OK --- a question of ethics

Discussion in 'Dell' started by MB_, Oct 11, 2005.

  1. By that time, the typical user has already lost hours. If any refund
    situation is to be considered remotely fair (note that I'm not saying
    "legal" here!), this lost time should have to be refunded, too.

    Gerhard
     
    Gerhard Fiedler, Oct 17, 2005
    #61
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  2. MB_

    Leythos Guest

    No one forced the user to purchase the software.
     
    Leythos, Oct 17, 2005
    #62
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  3. MB_

    Jim Higgins Guest

    Not if no refund is available it isn't. EULAs are enforceable only
    when there is a remedy if the buyer does not agree with the EULA.
    There is no unilateral "eat shit and die" option granted to the
    seller. If there is no refund option, the EULA is not enforceable.
     
    Jim Higgins, Oct 17, 2005
    #63
  4. MB_

    Jim Higgins Guest

    It makes all the difference in the world when there is no remedy to
    the buyer if he doesn't agree with the previously undisclosed EULA.
    Unilateral "contracts" are unenforceable. The thing that makes a EULA
    enforceable is agreement by the buyer. without agreement, the seller
    either provides a refund or the contract (EULA) is unenforceable.
     
    Jim Higgins, Oct 17, 2005
    #64
  5. MB_

    Tom Scales Guest


    I take it you are an attorney specializing in Intellectual Property? If
    not, then your comments are not very reasuring.

    Particularly since the contract was executed when the package was opened.

    It has been upheld as enforceable, repeatedly.
     
    Tom Scales, Oct 17, 2005
    #65
  6. MB_

    Tom Scales Guest


    It's not a unilateral contract. Money exchanged hands for the license
    purchase.
     
    Tom Scales, Oct 17, 2005
    #66
  7. MB_

    Jim Higgins Guest

    Relevant to any compensation for lost time, but irrelevant to the
    validity of a refund for the purchase price plus shipping both ways if
    applicable.
     
    Jim Higgins, Oct 17, 2005
    #67
  8. MB_

    Jim Higgins Guest

    Borland was a practical company - at least in those days. Not sure
    what their EULA calls for today. I do know they coded a backdoor into
    their Interbase product circa 2000-2001 that allowed access via
    Internet or local network to any object in the database(s). Folks
    were blocking Port 3005 (I think that was it) right and left when the
    news got out, but it was still wide open from the LAN side. They
    supplied a patch. Never heard their explanation for installing the
    backdoor in the first place.
     
    Jim Higgins, Oct 17, 2005
    #68
  9. MB_

    Jim Higgins Guest

    It gets even more interesting, Gerhard.

    When it comes to court rulings on EULA enforceability, only the 7th
    and 8th Federal Circuits find them enforceable. The rest consider
    them to be generally unenforceable. Earlier statements of broad
    agreement by the courts supporting enforceability are false.

    For reference see...

    "Novell v. Network Trade Center"
    http://tinyurl.com/9r5f6
    In this decision the Court said, in what it referred to as a
    "Historical Note to 17 U.S.C. § 109.,"....

    "16 The term 'shrinkwrap' license is used to describe the box-top
    license generally provided with the sale of software. Once the
    software package is opened the purchaser is presented with the
    license, and is supposed to then read and understand it. Once read
    the purchaser then has the option of accepting the conditions within
    the license by proceeding to use or install the software, OR THE
    PURCHASER MAY CHOOSE TO REJECT THE LICENSE AND RETURN THE UN-USED
    SOFTWARE FOR A REFUND. [ caps mine for emphasis ] The purported
    license attempts to limit the rights of possessors of the software by
    prohibiting copying and distribution of the software, and retains
    ownerships of the software with the copyright holder."


    Arizona Cartridge Remanufacturers Association Inc. v. Lexmark
    International Inc.
    http://www.eff.org/legal/cases/ACRA_v_Lexmark/ACRA_v_Lexmark_9th_circuit_ruling.pdf
    Here the EULA is upheld largely because it is readable on the outside
    of the package before sale; i.e., it isn't a standard form contract
    with certain terms unavailable until after the deal is consumated. The
    latter such form of "contract" - of which shrinkwrap EULAs not
    readable before sale are a prime example - are generally interpreted
    by the courts against the entity offering the contract.



    In short, the assertions that EULAs are broadly enforceable when their
    terms are unknown until the package is opened is incorrect. Only the
    7th and 8th Federal District Courts generally uphold EULA, and they do
    not do so when the remedy of reversing the sale by return of the
    merchandise for a refund is not present.
     
    Jim Higgins, Oct 17, 2005
    #69
  10. MB_

    Tom Scales Guest

    Nicely researched and I stand corrected, at least for that ruling, of the
    requirements for a refund.

    Tom
     
    Tom Scales, Oct 17, 2005
    #70
  11. MB_

    Leythos Guest

    I don't agree, you or the purchaser has every right to return it and
    even to not purchase it. If the software is bundled with a product and
    is listed as provided for free, then you have no complaint.

    If you don't agree with the license you have one remedy - don't use it.
     
    Leythos, Oct 17, 2005
    #71
  12. Is there /any/ company that offers refunds plus shipping both ways for
    software products with an EULA?

    Gerhard
     
    Gerhard Fiedler, Oct 18, 2005
    #72
  13. MB_

    Jim Higgins Guest

    I am not a lawyer and my comments, while correct, should not be too
    reassuring.
    No! You're missing the point. There is NO CONTRACT until it is
    agreed to by BOTH parties. There are no single party contracts - the
    very concept is an oxymoron.


