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California EULA Lawsuit 819

Posted by michael
from the props dept.
burgburgburg writes "News.com has this story about a California woman suing Microsoft, Symantec and others, seeking class-action status on behalf of all Californians who've bought software including Norton Antivirus 2002, Norton Systemworks and Windows XP Upgrade. She claims that the companies have devised a scheme to sell software licenses without allowing purchasers to review the license prior to sale. She also claims that people who reject the license cannot return the software to the store. She bases this on her rejecting the EULAs for the software mentioned above, going back to CompUSA and being told she couldn't return them because the boxes were opened."
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California EULA Lawsuit

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  • Implication? (Score:5, Interesting)

    by DasAlbatross (633390) on Monday February 10, 2003 @04:49PM (#5273399)
    So does purchasing the software imply agreement now?
    • Re:Implication? (Score:5, Interesting)

      by ejaw5 (570071) on Monday February 10, 2003 @05:02PM (#5273574)
      sometimes just buying hardware implies agreement to software terms. For example toshiba laptops have a sticker on the plastic wrap stating that just by taking the computer out, you've accepted the EULA for ALL software bundled with the computer. I had a time trying to find an 'official' MS EULA, only to find a generalized 'over-encampassing' license devised by Toshiba buried in the stack of the manual, and other junk. (AOL, trial MS Games)
      • ...but it's still presented to you after you've paid for the computer. Unless they present you with the full EULA before you commit to the purchase, it has no more legal clout than any other EULA. And no, you're not buying the hardware, you're buying the package... that software doesn't come free.

        Kjella
    • Re:Implication? (Score:3, Interesting)

      by flatt (513465)
      Better yet, does purchasing the software mean you own it now?

      We'll have to wait and see I guess.
    • Re:Implication? (Score:5, Interesting)

      by the_2nd_coming (444906) on Monday February 10, 2003 @05:11PM (#5273674) Homepage
      that is the entire issue...it can not be a contract if it is not reviewable before purchas...and for it to be a legaly binding agreement the user must sign something.....I am sure what will come of this is every copy of software will have licensing that will print out and the user must sign it and give it to the cashier before they are alowed to take it home.
      • Re:Implication? (Score:5, Interesting)

        by ShavenYak (252902) <bsmith3@cha[ ]r.net ['rte' in gap]> on Monday February 10, 2003 @05:24PM (#5273822) Homepage
        I am sure what will come of this is every copy of software will have licensing that will print out and the user must sign it and give it to the cashier before they are alowed to take it home.

        If that happened, I wonder if the consumers would:
        • a) start looking for software that doesn't have a binding license attached, or
        • b) just complain constantly about having to sign for their software

        Unfortunately, a look at the average consumer makes me think that b) is the more likely outcome.
        • Re:Implication? (Score:4, Interesting)

          by rmohr02 (208447) <mohr,42&osu,edu> on Monday February 10, 2003 @06:32PM (#5274589)
          Well, people generally click through agreements on their computers because those agreements seem distant. If they have to sign the agreement, they'll at least think about reading through it before accepting it.

          And if enough people stopped to read through license agreements at check-out lanes stores would start putting a lot of pressure on software vendors.
        • Re:Implication? (Score:5, Interesting)

          by jackb_guppy (204733) on Monday February 10, 2003 @10:20PM (#5276266)
          I had a hardware store try that on me.

          After paying for the items with my credit card and signing the credit card receipt. The "Final" receipt prints out a return policy form, for the customer to sign.

          I refused to sign a contract after the fact. The store said, I could not return the items if I do not sign. I laughed and pointed out a forced contract after the fact changed the terms of sale. Since the sale was complete - ask the Credit Card Company - You are holding my property without my consent, forcing me to sign a contract. I picked up my cell phone and started to dial the police. They said that the police would not be of help. I noted that they had my property and I am reporting to the police that I was subject to fraud and thief, and that this clerk and you are responsible parties. Then I will call the Credit Card Company Security Department to report the fraud and thief - your merchant id will be deactivated by this afternoon, and the audit will begin with in the week.

          The manager gave me, my products value over 3K, signed receipt noting that I would not be subject to the terms. The next two customers did the same.

          A week later the extra contract was not longer printing.
      • Re:Implication? (Score:4, Insightful)

        by pyros (61399) on Monday February 10, 2003 @05:25PM (#5273832) Journal
        There's a couple of things that could happen. Her case could get dismissed. Maybe the stores will have to carry paper copies that people have to read and agree to. But then what if they have questions? The clerks aren't going to know how to answer legal questions. A new packaging could be introduced, where when you open the box you have a paper copy of the license and a sealed copy of the media, with a big, unmissable note on the media that says read the license, opening this implies you have read and agree it and agree to it. Then you can return the software if the media is still sealed and you have the box and all its contents. More products could follow suit with XP style Activation.
      • Re:Implication? (Score:4, Interesting)

        by macrom (537566) <macrom75@hotmail.com> on Monday February 10, 2003 @05:25PM (#5273842) Homepage
        and for it to be a legaly binding agreement the user must sign something

        Oral and implied contracts are perfectly enforceable in many (all?) states. Perhaps it is this mindset that the EULA is derived from.
        • Re:Implication? (Score:5, Informative)

          by susano_otter (123650) on Monday February 10, 2003 @05:34PM (#5273925) Homepage
          Oral contracts are only binding if the terms of the contract are orally communicated such that both parties understand what they are agreeing to, or if the agreement itself is orally communicated such that both parties understand that they have so agreed.

          Implied contracts likewise only binding if the terms of the contract are clearly implied to both parties, or if both parties clearly imply that they understand the terms of the contract, and are agreeing to those terms.

