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California EULA Lawsuit

michael posted more than 11 years ago | from the props dept.

The Courts 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."

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Implication? (5, Interesting)

DasAlbatross (633390) | more than 11 years ago | (#5273399)

So does purchasing the software imply agreement now?

Re:Implication? (2)

cK-Gunslinger (443452) | more than 11 years ago | (#5273414)

It can't if the only copy of the EULA is inside the shrink-wrapped box.

Re:Implication? (0)

Anonymous Coward | more than 11 years ago | (#5273418)

How can you agree to something that you have not read?

Re:Implication? (5, Interesting)

ejaw5 (570071) | more than 11 years ago | (#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)

Slashdot is missing the good stories! (1, Informative)

Anonymous Coward | more than 11 years ago | (#5273402)

Like Dell Dude arrested for pot possesion [thesmokinggun.com] . Dude, he's going to jail!

Re:Slashdot is missing the good stories! (0)

Anonymous Coward | more than 11 years ago | (#5273454)

Dude, he's getting a cell!

Re:Slashdot is missing the good stories! (-1, Redundant)

Anonymous Coward | more than 11 years ago | (#5273455)

I know it's offtopic, but here's the obligatory:

"Dude, yer gettin a cell!"

Lame (-1, Troll)

Anonymous Coward | more than 11 years ago | (#5273403)

This is so stupid. Doesn't this woman have anything better to do with her time?

Re:Lame (1, Funny)

frodo from middle ea (602941) | more than 11 years ago | (#5273430)

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

the bitch is from California (-1)

Sexual Asspussy (453406) | more than 11 years ago | (#5273441)

so aside from eating royal jelly and granola by the shovelful and her daily regimen of Dahn yoga and tai chi, NO the stupid fucking cunt doesn't have shit going on to keep her from her important, groundbreaking, retardo-matic lawsuit.

at least she and her shylock lawyer have something in common with the rest of the world: two .45 slugs each in the face will kill them dead. fucking assplow

Not LAME at all you morons (0)

Anonymous Coward | more than 11 years ago | (#5273586)

This is EXACTLY the kind of suit we need to take place! It has been a Unilateral "contract" for a while. She is correct, if you cannot read a contract to be able to accept it, then you should be able to return the product. Perhaps she should have opened it in the store, yeah right ,like THAt would fly.

The paranoia here is that she burned a copy and kept the key... Like most folks would do that.

Slashdotters bitch about esoteric points of law and miss the REAL ones. Read up on contract law. This is why we get such stupid discussions on these pages.

When will this stop? (-1)

Anonymous Coward | more than 11 years ago | (#5273404)

When will this stop?

Linux? (-1, Troll)

Amsterdam Vallon (639622) | more than 11 years ago | (#5273406)

I know this sounds clichayed, but if you can't take the EULA stay out of the propritary kitchen.

Re:Linux? (1)

cK-Gunslinger (443452) | more than 11 years ago | (#5273453)

*sniff* Smells like troll... But anyway, the argument is not about the CONTENT of the EULA, but the access to it and the ABILITY to reject it.

Re:Linux? (2, Insightful)

Carbonite (183181) | more than 11 years ago | (#5273480)

It doesn't sound "clichayed" (?), just trollish. A customer's rights shouldn't be taken away simply because they choose closed software.

Spelling? (-1, Troll)

Anonymous Coward | more than 11 years ago | (#5273512)

I know this may sound incomprehensible to you, but if you can't master the basics of English spelling, stop fucking posting.....or post in your own damn language, if that's your excuse. You ESL, euthenizing, fuck.

Re:Linux? (1)

DerPflanz (525793) | more than 11 years ago | (#5273514)

I know this sounds clichayed, but if you can't take the EULA stay out of the propritary kitchen.

And what it this proprietary piece of software is exactly what you need and works perfectly? Should you not buy a product because the terms are unacceptable? Strange also that these things are accepted in the software market and not in other markets (suppose you buy a car and the dealer tells you you cannot lend it to a friend or transport some specific stuff in it).

