California state people sueing again

[pkd_lives]

a ZDNET story, obviously it will appear on CNET as exactly the same story, hmmm... could that be because they are the same company?

http://zdnet.com.com/2100-1104-983988.html

 

quote:

Lawsuit challenges Microsoft licensing
By Lisa M. Bowman
Special to ZDNet News
February 10, 2003, 9:44 AM PT


TalkBack!


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.

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.

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.


"Defendants acted in concert and have concocted a scheme to sell consumers in the state of California software licenses in retail stores without allowing them to review the terms and conditions of such software licenses prior to sale," Ira Rothken, Baker's lawyer, wrote in the complaint.

Further, the suit claims that people who don't accept the terms of the agreement cannot return software to the stores. According to the suit, Baker tried to return the Microsoft and Symantec software to CompUSA after refusing to consent to the licensing terms. However, CompUSA refused to take the software back, saying the packages had been opened, according to the suit.

End-user license agreements have become a hot-button issue in the tech industry as more and more companies try to forge increasingly restrictive contracts. Some companies have tried to ban class-action lawsuits, damages or reverse engineering of their products.

In one of the few cases so far to test the limits of such agreements, a judge in New York ruled last month that Network Associates could not enforce wording that prohibited reviews of its product without prior consent.

Representatives from Symantec, Microsoft and Best Buy did not immediately respond to requests for comment. CompUSA executives could not be reached for comment.
 

[ForceSphere]

I don't see why she is sueing, well other than money.  Common sense says you cannot open a package, take the contents out, then return it (basicly that is what she could have done with a burner) I think most stores have that posted like everywhere.  Stores shouldn't have to tell us every little thing, which they eventually will have to, and then people will sue because the store is floading them with disclaimers and such.

**who the fuck actually reads stuff like EULA anyways?***

[mobrien_12]

The MS licence agreement says that if you do not agree to the terms, you can return the software.  

The stores refuse to take the software back.

She has a valid case.


My campus bookstore tried this on me once.. I bought norton antivirus years ago but was the wrong version... which I found out only after trying to install it.  They wouldn't take it back and I told them "The package says that I can return it to the store if not fully satisfied.  I'm not satisfied.  You sell this stuff, which means you agree to abide by Symantec's rules.  You WILL take this back!"

They took it back.

[beltorak0]

Yes, but according to a law passed in many of the States, such "click-wrap" licensing is legal and binding -- i live in once of them (VA).  Basically it allows the creation of a EULA that states "By opening the package or running this software you agree to be bound to these terms..."; tell me how you are going to read a EULA without either opening the box or turning the machine on....  It's called UCITA, and it is evil.  One of the things it allows is a EULA that states that the software makers are unacountable for any damages that may be caused if you agree to the terms -- which you do by opening the box or booting the OS.  Another thing it allows for is sueing programmers for damages that their programs cause if they do not employ these click-wrap EULA's.  How many GNU programs have you installed that you opened a package and it had a EULA that exempted the coders from damages incurred?  Any of them that you downloaded?

for more info, read:
LWN - Richard Stallman
David Penn talks with UVa professor and author Bryan Pfaffenberger about UCITA's recent victory in Virginia.

Notice the dates on the articles.  It has been with us for a while.  Thankfully California hasn't adopted it, and one state (i can't remember which) declared it unconstitutional and banned it's validity in that state.

.... what is our world coming too?

[ForceSphere]

I did alittle reading because of this, and i do change my mind now, she does a have a valid case.

1.) She never agreed to EULA which states she would be moreless "renting" Windows from Microsoft

2.) If she didnt agree to it then she "owns" that copy of Windows

3.) Now she owns it she is free to do wtf she wants to it, if it be sell, break, piss on it

4.) In her case she opened it, big deal,if she didnt agree to the EULA then she couldn't have used it, so the store CANNOT say it has been used.

I never liked the idea that you could never own and run Windows at the same time which is basicly what any1 who runs Windows is doing.  Then again alot of internet games are like that too, for example Blizzard Games, if you do something they dont like they will ban/mute your CDkey and you're fucked if you wanna play onine (just steal one, or ask me i have millions)

[HibbeeBoy]

I think it's a good concept. Having read the EULA, decline the agreement and return to store. They (M$ and their bitches) can't have it both ways. I don't have a problem agreeing to not copy and distribute a software application but when the EULA states funky stuff like "We reserve the right to spy on you etc" then the consumer should be allowed to decline and return. I often thought about that, order machine from Dell, fire it up, decline the EULA and return to Dell. After a few times they might get the message.

