Lawsuit Challenges Embedded EULAs

[Janak Parekh]

<div class='os_post_top_link'><a href='http://news.com.com/2100-1001-983988.html?tag=fd_top' target='_blank'>http://news.com.com/2100-1001-98398...html?tag=fd_top</a><br /><br /></div>Here's a pet peeve of mine: the idea that an EULA is enforceable even if you can't read it before you open the package! I just picked up a copy of Windows XP Professional Upgrade for a machine I was fixing today, and (from CompUSA at least) it comes in this plastic container which is a royal pain to open, and contains a cardboard box with 80% of empty space inside it. The outside of the box says <i>nothing</i> about the license, but by the time I get to read it (after booting the CD) it's already too late to return. I'm glad to see someone finally complain...<br /><br />"A California woman is suing Microsoft, Symantec and some software retailers, claiming the companies 'concocted a scheme' to mislead consumers by requiring them to consent to software licensing agreements they haven't read.<br /><br />The suit, filed Friday in Marin County Superior Court in San Rafael, Calif., seeks class-action status on behalf of all Californians who've bought software including Norton Antivirus 2002, Norton Systemworks and Windows XP Upgrade.<br /><br />Specifically, the suit, which was brought by Cathy Baker, claims that Microsoft, Symantec, CompUSA, Best Buy and other unnamed retailers don't allow people to read 'shrink wrap' licenses--agreements printed inside the box or incorporated into the software itself--before they buy a product."

[Rirath]

I'm sure there's some legal merit behind this... but it makes even ME feel like I have a life. Big surprise it's a woman in CA.

[JMountford]

OK Everyone knows what an EEULA is if you buy software....

Still.. how do I get in on this suit!!!

[Weyoun6]

I just hope this brings on some EULA reform...

[DVallot]

Ya know, they could get around this quite cheaply by simply putting a plainly visible website address you can go to to view the EULA. That way, they still get to seal up their product and they don't have to put any extra money into packaging (i.e. paying for the printed EULAs).

P.S. The reason many retailers put some high-dollar products in the blister packaging is so that they have the freedom of putting that product out on the sales floor in mass quantities without working (as much) about theft.

[brage]

Microsoft is notorious for sneaking in EULAs... IE Win2k service pack 3. In order to fix security bugs in the faulty software they sold you, you have to agree to some new license agreement. what BULLSH*T!

-j

[dMores]

i bet that lady never REALLY read a EULA. hehe :)

god bless america. where anyone sue anyone over anything.

jeezus !

[JMountford]

EULAs do kinda suck. You can not read it before you buy the software. And once you buy and open Software you can't take it back. So you either agree or get skrewd.

[szamot]

Why didn't I think of this, oh yeah I did but in Canada it is still a wild wild west when it comes to any sensible lawmaking. Time to get that greencard and claim my $20 from RIAA and maybe this as well.

[Jonathan1]

You guys should do a poll on the site asking if you read your EULA when you install your software.

I'm willing to bet a good majority of PPCT users don't.

[Ekkie Tepsupornchai]

The outside of the box says nothing about the license, but by the time I get to read it (after booting the CD) it's already too late to return.
Out of curiosity, did you see something in the EULA that would have prevented you from buying it in the first place?

I agree that this is a bogus deal... from a practical standpoint though, I could never imaging seeing something in an EULA that would prevent me from installing.

[T-Will]

I HATE all these freaking lawsuits! Stop the madness!!! :evil: :evil: :evil:

[Janak Parekh]

Out of curiosity, did you see something in the EULA that would have prevented you from buying it in the first place?
Well, in this case no -- I already know XP, I had to buy it and use it, and it wasn't much of a choice.

However, as more and more software become "services", I'd definitely want to see EULAs. I've read them more often than other people...

--janak

[JMountford]

I do actually read the ULAs. An informed user and all.

[Programmer]

Ya know, they could get around this quite cheaply by simply putting a plainly visible website address you can go to to view the EULA. That way, they still get to seal up their product and they don't have to put any extra money into packaging (i.e. paying for the printed EULAs).


Tho sounds like a good solution it is actually quite impractical. What if you are a brand new computer user? How do you get onto the website if you dont even have the OS installed? How do you read a EULA without installing it in the first place.

EULAs are stoopid. :wink: I say this even though I had to write one for one of our software applications. 8)

Robert

[BugDude10]

For those of you complaining about lawsuit-abuse, you're missing the point. It's wrong to sell a product to a consumer that they need to open and start to use, thereby voiding their ability to return it, before telling them the terms of their use of the product. Do I read every EULA? No. Is there dangerous stuff in there that we should know before we commit? Absolutely! Remember the recent "virus" report: by downloading an app to view a greeting from someone, you agreed that your PC could be used basically to spam others? The EULA said you agreed, and I doubt that most people did. It was a scam. Most of the EULAs I've read are scam-like as well.