          Since the terms of the shrinkwrap EULA cannot possibly be known prior to the purchase, purchasing the software cannot possibly imply agreement to those terms.

          IANAL, so the preceeding was pulled out of my ass, of course. Enjoy!
      • Re:Implication? (Score:3, Interesting)

        by 4of12 (97621)

        I am sure what will come of this is every copy of software will have licensing that will print out and the user must sign it and give it to the cashier before they are alowed to take it home.

        I bet you're right. Sign this credit card receipt here and sign this long contract here.

        Reminds me of the last time I bought a DirecTV receiver (my old one got fried by lightning).

        I had to sign a piece of paper stating that I would absolutely sign up and use DirecTV service for a minimum of 6 months or a year. I had my old access card and I was planning on continuing the service anyway, so it was no skin off my nose to sign the contract.

        But it goes to show you. I can only guess they must have been having problems with people buying the receivers and then inserting counterfeit access cards.

        • Re:Implication? (Score:4, Insightful)

          by will_die (586523) on Monday February 10, 2003 @06:53PM (#5274868) Homepage
          I had to sign a piece of paper stating that I would absolutely sign up and use DirecTV service for a minimum of 6 months or a year. Was this because you were getting one of theses purchase 6 months service get the receiver for free type deals? I would be interesting if it ever came to having to sign the contract at the store, also if you gave the software away you would need to have the receipiant also sign a contract.
          Hey I got the the latest game for your birthday. Please sign this 10 page contract before you open it.

          However it would end sales of software to thoses under the age of 18 in the US.
    • by joelparker (586428) <joel@school.net> on Monday February 10, 2003 @05:24PM (#5273827) Homepage
      Purchasing does not imply agreement.

      The problem is the store's return of "no open-box returns" versus the Microsoft license saying "if you do not agree to this, return this to the store for a refund." Because the license is inside the box, it's impossible to read ahead of time.

      True example: I bought XP at OfficeMax, opened the box, read the license, decided it wouldn't work for me, and tried to return it. The runaround was amazing, with five managers at OfficeMax and three senior people in MS customer service.

      The lesson: Buy it and open the box in the store. That way the manager knows you haven't installed it, pirated it, or switched it. Once you leave the premises things get much more complicated.

      Cheers, Joel

      • by EvilSporkMan (648878) on Monday February 10, 2003 @05:30PM (#5273896)
        What if the store does not provide a comfy bench to sit on whilist I read my license? Can I sue them for "obstructing the licensing process"?
        • by MrResistor (120588) <{moc.liamg} {ta} {ffoharetep}> on Monday February 10, 2003 @05:44PM (#5274068) Homepage
          What if the store does not provide a comfy bench to sit on whilist I read my license? Can I sue them for "obstructing the licensing process"?

          Do it right there at the checkout counter. If they don't like it, then they need to review their return policy.

          The way I see it, the store agreed to take it back if I don't agree to the license when they sold it to me. That's a responsibility they took on as a distributor of MS product. Personally, I would be sueing the store first, and only going after MS if the court determined that the store wasn't held by the EULA they sold me.

      • by Mitreya (579078) <(mitreya) (at) (gmail.com)> on Monday February 10, 2003 @06:00PM (#5274249)
        The lesson: Buy it and open the box in the store. That way the manager knows you haven't installed it, pirated it, or switched it. Once you leave the premises things get much more complicated.

        I appreciate the practical advise, but you don't really think that the way things should be? I believe EULAs are too long to be completely printed within the box (correct me if I am wrong). Thus the store should have a desktop for you to go through with installation to see whether you like a EULA... what a hassle...

      • by bobKali (240342)
        Buy it and open the box in the store.

        So what about software with electronic click-EULAs? Will stores provide me a machine to install it on there? And if they do, will I be in violation of my EULA by installing it on my PC at home after I've already done a test install at the store?
      • by jefu (53450) on Monday February 10, 2003 @07:32PM (#5275227) Homepage Journal
        Get a bunch of your friends and have them go to a store that sells software. Have each person pick up a few packages they would like - shrinkwrapped, of course and take them to the cashier.

        Then, ask about return policy. When informed that the opened package can not be returned, say that you want to read the EULA and you want them to open the box so you can.

        Then, slowly and carefully read the EULA. If you have questions, ask the clerk. Get the clerk (or someone) to write down the answer(s) on a piece of paper and sign it. Since the clerk is acting as agent of the store and the store is acting as agent for the software vendor, the clerk is acting as an an agent for the vendor and should thus be authorized to sign off on the explanations. Do not let the clerk go off to help someone else (this is why doing it at the cashier would be a good idea).

        Even a dozen people doing this all at once in a store would bring the place to a standstill.

        If you have local media that actually cover news rather than serving as yet another advertising outlet, invite them in. If not, bring a camera or something to take pictures and/or audio recordings of the fun.
  • Are EULA's legal? (Score:3, Interesting)

    by Irishman (9604) on Monday February 10, 2003 @04:51PM (#5273416)
    I had thought that EULA's were deemed illegal, but companies still used them because consumers didn't know any better. Can anyone shed some light on this, doesn't really matter the jurisdiction (one ruling in a country is enough for a precedent).
  • Seems ... (Score:3, Insightful)

    by ackthpt (218170) on Monday February 10, 2003 @04:51PM (#5273422) Homepage Journal
    Seems it would be a small matter for these companies to post their EULA on their websites.

    Do any companies, which do not sell exclusively downloads?