Holy ****! (0)

Anonymous Coward | more than 11 years ago | (#5273407)

This is a long time coming. Wonder what the results will be?

Is it just me, or is there a legal movement in the IT field right now? RIAA case, Verizon counter-action, now this...

Re:Holy ****! (1)

KDan (90353) | more than 11 years ago | (#5273442)

Yup... pretty sweet that someone is finally doing it. Now wait 10 years for the result of the lawsuit... pfft... am I the only one who feels that something is wrong with this system?

Daniel

Which way do you want it? (2, Interesting)

ArsSineArtificio (150115) | more than 11 years ago | (#5273500)

Yup... pretty sweet that someone is finally doing it. Now wait 10 years for the result of the lawsuit... pfft... am I the only one who feels that something is wrong with this system?

Is it that you're happy that people can bring all kinds of lawsuits, so that the EULA issue will get litigated...

... or is it that you're annoyed that people can bring all kinds of lawsuits, so that the courts are overworked?

ASA

Re:Which way do you want it? (1)

KDan (90353) | more than 11 years ago | (#5273583)

I'm annoyed that it takes 10 years for those lawsuits to be dealt with.

Daniel

Are EULA's legal? (3, Interesting)

Irishman (9604) | more than 11 years ago | (#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).

Re:Are EULA's legal? (1)

Xformer (595973) | more than 11 years ago | (#5273467)

I thought it was more along the lines of click-through EULAs, and their legal meaning being reduced to nothing.

Anti GPL propaganda: (0)

Anonymous Coward | more than 11 years ago | (#5273604)

The C[E|I|F]O always says, "with GPL software, who are you gonna sue when it goes tits up"?

Yeah, right, like Joebob's garage could successfully sue [M$|Sun|Oracle] in the same situation.

With GPL software, YOU can fix the problem YOURSELF.

I Always Wanted To Do That (-1, Offtopic)

Anonymous Coward | more than 11 years ago | (#5273421)

I guess much like me missing on first post I will miss on first lawsuit too.

Dang.

Seems ... (3, Insightful)

ackthpt (218170) | more than 11 years ago | (#5273422)

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 ... (2, Insightful)

EvilSporkMan (648878) | more than 11 years ago | (#5273475)

I think it's a moot point. What if I'm buying my first OS? How then will I read the EULA?

Re:Seems ... (5, Insightful)

Anonymous Coward | more than 11 years ago | (#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.

Re:Seems ... (1, Insightful)

EvilSporkMan (648878) | more than 11 years ago | (#5273546)

It'd cost a lot more to "own" a piece of software, and it wouldn't make good business sense. If you owned a piece of software, you'd have full rights to do whatever you wanted with it, and you'd probably have to be provided with source code. This would allow you to distribute copies of the software for free, modify the software and redistribute it while taking credit, etc. Hence the licensing system we have today.

Re:Seems ... (1)

Carbonite (183181) | more than 11 years ago | (#5273585)

And how is a consumer to read a EULA on a website if they do not have internet access?

True, some people won't have internet access and thus wouldn't benefit from a EULA posted on the Web. However, the majority of software customers do have some form of access, whether it's at home, at work, at a cafe, a library, etc.. I don't think anyone is advocating that the EULA only be placed online. I think it would be a great first step to have EULAs posted on web sites.

Re:Seems ... (2, Interesting)

Entrope (68843) | more than 11 years ago | (#5273489)

Companies could post EULAs on their web sites, but this does not mean the customer has read or agrees with them. If the retail store does not allow the customer to return opened software, they have a responsibility to ensure that the customer reads and agrees to the license at the point of "sale" -- or else they become vulnerable to this kind of lawsuit. You can imagine how long it would take for Best Buy to rethink a policy that meant any customer, making a routine purchase, can tie up a register for 5 or 10 minutes :)

Re:Seems ... (0)

5.11Climber (578513) | more than 11 years ago | (#5273523)

That's fine as long as *all* customers have access to the vendor website. The EULA needs to be posted in the packaging some where in type large enought to be easily read.

