Closer look at what? I don't have to *look* more carefull to know what contracts I enter or not. I have yet to make any special contracts anytime when buying music CDs, food, cloths and so on. I once bought a mobile phone, I decided that instead of just buying one, I also at that time signed a contract with a phone company to use, there, I clearly made a contract in addition to just buying the phone. In 99.9% of the times I shop, there is no special contracts that are done in addition to the normal "you get the money, I get the product". But then, agin, you might buy in some very special shops, what do I know.
This is not true. Perhaps some EU country has such a law, but most definately not all. If we talk non faulty products, there is, for example in Sweden, no requirement for the shop to take anything back. Many still have such a policy though since they feel it is good for business. The only case were such "always has a right to return products" is when the sale is done over phone/internet/postal or if someone knocks on your door and sell something (were the seller seeks up you). I really can't tell how other EU countries have it, but there is no such general EU directive.
Still, how do you go about proving that a specific person is the one that actually clicked the "I agree"??? How do you know it was me? And not my wife? Or a friend? Or someone else? And so on.
Why do you need any EULA at all to start with? Appearantly almost any other bussiness in the world manage fine with out page after page with contract text and they seem to do just fine.
In addition, large portions of the EULA is just retelling what is allready the law. Another large portion is against the law or for other reasons would not be enforcable. WHat is left, well, why would you need it anyway? It is not like the world would go under and appearantly most other bussiness do just fine.
>Now that the EULAs are referenced on the outside >of the package, there is more of a chance that >they are legally binding, not less.
Since when does something printed on the outside of a product you buy turns into a binding contract? Do you check under the car you buy to see if there is something printed there to avoid being legally bound by it? What about the back side of that piece of choklate you boughtm perhaps it said something you are now legally bound by? That would be insane.
Well, yeah, Sweden have (actually for many years, even before the EU directive we talked about and its 6 month rule) had the 2 year rule in its laws. Thus a specific Swedish law. However, the EU directive applies on top of that of course. The rule in Sweden has been that the consumer has the burden of proof for those 2 years but as I said, the burden is quite light and assurance that one has treated the item well and so on is usualy enough to switch it over to the seller. THe EU directive adds on top of that so during the first 6 month the seller is the one with the burden of proof right away and for the next 18 month after that, it is initially the consumer.
As with most EU directives, a country can go further than the directive demands, and that is were there can be differences between different countries, in this case there is a minimum of 6 month were the seller has the burden of proof.
>Please read the document I mentioned. This is EU >wide.
Uhh, yeah, have I argued othereise? What I said is that in Sweden actually has gone further than the EU directive and that some countries might be "worse" than what it is in Sweden, not the EU directive.
>When you copy a copyrighted work wgich requires >payment for legal access to said work you are >depriving the copyright owner(s) of the money >that would have been generated by the sale of >that item. Is that not theft?
The illegal activity is NOT theft, it is not robbery, it is not fraud, it is not anything you can come up wioth that you feel is similar. It is copyrigth infringement. Why not use the correct terminology???
Besides, in many cases the activity of copying is NOT copyright infringement, despite no payment being done. Many countries allow for copying of personal use for example.
IN addition, it is copyright infringement even if there is no potential loss of income, for example if there is no price to quire thw work to start with. You are still not allowed to copy it freely just because the copyright holder does not chage for it.
So not only is "theft" the wrong terminology, it is easy to see situations were any analogy to theft fail and you can have copyright infringement depsite being able to come up with any similarty to theft. And also one can see situations were you do NOT have any copyright infringement (and hence no illegal activity) despite someone losing money or not getting an income.
So pelase use the proper terminology and don't try to come up with analgoies that doesn't work out in all cases to justify the wrong terminolgy.
>That is how it should be indeed. Matter of fact >is, you buy 2 things usually: a pile of in >itself almost worthless material (usually >consisting of a plastic disc, often called cd, a >lot of packaging material etc) and at least in >the eyes of software makers, you buy a license >to use something that is on that plastic disc.
Yes, the software makers want you to believe what you say, I would say that I actually buy a copy of the software, just as I buy a copy of the book and so on.
>Specifically, the 'If it doesn't work send it >back' part. For the first 6 months after a >purchase, it is upto the seller to prove that >the product does in fact do what you have been >sold. I'd also like to point at point 6 of that >document, which has been applied to sales in >shops as well.