    • Re:Seems ... (Score:5, Insightful)

      by Anonymous Coward on Monday February 10, 2003 @04:55PM (#5273482)
      And how is a consumer to read a EULA on a website if they do not have internet access? If they live in a remote area and can not find public internet access?

      This would all be fixed if there were no private "licensing". For instance, I can drive my car anywhere without Chrysler being able to tell me not to. There is nothing they can do. At all. Period.

      How about a new concept: when you buy something, you own it.
    • by burgburgburg (574866) <splisken06@email . c om> on Monday February 10, 2003 @04:59PM (#5273526)
      Would posting it to a website be sufficient? That would require web access to read the license your buying prior to your buying it? That would be especially difficult to do if you are purchasing an OS to enable you to get web access in the first place.
      • by Enforcer42 (302814) on Monday February 10, 2003 @05:15PM (#5273720)
        Would posting it to a website be sufficient? That would require web access to read the license your buying prior to your buying it? That would be especially difficult to do if you are purchasing an OS to enable you to get web access in the first place.

        Much like how a local ISP told my friend to go online to get the help documents on how to setup his modem.
    • Catch 22 (Score:4, Insightful)

      by hndrcks (39873) on Monday February 10, 2003 @05:01PM (#5273552) Homepage
      Says Joe User: "So I would have to purchase the operating system to access the Internet to read the EULA on the operating system I just purchased..."

      Posting on-line is an argument that ain't gonna fly.

  • by xao gypsie (641755) on Monday February 10, 2003 @04:52PM (#5273425)
    She claims that the companies have devised a scheme to sell software licenses without allowing purchasers to review the license prior to sale

    but there is a flaw in that statement. that implies that people actually read the license to begin with...

    xao
    • Re:that is all wrong (Score:5, Informative)

      by Entrope (68843) on Monday February 10, 2003 @05:05PM (#5273602) Homepage
      The only hold that shrink-wrap or click-through licenses have at all is because customers read them. Courts have not (so far) cared that customers skim or skip the license agreement; they have said that since the customer makes a particular action (opening the sealed package with EULA printed outside, or clicking "I agree" beneath the EULA text box), the customer agrees to the license.

      For a shrink wrap license, you cannot agree without opening the external box. For a click through license, you cannot agree without running software from the install media. Many retailers have policies against you returning software after doing the first. Many software manufacturers will say that only pirates want to return software after doing the second. It is this intermediate stage -- you can neither move forward nor back -- that is being challenged by the lawsuit.
  • Who is responsible? (Score:5, Interesting)

    by Teckla (630646) on Monday February 10, 2003 @04:52PM (#5273431)
    Is it *store* policy that opened software can't be returned? Or do the software makers (Microsoft, Symantec, etc.) insist on it? Or both?

    Inquiring minds want to know.

    -Teckla
    • by Lxy (80823) on Monday February 10, 2003 @04:59PM (#5273534) Journal
      I think you nailed it.. store policy vs. maker policy.

      Most stores have a policy. If you open the software for any reason, you can only exchange it. No refunds, no store credit, nada. The article doesn't mention whether she tried to contact the vendors directly. If she were to contact Symantec or Microsoft, and they refused a refund, now you have a case. If the makers don't uphold their end of the EULA, why should the users have to?

      • read the EULA... (Score:3, Informative)

        by Archfeld (6757)
        it says if you don't agree take it back to the place of purchase for a refund. It seems like the makers are putting the onus on the sellers without giving them anything but grief for doing it, and as usual, the 'consumer' loses.
        The local COMP-USA, has a LAN game room, and for games in particular, they will either open one or already have it installed on a machine and will let you try it out...
    • Is it *store* policy that opened software can't be returned? Or do the software makers (Microsoft, Symantec, etc.) insist on it? Or both?

      Good point. The SW makers will point to CompUSA as the policy maker. CompUSA can put up a little notice (either in store on on line) which says "you bought it, you own it", or "exchange only for store policy".

      There are also a few EULAs which consider consent to be physically opening the package which contains the software (Old School M$, and Iomega).

      • There are also a few EULAs which consider consent to be physically opening the package which contains the software (Old School M$, and Iomega).

        On the other hand, a lot of these older pieces of software shipped with paper copies of the license agreement. The software media were inside a sealed envelope within the box, so you could read the license agreement before deciding whether or not to open the envelope with the disks inside. Seems like a system that made sense, and it did at least tip its hat towards trying to make the contract binding.

        Whether or not the contract provisions were legal in the first place is for another post, but at least MS used to recognize that you needed to be able to read (and agree to) a contract before you could be bound by it.

        That recognition seems to be gone now.

    • by tsg (262138) on Monday February 10, 2003 @05:06PM (#5273613)
      It's CompUSA's store policy not to accept returns on opened software. They are named in the suit.

      The EULA states (usually) that if you don't agree with the terms of the license, to return the software to the retailer. But the EULA isn't binding on the retailer, so they aren't obligated to take it back if it's opened.

      Either the manufacturers are going to have to print the EULA on the outside of the box where you can read it before buying it or they are going to require retailers to accept returns on opened merchandise. Of the two, the former is much more likely.

      It won't change the EULA's at all, but you'll at least be able to read it before you buy it.
      • by bwt (68845) on Monday February 10, 2003 @05:18PM (#5273757) Homepage
        The EULA states (usually) that if you don't agree with the terms of the license, to return the software to the retailer. But the EULA isn't binding on the retailer, so they aren't obligated to take it back if it's opened.