Would that be sufficient? (4, Insightful)

burgburgburg (574866) | more than 11 years ago | (#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.

Re:Seems ... (2, Interesting)

modecx (130548) | more than 11 years ago | (#5273539)

I'm not sure, but I do know this:

I searched MS's site for about 30 minutes trying to find the text to Windows XP's EULA, before I finally got bored, and forgot what point it was that I was trying to prove.

If it really is there, it's going to take some FBI agents or something to find it (they don't get bored so easily.)

Catch 22 (3, Insightful)

hndrcks (39873) | more than 11 years ago | (#5273552)

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.

Has a couple flaws (1)

gtaluvit (218726) | more than 11 years ago | (#5273558)

First off, if the EULA changes, which it does fairly often with most software in terms of upgrades, they'll have to have a history of EULA's available. So if you bought Half-Life Game of the Year edition with the orange box and not including this mod, here is your EULA, but if it has this mod and you bought it on a Tuesday, here's your EULA. It will get convoluted quickly.

Second, that implies that it is the users responsibility to check the company website before making a purchase.

Catch-22 there... (2, Insightful)

prairieson (150780) | more than 11 years ago | (#5273608)

What if the software you've purchased is the thing that will allow you access to the website/EULA? Installation of the software implies acceptance of the EULA, but you can't read the EULA without the software.

Kind of like some of the early VCR's that shipped with a video tape.... you betcha... showing you how to hook up the VCR.

CompUSA is at fault here (0, Troll)

stand (126023) | more than 11 years ago | (#5273423)

What kind of brain dead store policy doesn't allow you to return software? It's not like it gets dirty or something. (though I suppose that may not be true for all work environments.)

Re:CompUSA is at fault here (1)

konichiwa (216809) | more than 11 years ago | (#5273465)

Probably strongarmed into it by software companies, because if they allowed opened software there's a high risk for piracy (buy, copy, return)

Re:CompUSA is at fault here (1)

burninginside (631942) | more than 11 years ago | (#5273466)

more than likely they'd end up with scratched cds or people would just pirate the software and then get their money back on it since they wouldn't need the cds anymore

Re:CompUSA is at fault here (2, Interesting)

Hamster Of Death (413544) | more than 11 years ago | (#5273471)

It's common practice for a select group of people to go buy the software, take it home, copy it then return it to the store for a refund. I used to run into these people all the time when I worked selling computer games. We would only take back defectives (which we would verify) if the box was opened.
Cut down dramatically on our returned software.

Re:CompUSA is at fault here (5, Insightful)

Blkdeath (530393) | more than 11 years ago | (#5273581)

I used to run into these people all the time when I worked selling computer games. We would only take back defectives (which we would verify) if the box was opened.

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 (1)

goldspider (445116) | more than 11 years ago | (#5273501)

I can understand the policy, what with all the new-fangled CD-burning technologies around...

1. Buy new software from store.
2. Burn copy of said software.
3. Return software to store for refund.
4. (sorry) Profit!

Re:CompUSA is at fault here (0)

Anonymous Coward | more than 11 years ago | (#5273555)

well how about copy protected cds and DVDs

since through their copy protection i am unable to copy it. shouldnt they be required to allow returns?

just a thought.

they put protection on so i cant copy it, but then when i return it, they say i cant because i could have copied it. interesting.

Re:CompUSA is at fault here (1)

frodo from middle ea (602941) | more than 11 years ago | (#5273505)

i agree, I bought pinnacle studio for video capture and editing and it came with a firewire card, from bestbuy
The box said the card could capture video in both NTSC or PAL. but it turned out that the pinnacle studio could only edit video captured in NTSC (which was not mentioned on the BOX)
i retured the whole thing and explained my position to the returns lady, and she accepted the box and refunded the money.

Re:CompUSA is at fault here (1)

amaprotu (527512) | more than 11 years ago | (#5273508)

LOL I know of no software store that will allow you to return opened software for anything other than a trade in for the same software title. And how does that help someone who disagrees with the EULA?

