CA Court Strikes Blow Against Hidden EULAs 640
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."
EULAs are bunk (Score:3, Insightful)
Hmmm (Score:2, Insightful)
Article Text (Score:2, Insightful)
By Ed Foster, Section Columns Posted on Mon Dec 20th, 2004 at 08:02:57 AM PDT
Having so often been the bearer of bad news from the legal front, I am thrilled to have some good news to report for a change. The old-fashioned shrinkwrap license appears to have suffered from what may well be a mortal wound. Microsoft, Symantec, Adobe, CompUSA, Best Buy, and Staples have agreed in the settlement of a California lawsuit to change their ways, and you can already see the first results at the software retailer nearest you.
In January 2003, California resident Cathy Baker walked into her local CompUSA store to return copies of Windows XP and Norton AntiVirus she'd purchased there. When trying to install the programs, she had of course been confronted by all the obnoxious terms in the Windows and NAV End User License Agreements. Instead of clicking OK, she took them back to the store for a refund, as the EULAs said she was supposed to do if she refused to accept the terms.
At CompUSA, however, Baker was told the store's policy was that it could not give refunds for software once the customer has opened the package. Even though Baker had no way of seeing the EULAs until after she purchased the products, took them home, opened the package and tried to install the software on her computer, she was now told she could not get her money back even when she rejected the terms. (In a somewhat bizarre twist, after she protested enough, one CompUSA employee told her that they had "secret instructions" from Symantec to provide refunds in such circumstances.) So, like many others before her, Baker was confronted with the classic shrinkwrap license conundrum: She could only see the terms by opening the box, and opening the box meant she was stuck with it. But Baker did something most others before her had not - she went and got a lawyer.
"When Miss Baker came to us, we felt it was an important case to bring for the benefit of the general public," says Baker's attorney, high tech litigation specialist Ira Rothken. "In our research, we found that it hadn't been discussed before - there was no guidance on it in the literature. Here you have a multibillion-dollar industry that is using improper business practices as a consistent policy, in violation of federal and California consumer warranty statutes. As a practical matter, the consumer couldn't review the terms and conditions prior to the sale and couldn't reject them with any certainty they could get all their money back."
After Rothken first filed the lawsuit in February of 2003, ensuing news coverage brought more consumers forward with similar stories of their own. An amended complaint to the case Rothken filed in May of that year added a second plaintiff along with Baker and also included Adobe, Staples and Best Buy as defendants with Microsoft, Symantec and CompUSA. Ultimately the parties entered a mediation process and in April they reached a settlement under which the six defendants had up to 120 days to make the agreed-upon changes to their procedures. The entire settlement along with the amended complaint and exhibits can be read in a PDF file on Rothken's website, but it reads in part:
"The Settlement Agreement provides to the General Public of California, amongst other things, the right of consumers to return applicable Symantec, Adobe and Microsoft software for full monetary refunds even if the shrink-wrap has been opened ... In addition, Symantec, Adobe, and Microsoft agreed to provide EULAs for the applicable software products on their web site and notices on their respective software packaging of the web addresses to such EULAs so consumers can review such EULAs prior to purchase of the software." CompUSA, Best Buy and Staples "agreed to provide such EULAS to consumers upon request prior to sale of the above software at their retail stores in California and to provide notices to consumers in such stores to effectuate the above."
There's a l
Ideally (Score:5, Insightful)
1. Companies will make simple consumer readable EULAs.
2. People will sign away all their rights without checking the fine print.
2a Resulting in a raft of stupid consumer protection.
2b Huge public backlash when the companies try to press their rights.
3. Some people will not accept these agreements and the EULA might become a factor on what software you purchase.
Good Riddance Shrink Wrapped EULA! (Score:2, Insightful)
It's pretty silly, Hurray for the courts!
Re:EULAs are bunk (Score:1, Insightful)
Re:In-store EULA (Score:5, Insightful)
Not exactly a vast improvement...
N.