As a more general matter, I question the enforceability of most EULAs anyway. (They're called adhesion contracts -- contracts that are forced upon the less powerful party by the more powerful party without negotiation, "take it or leave it".) I can't wait for the opportunity to fight somebody over my failure to comply with a EULA!

Consumers have the right to know what bullsh*t terms the software manufacturers want to impose on them before they commit to the purchase. I hope she wins, and in the process, the court declares that EULAs are worth the paper they're (not) printed on!)

My $0.02.

B.D.

[T-Will]

Ok so what's the solution to this? You expect companies to print their EULA's on the outside of the package?!?!? Oh yeah that's attractive...

This is bu||s4|7

[Janak Parekh]

Well, at the minimum, allow returns of opened packages. When you install a piece of software with the EULA, it usually states if that if you don't agree, you should (can?) return the software for a refund.

--janak

[whydidnt]

:oops: I am usually the first to complain about lawsuit abuse. I am a firm believer in the free market. However, this lawsuit does have some merit, though I think the real damage to any class of consumers is minimal. How can I be bound to an agreement that I have not had an opportunity to view prior to purchase? Now if I had an opportunity to return the software to the place of purchase for a refund after it was opened, then I'd have no problem.

Perhaps some good will come of this, as maybe the software cos. and retailers will agree to accept opened software returns in exchange for the suit being dropped. BTW, whatever happened with the group of Linux users who were suing Microsoft/Dell, etc. for refunds on Windows software that they never used because they installed Linux on their pre-built machines? I would think that the outcome of that case would have some impact on this one.

[T-Will]

But if they let consumers return open software then how do they know people won't copy it? Any seriously, how many people would REALLY return it because they didn't accept the EULA?

[Ekkie Tepsupornchai]

But if they let consumers return open software then how do they know people won't copy it? Any seriously, how many people would REALLY return it because they didn't accept the EULA?
Well, the first question is legit. There has to be a way for the users to know the rights before opening the package; thus allowing sellers the comfort of knowledge knowing that their products aren't getting ripped off.

The second point, IMO, is irrelevant from a legal perspective. Janak is right, while I don't view EULAs for regular desktop products, service-related products (especially those communicating over the internet) may come with EULAs that would not be acceptable to many users, especially when it comes to topics of privacy.

[T-Will]

[quote=djtipmothee]
The second point, IMO, is irrelevant from a legal perspective. Janak is right, while I don't view EULAs for regular desktop products, service-related products (especially those communicating over the internet) may come with EULAs that would not be acceptable to many users, especially when it comes to topics of privacy.

Hmm, I agree with the issue of privacy.

[PetiteFlower]

Then find another way then allowing returns of opened software. Require stores to have copies of the EULAs for every piece of software they sell available for browsing. Or print it on the box. Or do away with them altogether. You can't just go ahead doing something illegal just because you argue that you can't think of a better way to do it. There's simply no choice in the matter--if the court finds this practice to be illegal, which it should and probably will, then they will HAVE to find a better way to do it. What do we care how? All I personally care about is that I'm not being roped into agreeing to something that I haven't had a chance to read. It gives the software companies FAR to much power and potential for abuse. It's not my job to come up with the solution, it's theirs.

[karen]

A couple of years back, I bought some shrinkwrap small business software that included things like contract templates, financial management and timekeepng software, proposal templtes, stuff that now days would be called CRM, etc. I paid more than I normally would, probably over 200 dollars.

When I got the box home and installed, it turned out that the 'software' was really more like demoware. It installed, but none of the templates were usable as template docs, the finanacial software required passwords to access the reporting and analysis feature, the CRM part only stored 3 phone calls per contact, etc. To get fully operation software, I had to retain the services of a small business management firm somewhere in Kansas, I believe.


I had purchased the software from a local computer and software store in Ottawa, one that trusted. Their normal policy on returned software was...defective media only for returns. I printed out a the EULA and some screen shots and headed back to the store. At first there was some reluctance to accept it as a return, but when the manager got involved, he clearly saw that the box on the shelf was not full software, but limited demo ware. He accepted my return, gave me 10 percent off anything else in the store that day AND picked all the boxes off the shelf and packed them up for return to the vendor.

If I had purchased this stuff from a CompUSA or Best Buy, I bet I'd be out of luck.

[Ekkie Tepsupornchai]

If I had purchased this stuff from a CompUSA or Best Buy, I bet I'd be out of luck.
Interesting story. You're right, I doubt that a CompUSA or Best Buy would have taken that back, though I wonder if a small business management firm would be able to get their cripple-ware into those centers.

[PetiteFlower]

I don't know, the big chains have a big reputation to uphold; I'm sure if you made enough noise they would have taken it back. Plus, it really WAS defective, it was just defective by design. But I think Ekkie is right too, the big stores will generally do their homework a little better about manufacturers, since they have the resources to devote to it.