California EULA Lawsuit 819
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."
Implication? (Score:5, Interesting)
Re:Implication? (Score:5, Interesting)
They say that you agree... (Score:3, Interesting)
Kjella
Re:What if it's used? (Score:4, Insightful)
What they would say (Score:3, Insightful)
Re:Implication? (Score:4, Insightful)
I've noticed companies are trying to get around this by putting a notice on the outside of the box that there are mystery conditions inside the box that I am agreeing to be bound by when I purchase the software. This seems similar to just about any service contract (ISP, bank, Paypal) today where when you agree you agree to not only the contract as written but anything they put into it in the future.
I greatly wish that there was a lawyer-type that could drop in here or someone who could point me to a thread that demonstrates whether or not such things are legally binding. I don't think there's been anything conclusive on the EULA issue yet.
Re:Implication? (Score:3, Interesting)
We'll have to wait and see I guess.
Re:Implication? (Score:5, Interesting)
Re:Implication? (Score:5, Interesting)
If that happened, I wonder if the consumers would:
Unfortunately, a look at the average consumer makes me think that b) is the more likely outcome.
Re:Implication? (Score:4, Interesting)
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)
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)
Re:Implication? (Score:4, Interesting)
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)
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)
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)
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.
Microsoft & OfficeMax (Score:5, Informative)
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
Re:Microsoft & OfficeMax (Score:4, Funny)
Re:Microsoft & OfficeMax (Score:5, Interesting)
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.
Re:Microsoft & OfficeMax (Score:4, Insightful)
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...
Re:Solution! (Score:4, Insightful)
I don't like lawyers either. Very few people do... yet I think my sentiments are summarized by someone's sig that I keep seeing -- "Remeber: behind every sleazy lawyer there is a sleazy client".
Of course we could shoot all the lawyers, but a better approach would be to discourage (as in severely punish) things that can be seen as frivolous lawsuits... (and we also need to fix quite a few laws, too...)
Re:Microsoft & OfficeMax (Score:3, Interesting)
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?
This could be fun (Score:5, Funny)
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:That is her point (Score:3, Interesting)
She's saying that she declined the EULA's offer and wants her money back, because she can't use the software without agreeing (thus, she was ripped off). But this line of thinking seems to rule out the more intuitive idea of declining the EULA's offer and then just using the software anyway.
Re:That is her point (Score:5, Interesting)
You can have whatever license you want on your software. Just don't rip me off trying to sell it. Now what I'd *LOVE* to see is mandatory licensing on boxes, like we do with food ingredients. 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.
-Chris
Re:That is her point (Score:5, Funny)
Either that, or it will make the boxes REALLY REALLY BIG!
-
Re:Implication? (Score:3, Informative)
A contract is simply a binding agreement between two parties entered willingly. Its been pretty well esablished that both parties entering the contract must agree to it, knowning what they are entering into. Now, if you get handed some paper and don't read it, thats your fault, but you are supposed to be reading these things before signing. Thats not possible with an EULA.
Are EULA's legal? (Score:3, Interesting)
Seems ... (Score:3, Insightful)
Do any companies, which do not sell exclusively downloads?
Re:Seems ... (Score:5, Insightful)
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.
Mr. Chicken, meet Mr. Egg (Score:3, Interesting)
The only viable solution is to either a) have hard copies of the EULA included with all software, on the outside of any shrink wrapping, or b) get retail outlets to accept opened software for EULA-disagreeing companies.
Maybe if the CD was shrinkwrapped in its jewel case, then put into the box with the EULA, and the box was sealed. Then you could read the EULA, disagree, and return the product without actually opening the box. I'm sure Joe Pimply who works at CompUSA won't grasp the subtle difference, but it's a start.
Should be interesting to follow this lawsuit.
Re:Mr. Chicken, meet Mr. Egg (Score:3, Interesting)
Re:Mr. Chicken, meet Mr. Egg (Score:3, Interesting)
Re:Seems ... (Score:3, Insightful)
Normal copyright law provides software companies with all the legal protection they need to sustain a buisness model, and provides users with all the rights they need to use the software. There's no need whatsoever for EULAs beyond the desire of companies for a greater level of control over you than copyright law allows for.