        This is exactly why a EULA is not enforcable, actually. You buy the software at a retailer, and you are the "owner" at that point. You have created a valid contract of sale by giving cash for goods. The standard argument for EULA enforcability is that the EULA is part of the contract of sale, but that is untenable because the software maker (in this case Microsoft) is not a party to that contract and cannot retroactively modify it. Thus to be enforcable, the EULA must stand on its own. But 17 USC 117 gives the "owner" the right to install software on "a" machine. Thus the EULA gives the owner nothing that he didn't have as a result of "first sale", and the EULA fails to be an enforcable contract due to lack of "consideration".

        The world seems to be unaware that when you own a copy of software, you DO NOT NEED A LICENCE TO INSTALL IT ON A SINGLE COMPUTER. This is the black letter law. 17 USC 117
    • by hackstraw (262471) on Monday February 10, 2003 @05:11PM (#5273681)
      Two "wrongs" don't make a right.

      If the EULA is that important to the software maker, then the EULA should be on the box. I mean the hardware and software requirements are on the box, why not end user requirements?
    • by taphu (549739)
      One interesting point here is that when you buy a piece of software, you actually own the physical media along with instance of software copy contained on that media. You own this and you bought it from the store (not the software maker, normally). The EULA is just granting you a right to distribute a copy of that software to your computer (or whatever it says in the EULA). This is where copyright law comes in. A copyright holder can insist on any type of agreement they want in regards to letting you copy and "redistribute" the material (to your computer). The store is not necessarily involved in this agreement in any way, no matter what the copyright holder claims.

      The real problem here is not that stores and/or software makers are keeping you from reading an agreement before you supposedly agree to it (although this is a problem). The real problem is that it is currently considered a copyright violation to use a software product, because this normally involved "redistributing" the product onto your computer (from the physical media). I might also point out that it is not possible to use in any way (other than as an expensive coaster) the instance of the copy that you do in fact own, much less use it for the purpose for which it was intended, without violating copyright law.
  • Finally. (Score:5, Insightful)

    by geekoid (135745) <dadinportland@ya ... m minus math_god> on Monday February 10, 2003 @04:54PM (#5273456) Homepage Journal
    I was hoping this would happen. Of course, she should sue CompUSA to change there policy, and use that to get a bill passed so Companies Do have to take it back software they sell. For a limited time, say 30 days.

    So where do we send money to help her with her legal bills?
    • Re:Finally. (Score:3, Informative)

      by terrymr (316118)
      It's possible to return software for a refund if it's defective ....ie doesn't perform as claimed (rather than defective media) The Uniform Commercial Code gives you that right.

      Unfortunately you're at the mercy of the store if the goods aren't defective and you try to return them.

      I think it's fair to say that the manufacturers and stores have conspired together to stop you returning software, even if you choose not to accept the license.
    • Re:Finally. (Score:3, Interesting)

      by rmohr02 (208447)
      I was hoping this would happen. Of course, she should sue CompUSA to change there policy, and use that to get a bill passed so Companies Do have to take it back software they sell. For a limited time, say 30 days.
      So if I choose to wait a month before even trying to install software, I shouldn't have the opportunity to return it if I disagree with the license agreement?
  • About time... (Score:5, Interesting)

    by shekondar (600087) on Monday February 10, 2003 @04:54PM (#5273457)
    It's about time somebody stood up to the software companies. Any other time you are required to sign a contract (which is essentially what a license agreement is) when making a purchase, you are allowed to review the contract BEFORE handing over your money.

    I hope she wins, unfortunately, she probably doesn't have a snowball's chance in hell...

    • Re:About time... (Score:4, Interesting)

      by SLot (82781) on Monday February 10, 2003 @05:13PM (#5273703) Homepage Journal
      I hope she wins, unfortunately, she probably doesn't have a snowball's chance in hell...

      Well, you have to wonder since a New York Judge ruled [com.com] that Network Associates can't prevent people from talking about its products by trying to use its end-user license agreements to ban product reviews or benchmark tests.

      If nothing else, I'm of the opinion she's got a better chance than a snowball's chance in hell. Maybe an ice cube's chance in purgatory. Or something.
  • Ill kick in 20$ or so.
  • Go for it! (Score:5, Interesting)

    by markwelch (553433) <markwelch@markwelch.com> on Monday February 10, 2003 @04:55PM (#5273464) Homepage Journal
    This is definitely a lawsuit with merit: it is simply not proper for stores to sell software, then after the sale make disclosure of highly restrictive license terms that violate public policy (like Microsoft's no-review policy) and then refuse to accept return, insisting that the consumer "accepted" the terms of the UNDISCLOSED agreement by opening the box (which contains the agreement inside the sealed box).

    Of course, it's extremely likely that this suit will be promptly settled -- none of the software makers want a EULA case to go forward in California.

  • On top of that... (Score:5, Interesting)

    by $$$$$exyGal (638164) on Monday February 10, 2003 @04:55PM (#5273468) Homepage Journal
    If you disagree with the EULA, you can't even sell the software on E-bay. If you try, E-bay will promptly remove your listing. I tried to sell an old unused Windows 95 CD on E-bay, once, and it was removed within 12 hours.

    --naked [slashdot.org]

  • I hope she wins. (Score:3, Interesting)

    by I'm a racist. (631537) on Monday February 10, 2003 @04:55PM (#5273474) Homepage Journal
    I'm far from being "an open source zealot" (I'm using Win2k as I type this) and I do see some merits to EULAs (especially when considered from the side of the software developer/distributor).

    That being said... these things are flimsy legal contracts, at best, which I feel should not be binding. It'll be nice to get some precedent(s) set that declare click through EULAs to be the worthless shit that they are (despite previous precendents to the contrary).