Why? Piracy. They don't want you taking home WinXP, copying it, writing down any numbers, installing it and then returning it the next day to get your money back.

Re:CompUSA is at fault here (1)

ack154 (591432) | more than 11 years ago | (#5273519)

I think its something to do with being able to copy it. The same usually goes from DVDs (at Target) and CDs (Bestbuy/Target) in my experience. It may vary by store, but from what I've seen its a copying worry...

Re:CompUSA is at fault here (1)

Shdwdrgn (162364) | more than 11 years ago | (#5273530)

Every software retailer I have encountered in recent years has this same policy. Basically, they assume that if you have opened the package, and are returning it (for whatever reason) then you have probably made yourself a copy of the software, writen down the authorization code, and are now using whatever excuse you can to return the software and get your money back.

And realistically, this is not a bad assumption on their part. After all, how do you determine if a software package was copied?

Their probable reasons (1)

burgburgburg (574866) | more than 11 years ago | (#5273571)

Since they can't tell if you've actually installed/are using the software or not, they can claim that they won't take returns after the box has been opened. But since it requires opening/starting up on the computer to even read the license, the purchaser is screwed if they don't agree.

With software on floppies, they were probably also concerned about viruses.

Re:CompUSA is at fault here (1)

blurfus (606535) | more than 11 years ago | (#5273578)

Yeah, but people tend to do things like, I don't know, make copy of the CDs they opened, distribute them amongst friends and family, keep one copy for 'personal' use and STILL return the opened product for a refund (In other words, they get to keep the product for free)

It's no different than buying a Music CD in that sense. (You can always tape it and enjoy the music without paying for it if you then return it because you allegedly did not like the lyrics)

Now, don't get me wrong, I don't agree with the way EULAs are presented right now... But it is not unreasonable to see store policies like these ones to protect themselves from the 5%-10% of the people that scam them.

IMHO, of course...

Re:CompUSA is at fault here (1)

jandrese (485) | more than 11 years ago | (#5273580)

Lots of stores don't let people return opened software because apparently LOTS of people were getting the software, burning a $0.05 CD, and returning the software. This led to an extremely high return rate on Windows, and even if the software is still in good shape you can't just put the shrink wrap back on and resell it (well some stores will, but most stores won't). Lots of online games will kick you out if someone is using your CD-Key, so if you bought the same box that some loser returned earlier, then you would be SOL if you wanted to play while they're online. For the (extremely limited) amount of software that still comes on Floppy, there's the danger that the loser stuck the floppy in his virus infected system with the write protect off and gave the store a big old liabilty problem if they resold a disk with a virus on it. Finally, the stores have to go through this big old rigamarole to return the software to their distributor and get a "fresh" copy.

I suspect that we'll get some microscopic-print version of the EULA on every box of software if this case actually goes through, although I can dream about the whole "license to use a copy in only one predescribed way on one machine while we can do whatever we want to you" scam being brought down by sheer common sense.

Re:CompUSA is at fault here (1)

McFly777 (23881) | more than 11 years ago | (#5273592)

The obvious reason is to prevent people from copying the software then returning it.

The less obvious reason, which happened to me at a store that does accept returns, is that I bought a box of software only to discover that the registration code wasn't in it. The EULA envelope was also pre-opened, so I can only assume that it was a returned box. The store accepts return for exchange so I did, noting the missing codes.

that is all wrong (4, Funny)

xao gypsie (641755) | more than 11 years ago | (#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 (0)

Anonymous Coward | more than 11 years ago | (#5273476)

Actually no, it does not imply that at all.

Re:that is all wrong (1)

bman08 (239376) | more than 11 years ago | (#5273491)

...black, strong and bitter.

Re:that is all wrong (0)

Anonymous Coward | more than 11 years ago | (#5273564)

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

But is doesn't matter if we read it or not. If we don't read it, then we accept it by default. If we read it and disagree, then we're screwed if we bought the software from compusa.

Sounds like the lady might have a case.

Re:that is all wrong (5, Informative)

Entrope (68843) | more than 11 years ago | (#5273602)

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.

