California EULA Lawsuit

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."

that is all wrong

[xao gypsie]

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:Lame

[frodo from middle ea]

like for e.g. trying to get a FP on slashdot ?

EULA

[Anonymous Coward]

Imagine if they tried to print it out on the outside of the box.... of courese then they'd have to raise the price for the tree & a half of paper they'd use.
-aoasus

In other news

[pheph]

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.

Re:Would that be sufficient?

[RAMMS+EIN]

``purchasing an OS to enable you to get web access in the first place.''
Windows allows you to access the web these days? Oh my, I hope they did something about the virii or it will be a worldwide disaster!

she didn't scream loud enough

[frovingslosh]

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.

Re:Would that be sufficient?

[Enforcer42]

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.

There's a real woman

[KingBuggo]

That sounds like a woman I would date but I'm too afraid of being sued for not having a description of my package before dinner.

Just buy a shrink-wrapping machine!

[techstar25]

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.

Re:Microsoft & OfficeMax

[EvilSporkMan]

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"?

As posted on Fark...

[Mmmrky]

Doesn't he know pot is a GATEWAY drug?

Re:CompUSA is at fault here

[kjj]

Simple solution, use a bigger box!
Of course it will look a little silly to buy software in boxes bigger than the computer.

Re:read the EULA...

[DocStoner]

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...

Wouldn't this be a violation of the EULA for the games?

Evil shrink-wrapping alternative

[EAB]

1) Buy windows software.
2) Open package.
3) Discard useless plastic disks.
4) Replace plastic disks with favorite Linux Distro.
5) Re-shrink wrap and return to store.

Re:Used to be done differently

[Aviancer]

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 ....).

Retroactive license changes

[ChaosDiscord]

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.

Re:Eh?

[pax1965]

Why doesn't someone simply hand over their money to the retailer for a product but wrap it in a sealed envelope with a SMLA (Start Manufacturer Licence Agreement) which states that, by opening the envelope, the manufacturer agrees to be bound by the follwing conditions.... It seems to me that this is as valid a contract as the EULAs imposed on users.

This could be fun

[jefu]

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.

Re:Seems ...

[Webmoth]

"...I can drive my car anywhere without Chrysler being able to tell me not to..."

And, I suppose, you will drive your car on two different highways. At the same time. And make a copy of your car for your friends, too. Or did you buy a car, make a copy of it, and return the original to the dealer within the "3-day window"?

I can sympathize with the license agreement restricting the copying of software, but to restrict the transfer of said license is downright stupid. Even if it's an "OEM" license. That's like saying I can't take the V10 out of my Viper and put it in a Ford Escort. Or at least try.

Re:That is her point

[Alsee]

Imagine putting the Windows EULA on the back of the Windows Box, forced to use no smaller than a 1/8 in characters? That ought to make the licenses a little more terse.

Either that, or it will make the boxes REALLY REALLY BIG! :)

-

Re:This could be fun

[Anonymous Coward]

Or you could go out, have a few drinks and try to meet some girls.