    Let's all hope she wins.
  • by olddoc (152678) on Monday February 10, 2003 @04:56PM (#5273488)
    You tried to keep your end of the bargain: you tried to return it the the place of purchase for refund as specified on the license. If Microsoft or Symantec doesn't keep up their end by letting you return it then the EULA should be null and void and you should be able to install it on all your computers or whatever you wish.
    Of course if the license says the software will install spyware and thats the reason why you don't want to use it, well......
    I think the suit makes a lot of sense!
  • finally! (Score:5, Interesting)

    by doowy (241688) on Monday February 10, 2003 @04:57PM (#5273509) Homepage
    Interestingly enough, I dislike silly law suits, but I like this one.

    I think this has been in the making for a long time.

    These days, software makers are quick to inform you that you have purchased a license for use, nothing more and nothing less.

    Now we all know [nearly] nobody actually reads those EULAs, but it is (the manufacturer would have us believe) part of our licensing agreement we've just purchased.

    This is a big deal. This woman is absolutley correct - certainly she will not be given a refund after opening the boxes - and she certainly didn't know what she was buying until she opened the boxes.

    She might have a case, but if not, she's at least got a really good point.

    I've had this same viewpoint for a very long time. I for one am glad to see someone doing something about it.
  • by orev (71566) on Monday February 10, 2003 @04:59PM (#5273522) Homepage
    I know many stores have this policy with software, but CompUSA in particular has a very anti-consumer policy.

    Anything you try to return that's been opened is subject to a 10-15% return fee. That's just ubsurd for a retail chain. Presumably they are trying to stop people from doing the old buy-swap with broken item-return thing, but it's more likely to hurt people who bought a product that didn't work the way they expected it to.

    Being able to return an item is essential to the workings of a capitalistic society. Not only does it protect the consumer from getting bad merchandise, but it also allows them to say to the manufacturer, "hey, this is crap, I don't want it". You don't usually know it's crap until you get it home and open the box.

    Many online stores of course charge a restock fee for returns, but that's for some big warehouse where it's more complicated to re-enter something into the tracking system, not a retail store where it just goes back on the shelf.
  • by bergeron76 (176351) on Monday February 10, 2003 @04:59PM (#5273531)
    Unless I'm mistaken, you can request a hardcopy of the EULA in a product before you purchase it.

    I agree with her lawsuit, however. My Windows Operating System has become a liability for me, since I don't agree to the terms of the Service Pack EULAs (becuase of the whole Windows Media Player fiasco) and since I can't get the security packs in any other way, I'm forced to do without them. Luckily for me, I don't use Internet Explorer or Microsoft Office - considering that the majority of flaws originate there (IMO).

    I wish her all the best in this, and hopefully we can get back some of our consumer rights.

  • by Limburgher (523006) on Monday February 10, 2003 @05:00PM (#5273537) Homepage Journal
    Time was that the disks/CDs came inside a seperate envelope with the EULA printed on the outside, with a seal sticker that had printed on it that"by breaking this sticker you agree to the EULA" and any retailer would accept a return of a product with this envelope unopedned, because the software could not have been copied, which is why CompUSA et. al. will not accept opened software nowadays. Typically, the CD is just in a jewel case without even shrink wrap, and the EULA is displayed prior to install, but well after the package is opened past the point of No Return. Going back to the envelopes, while a pain, would get them back out of this legal grey area. I think he plaintiff here has a good, solid case.
    • I saw a Gateway2000 computer shipped with Windows95. The Windows95 disk was sealed with such a sticker that said you agree to the EULA by breaking the sticker; however, there was no printed EULA. You could only retrieve the EULA by breaking the seal and inserting the disk into your cdrom reader.

    • Time was that the disks/CDs came inside a seperate envelope with the EULA printed on the outside, with a seal sticker that had printed on it that "by breaking this sticker you agree to the EULA" and any retailer would accept a return of a product with this envelope unopedned, because the software could not have been copied, which is why CompUSA et. al. will not accept opened software nowadays. ... Going back to the envelopes, while a pain, would get them back out of this legal grey area.

      When I worked at a software retailer long ago (not named because I don't want trouble), we used hair dryers to open and reseal packages for in-store demos, and "employee evaluation" purposes. Most of the manufacturers used some form of rubber cement. It's pretty easy to open a glued envelope in such a manner it's not easy to tell it's been done once (or twice, or ....).

  • Damn skippy! (Score:5, Insightful)

    by ChaosDiscord (4913) on Monday February 10, 2003 @05:04PM (#5273591) Homepage Journal

    About time!

    This is exactly my complaint about software licenses.

    A software license is, in theory, a contract. But most contracts require both sides to review the license, both sides to sign off the contract, and both sides end up with a copy (so that either side can prove the existance of the contract in court). In general no product, licensed material, money, or knowledge flows from either side to the other until the contract is reviewed and signed off on. (Yes, in some places handshake agreements are legal. They're also much easier to contest because of the lack of documentation.)

    Mass marketted software EULA is a cruel parody of this legit process. You give them money, but you don't know the terms until you've gotten it home and try to install it. When you install it they suddenly try to change things from sale of a copyright protected into into a licensed product. If you disagree you're supposed to spend your time and money to take the product back for a refund. Naturally no store will actually take the product back. If the store is in a good mood you'll be directed to the publisher. Of course the publisher will happily direct you back to store.

    The honest solution is to ship software with EULA seperate, put a stack of EULA next to the software, and require me to sign off on it, right there in the store, before I fork over my cash. That would be fair. Of course, it means more citizens would take the EULA seriously and start wondering if it's really a fair trade, and I'm sure the software industry isn't interested in that.

