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...

[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...

[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!!

Zonk

[PenGun]

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

Re:Zonk

[noidentity]

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

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:I tried

[evilviper]

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

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.

: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?

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: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.

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.

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).

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

[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?

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

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: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.

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: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?

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.

Kids

[7311587]

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

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.

That's a silly thing to say.

[Runefox]

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

Re:He's 95% of Slashdot

[Runefox]

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

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.