Would that be sufficient? (Score:5, Insightful)
Re:Would that be sufficient? (Score:4, Funny)
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)
Posting on-line is an argument that ain't gonna fly.
that is all wrong (Score:4, Funny)
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)
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.
Re:Courts have not said that. (Score:4, Informative)
How many cases do you want? One? [freibrunlaw.com] Two? [prestongates.com] Three? [infoworld.com] A Google search for "shrink-wrap license court case" turns up these and others; judging from that, more shrink-wrap licenses have been upheld than overturned.
You might argue that some or all of those cases gave "no extra rights" to the licensee. Since you did not specify "extra rights" beyond anything in particular, I assume you wanted wiggle room to squirm out of concrete examples.
Who is responsible? (Score:5, Interesting)
Inquiring minds want to know.
-Teckla
Re:Who is responsible? (Score:5, Interesting)
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)
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...
If there is a will, there is a way.... (Score:5, Interesting)
Re:Who is responsible? (Score:3)
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).
Re:Who is responsible? (Score:3, Informative)
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.
Re:Who is responsible? (Score:5, Insightful)
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.
Re:Who is responsible? (Score:5, Informative)
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
Re:Who is responsible? (Score:5, Insightful)
However the argument was that you already own the software before you open the box and read the EULA. Suppose I sell you my house by contract in a realtor's office. You give me the money, I give you the keys, and we sign off on all the necessary papers. When you get to your new home you find a note stapled to the front door, indicating that by opening the door you agree that I still own the house, and you just have the right to live there, provided you follow the rules listed in paragraphs 4 through 247. At any point either of us can terminate the license, and you will be evicted from my residence and receive from me a refund for the sale price (never mind that in the 12 years you lived there it appreciated 4-fold). These are not atypical EULA terms.
This cannot happen legally as I already sold you the software. You don't need a license to live in the home I already sold you - I gave away all such rights when I signed the contract.
Software vendors do retain some rights as expressly granted by law - such as copyright. However, to say that software isn't purchased is dubious at best. If I rent a movie at the video store it is pretty obvious I'm renting it - I agree to return it in a set period of time. When I buy software I expect to use it forever - nothing at the time of purchase exists to suggest that I don't own it.
Re:Who is responsible? (Score:4, Interesting)
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?
Re:Who is responsible? (Score:3, Interesting)
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.
Re:Who is responsible? (Score:3, Insightful)
They are just going to have to get used to it. I can buy a book at Borders and then return it. (Even after reading some or all of it! Horrors!)
Any other type of merchandise can usually be returned right away, with receipt. A software product should be no different. Nor a music CD.
Finally. (Score:5, Insightful)
So where do we send money to help her with her legal bills?
Re:Finally. (Score:3, Informative)
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)
About time... (Score:5, Interesting)
I hope she wins, unfortunately, she probably doesn't have a snowball's chance in hell...
Re:About time... (Score:4, Interesting)
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.
Give em hell. ANd wheres her legal defense fund. (Score:4, Interesting)
Go for it! (Score:5, Interesting)
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)
--naked [slashdot.org]
Re:On top of that... (Score:5, Insightful)
Ebay is well within its own rights to stop you selling whatever it damned wants, regardless of whether they are in so called collusion or anything.
They are not infringing on your rights at all, you can go and sell that same thing in a garage sale, or on the street corner. They can refuse your auction for the same reason a used record or book shop can refuse to buy your records/books.
I hope she wins. (Score:3, Interesting)
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.
If the store won't take it back just use it anyway (Score:3, Insightful)
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!
Under 18 Anyone? (Score:5, Interesting)
If anyone is a lawyer, what is the ramification of a minor "agreeing" to a EULA? I would think it would void the agreement, like any other contract.
finally! (Score:5, Interesting)
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.
CompUSA anti-consumer return policy (Score:4, Insightful)
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.
You can view the EULA before purchase (Score:5, Interesting)
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.
Used to be done differently (Score:5, Informative)
Re:Used to be done differently (Score:3, Informative)
Re:Used to be done differently (Score:3, Funny)
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)
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.
Re:Damn skippy! (Score:3, Insightful)
But a minor's clicking "I agree" is more legally binding? Nope.
In fact, this is one of the many reasons why many web sites won't let minors register at all, they can't be legally bound to any terms and conditions.