Re:Hmmm (Score:3, Insightful)
returns? (Score:2, Insightful)
seems like its an incentive for companies to implement online activations, hardware keys, etc.
Re:URLs are good enough? (Score:4, Insightful)
Either accept returns or disclose the license prior to purchase.
The article says that under the settlement they have to do both.
Common sense... (Score:5, Insightful)
If there's some legalese that I'm supposed to agree to before installing and using the software, then it should be presented to me before I hand over the money.
Intellectual property isn't THAT much different to real property: when I buy a washing machine, I don't take it home, plug it in and then find out that it's illegal to use it to wash blue clothes...
Re:What next? (Score:1, Insightful)
Since Slashdot doesn't RTFA... (Score:3, Insightful)
What's with the "by request" crap? I don't want to go into Best Buy and chase down an "associate" every time I want to know about licensing of a product. If the software company lost, and consumers won, how come consumers are running around looking for help?
Post the license stuff right there on the shelf with the software, or better yet, put it on the box in the first darn place. If its so complex that it won't fit with readable fonts, maybe its better to go buy something else.
Good grief, we aren't winning, we are getting punished for objecting....
Re:On a related note... (Score:3, Insightful)
Spyware makers next (Score:5, Insightful)
Ouch. And good for us.
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.
I think the whole concept of a EULA is bs. MS who started this with average joe consumer knew it too but gave it a shot.
Corporate customers who sign legal agreements is a whole different matter.
This doesn't sound like a victory. (Score:5, Insightful)
A victory would be something saying that first sale rights apply to software, just like they do to books, and if you take a piece of software to the front counter of a store and purchase it you just bought a copy of that software, even if the software vendor includes a piece of paper saying that you didn't.
Re:What next? (Score:4, Insightful)
Presumably, one could buy the product, see the EULA url through the clear plastic wrap, go home, read the EULA on the internet without opening the package, and then open the package and use it or decide to return it unopened. Although this is somewhat difficult if the software is an OS and there are no other computers available (knoppix to the rescue?).
Alternatively, stores could put out a net connected computer that customers could use to read the EULA.
As for the EULAs being understandable however as another poster hoped, I would hesitate to place even a penny or two on that bet.
Re:EULAs are bunk (Score:5, Insightful)
Just a copy of it so First Sale doctrine does not apply.
Here we go again...
Ask Best Buy if it's a sale. (It is.) Ask Fry's if it's a sale. (It is.) Ask a Federal judge if it's a sale. (It is.) If it looks like a sale, it's a sale. You think Best Buy would refuse to sell software to my kid, who, being under eighteen cannot enter into a license agreement?
Legally, there are certain requirements for a contract, which is what a EULA is. Trouble is, EULAs don't meet the criteria. (Must be able to negotiate, must be of legal age, must show proof of acceptance of terms, must actually know who you are entering into an agreement with, etc.) EULA's are totally fiction. How many court cases have there been to seek damages from someone who didn't uphold the EULA? How about zero? Why? Because the publishers know they would lose and that would deflate the perception that these things are meaningful in any way.
Kind of weird, huh?
Re:The Age of Wal-Mart (Score:4, Insightful)
I return opened-but-not-installed software after refusing to accept the EULA terms, and some spotty Wal-Mart checkout person refuses to give me a refund. I then call his supervisor, and continue until I either get someone who says "OK" or I've spoken to the most senior Wal-Mart person in the store. If I don't get the OK, I get my lawyer and we take it from there.
Yep, I'll be potentially taking on the combined legal might of Wal-Mart, so maybe I should be very very scared. However, in such a clear cut case against such a big corporation, I'd have no trouble finding legal representation that'd be happy to work on a pro bono basis - think of all those class actions against huge tobacco and asbestos companies over the years.
Downsides for me, assuming it goes down this path:
- have to search through phone book for legal rep
- pain of dealing with legal people in general
- time, stress and general mental wear and tear (all claimable as damages *when* I win)
- loss of access to my refundable money while it all gets cleared up
Downsides for Wal-Mart, assuming it goes down this path:
- bad PR (and any legal person working on this on a pro-bono basis would be doing handstands to get this case on TV and in print media. "Big bad corp versus downtrodden individual" still makes press headlines...)
