Gateway Customer Sues to Get His PC Fixed

prostoalex writes "The Sacramento Bee tells the story of an El Dorado resident who had to go to small claims court to get his Gateway PC fixed: 'Right out of the box, he says, the computer displayed scattered graphics and wouldn't work properly. He says he called a Gateway salesman five times and sent him an e-mail to get an authorization number to send the computer back, but his phone calls and message were never returned. Then, over the course of months, Sheehan said he called Gateway technical support dozens of times.' Gateway insists that by clicking 'Accept' on a customer service EULA when the computer was first booted, Mr. Sheehan has waived his rights to sue the computer manufacturer in United States courts. The Gateway EULA states that conflicts must be resolved via private arbitrage. Sheehan, though, argues that he never saw the EULA, because of the broken graphics. As such, he's not held to that agreement." Some connections between this and a discussion about a Second Life case we had yesterday.

Comments

Yes...

[evilviper]

Some connections between this and a discussion about a Second Life case we had yesterday.

And even more connection to THIS ARTICLE from yesterday:
http://hardware.slashdot.org/article.pl?sid=07/06/ 07/2317239

Re:Yes...

[Kierthos]

I was about to say... I mean, I thought the article looked familiar, but lately, I've been seeing things on Yahoo! news before Slashdot...

Re:Yes...

[DarthThor]

Just out of interest, do Slashdot editors have the ability to can duplicate stories after they are put up or close them in some way? It seems rather stupid to have a clear duplicate and still have comments split between two or more stories...

Re:Yes...

[tomhudson]

[_] Zonk is reposting for those who don't have the CowboyNeal option ,,, (original story posted by CowboyNeal).

... [_] Zonk is the new CowboyNeal, like orange was the new pink

[_] Zonk uses a Gateway and can't see the stories

[_] Zonk - "Hmmm this is a dupe story, I think I'll can it ... OMG Ponies!"

[_] "What goes around, comes around, especially on /.."

[_] This is a "Best of slashdot" repeat presentation"

[_] "I didn't see the original story on my f***ed-up Gateway, you ignorant clod!"

[_] There really should be someone who's in charge of looking at the story queue and actually cans dupe stories before they're posted - and who reads slashdot more than once in a while ...

Re:Yes...

[frdmfghtr]

And even more connection to THIS ARTICLE from yesterday:
http://hardware.slashdot.org/article.pl?sid=07/06/ 07/2317239 [slashdot.org]

And by linking the exact same article the connection is complete.

Duplicating a story from two different sources is like a pair...would a dupe linking the same article be like a pair of the same suit?

Re:Yes...

[utopianfiat]

Oh ye of little long-term memory, this is MUCH more than a day old. I saw this half a week ago.
In gamer circles, we call this a M-M-M-M-MONSTER DUPE!!

Re:Yes...

[DeadChobi]

I like to think of it as an electron-positron pair meeting for the first time. Soon they will annihilate in a beautiful pair of gamma rays.

Re:Yes...

[Master of Transhuman]

That's it! It's strange attraction! Or is that entanglement?

One story attracts another story - and since Zonk is entangled he lets them through.

Do the quantum encryption guys know about this breakthrough?

Just send Zonk your message and it gets through no matter how much duplication it entails!

*Ahem*

[Ka D'Argo]

http://hardware.slashdot.org/article.pl?sid=07/06/ 07/2317239

Zonk

[PenGun]

He just posts here ... I don't think he reads the site much.

Re:Zonk

[seebs]

I have never seen a Zonk story that was good. Often dups, and very very often with additional comments or questions which are painfully insipid. I think people would like him better if, instead of trying to spur discussion, he would STFU. "It is better to remain silent and be thought a fool than to open your mouth and remove all doubt."

Re:Zonk

[noidentity]

Not a dupe! Yesterday's article appeared as scattered graphics and didn't display properly.

I tried

[Evets]

Saw this come from "the mysterious future" and I e-mailed the on-duty editor like it says. I guess that doesn't work so well. Sheesh. This one's only two days old.

Re:I tried

[evilviper]

I never understood why someone would pay /. for the privilege of doing their work for them...

Re:I tried

[gEvil (beta)]

Saw this come from "the mysterious future" and I e-mailed the on-duty editor like it says. I guess that doesn't work so well.

It's because Zonk can't see what's on his screen and is just blindly clicking around. You should expect to be sued by him for the dupe soon.

Bullshit

[nighty5]

Some awesome legalise there.

Regardless if a user accepts a EULA, its actually against the law to unlawfully restrict their rights in tapping into some legal protection for sale of faulty goods. Well it is in Australia, I'm sure the US has similar laws to protect consumers.

Don't accept this garbage - I'm glad his fighting for his rights to receive what was intended - a working product.

Re:Bullshit

[_KiTA_]

Regardless if a user accepts a EULA, its actually against the law to unlawfully restrict their rights in tapping into some legal protection for sale of faulty goods. Well it is in Australia, I'm sure the US has similar laws to protect consumers.

Actually... given the brazen attitude of EULA writers, I don't think we do. I know that EULAs are changed to be more consumer friendly in the UK and Australia, simply because if they tried half the shit there that they try here they'd get sued by the government, but they keep trying it here, so it must be at least somewhat legal, right?

Re:Bullshit

[morgan_greywolf]

IANAL, but my general understanding of a 'covenant not to sue' is that a covenant not sue that has a 1:1 relationship is likely to stand up in court, as it is a release of liability, at least as to the items enumerated in the covenant (i.e., you agree not to sue someone for product liability, but then trip on their sidewalk, you can still sue them for the sidewalk). But a covenant not sue that has a 1:many relationship is not likely to stand up.

IOW, while someone agreeing to such a EULA may be limited in their ability to sue as an individual, it does not stop them from entering into a class action suit.

However, this clause in the EULA may not be a 'covenant not to sue' and may actually just be a clause to accept binding arbitration in lieu of sueing. Such clauses can be binding in the U.S., but I believe only to a certain point when it comes to product liability.

Furthermore, as the guy in the article didn't read the EULA, there is no 'meeting of the minds,' which is a requirement for any contract to be binding in the U.S. Even if he 'agreed' to it when he clicked 'I agree', since he couldn't read what he was agreeing to, the contract is null and void.

Finally, the imposition of any limitations of liability by EULA or warranty notice vary from state to state. Some states do not allow certain limitations of liability. So your rights in this regard vary depending on where you live.

Re:Bullshit

[Anonymous Coward]

The US does have consumer protection laws, which vary by state. In this case, the implied warranty would probably override any other contract or EULA (IANAL). Here is the relevant information from the FTC http://www.ftc.gov/bcp/conline/pubs/products/warra nt.shtm/:

"Implied warranties are created by state law, and all states have them. Almost every purchase you make is covered by an implied warranty.

The most common type of implied warranty--a "warranty of merchantability," means that the seller promises that the product will do what it is supposed to do. For example, a car will run and a toaster will toast.

Another type of implied warranty is the "warranty of fitness for a particular purpose." This applies when you buy a product on the seller's advice that it is suitable for a particular use. For example, a person who suggests that you buy a certain sleeping bag for zero-degree weather warrants that the sleeping bag will be suitable for zero degrees.

If your purchase does not come with a written warranty, it is still covered by implied warranties unless the product is marked "as is," or the seller otherwise indicates in writing that no warranty is given. Several states, including Kansas, Maine, Maryland, Massachusetts, Mississippi, Vermont, West Virginia, and the District of Columbia, do not permit "as is" sales.

If problems arise that are not covered by the written warranty, you should investigate the protection given by your implied warranty.

Implied warranty coverage can last as long as four years, although the length of the coverage varies from state to state. A lawyer or a state consumer protection office can provide more information about implied warranty coverage in your state."

Re:Bullshit

[56ker]

Here it's called tort law. Basically what that means is that even if you agree to a contract with illegal clauses (eg you waive your legal rights etc) it's not enforceable.

However it's a David vs Goliath battle when you have the little guy versus big corporate behemoth. If a corporation has a commercial interest in doing everything they can to drag a court case out (eg if they lose they'll lose more money than it costs them in legal fees) they will.