You GO girl... (-1, Offtopic)

Anonymous Coward | more than 11 years ago | (#5273427)

Power to the people.

Who is responsible? (5, Interesting)

Teckla (630646) | more than 11 years ago | (#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

Re:Who is responsible? (1)

program21 (469995) | more than 11 years ago | (#5273493)

The license says to return it if you don't agree, but the stores are refusing to accept returns. While the summary only mentions Symantec & Microsoft, the women bringing the lawsuit claims that they are working with stores such as CompUSA and Best Buy (and unnamed others).

Re:Who is responsible? (1)

Hamster Of Death (413544) | more than 11 years ago | (#5273503)

It's both, stores hate taking back opened software since their distributor usually hate it even more.
I would imagine if you went high enough up the distribution chain someone would take it back if were diligent enough to hunt down said person. But to most people the hassle isn't worth the price of the software.

Re:Who is responsible? (4, Interesting)

Lxy (80823) | more than 11 years ago | (#5273534)

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?

Re:Who is responsible? (1)

IcEMaN252 (579647) | more than 11 years ago | (#5273549)

I used to work at an electronics retail store. We didn't sell much software, but we did a bit. As it was explained to me, the "no-return" policy was supported by both the manufacture and the retailer. The manufacture won't take it back for a return, and the store can't resell a non-shrink-wrapped POS (Piece of Software).

Re:Who is responsible? (1, Informative)

Anonymous Coward | more than 11 years ago | (#5273568)

Most major vendors of software, can't say all, either will not give credit back to the stores for open packages OR they will incurr a reduced credit for items that are open thus causing the store to take the hit regardless. Is it the stores fault for the customer not accepting terms? Is it the customers fault for not accepting terms? Is it the vendors fault for making software with unacceptable terms and not disclosing those terms until all the parties mentioned are already too involved?

Re:Who is responsible? (2)

LittleGuy (267282) | more than 11 years ago | (#5273589)

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).

wow (-1, Offtopic)

Anonymous Coward | more than 11 years ago | (#5273432)

H^H^H^H^H^H^H^H^

Wow, i=l33t sysadmin. fear my bloated ego and power.

Yawn! (-1)

cerskine (202611) | more than 11 years ago | (#5273435)

Boring...

EULA (2, Funny)

Anonymous Coward | more than 11 years ago | (#5273439)

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

Mmmm... Litigilicious... (1)

cryptochrome (303529) | more than 11 years ago | (#5273444)

Only in California... since there's no lack of questionable business practices regarding Microsoft and Virus software makers (namely if MS software weren't so full of holes there wouldn't be much of a need for virus protection) one wonders why she picked this issue.

Re:Mmmm... Litigilicious... (1, Insightful)

Anonymous Coward | more than 11 years ago | (#5273569)

I disagree, this is a good issue, I'm worried however that the courts will rule that CompUSA (or whatever) are to blame rather than Microsoft and Symantec.

I'd very much like to see EULA's be thrown out. I imagine MS and Norton would rather remove EULA's than have people returning software. Let's face it, the only legal terms of an EULA are protected by law already, that leaves only "illegal" terms which no one follows anyhow. "illegal" = Not tested in court.

Re:Mmmm... Litigilicious... (0, Flamebait)

seier (612086) | more than 11 years ago | (#5273610)

Okay that's a load of bull. The only way a particular operating system isn't prone to very many virusses is if it doesn't do hardly anything. The reason MS's OS's have far and away the most security flaws and virusses is two-fold:
More people can develop for windows than any other platform
More people use windows than any other platform (A huge target)
Thanks,
Christian

Finally. (5, Insightful)

geekoid (135745) | more than 11 years ago | (#5273456)

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?

About time... (5, Interesting)

shekondar (600087) | more than 11 years ago | (#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...

ah the url to EULA is.. (0, Offtopic)

linuxislandsucks (461335) | more than 11 years ago | (#5273458)

do they not print the link to the EULA on the outside of the software box? Its been awhile sinc eI bought software.. can anybody answer this with a recnt box handy?