- loss of availability of its people while they're tied up with legal stuff
- possibility of a class action suit emerging
- possibility of more serious charges (racketeering?) being brought after they go down this path beyond a certain point
- possibility of consumer-protection government agency intervention (e.g. ACCC in Australia)
With Wal-Mart presumably being staffed by non-drones at some level of seniority, I'd have to think they'd work out that just giving me the refund I've requested in a timely fashion would be much less painful for them.
Re:What next? (Score:3, Insightful)
What's next? Will we have to read and agree to the EULA before we can buy? .
Yes. From the article: . .
Not necessarily. From the article:
It would seem that if you don't agree to the EULA, you are entitled to return the product. Why are some so pessimistic and naysaying about a small step forward in software consumer rights?maybe it is.... (Score:3, Insightful)
If you look at some of the outrageous EULAs out there, I can't help but to believe that some of these companies would be embarassed to 'publish' them.
If you (or especially your company) was evaluating products and you could get a copy of all the EULAs up front, don't you think that would be outstanding?
And as far as web publishing, it seems to me that for it to be a legal document, it might have to be digitally signed.
On the other hand if you buy software around the time a EULA changes, there may not be a good way to determine which EULA is in effect. A given package (product, version, release, etc might have to be hardcoded to a special EULA).
I think this is outstanding.
The more opportunity people have to see this crap, the tougher it will be to sell.
eric
Re:What next? (Score:5, Insightful)
Why do some think this is an acceptable business practice?
Web sites are a start (Score:3, Insightful)
It would almost be better to have people bringing the unopened software back saying something about reading the terms online and not agreeing to all that. When EULA's start translating into lost business they will change.
Big software buyers are also starting to demand changes in the licensing agreements. When confronted with a "if you don't like it get out" from a big buyer companies will roll over. You don't hear about it as much but it's happening more and more. Not as much with MSFT, but if was a deal breaker I'd bet money they'd roll. If anyone else has pushed them on that I'd love to hear about it.
Re:What next? (Score:3, Insightful)
this may be the one thing that will wake up the idiotic masses and realize the evil-doom that Software licenses really are.
Ok, a little over the top, but it's true. If every consumer read and understood what they were agreeing to with software EULA's there would be a backlash that would change things drastically.
On the other hand, the human race is so pitiful they may simply happily accept that they are giving away their rights for the new shiny thing.
I am hoping for the former, butbetting on the latter.
Re:What next? (Score:2, Insightful)
Re:What next? (Score:3, Insightful)
Re:On a related note... (Score:2, Insightful)
Still, if the box says you have to agree to the EULA before using the software (lots of software seems to do this now) - you still can't use it.
Re:What next? (Score:5, Insightful)
Also moron, is every "consumer" expeted to be a lawyer or hire one before each purchase? Have you ever read an EULA from MS or any other big corp? They are not written for the average user to understand. They are written in lawyer-speak. So exactly how is a _customer_ expected to get a fair-shake when they are required to _not_ purchase a product until they hired a lawyer who goes to the companies web-site and interprets the EULA for them?
Re:On a related note... (Score:4, Insightful)
If you know there is an EULA in place, and you do some silly thing to avoid not clicking "I agree" like letting your cat or a minor click it or replace the licence text or copy the files directly or whatnot, it doesn't help.
The only plead you can make is ignorance, that you had not been made aware of an EULA at all. If you take an action which will be seen by the court as a deliberate circumvention, you are going to be bound by it.
Kjella
Online only useful IF you've got Internet Access.. (Score:5, Insightful)
Therefore, in order to fufill the requirements of the settlement, they're going to have to prominently place it in a manner that can be read with the ability to return it to a retailer- period. If that means putting it on there so it'll fit on the outside packaging, so be it.
Not only that.. (Score:3, Insightful)
What happens if it's revised between the time they print the software, and the time you take it home? What happens then?