Re:Bullshit

[weicco]

This brings really silly, maybe stupid even, idea to my mind. I close my monitor when installation program is about to display EULA. Then I randomly click left mouse button every now and then and jerk mouse around and hope I hit the "Agree" button. Am I bound to EULA now when I clicked "I agree" but didn't actually saw the EULA? :)

Luckily here in Finland one can wipe his/her virtual ass with EULA. I'm thinking about writing a software which allows one to drag'n'drop the text of EULA to a picture that looks like an person's rear end:)

Re:Bullshit

[grrrgrrr]

I'm prety sure this kind of agreement has zero legal value in the U.S. Is it not the very thing that made Ralph Nader a famous person when litigating against a big car company.
  I believe the U.S is even better in protecting consumer that any county in the world.

Re:Bullshit

[Planesdragon]

Won't work, as you were unable to read the EULA due to your own unreasonable action. Same as if you tell your six-year old to do it, or if you intentionally get yourself legally drunk before you go to negotiate a business deal.

Re:Bullshit

[Jeff DeMaagd]

I really don't understand the situation.

Gateway claims that he got a second computer, and that the buyer kept the first computer. If that's true, then I can see how the company might think that he wheedled himself a free computer.

If the computer didn't work initially, and he really couldn't get help from the company, then I think that's grounds for a chargeback with the credit card issuer. I forget the deadline for a chargeback, but I think it's 90 days. That's a lot of time to resolve a problem.

Re:Bullshit

[jamesh]

I wonder if you could claim duress? You've just traveled all way into the city to purchase your new computer, spent a whole day wandering around comparing what's available, arranged finance and made your purchase, come all the way back home again, unpacked it, realised it won't fit on your existing desk, travelled all the way back into the city, found a desk, loaded it into your car, come home again, assembled the desk, disassembled the desk because you'd assembled half of it back to front, re-assembled it, set up the computer on it, and NOW the computer is saying you have to agree to a whole bunch of crazy terms and conditions before you can use it?

Sure, you can pack it back up and return it if you don't agree, but what about the desk? what about the finance? what about the whole day you've wasted?

Sounds like duress to me.

They should make you sign the EULA _before_ purchasing the goods.

Re:Bullshit

[jamesh]

Reading a bit further, and replying to my own post, wikipedia says this about duress in Contract Law (English Contract Law):

Economic duress

Although hard bargaining occurs legitimately in commercial situations, there is a point where it becomes economic duress. Putting aside issues of consideration, this often involves one party threatening to breach an existing contract between the two parties unless the innocent party agrees to enter into another contract. The contract is voidable if the innocent party can prove that it had no other practical choice (as opposed to legal choice) but to agree to the contract.

Which, to my non-lawyer mind, fits pretty well with at least Microsofts EULA's. Microsoft are forcing you to either sign the EULA or return the goods.

Re:Bullshit

[Just Some Guy]

Regardless if a user accepts a EULA, its actually against the law to unlawfully restrict their rights in tapping into some legal protection for sale of faulty goods.

Actually, he's alleging that Gateway broke their support contract, right? I've been wondering about this. If they broke the contract, then why is he still bound to it? I'd be naively tempted to try that angle: since the purchase contract is now null and void, and the EULA was dependent on the purchase, than the EULA is void and here's your court summons.

EULAs for hardware AFTER you've bought it?

[Anonymous Coward]

This is retarded. How can they enforce a contract on you after you've already bought something? As I understand it, contracts are uneforceable when one side does not get anything and that's exactly what EULAs are, they are one sided contracts. Now if you were forced to agree to the EULA _prior_ to making the purchase, I would think they'd have a stronger legal basis. IANAL.

Re:EULAs for hardware AFTER you've bought it?

[nurb432]

If you dont accept it, you can get a full refund ( supposedly ).

Re:EULAs for hardware AFTER you've bought it?

[91degrees]

It's too late for that. You already own the hardware. I might as well impose a random set of demands and insist that if you don't accept them I'll buy your computer from you.

Re:EULAs for hardware AFTER you've bought it?

[supersat]

Not only that, but they have no way to know if you've accepted the EULA.

AFAIK, Gateway doesn't offer Linux as an OS option. If you want to run Linux, you'll probably boot to a Linux install disc the first time you turn on your machine, bypassing any EULA and nuking it in the install process. I suppose they could build it into the BIOS, but if they combine all of the EULAs into one, then you'll be forced to accept them even if you never use the software the EULAs cover.

Really, the proper thing to do is make these conditions part of the terms of sale, made known to the customer BEFORE the sale is made.

Re:EULAs for hardware AFTER you've bought it?

[ari_j]

The limited enforceability of shrink-wrap contracts (which are somewhat different from EULAs; this case is about the former) that we do have stems from a desire to avoid having to force you to read a long contract before you buy anything online or, even worse, over the phone. There is at least a rational argument here, and there are numerous legal theories that can be applied to support enforceability. I tend to disagree, but you can't just say "this is retarded" and think you've won the day.

Re:EULAs for hardware AFTER you've bought it?

[DaHat]

That assumes the EULA is software based.

IIRC some Dells actually had the EULA in hardware, requiring your agreement during POST, effectively making it impossible for you to install another OS without agreeing.

Re:EULAs for hardware AFTER you've bought it?

[FJGreer]

I dunno about Gateway, but the company I bought my laptop from (can't remember at the moment--their logo is just a big X on the top, oops) the hardware EULA was on a nice piece of paper just under the top of the box. Guess Gateway thinks paper is too expensive... actually most MS products come with paper EULA's (at least the really expensive ones do, like Visual Studio).

It's been done for a long time...

[iknownuttin]

"We are at a point now where every large corporation that has the ability to say 'take it or leave it' is opting out of the civil justice system," said Cliff Palefsky, a San Francisco trial lawyer and expert on arbitration agreements. "Some do it in a straightforward manner. Others do it in an underhanded manner."

The securities brokerage industry, stocks, bonds, etc.. has been doing this for decades. If you want a brokerage account, I don't care where, you have to agree to an industry arbitration. And some business magazine, I believe "Forbes", many years ago found that the arbitration panels are heavily loaded in the industries favor.

I have mixed feelings about it. On one hand it sounds like everything is weighted in favor of the company and against the consumer.

On the other hand, many times consumers cause themselves their own problems and refuse to take responsibility for them. Whether it be installing boards incorrectly themselves, or gambling on the derivatives market. I, for one, don't want to have to pay other's litigations, whether through increased product costs, or insurance costs.

As Gateway tells it in court filings, the company replaced Sheehan's computer a few months after he first complained, and he kept both machines.

Oh yeah, it sounds like, if Gateway is telling the truth, that this guy is trying to "game" the system and get a free computer.

Re:It's been done for a long time...

[mangu]

many times consumers cause themselves their own problems and refuse to take responsibility for them

This is a sad truth. Here on /. we see so much of this attitude "if I don't read the EULA it isn't valid for me". Try signing a contract without reading the fine print and see what a court of justice says about its validity.

The true answer to obnoxious companies is, ahem, *the market*. I always read the EULA, if I don't agree with what it says I don't buy the product. If I can't read the EULA before I open the package, I return the product in the opened package for a refund if I don't agree.

Unfortunately, too few people have this attitude. The end result is this kind of bickering. If people were more selective about the products they buy instead of bitching about the industry, we would have more better products.

Re:It's been done for a long time...

[gd23ka]

Buddy, every buck the company saves pays a yacht tied to the piers of Monaco or the French Riviera, but
the product doesn't get any cheaper. Re your moniker: I agree.

Re:It's been done for a long time...

[SirSlud]

I think that a transparent market involves not reading a contract for something that is a commodity like a PC. (Or software.)

If people were more selective about the products they buy instead of bitching about the industry, we would have more better products.

When you think about one product, sure. But imagine having to review contracts all the time in order to interact with a market. People are overwhelmed by choice. Its not really a transparent market if you can pollute it with legal stipulations to the degree that consumers have to ignore them simply out of day to day practicality.

Re:It's been done for a long time...

[iknownuttin]

Buddy, every buck the company saves pays a yacht tied to the piers of Monaco or the French Riviera, but the product doesn't get any cheaper.

Sorry, you're still wrong. You also forgot about the whores - so, wrong again!.

You see, when Joe Blow sues XYZ corp for a million, said corp's CEO says, "OK, I need my yacht and whore, so I'll charge enough to cover the yacht, whore, AND lawsuit. So, if we eliminate the lawsuit part, we WILL get a cheaper product because of competition and the fact that the CEO doesn't have to cover lawsuits - but they will always have to cover the yachts and whores. Also, the CEOs that have cheaper yachts and whores can charge less for their products than the guys with the more expensive yachts and whores. So, I'm still right and you're wrong.