Yes, that was a quite recent change. The laws here in Sweden has for long (well some time at least) been that any product has a 2 year period during which you have the right to claim errors that existed upon purchase (that is, those not happening due to normal use, your own fault and so on). The burden of proof has been on the consumer BUT it has been a very light burden in that it typically only required that you assert to normal use and so on. If you take something like a television, and if it is obviously not broken due to your own fault, it can be said that the error must have been there from the start since a TV set is supposed to not break in 2 years. Just as an example. The change you link to makes it slightly easier from the consumers point of view in that during the first 6 month there is no burden of proof at all on the consumer.
I think the "2 year" part is specific to Sweden though and other EU countries has their own variants, some worse, some better.
All this applies to faulty products though. The "return for no reason" is about a non faulty product to which there is no general EU directive that I am aware of and although some countries may have such laws, Sweden for example does not. Of course, it can be good for a shop to offer such policies anyway.
As for your 7 days return part. From looking at it, I think you are mixing up normal sales in stores were you go there and buy and a situation were someone comes to your home (or in other cases, sell over the phone, the net and such). In these there is indeed a minimum time were you can just return with no questions asked. Assuming we talk about a shop situation here, that won't apply.
What is interesting though, and part of EU directives and in most countries laws as well are the clauses of "unfair" demands in contracts. I would say that many, if not most parts of an EULA would actually fall under that and probably not be enforcable (assuming the EULA would otherwise be of course).
>2. If you do NOT agree to this EULA, return to >point of purchase for a refund.
But if you don't agree to the EULA, it is irrelevant what it says since there is no agreement. You can't claim something from it if you don't agree to it.
>There are suitability for use laws in most >states, that basically say that if you purchase >something for some task, and it proves to be >unsuitable due to a hidden defect, you may >return it for a refund or exchange.
>This may be true for the USA, but it is >Maybe because they agreed to their side of it by >selling you the license?
I typically buy products, not licenses. Besides, I have never made any such agreement, or had any such promise done by any shop that sold me software. On top of that, the EULA is a contract the software maker (not the shop) tries to make to you. Unless they make seperate agreements with the shops the shop really have nothing to do with it.
>definitely not true for countries within the EU.
I actually live in Sweden, which happens to be inside EU and yes, it DO apply here. A shop is not at all required to allow you to return a product. Many shops do anyway though as they feel it makes a good deal. Of course, sale over the net, phone and so are different. Perhaps some EU countries have it different though, I really don't know the law of every country.
Says who? In almost all cases it is a normal sale done in the shop. It works like any other sale, nothing else is agreed upon the sale for example. Perhaps there is some law were you live stating that software can not be sold, but in most cases that is not the case.
Suppose you enter a shop, you buy a book, a pencil and a computer game. Are you arguing that you did not actually buy some of those? And if so, how do you know what you bought? And so on.. (Consumer)sale laws are quite clear on how a sale works, and it involves the transfer of ownership unless something else is agreed upon at the time of purchase. If you go and rent something, you typically sign a rental contract in ths shop and so on. SO yes, you have indeed bouthg a copy of, say WIndows XP.
Hmm, interesting point of view that suitability and how it was advertised would not work based on the EULA. Might work.
>Not to mention you could make the case that the >stores misrepresent software to begin with. How >many tell you that you aren't buying a product >(that you don't own it) but just have a license >to use it?
But you actually DO buy it in most cases, the fact that someone (the manufacturer?) want you to believe otherwise doesn't change that. It is done like a sale and is a sale since there is no other agreement done AT the sale.
>And if the manufacterer says you can get your >money back from the merchant, then you can. If >the merchant doesn't like it, then they don't >have to carry the software.
Since a purchase is a deal with the shop, the shop gets to decide. Of course, the manufacturer can make a deal with the shop and go on with it if the shop does not follow it. I would say that most manufacturers does NOT have such deals with the shops.
>Here, if you click the agree button, you are >bound by it, even if you chose not to read the >EULA.
At least were I live, an acceptance of a contract has to actually reach the one making the offer. Usually, clicking on "I agree" does not send such an acceptance to the one making the offer (and even if you do send it back someway, it is quite hard to know who actually it was that sent it), hence, there is no contract. You can have the thought of accepting a contract without it being agreed. You can even sign a contract but decide to tear it apart before sending it back, it is still not a contract and so on. At least that is the law were I live and what we were teached when studing contract law.