Or what about something nefarious? For example: suppose a MITM [evilscheme.org] attack causes every request you make to (for example) MS's EULA site to return an text that states "you must use the software in accordance with copyright law", but then you go to install it, and the EULA includes all of MS's usual onerous terms. Will the store *still* be required to give you your money back?
Or (even better) what if the forged EULA says "instead of installing it, you may make copies of this software and sell it for $20" - what happens when you get busted for commercial copyright infringement because you decided to sell it instead of install it?
Now, I'm not even that devious, but it seems to me a requirement like this could be used to cause a *LOT* of trouble.
Re:EULAs are bunk (Score:3, Insightful)
Re:Since I live in CA... (Score:2, Insightful)
So there's a link to a web site written on the box. Big deal. Do you think the sales droid is going to let me use his/her computer to browse the manufacturer's site in the store before I make up my mind? Yeah, sure.
This is a bandaid. And a poor one at that.
Re:Spyware makers next (Score:3, Insightful)
Almost all contracts are valid if both parties agree to it.
And yes, that includes verbal contracts, though there are other exceptions.
But proving the other party agreed is a whole lot simpler when you have a signed and notarized contract.
For example, suppose I claim that I never clicked on the "accept" button.
Could you prove that I did so in a court of law?
-- Should you believe authority without question?
Re:(OT)Re:The Age of Wal-Mart (Score:2, Insightful)
I've witnessed the national chains come in and utterly devastate the local businesses in my home town. I don't blame "just Walmart" though. Even though Walmart did tear down my grandmother's entire neighborhood for their parking lot, and then, just a few years later, close down the store and open an even bigger one just a few miles away. There had been several grocery stores, and lots and lots of independent merchants near that neighborhood -- all pretty much completely gone. There are a couple of automotive shops left, and one or two food places, one of which has been there since 1927, but that's pretty much it.
But I don't hold the people in the town harmless AT ALL. These people do things like sell their timber like there is no tomorrow, and they look at you funny if you say you want to keep your place wooded. If they have more than a couple of acres of land, they cannot seem to grasp the concept of keeping it as a single estate -- they seem compelled to subdivide it.
I'm not even just talking about people who need the money!
When the timber company comes up and says they want to clearcut your 250 acres of forested land and give you 30 grand, these morons take the offer.
You don't *really* have to be a big hippie to see the insanity of that do you?
So it's no surprise to me that when Walmart and all the other big stores, especially the hardware stores, want to buy residential property for cheap and flatten it, people go for it, without hesitation.
I can't really blame Walmart for Americans being insane, stupid, myopic, or all three. (I cannot put "greedy" on this list, because if greed were driving all this, they would be getting more out of it.)
Re:Keep the EULAs at the service counter? (Score:1, Insightful)
This is another part of the reason why software piracy will continue (and I will only buy about 1% of the software I use)
Software Piracy is the masses revolting. Consumers want fair sales terms and fair pricing.
IMO, EULA fronting like this, and the ridiculous way in which they are allowed to continue, is the financial equivilant of shooting oneself in the foot. Software makers who use them win the battles but lose the war.
If corporations/companys choose to treat me as if I have no rights, I'll treat them as if they are not entitled to my money (or that of my freinds and family, for that matter) and use their software in a manner I see fit anyway.
God Bless Bit Torrent and NewsGroups.
Re:What next? (Score:3, Insightful)
If you find out that a bit of software is crap, or unsuitable then you should be able to return it.
If you find that EA released some game so buggy that it needs to phone home for patches, then you should be able to get your money back.
Some people think that software quality is an engineering problem. It's not, it is a legal problem. Companies need to be held responsible for bad code.
They aren't currently.
Re:What next? (Score:1, Insightful)
"d000d i m 2 l33t. ur a m0r0n b/c i m smrt. "
That's how a slashdot post that starts with "hey moron" or "let me tell you son" unfailingly comes off to me... but what do I know... I'm posting AC.