Now, we can on to politics and their (Republicans and Democrats) yachts and whores - if you want.

Yes siree, I know nothing. If I knew anything, I would be doing something useful other than being here on /. arguing with folks like you.

Re:It's been done for a long time...

[MoneyT]

But if people did read them and stopped ignoring them out of "day to day practicallity" then perhaps the EULAs would become more practical.

Re:It's been done for a long time...

[gd23ka]

You forget that any business will pursue maximum profits meaning the product price is the maximum
of a function of how many customers will pay how much for the product. The cost of lawsuits only
subtracts from the profit but not from the price. Therefore lawsuits cost in terms of yachts and
quality time spent with whores, but they don't affect prices. Who in his right mind would charge
less _unless_ charging less actually increases profits?

Lawsuits are a good thing and we need more of corporate America in court than courting whores.

Re:It's been done for a long time...

[SirSlud]

I think you missed the original point. I don't have enough time. Do you? If the tax return industry was full of corruption, would you suggest that everyone should do their own taxes and the whole problem would go away?

I dislike your hubris. The reality is, a significant portion of people who purchase Windows are not capable of understanding a EULA. Myself included. Some lawyer makes the same money I do to write these things; I can't understand what exactly hes saying no more than he can understand what my code does. He probably can't fix is car, any more than his mechanic can understand how to do your job. We live in an age of specialization; I can do what I do because I don't have to know how to repair an airplane engine. EULAs are complicated, so why would you push it back on the consumer? A free market simply doesn't work very well when everyone has to become an expert in everything.

:S...

[joe 155]

Despite the fact that this is such an obvious dupe...

I wonder about EULA if there was no way that you could have read it, if it would still be taken as being binding (if it can be at all, but someone last time suggested they might be). For example if you were registered blind (which can include very poor vision, at least in the UK) and windows asks you to agree to a EULA, you can see just enough to see there is something on the screen but without a screen reader (which you would need to install after accepting the EULA), you would have no idea what was going on. Here it would seem like randomly pressing things until something happened is a good solution. So you could accept even if there was no way you could have known...

In this situation would they not be in violation of disability legislation?

Re::S...

[deftcoder]

It's possible to be "legally blind" if you have extremely poor vision in the United States, too.

That does bring up an interesting possibility though.

I returned my Gateway PC.

[liftphreaker]

I bought a gateway PC in 2000. Out of the box, the stupid thing would freeze any time the CD-RW drive was accessed. I booted with a linux live CD and it turned out to behave the same way, so I guessed it was a hardware problem. That was my last attempt at gateway. I called them and returned the system for a full refund, called Dell the next day and was up and running within the week. Haven't trusted gateway since then.

Contrary to this guy's experience, I had a pretty reasonable response from gateway. Maybe the tech support this guy reached was located overseas at you know where?

Re:I returned my Gateway PC.

[Anonymous Coward]

In 1998 a relative of mine purchased a Gateway, a then high end state-of-the-art machine. In less than one month, the hard drive failed. When he attempted to contact support, he ended up being on hold for nearly an hour on three separate occasions. He hung up, called the sales number and got through in a matter of seconds.

After explaining why he called, and threatening to return the machine for full credit (per Gateway's warranty at that time), he had an RMA in just a few minutes - the salesperson got it for him.

Apparently, not much has changed at Gateway, and that's why I'd never own one of their machines.

Re:I returned my Gateway PC.

[Esion Modnar]

I tried ordering a recovery cd set from them just recently. After being forwarded multiple times, the person at the end of the line tried to help me troubleshoot the problem, even though I clearly said just send me the damn cd, the hard disk is toast, here's my credit card. 2 hours later, they agree to send me the cd, and I gave them a credit card number, and I eventually got it, but no invoice. They tried to explain how their accounting system couldn't "do that." All the while acting like nobody would ever need one of *those*.

I would think that there might be a state law somewhere stating that a business must provide an invoice on demand for any financial transaction with a customer, but maybe it is such an assumed thing in business, that nobody has yet passed such a law.

Fucking idiots with thumbs up their arse.

Re:I returned my Gateway PC.

[prelelat]

I would have thought they would send you a receipt. If you were running a business I'm sure you would want to keep track of that record. I'm sure some companies would require it.

Re:I returned my Gateway PC.

[Anonymous Coward]

I have no clue about US law, but in Canada, for purchases under $100, receipts/invoices are optional. It is up to the customer to ask for one before the purchase, and to refuse to purchase the product/service if they cannot provide one. Of course, if they offer and then don't provide one, well... that's a whole different ball of wax.

Most companies provide them anyways, even coffee stores like Tim Horton's, because it costs next to nothing and keeps the customers that need them happy. You can buy a book of receipt paper (50 sheets!) for under $1...

Re:I returned my Gateway PC.

[Anonymous Coward]

Maybe the tech support this guy reached was located overseas at you know where?

Yeah. Fucking pakis. I mean, don't get me wrong, I'm not racist or anything, but those dark skinned curry eating types are clearly all fucking incompetent monkey men who can't be trusted to deal with hard working western white guys like us.

Overt racism: it's whats for breakfast!

Re:I returned my Gateway PC.

[jebx]

My dad bought a solo 2100 laptop back in the 2000 era. We went through 3 boards in the first couple months owning it. He ended up filing against them in small claims. He settled with them, but had to sign a NDA as part of the agreement. The bummer is the end result of having to file in small claims to get them to be willing to work on solving the issue. Good to see things have changed. I've worked with dell and IBM on similar issues with acceptable results once the issue was escalated.

can I sue ?

[C0vardeAn0nim0]

i didn't read /.'s EULA. my peecee was broken.

now, can i sue CmdTaco beacuse of this dupe ?

Re:can I sue ?

[gatzke]

Class action for millions, I am in. We should make billions and billions.

Problem with me, I skim digg for stories, since they have tons of crap over there. I now can't tell a dupe from a story I saw on digg. I just assume I saw it over there, not over here. dejanews.

How difficult is it to get two editors to sign off on a story that is going on the front page?

Why don't the subscribers notify the poster so they can trash dupes before they go to the general public?

Why have we been asking the same questions for nearly a decade? Tards. (us or the editors?)

Re:can I sue ?

[ari_j]

My favorite part is that the blurb links to a printer-friendly version of the article, which happens to bring up a printer dialog for me when it loads. Thanks for checking the links, Zonk!

Re:can I sue ?

[Anonymous Coward]

"......can i sue CmdTaco beacuse of this dupe ?"

That depends, have you tried the CowboyNeal legal option first?

Re:can I sue ?

[megaditto]

Would you rather it link to a clickthrough article split into 6-page parts each with 3 popups each?

Dupe tag, anyone?

[evanbd]

What happened to the "dupe" tag? Why doesn't it show up any more? Obviously I'm not the only one to notice, as it seems to have been replaced by "duped." So what happened to it, and all the humorous tags -- haha, itsatrap, etc. What gives?

Re:Dupe tag, anyone?

[asninn]

From http://slashdot.org/faq/tags.shtml :

Use dupe only when a Slashdot story is an actual duplicate of a previous Slashdot story, offering no new information. [...] These tags will alert us to problems immediately (but they won't show up on the top tags list).

Not sure about the rest (like "haha" etc.), though.

Re:Dupe tag, anyone?

[gEvil (beta)]

These tags will alert us to problems immediately (but they won't show up on the top tags list).

And what happens once the editor has been "alerted"? My guess is they might go "Oh, whoops" and then move along to go post the next dupe...

Re:Dupe tag, anyone?

[Raistlin77]

Oddly enough, the "duped" tag shows up for me - slownewsday, court, displays, hardware, duped (tagging beta)

Re:Dupe tag, anyone?

[gEvil (beta)]

Oddly enough, the "duped" tag shows up for me - slownewsday, court, displays, hardware, duped (tagging beta)

What's so odd about that? Duped is not the same as dupe.

Re:Dupe tag, anyone?

[Anthony Boyd]

From http://slashdot.org/faq/tags.shtml :

Use dupe only when a Slashdot story is an actual duplicate of a previous Slashdot story, offering no new information. [...] These tags will alert us to problems immediately (but they won't show up on the top tags list).

