Posted on Mon Dec 20th, 2004 at 08:02:57 AM PDT
Posted on 12/20/2004 9:04:30 PM PST by ScuzzyTerminator
| A Fatal Blow to Shrinkwrap Licensing? |
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| By Ed Foster, Section Columns Posted on Mon Dec 20th, 2004 at 08:02:57 AM PDT |
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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 lot in this settlement, and I'm going to have more to say about why it's important in the near future. But there have already been changes because of it, and I think there are going to be more. When Baker walked into that CompUSA almost two years ago, there was basically no way for her to see the Windows XP or Norton AntiVirus EULA before she put her money down. Last week, as part of the General Public of California myself, I strolled into my local Staples to see if anything has changed now that these wayward defendants have had their 120 days to shape up. Sure enough, the new packages for Windows XP Home Edition and NAV 2005 direct you to Microsoft and Symantec web pages where those EULAs are posted. In fact, newer packages for Microsoft Office applications also have a URL for those EULAs, even though Office was not formally part of the settlement agreement.
And that's why I think we can expect more changes to come. This settlement isn't going to be just applied in California, it's not going to only be honored by these three software companies, and it's not only going to force brick-and-mortar software retailers to help their customers see terms before they buy. Think about it. If you were a legal advisor for Amazon, Autodesk, Borland, CDW, Circuit City, Intuit, Macromedia, McAfee, Sears, or any number of other companies involved in selling software to consumers, wouldn't you be suggesting they treat this settlement as if it were binding on them as well?
Of course, the right to return opened software and the right to see terms before you buy aren't going to rid us of all the nasty sneakwrap terms overnight. But the first step has been taken. Baker took it two years ago when she walked into a store to demand the rights that we all should have.
We have the right to abduct your first born female child....
I thought that it was something important like shrinkwapping a boat??? My Bad.
If one reads many software agreements closely, one doesn't buy the software, but are 'leasing' its use.
Unlike buying a book or a CD that you can give away or sell at a yard sale or trade, software ownership is usually retained by the software creator.
Technically, when you upgrade, for example, you are supposed to destroy the old software. The software company retains the right to reclaim it at will.
That, and everything else you have said in your post is true.
However, it is interesting to note that even the mighty Microsoft has NEVER filed suit or claimed a licensing violation against any individual. While it is true that they have gone after some businesses for violating EULA agreements by selling more than one copy of Windows98 or 2K with the same CD key, they have never gone after an individual because they know that the EULA is worthless and would lose in court.
What I don't understand is if you purchase software that doesn't work, no one will take it back and give you your money back.
I paid $299 for Adobe Acrobat and after I installed it had problems. I called the company and they wanted another $179 to let me speak to tech. I tried to return it and the store wouldn't take it back. Needless to say, I am not happy with Adobe and if this is the way they treat a $300 sale, I can see why people pirate software because I sure as hell am NEVER AGAIN spending $300 on any software ever again.
As a Software Engineer, anything that I create is owned by the company.
Friday, I hit them with my own personal law: I demand to become a partner in this company, or my software will never get completed!
To my absolute amazement, on Monday morning, they offered me voting stock in the company!
When I opened the shrink wrap I heard a loud voice say, "All of your software are belong to us!"
Usually, a company will let you get hit in the ass by their front door if you pull that stunt.
Good for you.
Most agreements for contract employees specifically said anything developed by the contractor became the property of the employing company.
Copyright law even has writing/development-for-hire provisions that give the employER, not the hirEE, rights to projects developed by the hirEE during employment.
Disclaimer: All agreements/contracts should be read closely.
I worked for a copy once, as a full employee, not contractual. We were required, however, to sign an agreement. That agreement stated than, if we left the company, they had the right to disavow that we had ever worked for them. (The company developed software for grocery wholesalers and stores; it wasn't secret DOD stuff. lol.) Needless to say, we balked at that provision and refused to sign until that was removed.
To our surprize, we were told Monday that we would be given shares in the company.
Nobody was more suprized, than the two of us.
Linux people have tried this is the past. WHen they could only get a particular piece of computer hardware by buying it with Windows, they bought it, then when Windows first booted and demanded the acceptance of Microsoft's terms, they refused. Since all they wanted was the hardware in the first place (planning to install Linux on it), the then tried to return the WIndows software for a refund, as the demand window said they could do. Hilarity ensued, as one web site frequently puts such things.
How altruistic of you, counselor.
And did you do this pro bono, for the benefit of the general public?
Or are you working a scam to suck money out of the software manufacturers?
Lawyers are the scum of the earth.
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