  • by pheph (234655) on Monday February 10, 2003 @05:06PM (#5273618) Homepage
    A local hacker filled up his hard disk while untarring a copy of the Linux kernel v2.5. Being unable to read the license before untarring the package he was not able to reject the "NO WARRANTY" section of the GPL. While he has decided against joining a previous class action lawsuit, he has decided to never upgrade his Linux kernel or any other sizable free software package again.
  • by Phoenix (2762) on Monday February 10, 2003 @05:08PM (#5273647)
    I think that this is a problem with the Retailers and the Software Manufacturers. Granted that the EULA's are a bit restrictive, but they made the software and are allowed to make whatever demands that they wish in the EULA.

    The retailers are also within thier rights to make all purchases final on opened products. In fact many retailers have that very policy on hardware as well.

    What needs to be done is the Software makers and the Retailers need to sit down and make an effort to make the EULA available BEFORE the sale is made. Perhaps with every case of the software, the EULA should come on a lamanated card, ready for display. This way the customer has the option of reading and agreeing to the EULA before they buy it.

    This way no one can be sued if John Q. Sillyperson can't be bothered to read the EULA. To really cover one's butt, you can have a notice on the sales floor and on the sales slip stating that you are bound to the EULA even if you were too stupid to read it.

    I'm in retail and I make sure that before the person buys a copy of XP that they know that you are bound to one copy, one machine only BEFORE they sign the invoice. Many once told just shrug and buy it anyway, others scream, yell, bitch and complain and leave...But at least MY ass is covered

    If they have access to the License Agreement, don't read it and buy it anyway...I've no sympathy for them at all. However if they're dragooned into it because the agreement is not available until it is purchased (and most are assumed as agreed when purchased) then I feel sorry for them and stand behind them in a suit
  • Legitimizes EULAs? (Score:5, Interesting)

    by Sloppy (14984) on Monday February 10, 2003 @05:09PM (#5273657) Homepage Journal
    This case seems to be based on the premise that the EULA terms are binding, and that the user can't just use the software under the terms of copyright, even if they decline the EULA offer after they've already bought the software.

    That's a pretty nasty implication, IMHO.

    I have nothing against software license agreements, but they shouldn't be legitimized in the context of conventional retail sales. Terms should be negotiated before the sale, as a part of a the sale. Once you've paid your money and received the software, that transaction is over. Any new terms the creator want from the user, should come with consideration for the user. If the creator doesn't like doing business that way, then the convenience of the conventional retail store situation, isn't for them.

    If your software is so special and expensive that you need a special contract from your users, then you can afford to meet them.

    • by praksys (246544) on Monday February 10, 2003 @05:39PM (#5273983) Homepage
      Terms should be negotiated before the sale, as a part of a the sale.

      Damn straight. It has been illegal for a *long* time to put one price on the shelf and then try to charge a different price at the register, precisely because store owners used to use this kind of tactic to rip customers off. The law needs to catch up and do the same for dishonest practices like deliberately giving people them impression that they are buying something and then informing them later that they just paid for a severely limited license.

      People should be able to tell what they are getting before they even walk up to the register.
  • by frovingslosh (582462) on Monday February 10, 2003 @05:14PM (#5273716)
    rejecting the EULAs for the software mentioned above, going back to CompUSA and being told she couldn't return them because the boxes were opened.

    Actually, these EULAs are the manufacturer's way of giving free software to those who don't want to pay for it. You just open the box and copy want you want. Then take it back to the store. They will take it back, although often you have to talk to a manager and be sure you're talking loud enough for the people in the back of the store to hear you. No 15% restocking charge either, and if they waste your time too much fighting over little issues like this, get aggressive and get them to pay for your gas for the return trip (it can be done). It also helps if you can make the veins in your forehead pop out a little and otherwise look like you're not exactly the calm type (of course, much of life gets easier if you can cultivate this way of dealing with retailers). A good suggestion here is don't go to the store with someone who is going to give you a hard time for embarrassing her when you draw a little attention to yourself.

  • Simple Solution (Score:3, Interesting)

    by Cipster (623378) on Monday February 10, 2003 @05:17PM (#5273742)
    This could easily be solved by the retailers by having a printed, laminated copy of the EULA attached to the shelf next to the box. It may make people actually read them and pay attention to them so they realize how little rights they have with commercial software.
  • When I worked at a video store, we had this shrink-wrapping machine. Man it was sweet. You couldn't tell the difference between a new DVD and a used re-wrapped one(I guess that was the point).I wish I had one. All you would have to do then is re-wrap your software, games, etc, and bring them back to the store. Problem solved.
  • by BigGar' (411008) on Monday February 10, 2003 @05:27PM (#5273860) Homepage
    despite store return policies. Talk to the store manager. This may be the only person in the store who really cares about your happiness as a customer. Exlplain the situation whatever that may be. If he says he can't take the return, explain how much you like his store and that this is the first place you go when looking for software, computer equipment, home electronics, what ever fits. Then explain, how much you've bought there over the years and if he want's to break a good customer relationship over such a small matter, then you can just take your business elsewhere and never return. While you're at it you'll do your best to convince all your friends to do the same. I've yet to meet a store manager that wouldn't take an open return under those circumstances, especially since he'll just send it back to the publisher as defective.

    This assumes that you're telling the truth and haven't tried to return your fifth defective CD ina s many days. It also helps if you really are a good customer.
  • by TygerFish (176957) on Monday February 10, 2003 @05:29PM (#5273887)
    Good on her!

    Does she have a website for contributions to her legal fund?