Yes, and it was so helpful in getting the editors to take no action on this. Clearly, removing the dupe tag from the list of tags and showing it only to the editors has helped us exactly not at all. Yay for Slashdot.

Damn what day is it?

[edwardpickman]

Is it still Thursday or is this post a dupe? Really important because if it's still Thursday I have two extra days to finish the job I'm working on. Man I've got to pay more attention to what day it is.

Arbitrage? Perhaps not.

[richg74]

The Gateway EULA states that conflicts must be resolved via private arbitrage.

I suspect it states that conflicts must be resolved by arbitration. "Arbitrage" is primarily an economics term; my dictionary defines it thus:

The purchase of securities on one market for immediate resale on another market in order to profit from a price discrepancy.

Both words do ultimately come from the same Latin root, though ('arbitrari', to render a judgment).

Sale of Goods & Unfair Contracts

[Anonymous Coward]

Not directly related to this guy, because this is the UK law, but:

Sale of goods act is the law that protects you from goods unfit for their purpose
http://www.dti.gov.uk/consumers/buying-selling/sal e-supply/sale-of-good-act/page8600.html

And Unfair contracts act is what prevents EULAs from shafting you.
http://www.dti.gov.uk/consumers/buying-selling/sal e-supply/unfair-contracts/index.html

You can ignore an EULA as an unfair after sale contract.

Too late?

[nurb432]

Its too late to return it? What store doesnt have a return policy? ( sure, often its only 30 days or so, but it exists )

If you read the EULA's they normally state something like "if you dont agree to this, return to your place of purchase for a full refund".

Re:Too late?

[tomstdenis]

Unless, like most corrupt shops they add "re-stocking fees."

Though for things like Laptops most giant retailers seem to be somewhat decent about returns/exchanges. Try that at the smaller shops though.

Tom

Re:Too late?

[91degrees]

I mean it's too late for them to make that sort of demand.

Their offer is that you can either accept the terms, or they'll unilaterally cancel a previously made contract of sale. It's a totally unrealted agreement by this time. Here's a similar agreement; "You agree to give me $100. If you don't accep this agreement, take the most recent item you purchased back to the shop for a refund". Clearly this agreement doesn't oblige you to pay me either $100 or return anything to the shop. So why is it that the only way to reject an agreement by the hardware manufacturer is to cancel the contract with the shop you bought it from?

Re:Too late?

[penix1]

Its too late to return it? What store doesnt have a return policy? ( sure, often its only 30 days or so, but it exists )

Any software retailer. The moment you open the plastic shrink-wrap on the box(a requirement to get to the EULA) you can't return it.

Re:Too late?

[Jimmy King]

So why is it that the only way to reject an agreement by the hardware manufacturer is to cancel the contract with the shop you bought it from?

At least in the case of broken/faulty items the store then returns the item to the manufacturer for a refund. I'd be interested to find out if the store is able to do the same when it's returned because someone doesn't like the license rather than because it's actually faulty. They "should" be able to, no reason for the store to have to take a loss and sell the item at a 10% discount or whatever as an open item because the manufacturer is lazy about how they deal with customers not liking the license, but "should" and "how things really are" frequently end up different.

Re:Too late?

[jaredmauch]

In these situations you're supposed to contact the software mfgr and they will refund you your purchase price (including taxes, etc..). I don't agree with this policy, but this is how most folks get their software returned if you find terms you can not agree to.

Regarding this story (of which i saw the original yesterday), I think there could be some possibly interesting case law here depending on how this goes. If the fact that you clicked 'Accept' isn't recorded somehow by a mfgr, you may not be bound by the EULA. If the EULA is presented on-screen only and you start booting the system by inserting your fedora/knoppix/ubuntu/*bsd disc, you're obviously not bound by it either. But what about it not being recorded by (in this case) Gateway? Seems possibly interesting to me if they can't prove that he agreed to it. Cellular companies have solved this in the past by recording the call during the 'agree' part. Either way, i hope someone tracks this and the various appeals, including some pro-bono assistance for this guy.

Re:Too late?

[macdaddy357]

A "full refund" will be less a 15 to 20% restocking fee at a growing number of stores. On a 1000 dollar PC, that's 150 to 200 dollars.

Taking advantage of the dupe

[zaguar]

EULAs are not meant to be read.
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?

Re:Taking advantage of the dupe

[pimpimpim]

Your second point brings me to a question: Is it possible to have a document remove your legal rights to anything? Will an EULA, which is not even signed, you just click a button, have more value in court than the general consumer rights? If I put this in the extreme, is it possible to have kill someone if you have him sign a paper which states that he discards of all his rights to live? Would that be acceptable. I'm all in favor of private arbitrage to lessen the burden on the already overloaded justice system. But this arbitrage, I hope, is still below the law and not above it.

To the dupe people: I missed the first one on this, and am happy to read about it. It is already tagged dupe (luckily this is done again), so leave the stupid comments, ok.

Re:Taking advantage of the dupe

[Darundal]

See, that is what I don't understand about anything electronic that doesn't actually have you write your signature to say "I Agree" and then expects you to in some way be legally bound by it. If the guys computer had not been messed up, then how do they know that he actually agreed to it? How do they not know that he had the kid from down the street come to his house and set it up for him, and like any half-sane person, just clicked OK on the EULA before the guy even saw it since the guy would have to do that anyway? Honestly, where do companies get off thinking that they have the right to enforce anything in that manner? Unless they can very specifically prove that someone was the person who accepted the EULA, then how does it have any power?

Re:Taking advantage of the dupe

[tomstdenis]

It's worse than that, most EULAs are only visible AFTER you bought the software which pretty much renders them invalid.

It'd be like signing the lease for a new car, then 5 mins when you get into the car you find a notice in the glove box saying "you also can't sue us when you realize this is a lemon."

EULAs are not part of the purchase agreement and are therefore not binding.

Tom

Re:Taking advantage of the dupe

[Anonymous Coward]

Zaguar, you asshole. You thought you could copy +5 comments from the original story and boost your karma? Well, I just modded you down.
The editors are lazy fucks for not even checking this, but sadly I can't mode them down... but you're worse, trying to exploit their stupidity

http://hardware.slashdot.org/comments.pl?sid=23775 1&cid=19431651

EULAs are not meant to be read
(Score:5, Insightful)
by Opportunist (166417) on Fri Jun 08, '07 08:03 AM (#19431651)
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?

Re:Taking advantage of the dupe

[zaguar]

That was the joke, my friend. Taking the first +5 comment from the previous story would have been stupidly obvious if I wished to exploit it for Karma. But don't worry, I've got Karma to burn.

Re:Taking advantage of the dupe

[Anonymous Coward]

EULAs are not meant to be read.
Seriously. Have you? Can you keep a straight face and tell me you read all those legalese crap? I didn't.

So they're basically like slashdot articles?

Re:Taking advantage of the dupe

[Grand Facade]

I can't read them.

If I did, I would have to click "NO, I Don't agree"

And then I wouldn't get what ever I wanted to do done.

And then I would get in a fight with the retailer when I tried to return the crappy software.

And then I would need bail because I throttled the store manager.

And then I would be labeled a terrorist for fighting for my civil rights.

And that would stop my downward spiral because prisoners in Guantanamo don't get to have Pee Ceee's.....

Re:Taking advantage of the dupe

[pimpimpim]

Ah yes, I actually came very close to this, when a friend of mine used a free webmail service here in germany, and they had a special offer at one's birthday, giving extra storage and whatever. She clicked it, didn't really read all the stuff, and then later got bills and even legal-sounding threats that she should pay. So I checked the internet and found loads and loads of people with the same problems. The birthday offer appeared to be valid only for 3 months, after which it should be specifically cancelled or otherwise switch to a paid service. Apparently, in Germany, a 'click' like this can be seen as a contract confirmation, I remember ordering my DSL service without ever writing my signature somewhere. It is a shady business anyway, and it is very clear that the service was set up in such a way to trick the free webmail users into it. From what I've read, many people paid just to make sure to not get into legal troubles (Can you imagine, 10 euro per month or so for some crappy webmail service) Others were smarter and just ignored the letters. They never got into real legal trouble as the webmail company itself probably knows very well that they're on the edge.

I am talking about you, evil people from web.de!!!! Actually, one could see it coming, as this "free" webmail service makes a lot of advertisements on billboards or radio/tv, and these have to be paid from something, don't they.