In other news (Score:4, Funny)
EULA and Disclosure (Score:5, Insightful)
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)
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.
Re:Legitimizes EULAs? (Score:4, Insightful)
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.
she didn't scream loud enough (Score:5, Funny)
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)
Just buy a shrink-wrapping machine! (Score:5, Funny)
Re:Just buy a shrink-wrapping machine! (Score:5, Informative)
Evil shrink-wrapping alternative (Score:4, Funny)
2) Open package.
3) Discard useless plastic disks.
4) Replace plastic disks with favorite Linux Distro.
5) Re-shrink wrap and return to store.
Never had a problem returning software (Score:4, Interesting)
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.
Suing them over the EULA (Score:5, Interesting)
Does she have a website for contributions to her legal fund?
Haha...I had a similar experience... (Score:5, Interesting)
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.
EULA - something wrong with the big picture (Score:3, Insightful)
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)
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.
Software should be treated like other products (Score:5, Insightful)
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)
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.
Pay with Credit card, contest payment (Score:4, Insightful)
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.
Retroactive license changes (Score:5, Funny)
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)
Does X-Box and PS2 software have a EULA? Are they willing to give up this market? Could make things interesting.
Same as it ever was... (Score:4, Insightful)
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.
Re:Linux? (Score:3, Insightful)
Which way do you want it? (Score:3, Interesting)
Is it that you're happy that people can bring all kinds of lawsuits, so that the EULA issue will get litigated...
ASA
Re:CompUSA is at fault here (Score:5, Insightful)
Even that's a little difficult to verify, if your clientell is clever (which pirates tend to be).
Buy game, copy, microwave for 3 seconds, return "defective" CD, buy different game, repeat.
This situation, though, is certainly a sticky widget. How is a company expected to post a 14 page EULA on the outside of a box and still have room for the product name and logo, but then again, how am I to know what the EULA says if I pay for it, THEN discover that it allows the vendor to make surprise visits to my hard drive every week to ensure that I'm playing nicey-nice?
Maybe software vendors should provide copies of the EULA on paper to the stores and indicate, on the packaging, that the purchaser has the right to request a copy for their review. Simply putting the EULA on the vendor's website isn't acceptable. If I'm purchasing Windows for the first time because I don't yet own a coputer, I can't be reasonably expected to visit their webpage.
Re:CompUSA is at fault here (Score:3, Funny)
Of course it will look a little silly to buy software in boxes bigger than the computer.
Re:CompUSA is at fault here (Score:3, Insightful)
then explain to me how MS became a Multi-billion dollar corporation if somemany user were returning software? or how Retailer make million selling the stuff?
Re:We'll see (Score:4, Informative)
IMPORTANT - READ CAREFULLY: This End-User License Agreement ("EULA") is a legal agreement between you (either an individual or a single entity) and Microsoft Corporation for the Microsoft software product identified above, which includes computer software and may include associated media, printed materials, and "online" or electronic documentation ("SOFTWARE PRODUCT"). The SOFTWARE PRODUCT also includes any updates and supplements to the original SOFTWARE PRODUCT provided to you by Microsoft. Any software provided along with the SOFTWARE PRODUCT that is associated with a separate end-user license agreement is licensed to you under the terms of that license agreement. You agree to be bound by the terms of this EULA by installing, copying, downloading, accessing or otherwise using the SOFTWARE PRODUCT. If you do not agree, do not install or use the SOFTWARE PRODUCT; you may, return it to your place of purchase for a full refund.
So, somethings got to give: Either the EULA is enforceable and you CAN return the product for a full refund, or the EULA isn't enforceable.
As posted on Fark... (Score:3, Funny)
Re:What next, Class Action Suit against swimwear? (Score:5, Informative)
1. Woman goes to CompUSA. Buys retail boxed software.
2. Woman opens box, reads EULA (which she cannot read w/o opening box).
3. EULA contains terms she finds onerous. The EULA specifically says, "return to vendor for refund if you do not accept".
4. Vendor refuses to make refund.
I assume she's suing all of them because MS and Symantec won't give direct refunds if the vendor won't make good, and the Vendors (CompUSA and Worst^WBest Buy) because they have her money and won't make good per the EULA, so she can't get it back.