[Zero Cool]

In a way she has a valid reason but it's just another plot to get money off the big corporations. I'm even surprised that she read the EULA!

[Calum]

she does not have a vaild case.
the product can be returned if the user does not agree with the EULA, and i am fairly certain that all microsoft saleable products include a screen during setup which contains ONLY the EULA, and two buttons with 'I Agree' and 'I Do Not Agree'.

If the user clicks 'I Agree' in order to install the software, then it's their own stupid fault if they didn't fucking read it. and if they do not agree with the licence then they should not agree and they should not install the software.

It says everywhere in these licences that if you do not agree, you can return the product for a refund. if the 3rd party retailer does not accept it, you can send it directly to microsoft, if they will not refund you, then you might have a case.

Why do US people sue each other so much over rubbish? (that was rhetorical)

(winXP  EULA link - for reference)

you will notice from the windows XP user agreement that by agreeing to the EULA for XP in the first place you actually lose most of your rights to just about everything. luckily the XP EULA is vague enough to make this case not entirely a foregone conclusion, but i think we can safely guess who can afford the better lawyer.

[ February 13, 2003: Message edited by: Calum: Member # 81 ]

[HibbeeBoy]

quote:Originally posted by Calum: Member # 81:
she does not have a vaild case.
the product can be returned if the user does not agree with the EULA, and i am fairly certain that all microsoft saleable products include a screen during setup which contains ONLY the EULA, and two buttons with 'I Agree' and 'I Do Not Agree'.

If the user clicks 'I Agree' in order to install the software, then it's their own stupid fault if they didn't fucking read it. and if they do not agree with the licence then they should not agree and they should not install the software.

It says everywhere in these licences that if you do not agree, you can return the product for a refund. if the 3rd party retailer does not accept it, you can send it directly to microsoft, if they will not refund you, then you might have a case.

Why do US people sue each other so much over rubbish? (that was rhetorical)

(winXP  EULA link - for reference)

you will notice from the windows XP user agreement that by agreeing to the EULA for XP in the first place you actually lose most of your rights to just about everything. luckily the XP EULA is vague enough to make this case not entirely a foregone conclusion, but i think we can safely guess who can afford the better lawyer.

[ February 13, 2003: Message edited by: Calum: Member # 81 ]

I think part of her argument is breaking the seal on shrink wrap CDs. By breaking the seal to get to the CDs and the EULA, you have "agreed" to the EULA before you have even read it. I think it might be a valid case. The retailer assumes that the broken seal means the consumer has installed the application. But on reading the detailed EULA at installation time, you see the full details of what you have agreed to and some of its unsavoury stuff and click the "don't agree" button.

Why do Americans sue so much ? - well because they can. Is this a great country or what ?!!  

[avello500]

i hope they make companies display the eula's in plain language next to the shelf with the merchandise. how many people would buy m$ products when they tell you they will invade your comp.

[HibbeeBoy]

quote:Originally posted by avello500:
i hope they make companies display the eula's in plain language next to the shelf with the merchandise. how many people would buy m$ products when they tell you they will invade your comp.

Unfortunately, they would probably just go right ahead and agree to it anyway ! Why can't M$ just sell the software and leave it at that ? It's the part about spying that ticks me off. That has to be made illegal but in this time of "homeland security" they will get away with it. It's nonsense that M$ can make your PC inoperable if it suspects you are stealingsomething.

[mc0282]

I HOPE THEY THE WOMEN WINS , GOD DAMN YOU EULA...


[ February 13, 2003: Message edited by: mc0282 ]

[ForceSphere]

If it is true that when you break the seal you auto agree to the EULA, then why would MS display one when you install the sotware?

Here is what i think it is, By breaking the seal she can't return it to CompUSA.  But since she didn't agree to MS's EULA then she can take it up with them.  Unless i'm missing something, i do beleive that is how it should go.

[solo]

because some states banned the broken wrap agreement thing