I still think that you are right, a mouseclick can never ever substitute a signature. Also signatures can be copied of course, but the amount of effort to do that is significantly higher than the effort needed to click a button for someone else. ALSO!!! One could just fill in address and bank information, that is all that is needed. Nowhere in this process you identify yourself, and I think that the moment you protest against the validity of the contract, you will put be in your right and the contract will be deleted. Let them prove with 100% certainity that you were the one clicking the button! The main problem is that you will have to start with a lot of effort to fight this. Many people will end up just doing as they're told by the company, to avoid the stress inherent to fighting the company, even when they know they are in their right.

Re:Taking advantage of the dupe

[Anonymous Coward]

You say you were joking after you were caught.

You're either a troll who enjoys messing with people, or a jerk trying to boost his karma. So I modded this post down too. Next time I get mod points I'll be sure to look you up again.

Can I sue Slashdot

[Skapare]

Or have I accidentally agreed to some EULA that restricts me to only using arbitration for settling my complaint about too many duplicate articles?

There has to be more to this

[Anonymous Coward]

While the EULA discussion is valid, I think there is way more to the actual case than this - I can't see a corporation willing to go to court for a PC that was allegedly defective right out of the box. I bought a Gateway laptop in 2005 that developed a cracked hinge almost two years after I bought it (without the extended warranty), and when I contacted Gateway to have them repair it, fully expecting to pay, they informed me that there was a design flaw and cheerfully fixed it for free in less than two weeks - even paying the shipping. That was "above and beyond" service.
          I can't imagine a company the size of Gateway having a policy of not accepting the return of a defective machine if it arrived broken, otherwise there would be howls from thousands of customers, and they would soon be out of business. Notice a single line in the article where Gateway claims that the customer was send a replacement machine and kept both - I doubt they would make that claim without proof.
      While there is a valid complaint about corporate EULA's, I think it is wrong to automatically assume that Gateway intentionally tried to make this guy keep a broken machine. I bet Gateway will win the actual case, wherever it is heard, but they don't want to set a precedent of waiving the EULA.

One sided contracts aren't enforcable

[Anonymous Coward]

A contract is unenforcable unless both parties get some (roughly equal) benefit.

"The Uniform Commercial Code which is followed in most American states has specific provisions relating to standard form contracts. Furthermore, standard form contracts will be subject to special scrutiny if they are found to be contracts of adhesion.

[edit] Contracts of adhesion

The concept of the contract of adhesion originated in French civil law, but did not enter American jurisprudence until the Harvard Law Review published an influential article by Edwin W. Patterson in 1919. It was subsequently adopted by the majority of American courts, especially after the Supreme Court of California endorsed adhesion analysis in 1962. See Steven v. Fidelity & Casualty Co., 58 Cal. 2d 862, 882 n.10 (1962) (reciting history of concept) [3].

For a contract to be treated as a contract of adhesion, it must be presented on a standard form on a 'take it or leave it' basis, and give the purchaser no ability to negotiate because of their unequal bargaining position. The special scrutiny given to contracts of adhesion can be performed in a number of ways:

        * If the term was outside of the reasonable expectations of the person who did not write the contract, and if the parties were contracting on an unequal basis, then it will not be enforceable. The reasonable expectation is assessed objectively, looking at the prominence of the term, the purpose of the term and the circumstances surrounding acceptance of the contract.
        * Section 211 of the American Law Institute's Restatement (Second) of Contracts, which has persuasive though non-binding force in courts, provides:

                Where the other party has reason to believe that the party manifesting such assent would not do so if he knew that the writing contained a particular term, the term is not part of the agreement.

        This is a subjective test focusing on the mind of the seller and has been adopted by only a few state courts.

        * The doctrine of unconscionability which is a fact-specific doctrine arising from equitable principles. Unconscionability in standard form contracts usually arises where there is an "absence of meaningful choice on the part of one party due to one-sided contract provisions, together with terms which are so oppressive that no reasonable person would make them and no fair and honest person would accept them." (Fanning v. Fritz's Pontiac-Cadillac-Buick Inc.)

[edit] Shrink wrap contracts

Courts in the United States have faced the issue of shrink wrap contracts in two ways. One line of cases follows ProCD v. Zeidenberg which held such contracts enforceable (eg. Brower v Gateway [4]) and the other follows Klocek v. Gateway, Inc which found them unenforceable (eg. Specht v. Netscape Communications Corp. [5]). These decisions are split on the question of consent, with the former holding that only objective manifestation of consent is required while the latter require at least the possibility of subjective consent."

http://en.wikipedia.org/wiki/Standard_form_contrac t

In Britain, the law seems more specific. http://en.wikipedia.org/wiki/Unfair_Terms_in_Consu mer_Contracts_Regulations_1999

anti-customer

[Anonymous Coward]

Research definitely pays off when making a purchase of any kind. I'll mark Gateway off my list. You can safely assume that any company wanting to limit your rights to sue them has some major issues. Except for a cheap notebook, I buy barebones systems from a local vendor and put in my own parts.

How does this benefit gateway ?

[Alain Williams]

Cost of fixing the bust PC: $200

Cost of lost sales due to bad publicity: $200,000

How does that make sense ?

Re:How does this benefit gateway ?

[TwoOranges]

Must be the Chewbacca defense

Re:How does this benefit gateway ?

[Klanglor]

you forgot one variable. busted PC: X Cost of fixing busted PC: 200$ Cost of lost sales to bad publicity: 200,000$ thus we can safely assume that they ship a lot of crap... 200$ * X > 200,000

Re:How does this benefit gateway ?

[$criptah]

It does not work this way. First of all, check the company's financial reports and press announcements. Gateway has been ranked #1 in customer service satisfaction by corporate users. Here:

IRVINE, Calif., June 1 /PRNewswire-FirstCall/ -- Gateway, Inc. today announced that it's won the leading position in Technology Business Research's (TBR) Corporate IT Buying Behavior and Customer Satisfaction Study for Corporate Desktops in the first quarter of 2007.

Here is alink to the full story.

A company with thousands of customers has one unsatisfied customer for every hundred of happy ones. Gateway has enough financial power to sue and fight in courts and unfortunately this guy is bound to lose the legal battle in the future. Then Gateway will become a sponsor and donate some hardware to a good cause and make a TV commercial out of this.

Finally, corporate and gov't business are extremely important to companies like Gateway, HP and Dell. As long as they have large customers, they will should be more or less okay. Sad but true.

So, I mis-modded

[Eudial]

And this will remove my moderation. Mod overrated or something if you want it out of your face.

Re:So, I mis-modded

[TheVelvetFlamebait]

You know, you can opt out of the moderation system. Just click on options up the top, and then homepage, scroll down to

[x] Willing to Moderate

and uncheck the box.

Re:So, I mis-modded

[Eudial]

You know, you can opt out of the moderation system. Just click on options up the top, and then homepage, scroll down to

[x] Willing to Moderate

and uncheck the box.

O, I am willing to moderate. It's just I accidentally cranked open a huge canister of -1 troll on the wrong post. Figured I didn't want to spoil the poor guy's karma.

Re:So, I mis-modded

[Gareth Williams]

I don't often laugh at /. comments, but for some inexplicable reason that just cracked me up.

I've never seen it put quite THAT way before. That's the funniest thing I've read all week.

"above and beyond" ???

[grolschie]

While the EULA discussion is valid, I think there is way more to the actual case than this - I can't see a corporation willing to go to court for a PC that was allegedly defective right out of the box. I bought a Gateway laptop in 2005 that developed a cracked hinge almost two years after I bought it (without the extended warranty), and when I contacted Gateway to have them repair it, fully expecting to pay, they informed me that there was a design flaw and cheerfully fixed it for free in less than two weeks - even paying the shipping. That was "above and beyond" service.

Not really. They simply did what they were morally (and perhaps legally) obliged to do. They were doing you no favour by fixing their mistake. One can reasonably expect when one buys a laptop that it will last more than 2 years. Ever hear of the phrase "fit for purpose"? In New Zealand we have the Consumer Guarantees Act which covers goods purchased not-for-business-use over and above any one year warranty. We are covered for the reasonable expected life of the product. An organisation here called the Consumers Institute, regularly expose the racket which is 'extended warranties' - because consumers here are already covered by law. Although, it sometimes is more convenient to shell out for the warranty than going to small claims court later on if the store decides to play hardball.