Re:ah the url to EULA is.. (0)

5.11Climber (578513) | more than 11 years ago | (#5273553)

What if the customer does not have access to the Internet?

Give em hell. ANd wheres her legal defense fund. (3, Interesting)

Unknown Poltroon (31628) | more than 11 years ago | (#5273459)

Ill kick in 20$ or so.

I see this coming about... (2, Insightful)

Anonymous Coward | more than 11 years ago | (#5273460)

Stores will now offer EULAs at the end of the aisle and make you sign a reciept saying that you have read the license and accept it. Does anyone honestly think that in a capitalist system that the consumers are going to be protected? come on.

Finally, a way out! (1)

Cali Thalen (627449) | more than 11 years ago | (#5273462)

I live in California! Think the settlement (assuming it goes class action) will be enough for me to retire on? :P

I like the idea of getting the software manufaturers and distributers to change the licensing, but does anyone really believe that the settlement will be anything worth reporting? Or is it just another way to keep the lawyers getting paid?

Go for it! (4, Interesting)

markwelch (553433) | more than 11 years ago | (#5273464)

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... (4, Interesting)

$$$$$exyGal (638164) | more than 11 years ago | (#5273468)

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. (3, Interesting)

I'm a racist. (631537) | more than 11 years ago | (#5273474)

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.

Sweet! (1)

blenderfish (156901) | more than 11 years ago | (#5273479)

If this goes well, this could be the beginning of the end for EULA's...

Better hope she has a good lawyer and can set a _good_ precedent (if she loses, this could backfire on all of us.)

At least it sounds like she has a lot of free time to dedicate to the case!

If the store won't take it back just use it anyway (3, Insightful)

olddoc (152678) | more than 11 years ago | (#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!

Women... (-1, Flamebait)

anoack (649361) | more than 11 years ago | (#5273496)

Women...

finally! (5, Interesting)

doowy (241688) | more than 11 years ago | (#5273509)

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.

Yeah, right (1)

tyllwin (513130) | more than 11 years ago | (#5273520)

Emotionally, I'm in sympathy with her, because depp in my heart, I hate these restrictive EULA's. And, in fact, I agree that the companies intentionally make it as difficult as possible to make an informed decision.

As a practical matter, though, the woman certainly knows before she purchases the software that it will come with an EULA that any reasonable person will find objectionable. Further, when it comes to Microsoft, at least, she's dealing with a monopoly, so it's not as if she can shop around.

But more to the point, isn't her real cause of action against the retailer who refuses to take it back?

CompUSA anti-consumer return policy (4, Insightful)

orev (71566) | more than 11 years ago | (#5273522)

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.

This is the... (-1, Offtopic)

Anonymous Coward | more than 11 years ago | (#5273524)

FIRST POST!!!!

Software piracy (1)

Static_Neurotoxin (141004) | more than 11 years ago | (#5273527)

I can only assume that their no-return policy is an attempt to keep people from buying software, installing or burning a copy, then returning the software for some contrived reason.

Of course this doesn't leave you with any options for refusing a license for purchased software.

You can view the EULA before purchase (4, Interesting)

bergeron76 (176351) | more than 11 years ago | (#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.

Yay.... sort of. (1)

ThinkingGuy (551764) | more than 11 years ago | (#5273532)

If EULA's are indeed the legally binding contracts that their creators claim, then this would seem to be a straightforward case.
I just wish that it wasn't a class-action lawsuit, because we all know that the best possible outcome is: A few lawyers will get millions of dollars, while all the of consumers will get, what? A couple of dollars, or maybe a discount on their next purchase of propietary Microsoft software.

Used to be done differently (5, Informative)

Limburgher (523006) | more than 11 years ago | (#5273537)

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.

We'll see (2, Informative)

bezuwork's friend (589226) | more than 11 years ago | (#5273543)

I sincerely hope this succeeds. The one case I know of on point is ProCD v. Zeidenberg. Unfortunately, the judge in that case held the license enforceable as many transactions in our society have conditions on them which the buyer does not know about at the time of the transaction. Entertainment tickets, for example, were mentioned, IIRC (post-transaction conditions might include no taping at the event, etc.). Under the judge's view in that case, a EULA would likely be enforceable.

