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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.
And even more connection to THIS ARTICLE from yesterday:
http://hardware.slashdot.org/article.pl?sid=07/06
Slashdot gets worse every day... Pipedot: News for nerds, without the corporate slant
He just posts here ... I don't think he reads the site much.
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.
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.
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.
I prefer Flambe as apposed flamebait.
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?
*''I can't believe it's not a hyperlink.''
i didn't read /.'s EULA. my peecee was broken.
now, can i sue CmdTaco beacuse of this dupe ?
What ? Me, worry ?
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?
If you dont accept it, you can get a full refund ( supposedly ).
---- Booth was a patriot ----
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.
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.
I suspect it states that conflicts must be resolved by arbitration. "Arbitrage" is primarily an economics term; my dictionary defines it thus:
Both words do ultimately come from the same Latin root, though ('arbitrari', to render a judgment).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".
---- Booth was a patriot ----
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?
"Sure there's porn and piracy on the Web but there's probably a downside too."
Or have I accidentally agreed to some EULA that restricts me to only using arbitration for settling my complaint about too many duplicate articles?
now we need to go OSS in diesel cars
In Britain, the law seems more specific. http://en.wikipedia.org/wiki/Unfair_Terms_in_Cons
Cost of fixing the bust PC: $200
Cost of lost sales due to bad publicity: $200,000
How does that make sense ?
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.
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.
You know, there is a difference between trolling and pointing out the flaws in your reasoning. Just saying.
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.
GAAH! MY PRINTER IS ON FIRE!!! PUT IT OUT! PUT IT OUT!
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.
I'm telling Dr. Phil on you.
These stories are free but worth money.
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.
They say the first thing to go is your penis. Well, it's either that or your brain. I forget which...
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.
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.
Is there a "Mavis Beacon teaches reading comprehension" course on the web?
Faster! Faster! Faster would be better!
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.
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.
Help Brendan pay off his student loans
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).
I get my kids to click EULA's since contracts with minors are not valid.
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 ?
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.
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.
[100% ISO 646 Compliant]
SVM, ERGO MONSTRO.
I wouldn't buy a Gateway computer before reading that/this article.
Screw the rules, I have green hair!
Here's the famous case of the pregnant cow.
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.
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.
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).
a r b o r l a w -- legal blog for entrepreneurs and small business
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).
Behold! Uh, what was I going to say?
http://hardware.slashdot.org/article.pl?sid=07/0 6/07/2317239
Only 'flamers' flame!
Does slashdot hate my posts?
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.
Slashdot: Playing Favorites Since 1997
Those using pirated Tinysoft signatures(TM) are a real threat to society and should all be thrown in jail.
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.
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.
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.
Travelling forward in time at a rate of 1 second per second.
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.
--Gareth
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.
2) They aren't an exchange.
:-), you receiving a license to use copyright material.
Note the "L" in "EULA"
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.
Uh, this is Gateway. About all they can afford is a canoe on a lake in North Dakota.
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.
From article:
El Dorado resident and As Grizzly Flats resident Dennis Sheehan... Also, who the hell buys Gateway?!"UNIX is very simple, it just needs a genius to understand its simplicity." -Dennis Ritchie
.. 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?
http://saveie6.com/
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
Birds are not dinosaur descendants;birds are dinosaurs, for all useful meanings of "birds", "are" and "dinosaurs"
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.
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.
Why in this world anyone wants to read EULA?!
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.""
Score:5, Informative? Hell no. This is laugh out loud funny! m@t