The Story Behind The Story

[BulletMagnet]

I live in Sacramento, and as someone in IT, and a Slashdot reader, I'm surprised I didn't see this article in the Bee, since it have only one remotely technical section and it's usually some one sending The Computer "Guru" dude a "How come my Outlook doesn't work" question ... good for a chuckle, better when his answers aren't right.

I opened the article to see what area this dude was from. Grizzly Flats?? Do people have computers there? Or running water? He must be the only guy in the whole 'town' (population is 647) who has a computer....which explains why he bought a Gateway in the 1st place. Even if he got his PC to boot to see the clickwrap agreement, he would have had to download it at 14.4 on his rockin' new analog modem.

I suspect he's the smartest redneck of the bunch who's gonna take on The Man at Gateway. Don't bet your livestock on the deal, Homer.

He coulda saved himself the whole thing had he read the directions (or been able to read, much less) on how to plug in a DVI video cable rather then force the thing in ... no wonder he has "broken" graphics. Or maybe it was his fault for buying a Gateway...

Be this a lesson to you....

1. Rednecks shouldn't own computers
2. Rednecks shouldn't pretend to be lawyers
3. Nobody should buy Gateway PCs (Buy a Dell, they pander to Windows and Ubuntu types...sort of)

Re:The Story Behind The Story

[Anonymous Coward]

Mr "Big City" disses somebody who lives in a small town. Better yet, the poster comes from Sacramento - where there are fewer honest people than normal since it's the capital of Calipornia. Grizzly Flats is about 40-50 miles from Sacramento - just far enough to be away from the "Big City" trash.

BTW, Grizzly Flats has both DSL and Cable broadband. So yes, people there have computers.

All your dupes are belong to us!

[Proudrooster]

Once again Slashdot editors, great JOB ON DUPE CHECKING. Makes you wonder if the editors even read their own website.

Re:All your dupes are belong to us!

[ColdWetDog]

Actually, it makes me wonder if the editors can read, period.

Is there a "Mavis Beacon teaches reading comprehension" course on the web?

Re:All your dupes are belong to us!

[jrothwell97]

Is there a "Mavis Beacon teaches reading comprehension" course on the web?

I suppose after each lesson Mavis would say "Now, that was hard. How about a game, huh? All you have to do is tell me what these EULAs mean to increase the car's speed! Don't take more than five seconds though, or your car will crash!"

Re:All your dupes are belong to us!

[RockDoctor]

Not on the web - it comes in 4 concise chapters, neatly picked out in Braille characters on each face of a ClueBat and need to be cranially applied to the pupil with sufficient force to embed the lessons in their skulls a a neat series of bone chips.

[Oh, if only ...!]

Gateway loses, again.

[Futurepower(R)]

It's not a dupe. It's a backup, to assure reliability. Here's a backup of my comment to the earlier story:

The big loser is Gateway. Would you buy a Gateway computer after reading the Slashdot article?

An appeal means that the case is no longer in small claims court. Both parties can then hire a lawyer. An appeal means that Gateway exposes itself to more attention.

The company is apparently unable to manage itself: Jury finds former Gateway execs manipulated earnings.

Okay, maybe the story is not a backup. Maybe Zonk is zonked.

Re:Gateway loses, again.

[macdaddy357]

Gateway computers are worse than Packard Bell.

Re:Gateway loses, again.

[Wolfrider]

[[
> Gateway insists that by clicking 'Accept' on a customer service EULA when the computer was first booted, Mr. Sheehan has waived his rights to sue the computer manufacturer in United States courts.
]]

Ahem - I call b0llsh1t. NOBODY can force you to "waive your rights" just by clicking on a popup - even SIGNED CONTRACTS that are illegal (per-state basis, IIRC) can be overturned.

Gateway needs their head handed to them for piss-poor customer service on this one.

Dupes are great

[Anonymous Coward]

Because I just copy and paste a +5 insightful comment from the dupe and pop it in here for instant karma.

Posted anonymously for obvious reasons

Racist.

[CheeseburgerBrown]

I'm telling Dr. Phil on you.

Re:Racist.

[Anonymous Coward]

Rednecks aren't a race. Although if you're born a redneck you'll probably die one too

He's 95% of Slashdot

[mangu]

At this point, the last 16 articles have been posted by him, and he has posted all but one of the articles in the first page.

Who decides which articles are posted, anyhow? Monoculture is bad, diversity is good, maybe the Slashdot algorithm would benefit from a reject() if $author == "Zonk"; statement.

Re:He's 95% of Slashdot

[Runefox]

Oh, great. That's just what we need... Then we'd have Z0|\||<.

obligatory....

[holywarrior21c]

in sueviet russia, sue gets sued for sueing company for insuefficient suetuff sue sustained.

Layman's terms

[jadin]

I installed software once that had the best EULA ever. While it did have the "legal speak" version you had to agree to, it also had a recap in layman's terms. Made it very very easy to see what you were agreeing to.

Example (not a real example, but you get the idea) :

1.1 Installation and use. You may install, use, access, display and run one copy of the Software on a single computer, such as a workstation, terminal or other device ("Workstation Computer"). The Software may not be used by more than one processor at any one time on any single Workstation Computer.

Becomes

1.1 You get one copy for one computer.

Re:Layman's terms

[dodobh]

What *is* one computer today? A dual core? Dual CPU?

Gateway, EULA's, and arbitration

[edbob]

After reading the article, it sounds to me like this guy was sold defective hardware. There seems to be some other story here, though. Why didn't Gateway simply replace the computer before this issue came to a head? I am wondering if Sheehan really wants a computer or is standing up for principle. The idea that a company can "opt-out" of the civil justice system is disturbing in and of itself. If it were me, I would just want the defective hardware replaced and then I would be satisfied. As far as Gateway hardware itself, there really is nothing wrong with it. Although I wouldn't buy one myself, my parents have one and it works well for them. I don't remember seeing any EULA when I set it up for them, but I wiped the hard drive and reinstalled Windows right away since it was a floor model and had all sorts of crap installed on it (and not just the normal trial-ware either).

A mere peppercorn, apples, and oranges.

[glrotate]

You're mixing up a few issues here.

First consideration:

"A contract is unenforcable unless both parties get some (roughly equal) benefit."

Wrong. If I agree to sell you my Ferrari for $500 bucks, absent fraud or other special circumstance, that contract is eenforceable. The saying is that courts will find consideration even if it is a mere peppercorn.

The ProCD / Klocek issue is not an adhesion issue, but rather a "battle of the forms" issue.
Posner said the binding contract is formed when you click OK. Judge Vratil said it was when the purchase was made.

Kids

[7311587]

I get my kids to click EULA's since contracts with minors are not valid.

Re:Kids

[jjason82]

Would that actually work?

Dell replaced vid card when this happened at work

[majortom1981]

Hmm wierd. I had this on a brand new comp that we setup at work. I must say dell handled it very weell. I told the tech i was a comp tech and i was extremely sure that it was a bad vid card. They sent out a new vid card and i sent abck the old one. Why couldnt gateway do that ?

Hardware is not IP

[RapidDemon]

IANAL, but it seems to me that when you buy hardware, you own it. You shouldn't have to agree to an EULA which protects IP because hardware is hardware, not IP. Also, you purchased the computer without reading the EULA, and companies are not allowed to negotiate terms of sale after the fact. Therefore, I don't think this holds up, if I purchased hardware and saw an EULA on it after the fact I would be pissed.

Can a EULA on a physical product even be valid?

[The Monster]

#include <ianal.h>

The elements of a contract are Offer, Acceptance, and Consideration. Once you've agreed to certain terms and money has changed hands, neither party can impose additional terms on the other. I know that argument by analogy is fraught with peril, but let's try this one on for size:

I buy a new Chevy. My signature is on the purchase contract, I've handed the salesman a check and he's given me the keys. I get in the car, turn the key, and out of the dashboard comes an End User License Agreement that says that if I have any problem with the car, the venue for the action will be Oakland County, Michigan, despite the fact that the car dealer is in Johnson County, Kansas. From my layman's understanding of KS law, such ex post facto terms are completely invalid. If something like that happened, I'd contact the AG's office so they could investigate it.

