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Shrinkwrap licenses typically tell you that if you don't accept their terms, you can't use the software. Equally typically, you can't actually read the license until you've opened the box. But most software retailers won't accept returns on opened software. Catch-22.
Well, one California woman has filed a class action suit over the practice. She names as defendants both software makers -- like Microsoft and Symantec -- and software retailers -- like Best Buy and CompUSA. She claims their actions, taken together, constitute unlawful business practices and have "unfair chilling effects" on consumers. The complaint also includes a request that whichever unspecified clauses in the licenses that violate California consumer law be removed.
Now, it's not the case that everything that's wrong with software licensing could be fixed just by letting consumers see the licenses before they buy. There are substantive problems here, not just procedural ones. But some of the suit's proposed remedies -- copies of licenses posted in stores and on the web for easy inspection -- make a great deal of sense, even if relatively few people actually do read them while on line at the cash register. It's a familiar story from environmental regulation: the mere act of public disclosure can do a lot of good. The worst offenders tend to discover that it's cheaper to stop dumping toxic chemicals than to put up with the public relations burden. Maybe something similar could happen to software licenses if they were readily available on the web.
News.com coverage here.
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damages? (Score: 0) by Anonymous on Monday, February 10 @ 21:27:58 EST | I fail to see how the plaintiff has suffered any actual damages. |
[ Reply to This ]
- Re: damages? by Anonymous on Monday, February 10 @ 22:11:14 EST
- Re: damages? by Anonymous on Tuesday, February 11 @ 11:40:45 EST
- Re: damages? by Anonymous on Wednesday, February 12 @ 11:55:37 EST
- Re: damages? by Anonymous on Wednesday, February 12 @ 15:19:57 EST
- Re: damages? by Anonymous on Thursday, February 13 @ 02:05:22 EST
- Re: damages? by Anonymous on Thursday, February 13 @ 02:06:07 EST
- Re: damages? by Anonymous on Thursday, February 13 @ 02:06:43 EST
- GPL by Anonymous on Thursday, February 13 @ 16:19:22 EST
- Re: GPL by Anonymous on Sunday, February 16 @ 21:23:23 EST
- Re: damages? by Anonymous on Tuesday, February 11 @ 06:10:52 EST
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Not Enforcable (Score: 1) by bryan_taylor on Wednesday, February 12 @ 18:38:48 EST (User Info | Send a Message) | I believe that the position that the Microsoft EULA is enforceable for storebought software is completely untenable.
The transactions that get the software from the software vendor to the retailer are clearly sales as they have no distinguishing feature from the transactions for any other product. The court in the recent Adobe v Softman case held as much.
The next step is to read your receipt from the retailer and note that it specifies in writing the terms of a contract of sale. It mentions nothing about the EULA being incorporated and generally stops at item, description, quantiy, and price. In particular, the software vendor is not a party to the transaction between the retailer and the consumer.
The UCC provides that *the parties* to a contract may modify the terms of that contract without additional consideration for the modifications. Since MS is not a party, and neither CompUSA nor the consumer give assent to the EULA being treated as a modification of the contract of sale, there is no credible case to argue that it is part of that contract. It is also not within the UCC to add parties to a contract without requiring that party to give some consideration at some point.
Now for the important part: The owner of a copy of software DOES NOT NEED A LICENCE TO INSTALL IT ON A MACHINE. In generall, you need a licence if and only if you perform an act that would violate the 17 USC 106 rights that are exclusive to the copyright owner. First sale gives the "owner of a copy" the right to install software in the black letter law of 17 USC 117, and does so "notwithstanding" section 17 USC 106.
Since you do not benefit in any cognizable way from obtaining a single computer licence, the EULA offers you nothing and fails to be an enforcable contract on its own for lack of consideration.
People often cite ProCD but fail to navigate correctly through the applicable contract law. ProCD does not answer the question. "Money now, terms later" is probably OK when that is the agreement between the buyer and the retailer. For most store-bought software, that is not the situation.
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Re: Suing over shrinkwrap (Score: 1) by seaan (seaanseaan@concentric.net) on Wednesday, February 12 @ 21:15:39 EST (User Info | Send a Message) | I was reading the comments above, and wanted to consider how it would work under slightly different circumstances. To rephrase– some posts assert the EULA does not have a legal force, and the customer does not have a case for damages unless they are sued by the manufacturer for violating the EULA.
Let’s presume this is true, so now tell me what happens when the manufacturer uses programmatic means to enforce the EULA. I’m thinking specifically of Intuit’s TurboTax. The TurboTax EULA states (as it has for several years) that the software can only be installed on one machine and that it can’t be resold. Their latest software now has copy protection measures that enforce this.
If I decide that I won’t accept the EULA, and the store won’t take the return, than do I have a reason for damages? Intuit is not suing me, but they are enforcing their probably illegal EULA; which for sake of argument I did not find out about until opening the box. How does contract law typically deal with this type of thing?
I’m a bit more familiar with copyright law, which is mostly written without affirmative rights to the end-user. Thus even though a customer can theoretically make a copy of DVD legally, there is no affirmative right that forces the DVD-player/DVD-publisher to support a means of copying a DVD (my example is based on several lower courts rulings on this specific issue).
The next question is “combination” fun. What happens if I circumvent the copy protection Intuit is using to protect their EULA? I suppose the DMCA anti-circumvention clause might be invoked because I’m circumventing the copy protection that provides access to their copyrighted software. But is there any other law against circumventing a protection scheme to use a product within normal contractual terms (but obviously not within the EULA)? Or is this just another example of the DMCA anti-circumvention clause giving publishers sweeping new rights?
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