CA Court Strikes Blow Against Hidden EULAs

vsprintf writes "Ed Foster's Gripelog has a story on California's ruling against some of our favorite software producers and software retailers. EULAs inside the shrinkwrap are no longer good enough. Retailers with rules against accepting returns of open software could be in for hefty fines or settlements. Finally, a break for the buyer. May this spread quickly to other states."

Mirrored article

[Nogami_Saeko]

For those who can't see the article:

Mirrordot Mirror [mirrordot.org]

N.

No it isn't awesome, RTFA...

[HotNeedleOfInquiry]

All that's happened is that the pigopolists are putting a url on the outside of the box pointing to the full eula on their website. Still the same obnoxious bullshit, just readable if you want to go to the effort.

Re:What next?

[cyberlotnet]

No you moron, they expect you to read the package prior to opening it, SEE the reference to the EULA online. Go online and read it before opening the package..

If you don't agree you can then bring it back and not have any issues because the package is not open.

Australia has the ACCC

[CypherOz]

Most software EULAs are not fully legal in .au due to the Australian Competition and Consumer Commission [accc.gov.au] and associate trade practice law which lets a consumer return goods if faulty or do not work as specified.
Quote:

Under the Act the consumer is entitled to expect to enjoy quiet possession of the goods and to own the goods outright, subject to lawful restrictions made known to the consumer before purchase.

As a consumer, goods that you purchase must:
* be of merchantable quality--goods have to meet a basic level of quality and performance given the price and description of the goods
* be fit for the purpose--goods must do the job you made clear to the supplier you wanted them to do or that are implied from the circumstances in which you purchased the goods
* match the description or sample given to you before purchase, whether through a catalogue, labelling, packaging, on a website or in person.

Remedy or appropriate action

If you believe that one of these conditions or warranties has not been met, you have a choice of possible actions that may be available depending on the circumstances. If you find you have a problem with goods or services, you should stop using the goods and approach the seller or the service provider as soon as possible to explain the fault or problem. You can also explain your preferred remedy to the situation or problem, taking into account that the Act is not designed to protect consumers who are careless or unreasonable in their demands.

You may want to ask the service provider to repeat the service, or pay for the service to be repeated. You may want to ask that the goods be repaired or replaced or pursue a refund. Sellers are not required to provide you with a refund if you have simply changed your mind or you find a similar or the same item more cheaply elsewhere.

Also under .au common law you cannot contract out of negligence. Simply: If you software is faulty, and the vendor knows (or can reasonable know about the fault) and does damage then the vendor is liable.

Re:EULAs are bunk

[rpdillon]

Actually, courts are upholding EULAs (even those undisclosed at point of sale) as enforcable. I would love to back you and say "Screw EULAs!", but recent events like those on 30 Sept. are reminding us that courts are increasingly siding with the big companies on this one.

More disturbing, it is extremely important to understand what the EULAs say more than ever before, because companies like Blizzard are injecting clauses into the EULA that explicity say that by clicking "OK" and using the software, you are giving up specific rights like your right to reverse engineer for interoperability, and your rights protected under the first sale doctrine. This came out in the recent decision in the Bnetd case.

In fact, multiple provisions protected under copyright law and the DMCA that allowed certain actions are being specifically forbidden in EULAs because companies don't want you to reverse engineer their products, no matter what. Courts are allowing you to "sign" away these protections allowed for in federal law in EULAs, even if the EULA was not available at point of sale.

This isn't a great forum to discuss this type of thing because it is really quite intricate, but I did write two [etherplex.org] pieces [etherplex.org] on this in my blog over at Etherplex that treat it in more detail. If you're not in touch with what the courts have been doing recently, it may be of interest.

Re:Since Slashdot doesn't RTFA...

[fishbowl]

"Eventually, the GM will just post them next to the software."

No, not Best Buy. They will claim you are comparison shopping and have you forcibly removed from the store.

Re:EULAs are bunk

[EvanED]

I'm not sure that's true. You can waive your first sale rights [sarai.net] (along with fair use rights and interoperability rights).

Re:EULAs are bunk

[wiggles]

How many court cases have there been to seek damages from someone who didn't uphold the EULA?

Forgot about this one [eff.org]?

Yeah, it's under appeal, but the bnetd guys lost big on this one, because the EULA was violated in the creation of a competing product. The lower court ruled that the EULA was absolutely enforceable, and that the bnetd guys were absolutely bound by it.

phew

[oliverthered]

It's a good job that you can't sign away your rights here in Europe.

I just ignore them, European law also sides with the signatory not the author if there's any doubt as to what was meant, since it's the authors responsibility to make sure the signatory understands the contract.

Re:Not shrink wrap anymore...

[Kwil]

So.. now help out your fellow geeks.
Give the name of the retailer so that we know not to shop there, but to go in and occasionally tell them why we're shopping elsewhere.

Re:The Age of Wal-Mart

[darnok]

> You don't, as a consumer, have a "right" to a
> refund.

That's true; maybe I should've spelled my point out a bit clearer.

You have a right to expect a purchased product is "fit for purpose" in every Western country I can think of. That applies to any product you can name, and will override any business-specific statements to the contrary. If you buy software, take it home, open the box, start installing it and find it's not "fit for purpose" because of some EULA restriction that you didn't know about beforehand, then you have a right to return it for a refund on that basis.

There's no way that a reasonable court could believe that you had bought the product knowing before you purchased that it wasn't fit for purpose (i.e. you knew the EULA), given that EULAs run to 1000s of lines of legalese and change regularly and without notice.

Hope that clears up my point.

Re:What next?

[Anonymous Coward]

8.5 in x 11 in = 93.5 in^2 x 20 = 1870 in^2 / 4 in = 467.5 in / 12 in = 38.95833 ft / 3 ft = 12.98611 yards

Re:Online only useful IF you've got Internet Acces

[Svartalf]

You're confusing EULA and Copyright- which are completely two different things.

Copyright deals with the production and distribution of literary and other works of art. Nothing more, nothing less.

An End User License covers whatever in the hell the licenseor wants. It covers usage, etc.

Big damn difference there. With pure Copyright, the rules for use are anything that doesn't infringe- including copying snippets and even copying your friend's instance of the work for your own purpose if it's music (American Home Recording Act covers the compulsory license to be able to do so...). With an EULA, they can prohibit you telling anyone you're a user, whether or not it performs as well as they claim, and so forth.

Come on, wise up.

Re:Spyware makers next

[Lando]

I was under the impression any license agreement was not valid anyway without a notary present for a signature. Clicking a botton can not be interpetted as signing a document. Especially if no lawyer or notary is present.

Actually, as of October 2000, in the US clicking a button can legally be acknowledged as accepting a contract. The little thing that makes this possible is called the Electronic Signature in Global and National Commerce Act. President Clinton signed it into law on June 30th, 2000.

It was at that point commonly accepted that click through eulas were valid agreements. Questions about the validity of eulas have primarily focused on whether the wording of the eula itself invalidated the contract not the legal binding of the click through.

A short little article on the acthttp://www.cio.com/archive/011501/fine.html [cio.com] didn't see an entry on wikipedia on the act itself.