The only reason why software EULAs have any traction at all is that installing software onto a computer requires copying of copyrighted files to the hard drive. In the case of an integrated computer system, the software has already been installed. I take the position that any software advertised as part of the purchase is, well, part of the purchase. The legalities of getting that software onto the computer's hard drive have been worked out between the publisher and integrator are their affair, not mine. If the software publisher alleges that their product was illegally installed on the computer I bought, they need to go after the person who did it, not me.

The retailer has advertised a computer with certain hardware and software installed, and a price that I find agreeable. I've given them my money; they've given me the computer. It's a done deal, and neither can later come along and make any new demands on the other.

Re:Can a EULA on a physical product even be valid?

[Scott Wood]

The only reason why software EULAs have any traction at all is that installing software onto a computer requires copying of copyrighted files to the hard drive. In the case of an integrated computer system, the software has already been installed. I take the position that any software advertised as part of the purchase is, well, part of the purchase. The legalities of getting that software onto the computer's hard drive have been worked out between the publisher and integrator are their affair, not mine.

Actually, in the US, it's been worked out by Congress. 17 USC 117 says that you're allowed to make incidental copies of software that you own that are necessary in order to use the software. So even the EULAs on non-preinstalled software are on pretty shaky legal ground.

Re:Can a EULA on a physical product even be valid?

[cfulmer]

The problem with your analysis is: "what is the offer?" Nearly every box of software has a notice that says something about being subject to the terms of an EULA. The outside of most computer boxes too, and when you buy computer on-line you are (or should be) notified of the EULA's existence.

Generally, in the US, if the existence of the EULA is made known to the purchaser before the purchase AND he's given a chance to reject the purchase after being given a chance to read the EULA, then the EULA is enforceable under contract law.

In this case, it sounds like the court was right -- because he never had a chance to read the EULA, he could not accept it and, thus, was not bound by it.

Re:Can a EULA on a physical product even be valid?

[jamesh]

I think the 'out' for the manufacturer in this case is that they include a "if you don't agree to these conditions, please return the product to the place of purchase for a refund" clause. It could be argued that the customer could have refused to accept the EULA at any point, nobody was twisting their arm.

But you are right, if the contract is already complete they shouldn't be able to impose additional terms on you. At least you should be able to charge them a re-packaging fee for having to return the thing to the shop again. (Of course I'm say "shouldn't" from a moral and not a legal point of view). I wonder if things would be different if the store made you sign the EULA before handing over your money...

What I'd love to see is my new HP computer ask me if I agree to the EULA, where clicking on the 'Accept' button installs Windows, while the 'Decline' button installs Debian :)

That's a silly thing to say.

[Runefox]

I wouldn't buy a Gateway computer before reading that/this article.

Not quite

[Anonymous Coward]

If I agree to sell my beloved Jaguar to my lifelong friend for one dollar, the court will probably agree with the deal. On the other hand, if I sell something to someone for way less than it's worth, the court may indeed have something to say.

Here's the famous case of the pregnant cow.

"Seller Walker owned breeding cows, worth between $750.00 and $1,000.00 and barren cows, worth about $80.00. Buyer Sherwood inspected an apparently barren cow, Rose 2nd of Aberlone, and decided to buy her. A price was agreed on 5.5 cents per pound but before the exchange of money and cow, Walker found Rose was pregnant and refused to part with her. The court said that if both parties thought the cow was barren (a question for the jury), the contract was voidable on grounds of mutual mistake."

"A mistake of fact, shared by both parties, which goes to the basis of the bargain, entitles either party to rescind the contract. (See, Sherwood v. Walker 33 N.W. 919 (Mich. 1887).) If both parties are mistaken and neither is at fault or both are equally to blame, mistake may prevent the formation of a contract. Unilateral mistake does not render a contract voidable except where the mistake is due to the fault of the other party or the other party knows or has reason to know there is a mistake. (Rest.2d 153)."

So, a court may find that a contract is enforcable even to the extent of a castle for a peppercorn. That is by no means guaranteed though.

Re:Not quite

[glrotate]

Mutual mistake is a special circumstance justifying recesion. In my hypo I used a Ferrari so that there would be no confusion that it was worth signifigantly more than $500.

Only part of the story

[grapeape]

From other articles I have read about this the guy refused to follow instructions given by the gateway techs and was shipped a second machine though he never returned the first. I have a feeling this guy is just an idiot making a poor attempt at taking an upper hand.

Re:One sided contracts aren't enforceable

[arborlaw]

A contract is unenforcable unless both parties get some (roughly equal) benefit.

That would be a useful theory to argue if the doctrine of 'contracts of adhesion' were actually alive; it's been dead in the water for many years in most states. You won't find precedent following this line of reasoning since the early 70's. The legal trend is in the other direction -- mass market buyer beware. (And generally not a good idea to use Wiki as a definitive source of the state of the law.)

The best argument is that the terms were not part of the contract formation -- offer and acceptance (payment) were exchanged before they were ever presented and seen. This was a common-law principle crucial to the development of commercial law in most states, prior to the enactment of the uniform laws.

Another great argument is under the applicable state consumer protection act. We lawyers love these -- they address the various sketchy business practices that are used to entice consumers enter into transactions based on incomplete or misleading information. Lots of states provide for attorneys' fees and triple damages.

Another approach is to argue that EULA-type restrictions only can apply to services (licensed intellectual properties) and cannot apply to the goods. The hardware is a good, and after title passes to a good, you can't restrict use or otherwise affect the contract of sale. Software licenses are a service and the prevailing rule of law is that they are not subject at all to the UCC or UCC caselaw, even arguing by analogy.

Those are certainly the arguments that I would make, were I in this guy's place.

On the clickwrap/shrinkwrap enforceability issue -- a few states have tried to pass legislation 'propping up' clickwrap/shrinkwrap by declaring EULAs to be enforceable valid contracts even if they are not seen by the buyer prior to the opening of the package. AFAIK (IAAL) none of these statutes have been found valid in court, so the "clickwrap" issue is very much an open question. (There is another issue, which is whether any such legislation is preempted by the copyright and patent laws, since they are federal and they both were designed by Congress to supersede state laws covering substantially the same rights.)

Also, note that the computer industry has been actively lobbying to get their own uber-clickwrap law in place, called UCITA (Uniform Commercial Information Transactions Act). UCITA applies to all transactions involving "information technology" regardless of mode of delivery (allowing control of use of mixed goods/services contracts -- a book could be "licensed" and not sold, under UCITA). Here are some links to the text and articles and criticism of UCITA. Virginia and Maryland have passed UCITA, but it seems to have lost steam since then, no activity on further adoption since 2000-2001. The same issue above, about preemption by federal law, applies to UCITA as well (since whereever it has been passed, it's a state law).

oggoody .. more /. reruns

[josepha48]

I love this new rerun thing that /. has, if I miss a story I get to see it again a few days later. :-D

http://hardware.slashdot.org/article.pl?sid=07/0 6/07/2317239

Common Sense Suggestion for a Nutty Industry

[MSTCrow5429]

Print out the EULA, stick it in the box, and tape it inside in a large neon orange folder saying "EULA: Read This First!" in a way that it has to be removed from the box before the equipment.

Damn tag censorship...

[Anonymous Coward]

where's the "DUPE" tag when you need it?

It's true, most observant /.ers will recognize a dupe by the title and writeup, but a few could probably use a more explicit warning so we know not to waste time and pageviews on dupe crap.

But I guess if Zonk or Taco puts it up, we're morally obligated to give 'em their pageview, or else it's THEFT!

Arbitration, not arbitrage

[Anonymous Coward]

...and if you read PimpMaster C's explanation, you'll never forget the difference again.

No

[Sycraft-fu]

There are tons of unenforceable clauses in EULAs. What's more, it had been ruled in more than one case that simply clicking "I agree" doesn't constitute a legal agreement. They keep trying probably because it doesn't cost them anything and they hope they can bully people with it. However, without a change to contract law, EULAs won't stand up when really pushed. There's a few major reasons why:

1) They are ex post facto. Contracts must be executed BEFORE the exchange takes place, that's just how they work. Hence why you hear about things like prenuptial agreements. For them to have any hope of holding up, they have to be done before the marriage. To do it after makes the contract unenforceable. Well, same deal with an EULA, you've already paid your money and got your product. Thus it is too late to put a contract on it.