Of course, this does not touch on the major problem of the EULA trying to force you into a contract for using something you have allready bought.
I am not sure about the details of contract law in ytour country but usually, if your minor enters into a contract, the parents can nullify it, however, if they don't do that (after geting to know about it(, they have basically affirmed it and it is enforced.
Ehh, so you are saying that it you buy something and it turns out to not work or not work as advertised, the store can ignore that and simply refer you to the initial manufacturer instead? Strange laws. It is not about a return, it is about a faulty product. I would say that typically the sotre can fix it or if they fail or don't want, the purchase is revoked.
Most countries has in their copyright law exceptions so that copies that are required to make to use software, like installing it, copying it to RAM while running and so on, are not infringing and hence legal to do (and does not need any permision or license).
>Seeing that the retailers refused.... in >violation of the agreement for software they >were selling,
What agreement? The one you don't agree to? How can it then be an agreement? Besides the agreement would have been with the software producer and not the shop, with whom you have a purchase agreement. All this just shows what a mess it is and this really doesn't help much apart from saying that the consumer now CAN get a refund no matter what the shop feels.
>If the EULA says that you can return the >software if you don't agree to the terms, then >you have the right to expect to be able to >return the software if you don't agree to the >terms.
Why would you have the right to expect that? Based on what? And even more so, why would the store care?
>All rights are reserved (unless otherwise >specified).
Ehh, that is the rights given to the copyright holder through copyright laws. Not everything else. Those rights are basically the rights to copy, distribute, public performance and to create derived work. That is it. Nothing else. Use for example is NOT an exlusive right given to the copyright holder.
>people would buy software, install it (and >probably duplicate the CD), then return it >claiming they didn't agree with the EULA on >install.
I still don't understand on what basis the consumer can claim a refund and return the software. Due to the EULA saying so? But they just claimed they did NOT agree to the EULA so how can it be used to claim a refund??
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Closer look at what? I don't have to *look* more carefull to know what contracts I enter or not. I have yet to make any special contracts anytime when buying music CDs, food, cloths and so on. I once bought a mobile phone, I decided that instead of just buying one, I also at that time signed a contract with a phone company to use, there, I clearly made a contract in addition to just buying the phone. In 99.9% of the times I shop, there is no special contracts that are done in addition to the normal "you get the money, I get the product". But then, agin, you might buy in some very special shops, what do I know.
Just wondering, were DO you buy your CDs? I have yet, never, ever had to make any contract or agreement when buying CDs.
This is not true. Perhaps some EU country has such a law, but most definately not all. If we talk non faulty products, there is, for example in Sweden, no requirement for the shop to take anything back. Many still have such a policy though since they feel it is good for business. The only case were such "always has a right to return products" is when the sale is done over phone/internet/postal or if someone knocks on your door and sell something (were the seller seeks up you). I really can't tell how other EU countries have it, but there is no such general EU directive.
>authorized another user of the computer to click
>the "I Agree" button,
How do you know it was authorized? Perhaps there are several "owners" of a computer in the household. And so on.
Still, how do you go about proving that a specific person is the one that actually clicked the "I agree"??? How do you know it was me? And not my wife? Or a friend? Or someone else? And so on.
Why do you need any EULA at all to start with? Appearantly almost any other bussiness in the world manage fine with out page after page with contract text and they seem to do just fine.
In addition, large portions of the EULA is just retelling what is allready the law. Another large portion is against the law or for other reasons would not be enforcable. WHat is left, well, why would you need it anyway? It is not like the world would go under and appearantly most other bussiness do just fine.
>Now that the EULAs are referenced on the outside
>of the package, there is more of a chance that
>they are legally binding, not less.
Since when does something printed on the outside of a product you buy turns into a binding contract? Do you check under the car you buy to see if there is something printed there to avoid being legally bound by it? What about the back side of that piece of choklate you boughtm perhaps it said something you are now legally bound by? That would be insane.
Well, yeah, Sweden have (actually for many years, even before the EU directive we talked about and its 6 month rule) had the 2 year rule in its laws. Thus a specific Swedish law. However, the EU directive applies on top of that of course. The rule in Sweden has been that the consumer has the burden of proof for those 2 years but as I said, the burden is quite light and assurance that one has treated the item well and so on is usualy enough to switch it over to the seller. THe EU directive adds on top of that so during the first 6 month the seller is the one with the burden of proof right away and for the next 18 month after that, it is initially the consumer.