  • by symbolic (11752) on Monday February 10, 2003 @05:38PM (#5273978)
    I walked into CompUSA to purchase a copy of Visual C++.net, and as I was reading the box cover, it said:

    You must accept the enclosed License Agreement before you can use this product. If you do not accept the terms of the License Agreement, you should promptly retrun the product for a refund.

    Seeing, this, I thought, "cool, any stupid tricks like the last SP on XP, and I can rid myself of this scourge with no problem." Then, as I finished paying for it in the checkout line, I glanced down at the bottom of the receipt, where it basically said that they do not accept returns on opened software.

    Dilemma, dilemma. I then proceeded to ask the checkout clerk what I should do if I didn't agree with the enclosed license. She didn't know, so she fetched someone else. After waiting for a bit, a gentleman showed up, to whom I reiterated my concern. He took me over behind a counter, where he attempted to have me read the license online (on Microsoft's web site), and agree to it in the store before I left with the software. As he was rifling through the various links on the site (unable to find what he was looking for), I told him I really didn't understand what the issue was- the box says I can return it if I do not agree with the license, and that as a Microsoft retailer, I'd think they were bound to this policy. He said they wouldn't honor it because too many people buy software, install it, and then return it. Just then, a third gentleman walked up, at which point he too was apprised of the situation. He suggested that if I wanted to return it, I should return it to Microsoft. At that point, I was pissed, and I told him that perhaps it would just be best if I let them keep it and get my money back.

    Later on that day, I attempted to locate another copy locally, but was unable to do so. I then called a CompUSA store at a different location, and after explaining my situation to the Manager on Duty, he gave me an entirely different story: he said that I could return the software if I didn't agree with the license, so long as the seal on the CD wasn't broken. This is what I expected to hear in the first place. I then went back to CompUSA to purchase the software a second time. Funny thing is, as soon as I returned home and opened the box, I discovered that this software wasn't packaged in sealed CD cases like I'd seen before. After reading the license, I decided that it was ok - but I do wonder what would have happened had I decided that I wanted to return it.

    All I have to say is this: this little catch-22 makes it very difficult for consumers who want to make sure they're acquiring and using software legally. I hope this class-action lawsuit will put a stop to this mess.
  • by speeding_cat (631744) on Monday February 10, 2003 @05:41PM (#5274027)
    It is about time that somebody started making at least some noise over EULAs.
    Companies force you to enter into what they think of as an agreement, yet, you do not get to read the terms of it before you pay. Also, companies would like us to believe that we can't do anything with their boxed software even if we did not open the box and agreed with EULA! So, from their perspective you are entering a service agreement just like a cable or a phone contract.
    So software either has got to become like true service, where you do sign real papers and have some grace period to cancel the contract if you do not like the software. Or, it becomes like normal merchandise and then there should be no stupid EULAs, and you can do with your copy whatever you want and sell it to however wants it without any restrictions. As is consumers get the worst of both worlds.
    It seems like software companies should not have their cake and eat it too.
  • Eh? (Score:5, Interesting)

    by Fnkmaster (89084) on Monday February 10, 2003 @05:46PM (#5274081)
    Can somebody point me to some case law that implies that EULAs ARE enforceable under current legislation? I fail to see why we need to sit around worrying about it, since to the best of my ability to see, there isn't the foggiest hint of a legal leg to stand on for purveyors of EULAs. I'm not really aware of any situation where these have been considered contracts. They seem to almost universally fail the standards for contract existance -


    1) Intention to create legal relations (huh? When I go to a store an buy a product, I don't intend to create legal relations)


    2) Agreement, offer and acceptance (huh? When did I agree to the contract? Oh, after I bought the software and opened up the box. But if I don't accept, that doesn't change the fact that I own the software and can use it as I please, within the bounds of copyright law)


    3) Certainty of Terms (well, they are certain, but only after you've already made your purchase) and


    4) Consideration - as far as I know, most EULAs provide no consideration - you don't get anything in addition to the rights you would get to use a normal product or copyrighted work (like a book or piece of art) as you see fit, as long as you don't redistribute except as permitted by first sale doctrine, etc.


    In short, unless you are in a UCITA state, EULAs are meaningless. Not only are they contracts of adhesion (i.e. non-negotiated and non-negotiable), but they aren't signed, and they fail to meet pretty much all the other standards for what makes a contract a contract.

  • by astroboy (1125) <ljdursi@gmail.com> on Monday February 10, 2003 @05:59PM (#5274234) Homepage
    So, in trying to help a lady with a new computer, it turned out that the machine (which she bought from some compusa/bestbuy type of place) had a broken harddrive. She was a complete neophyte to computers, but when nothing happened when she turned on the machine except the wail of a thousand metallic banshees, she pretty much put two and two together and took the machine back and made them fix it.

    This same new-to-computers-lady bought a computer game for her kid, and it didn't work on her computer. Oh, well, she shrugged. That happens.

    She's right, of course, and it infuriates me that even a complete newbie to computers believes this -- broken hardware is covered by standard consumer-protection stuff, but if you buy broken software, you're out of luck.

    And that brings me to this lawsuit. Of course software is going to suck if consumers aren't allowed to return software, or even post reviews about it! In what other sort of consumer product would this sort of thing be even remotely acceptable? ``I'm sorry, sir, but yes, your riding lawnmower will occasionally experience `explosive events'. No, we won't take it back, and by the way, the Buisness Lawnmower Alliance will come and `audit' you if you consider writing a poor review of our product.''

    A neccessary step to the wider distribution of non-abysmal commercial software is some minimal negative feedback to companies who write bad code. A perfectly reasonable step in that direction is just allowing people to return broken software.