2) They aren't an exchange. All contracts must be an exchange, that is how they work. A mortgage is a contract, you are exchanging some rights to your house in turn for money from the bank. An EULA is not a contract, as there is no exchange, as I noted in the previous post, money has already changed hands, thus no exchange. Even if you are just signing over something to another person, like quitting claim to a house that you helped cosign for, the contract still must be an exchange. It'll read something like "For the sum of ten dollars and other valuable consideration I hereby quit all claim to this deed," and so on. The money is in there because if it isn't, it's not an exchange and thus not a contract.

3) They aren't open to negotiation. Contracts MUST be open to negotiation. The other side doesn't have to accept your changes, but they are required to allow you to propose them (and you are required to allow them to propose changes to you). They can't say "You have to sign this as is, and there's no way to contact us," that will make it unenforceable. With a normal contract you line out any section you don't like and initial it, and attach pages with new sections you want added, then sign it and send it back to the other party. They can either sign it and accept the changes, or make a new copy with their own changes, sign that and send it back to you to review. You can go back and forth like this until both sides are happy.

4) They try to take away rights that can't be taken away normally. Contracts aren't unlimited, there are things you just can't sign away. I can draw up a contract that says you'll become my slave for $100 and get you to sign it. However that doesn't mean that a court will hold you to it when I try to collect. You can't sign yourself in to slavery. What's more, an unenforceable clause, especially if it is blatant, can make the whole contract unenforceable. If it is a minor thing, usually it'll be ruled that clause is unenforceable, but if there are numerous clauses like that and if the clauses are especially outrageous, then the whole contract will usually be ruled as null.

Thus EULAs aren't enforceable under any stretch of the imagination. The only parts that would be enforceable are the ones that are redundant with regular law (like not being able to distribute copyrighted software). That's what Gateway is finding out in this case. Provided the claimant has the resources to get a competent lawyer in court, he'll win. A box that has an "I Agree" button isn't a contract, no matter how much they might want it to be.

Seems obvious to me

[tuxlove]

If Gateway arranges it so that the EULA is only presented after you've paid for the computer and taken delivery of it, they are using unfair tactics to essentially force/trick customers into swallowing the thing whole. After going through the hassle of buying, unpacking and installing a computer, who's going to return it because they disagreed with the EULA? I'm sure it's never happened.

If they were to play straight and display the EULA to the user during the purchase process, before credit card and other info was gathered, then they would have some argument for fairness. But not much. It seems completely illegal to require consumers to chuck their rights in the trash before they will be allowed to buy a given product. If Gateway can get away with it, why not car manufacturers? Food producers? Makers of baby products? If this were okay, conceivably every product you buy could require you to suspend your rights, making moot the fact that you even have rights at all. Why bother having rights?

No company should be allowed to do this.

Re:Seems obvious to me

[Billly Gates]

Car manufactors do do it.

When I bought my Hyundia they made me sign of a form and then they declared I waived my right to sue and such issues I have with their products must be dealt with by private arbitration.

Basically I am licensed to use the car only and thats what I purchased. Not hte actual car itself though that is not what the tile says?? If Hyundia does not honor their contract I can not sue but they can still sue me.

At this point I did not want the car. However I was a college student and could not afford a car on my own and my father was helping me loan the money.

Legal agreements are normal in any business. But if any car manufactor does any of this crap again I will thank them for hte time and walk to a competitor.

Worse?

[Warg! The Orcs!!]

Is there such a thing as "Worse than Packard Bell"?

I had a Packard Bell running Windows98... [cuts long, sad story short]..and binned it.

EULA's are an "exchange"

[AHumbleOpinion]

2) They aren't an exchange.

Note the "L" in "EULA" :-), you receiving a license to use copyright material.

Re:EULA's are an "exchange"

[Sycraft-fu]

Nope, sorry, doesn't work that way. They'd like to think so, but any and all licensing and such has to be done prior to the sale. After the sale, normal law applies. You don't need a license to use things you purchased. Software companies like to pretend like they are special, but thus far all the court cases I'm aware of where this has come up (there aren't many) have held that click thru and/or shrink wrap EULAs are unenforceable. You paid for the merchandise, their time to get you to agree to a license is past.

Same deal with anything else. For example a car dealer can't say "Sure you can buy this car, just give us $10,000 and it's all taken care of." You pay cash, and then when you get in the car there's a document on the seat saying "By using this car you accept this agreement," with a bunch of terms. Nope, sorry, they want terms on it, they have to set that before the sale. Once they took your money it is too late. If they wanted to just license you to use the car under certain terms, that has to be hashed out before hand.

Thus you can license software, and indeed there are plenty of places that do. FMOD licenses out their audio engine for example, and you sign a contract as to how it'll be used. However when the software is sold in a retail store as any other good, they don't get to try and tack a contract on it later. IT's way too late, the sale has already taken place (and in fact was too late when they sold it to the store). They can crow all they want about licensing, you have a right to use it anyhow as you bought it.

More like a canoe in North Dakota

[AHumbleOpinion]

Buddy, every buck the company saves pays a yacht tied to the piers of Monaco or the French Riviera, ...

Uh, this is Gateway. About all they can afford is a canoe on a lake in North Dakota.

... but the product doesn't get any cheaper.

But it may delay a price increase, or a reduction in features. In any case the cost of a good is only one factor in its pricing, the willingness to pay of the consumer is a far more important factor and in your scenario it hasn't changed so neither has the price.

Grizzly Flats?

[keith_nt4]

For the record the resident lives in Gizzly Flats, which is located in El Dorado County. It's the first part of the first sentence of the whole article. I only point this out because I live a few miles from Grizzly Flats (and in El Dorado County for life). Also, there's a town called El Dorado in El Dorado County. So it does matter. Sort of.

From article:

El Dorado resident and

As Grizzly Flats resident Dennis Sheehan... Also, who the hell buys Gateway?!

Added that company to my do not buy list

[Billly Gates]

.. behind Hyundai, Sony and most proprietary software makers with the exception of Microsoft because I need their software.

There needs to be some laws stopping this. A few years ago an EULA was ruled invalid because it did not have a signature with a notory present to be a valid legal agreement. Then some case with a republican judge came and he ruled click licenses are valid.

Can I just write a letter to someone saying by opening the letter you agree to the terms inside it, inside it I demand all their assests? I mean come on?

Court has ruled shrink wrapped EULA enforcable ...

[AHumbleOpinion]

Nope, sorry, doesn't work that way. They'd like to think so, but any and all licensing and such has to be done prior to the sale. After the sale, normal law applies. You don't need a license to use things you purchased. Software companies like to pretend like they are special, but thus far all the court cases I'm aware of where this has come up (there aren't many) have held that click thru and/or shrink wrap EULAs are unenforceable. You paid for the merchandise, their time to get you to agree to a license is past.

I believe you are citing obsolete cases. More recently I believe courts have ruled that if the license is available to the consumer, on a website or available from the retailer, and the box refers to this then the shrinkwrapped EULA is enforcable.

Re:Court has ruled shrink wrapped EULA enforcable

[Sycraft-fu]

Ok then cite case law. I've never seen such a case and it completely flys in the face of over two centuries of contract law. If you know of them, I'd love to review the cases. Remember: Case law is only cases that were decided by an actual trial. Default judgements, ex parte rulings and so on have no precedential value.

wanna read EULA, but why?

[v4vijayakumar]

Why in this world anyone wants to read EULA?!

Good Omens

[kalirion]

Stories like this one always remind me of the computer warranty in Pratchett and Gaiman's Good Omens:

"Along with the standard computer warranty agreement which said that if
the machine 1) didn't work, 2) didn't do what the expensive
advertisements said, 3) electrocuted the immediate neighborhood, 4)
and in fact failed entirely to be inside the expensive box when you
opened it, this was expressly, absolutely, implicitly and in no event
the fault or responsibility of the manufacturer, that the purchaser
should consider himself lucky to be allowed to give his money to the
manufacturer, and that any attempt to treat what had just been paid
for as the purchaser's own property would result in the attentions of
serious men with menacing briefcases and very thin watches. Crowley
had been extremely impressed with the warranties offered by the
computer industry, and had in fact sent a bundle Below to the
department that drew up the Immortal Soul agreements, with a yellow
memo form attached just saying: "Learn, guys.""

Informative?

[empeg]

Score:5, Informative? Hell no. This is laugh out loud funny! m@t