As with most people here, I don't agree with this assessment. I wish this group success.

catch-22 (1)

Zenex13 (584549) | more than 11 years ago | (#5273565)

It's always been a catch-22 that you can't return opened software, but you have to open the box to read the licence agreement. This isn't new, and i'm surprised no one has really complained about it before. As it stands now, you have to agree to something you haven't read to buy proprietary software. I've never seen a single store that lets you return opened software, and i've never seen a single program that didn't put the EULA in the box. This is certainly true anywhere, not just California.

It's about time... (1)

jodo (209027) | more than 11 years ago | (#5273590)

that someone finally did this. The catch 22 the software vendor and the retailer put the consumer in is IMHO illegal. i.e. the retail store agrees to carry the software with the license inside that states if terms are not agreeable then return it to the store. But the store knowingly has a policy that refuses to refund the money. This is a conspiracy to screw the customer and is shameful. It would be interesting to know if the software vendors actually will not allow returns of opened software. If so they are going to pay.
It is odd that no state attorney general that I know of has pursued this... yet. But that $50,000,000,000.00 M$ has in the bank sure could solve a lot of states budget woes.

Damn skippy! (5, Insightful)

ChaosDiscord (4913) | more than 11 years ago | (#5273591)

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.

If a EULA is illegal... (0)

Anonymous Coward | more than 11 years ago | (#5273595)

The so is really any license now isn't it?

Therefore GNU would be illegal

Never mind that fact that her legal beef is with CompUSA not the software manufacturer.

Yes. A Conundrum (1)

indigogorge.net (535856) | more than 11 years ago | (#5273598)

It sucks. If we open software at home, we can't return it. It has been this way for at least ME for a long time. I don't try anymore. They just say Sorry. The reasoning? I could have easily made a copy of this program, put it back in the box, and brought it back. Some rare instances, packaging screws up, and you didn't get that second disk with the package. Ohh well. It sucks. I also have heard other /.'s say that they have been able to return software. Great! Hooray for the End User!

This case seems very trivial really. Although, it brings up a point that has needed voicing for a long time. The solution I am sure for the companies will to just post a fold out license on the front, post it on the back, or put a nice bright sticker on the front stating that you must go to the website and read the EULA before installing.

I do agree, that it is deceptive. I am sure in the recent months people have been asking the same question as this woman. Why don't they have EULA displayed? it seems very foolhearty, and a sheer oversight for these companies to leave it out of plain site.

I just hope she is doing this because she is a true User Rights Advocate, and not someone who found a loophole for money and her 15 minutes of fame.

interesting (2, Interesting)

erikdotla (609033) | more than 11 years ago | (#5273605)

Further, the suit claims that people who don't accept the terms of the agreement cannot return software to the stores.

This is the crux of the matter. She, and many others, don't want the bundled Windows software, and want to install Linux (or perhaps a pirated version of Windows.) Furthermore, they want cash money forked over for returning the unused product to the store.

Funny how it has value when they want to charge you for it, as part of the product, but when you want to return it, it's basically worthless since they buy it for virtually nothing, it's not easily re-wrappable, and the overhead of dealing with it at all is more than it's worth, in fact, they probably take a loss. Obviously they'd take a loss on such returns - if not, they'd probably allow it to make customers happy. But they don't, and here we are.

So, while the EULA of the items says they can return it, I recall that CompUSA trumps it with another agreement that says you can't return part of the product (IE, just the software, not the computer.) This is indeed a scheme to ensure that:

1. They can charge you for the software you don't want
2. They don't have to take returns on worthless items and issue refunds

While this makes sense business/cost-wise, it's not very good from a customer service angle.

But then again, customer service has been degrading to the point of absurdity for years.

The more important question is... (1)

suman28 (558822) | more than 11 years ago | (#5273606)

First of all, it's about time someone did this. I wish I had thought of it first. Is she going to make money on this or what?
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