As with most EU directives, a country can go further than the directive demands, and that is were there can be differences between different countries, in this case there is a minimum of 6 month were the seller has the burden of proof.
Hmm, hope this clears it up.
>Please read the document I mentioned. This is EU
>wide.
Uhh, yeah, have I argued othereise? What I said is that in Sweden actually has gone further than the EU directive and that some countries might be "worse" than what it is in Sweden, not the EU directive.
>When you copy a copyrighted work wgich requires
>payment for legal access to said work you are
>depriving the copyright owner(s) of the money
>that would have been generated by the sale of
>that item. Is that not theft?
The illegal activity is NOT theft, it is not robbery, it is not fraud, it is not anything you can come up wioth that you feel is similar. It is copyrigth infringement. Why not use the correct terminology???
Besides, in many cases the activity of copying is NOT copyright infringement, despite no payment being done. Many countries allow for copying of personal use for example.
IN addition, it is copyright infringement even if there is no potential loss of income, for example if there is no price to quire thw work to start with. You are still not allowed to copy it freely just because the copyright holder does not chage for it.
So not only is "theft" the wrong terminology, it is easy to see situations were any analogy to theft fail and you can have copyright infringement depsite being able to come up with any similarty to theft. And also one can see situations were you do NOT have any copyright infringement (and hence no illegal activity) despite someone losing money or not getting an income.
So pelase use the proper terminology and don't try to come up with analgoies that doesn't work out in all cases to justify the wrong terminolgy.
>That is how it should be indeed. Matter of fact
>is, you buy 2 things usually: a pile of in
>itself almost worthless material (usually
>consisting of a plastic disc, often called cd, a
>lot of packaging material etc) and at least in
>the eyes of software makers, you buy a license
>to use something that is on that plastic disc.
Yes, the software makers want you to believe what you say, I would say that I actually buy a copy of the software, just as I buy a copy of the book and so on.
>Specifically, the 'If it doesn't work send it
>back' part. For the first 6 months after a
>purchase, it is upto the seller to prove that
>the product does in fact do what you have been
>sold. I'd also like to point at point 6 of that
>document, which has been applied to sales in
>shops as well.
Yes, that was a quite recent change. The laws here in Sweden has for long (well some time at least) been that any product has a 2 year period during which you have the right to claim errors that existed upon purchase (that is, those not happening due to normal use, your own fault and so on). The burden of proof has been on the consumer BUT it has been a very light burden in that it typically only required that you assert to normal use and so on. If you take something like a television, and if it is obviously not broken due to your own fault, it can be said that the error must have been there from the start since a TV set is supposed to not break in 2 years. Just as an example. The change you link to makes it slightly easier from the consumers point of view in that during the first 6 month there is no burden of proof at all on the consumer.
I think the "2 year" part is specific to Sweden though and other EU countries has their own variants, some worse, some better.
All this applies to faulty products though. The "return for no reason" is about a non faulty product to which there is no general EU directive that I am aware of and although some countries may have such laws, Sweden for example does not. Of course, it can be good for a shop to offer such policies anyway.
As for your 7 days return part. From looking at it, I think you are mixing up normal sales in stores were you go there and buy and a situation were someone comes to your home (or in other cases, sell over the phone, the net and such). In these there is indeed a minimum time were you can just return with no questions asked. Assuming we talk about a shop situation here, that won't apply.
What is interesting though, and part of EU directives and in most countries laws as well are the clauses of "unfair" demands in contracts. I would say that many, if not most parts of an EULA would actually fall under that and probably not be enforcable (assuming the EULA would otherwise be of course).
>2. If you do NOT agree to this EULA, return to
>point of purchase for a refund.
But if you don't agree to the EULA, it is irrelevant what it says since there is no agreement. You can't claim something from it if you don't agree to it.
>There are suitability for use laws in most
>states, that basically say that if you purchase
>something for some task, and it proves to be
>unsuitable due to a hidden defect, you may
>return it for a refund or exchange.
This is something I could agree with though.
>This may be true for the USA, but it is
>Maybe because they agreed to their side of it by
>selling you the license?
I typically buy products, not licenses. Besides, I have never made any such agreement, or had any such promise done by any shop that sold me software. On top of that, the EULA is a contract the software maker (not the shop) tries to make to you. Unless they make seperate agreements with the shops the shop really have nothing to do with it.