  • Missing the point (Score:3, Interesting)

    by putzin (99318) on Monday February 10, 2003 @06:08PM (#5274322) Homepage

    A lot of posts are missing the point. The article states that the lawsuit is to argue that software vendors have exercised a loophole in sales practices that makes it possible to enforce a contract never agreed upon by the consumer. This isn't about getting money back for windows, or really even about how legal EULA's are. It's about whether the vendors are breaking the law by using the loophole. If so, they are liable, if not, consumers continue to be screwed.

    However, this case will most likely also touch on the legality of EULA's in some aspect. You can't argue that I had to agree to a contract I have never seen without arguing that the contract itself is flawed. CompUSA et. al. don't care about piracy really, they care about selling software. Granted, piracy cuts their profits as well, but not as radically or in as unique a way as it does vendors. If dumping EULA's altogether strengthens the retail position, retailers will stand behind this lawsuit (not likely, I realize). It's the software vendors who don't want their software to be copied. They even have a powerful trade group in the BSA. So, to avoid copying, you can't open and return software. This is reasonable. It doesn't take a software engineer to realize that you can avoid ever having to refund ANY money if you put the EULA in a place where it can't be agreed upon until after the vendors first concern is violated (opened box). Wow, a perfect system.

    And this is the actual issue on which the lawsuit is based. You can't agree to the EULA until you actually pay for the obligated items, effectively binding you to the contract (EULA) prematurely. It essentially undercuts everything that US contract law is founded on. I assume if the lawyers can build an adequate case on this fact alone, that there will be at least monetary success (read settlement). Realistically, the consumer can only hope that there is legal and precendent setting success as well, where either the software sale practice in question is deemed illegal, or the EULA system is deemed illegal. A settlement in this case will be a severe detriment for consumers of software in that it doesn't touch on the legality of any of the lawsuit items.

    Pray for litigation on this one folks.

  • by nurb432 (527695) on Monday February 10, 2003 @06:56PM (#5274891) Homepage Journal
    Cite the stores refusal to honor the EULA return agreement as grounds for non payment.

    Let the bit boys, with the big money and expensive lawyers fight it out..

    Us little people wont win this fight, but they might. Its great she's trying though.

  • by ChaosDiscord (4913) on Monday February 10, 2003 @06:57PM (#5274895) Homepage Journal

    While we're bitching about licenses, we could also stand to see some lawsuits challenging changing license agreements after we've agreed. Microsoft demands that users accept a new license agreement with more user hostile terms to receive security updates. Sony requires users accept new license agreements to continue playing Everquest. Tivo made their license agreement more restrictive. In all these of these cases the end user has a sunk cost (for the original operating system, game, or Tivo unit) whose value may suddenly be dramatically reduce (An operating system without any security updates) or useless (Everquest or Tivo without service). One side having the unlateral right to completely change the agreement suggests that the agreement is not a valid contract. Contracts require that both sides get something from the deal. If one side can destroy the other side's benefit at will, there was never a real benefit.

    I personally was caught by this with my Tivo. I specifically chose my Tivo because Tivo had a very open and friendly service agreement. I purchased a Tivo ($300), and a lifetime subscription ($200 at the time). A year later I'm forced to agree to a new service agreement that forbids things previously allowed, increases what they claim their providing (previously they just claimed to provide guide data, now they claim to provide functionality actually provided by the box I purchased). If I decline I lose the entire value of my investment. Feh.

    I suppose I learned a valuable lesson: no matter how nice the company, if the license includes a "we'll rewrite this whenever we want" it will eventually be rewritten "our CEO can come over and loot your apartment when you're not home, and we're cancelling your service you already paid for immediately for no reason." Nothing like getting screwed by a license agreement to drive home the benefits of Free Software.

  • Minors and contracts (Score:5, Interesting)

    by jimlintott (317783) on Monday February 10, 2003 @08:32PM (#5275636) Homepage
    If this leads to the consumer having to agree to the license (contract) in the store it would mean no more sales of software to minors as it is illegal to enter into a contract with a minor (Canada and US).

    Does X-Box and PS2 software have a EULA? Are they willing to give up this market? Could make things interesting.

  • by ebbomega (410207) on Monday February 10, 2003 @11:44PM (#5276762) Journal
    Error 23 came out, and everybody copied Error 23.

    DVDs were encrypted, and it got cracked.

    The real issue here is that companies want control over their products after they're sold. That's what the DMCA and EULAs are all about...

    BUT THEY CAN'T....

    They shut down one p2p system, another follows. They make a new encryption scheme, it gets cracked/leaked. They copywrite something, it eventually gets figured out.

    They just want legal leverage so they can sue people by hitting whichever is the biggest thing they can hit (Napster, 2600) and force them into a juicy settlement.

    They must have been so incredibly pleased that Napster were such bitches about helping them out from the get-go, because it gave them a really good vantage point to paint them in a bad light and set a nice precedent that would result in p2p system after p2p system being sued successfully... even if it wasn't settled out of court.

    I'm very happy to see lawsuits like this one because it puts a check on the companies' money-grubbing ventures. Sure, Napster and Kazaa and AudioGalaxy and 2600 aren't responsible for all the people illegally pirating and sharing mp3s, DivX rips, etc. but at least they have money that RIAA/Microsoft/MPAA can get from them. Which is, ultimately, what they're out there for... I mean, Christ, they're Corporations. Since when are they concerned about personal rights and freedoms over profits? Has any large successful corporation succeeded with that kind of philosophy?

    I'm not saying it's right. I'm not saying I like it. I'm just saying it's true. Selling of Souls = Profits.

I find you lack of faith in the forth dithturbing. - Darse ("Darth") Vader

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