations, etc.), they generally let you have anyone go except for lawyers.
But every state is unique, and it seems that the relevant one here permits lawyers in small claims court, which is kind of a shame. (The alternative is that Gateway removed the case from small claims court to a "real" court, which is sometimes a right that defendants have when sued in small claims court.)
As to all the EULA talk, please don't post comments about it until you've read at least the section on their enforceability in the Wikipedia article, which provides a fairly decent summary of the varying law in the area: http://en.wikipedia.org/wiki/EULA#Enforceability. The section on shrink-wrap licenses in the same article is also pertinent, and includes links to other, more prominent cases where Gateway was sued over its EULA. The bad news is that nobody can tell you whether a given EULA will be enforced, given all the things on which their enforceability depends. Never trust a blanket statement that EULAs are or are not enforceable.
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
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.
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.
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...
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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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.
He did it was a joint venture.