>definitely not true for countries within the EU.
I actually live in Sweden, which happens to be inside EU and yes, it DO apply here. A shop is not at all required to allow you to return a product. Many shops do anyway though as they feel it makes a good deal. Of course, sale over the net, phone and so are different. Perhaps some EU countries have it different though, I really don't know the law of every country.
Says who? In almost all cases it is a normal sale done in the shop. It works like any other sale, nothing else is agreed upon the sale for example. Perhaps there is some law were you live stating that software can not be sold, but in most cases that is not the case.
Suppose you enter a shop, you buy a book, a pencil and a computer game. Are you arguing that you did not actually buy some of those? And if so, how do you know what you bought? And so on.. (Consumer)sale laws are quite clear on how a sale works, and it involves the transfer of ownership unless something else is agreed upon at the time of purchase. If you go and rent something, you typically sign a rental contract in ths shop and so on. SO yes, you have indeed bouthg a copy of, say WIndows XP.
Hmm, interesting point of view that suitability and how it was advertised would not work based on the EULA. Might work.
>Not to mention you could make the case that the
>stores misrepresent software to begin with. How
>many tell you that you aren't buying a product
>(that you don't own it) but just have a license
>to use it?
But you actually DO buy it in most cases, the fact that someone (the manufacturer?) want you to believe otherwise doesn't change that. It is done like a sale and is a sale since there is no other agreement done AT the sale.
>And if the manufacterer says you can get your
>money back from the merchant, then you can. If
>the merchant doesn't like it, then they don't
>have to carry the software.
Since a purchase is a deal with the shop, the shop gets to decide. Of course, the manufacturer can make a deal with the shop and go on with it if the shop does not follow it. I would say that most manufacturers does NOT have such deals with the shops.
>Here, if you click the agree button, you are
>bound by it, even if you chose not to read the
>EULA.
At least were I live, an acceptance of a contract has to actually reach the one making the offer. Usually, clicking on "I agree" does not send such an acceptance to the one making the offer (and even if you do send it back someway, it is quite hard to know who actually it was that sent it), hence, there is no contract. You can have the thought of accepting a contract without it being agreed. You can even sign a contract but decide to tear it apart before sending it back, it is still not a contract and so on. At least that is the law were I live and what we were teached when studing contract law.
Of course, this does not touch on the major problem of the EULA trying to force you into a contract for using something you have allready bought.
I am not sure about the details of contract law in ytour country but usually, if your minor enters into a contract, the parents can nullify it, however, if they don't do that (after geting to know about it(, they have basically affirmed it and it is enforced.
Ehh, so you are saying that it you buy something and it turns out to not work or not work as advertised, the store can ignore that and simply refer you to the initial manufacturer instead? Strange laws. It is not about a return, it is about a faulty product. I would say that typically the sotre can fix it or if they fail or don't want, the purchase is revoked.
Most countries has in their copyright law exceptions so that copies that are required to make to use software, like installing it, copying it to RAM while running and so on, are not infringing and hence legal to do (and does not need any permision or license).
>Seeing that the retailers refused .... in
>violation of the agreement for software they
>were selling,
What agreement? The one you don't agree to? How can it then be an agreement? Besides the agreement would have been with the software producer and not the shop, with whom you have a purchase agreement. All this just shows what a mess it is and this really doesn't help much apart from saying that the consumer now CAN get a refund no matter what the shop feels.
Actually, the agreement was also that the consumer should be allowed to return the product for a refund.
>If the EULA says that you can return the
>software if you don't agree to the terms, then
>you have the right to expect to be able to
>return the software if you don't agree to the
>terms.
Why would you have the right to expect that? Based on what? And even more so, why would the store care?
>All rights are reserved (unless otherwise
>specified).
Ehh, that is the rights given to the copyright holder through copyright laws. Not everything else. Those rights are basically the rights to copy, distribute, public performance and to create derived work. That is it. Nothing else. Use for example is NOT an exlusive right given to the copyright holder.
Add:
7. The EULA should be written on something with a working caps lock key!
Seriously, why do every single EULA have to have part of it written in all caps???
>people would buy software, install it (and
>probably duplicate the CD), then return it
>claiming they didn't agree with the EULA on
>install.
I still don't understand on what basis the consumer can claim a refund and return the software. Due to the EULA saying so? But they just claimed they did NOT agree to the EULA so how can it be used to claim a refund??