    Here's the deal step by step...

    When the buyer opens the package and reads the EULA, he either agrees,
    in which case all is well in the eyes of both parties, or he
    disagrees.

    If he disagrees and seeks a remedy, all is well if the remedy is
    granted. The buyer returns the software and gets his money back and
    doesn't violate the EULA. Life is good for everyone.

    If he disagrees and seeks a remedy that is refused, or if there is no
    remedy, then there is NO ENFORCEABLE EULA and the buyer may do as he
    pleases short of violating other applicable copyright law separate
    from the EULA. Even reasonable provisions of the EULA are not
    enforceable if there is no remedy offered or if the remedy is refused.

    If the EULA provides a remedy the buyer MUST seek that remedy and be
    refused before "violating" the EULA... in which case he isn't
    violating the EULA because the EULA is not in force or enforceable.

    Now comes the point around which most EULA cases probably revolve.

    The EULA provides a remedy, but the provisions of the EULA go beyond
    the reasonable limits and unrealistically restrict the utility of the
    software to the user if the EULA is observed. Again, the elements
    here are "go beyond reasonable limits" AND "unrealistically restrict
    utility." The EULA can restrict the hell out of the software if the
    restrictions aren't unrealistic, even if they are a severe problem to
    the buyer. But the EULA has to be realistic.

    I'm going to try for an example of the last paragraph. You buy a copy
    of "Grand Theft Auto." The EULA says you can't play it between the
    hours of 7:00 PM and midnight. That provision is so outrageously
    intrusive and restrictive that the buyer may violate that provision
    without ever attempting to seek a remedy. Even the 7th and 8th
    circuits might toss out this one because remedy or not, this provision
    negates the utility of the in normal use for the vast majority of
    buyers. It's about as useful as a car that can't be driven on
    weekends. That doesn't constitute the seller conveying reasonably
    expected value to the buyer and renders the EULA void.

    As I said, by the 7th and 8th circuits, and even they don't rule in
    favor of "eat shit and die" EULAs. The other Federal circuits
    interpret EULAs in favor of the buyer and I gave several examples with
    citations.

    Where are your examples and citations. What you say is true, but it
    is of little value to the discussion because the discussion revolves
    on the details I'm at least trying to provide and that you omit.

    There is no violation - except sometimes in the eyes of the 7th and
    8th circuits - if there is no remedy to the buyer if he disagrees with
    the EULA, and it is fairly accurate to say that circuits other than
    the 7th and 8th look unfavorably on EULAs in general because they are
    one-sided standard form contracts that require un-bargained for effort
    on the part of the buyer to reverse if he doesn't agree.
     
    Jim Higgins, Oct 19, 2005
    #73
  14. MB_

    Notan Guest

    How does this apply, when the distributor (e.g., Best Buy, CompUSA, etc.)
    will not accept the software for a return? Is the distributor not representing
    the manufacturer?

    Notan
     
    Notan, Oct 19, 2005
    #74
  15. MB_

    Jim Higgins Guest


    You are describing an exchange of consideration only. That's not a
    contract. A contract requires an exchange of consideration AND
    agreement on the terms. There can be no contract until the terms are
    known and agreed to by both parties. This is basic contract law. Your
    view of the situation is utter nonsense and defies basic common sense
    in addition to basic contract law.

    If we were talking purchase of a cement block, I could see your point,
    but when you refer to purchase of a license the only thing being
    purchased is a contract and nothing but a contract in the eyes of the
    law. A license is nothing but a contract. The CD and the package it
    comes in and anything else tangible is irrelevant to the deal you
    describe because all the buyer buys is a contract governing the use of
    the tangible portions which aren't a part of the exchange of
    consideration. And then you say the buyer is stuck with a contract he
    isn't allowed to see because it's inside the shrink wrapped package
    until money changes hands for the license he hasn't seen yet? Gimme a
    break. I'll say it again. That flies in the face of basic common
    sense let alone basic contract law.

    Time for some minimal personal background if we're going to continue
    this... or even just to put perspective on what has alredy been
    said... I am not now nor have I ever been employed in the software
    industry. What is your connection to the software industry, if any?
    There has to be some explanation for your views.
     
    Jim Higgins, Oct 19, 2005
    #75
  16. MB_

    Jim Higgins Guest

    Get real. If common sense doesn't do it for you I already posted
    citations to Federal level legal cases demonstrating that last
    statement is absolutely false.

    There's no basis in law for a deal that goes like... you sell me
    something with a hidden EULA that I can only read after I pay for the
    product and take delivery and at that point if I don't like the EULA
    my only remedy is to not use the product and you keep my money. That's
    utter nonsense and I already posted a seminal ruling on EULAs that
    refutes it.

    If my only remedy is to not use it - IOW to kiss off the purchase
    price and put the software on a shelf to gather dust, then the EULA is
    invalid. The only element that makes a EULA - which is a one sided
    contract; i.e., not a contract at all if both parties don't agree -
    enforceable is the remedy to the buyer of a refund if he disagrees
    with the terms.

    If the seller denies that remedy the EULA is unenforceable.
     
    Jim Higgins, Oct 19, 2005
    #76
  17. MB_

    Jim Higgins Guest

    Probably not, or at least as rare as hen's teeth... but unless the
    buyer is made whole the EULA is technically not enforceable. Accepting
    the lesser refund without protest would leave the EULA in force -
    because of mutual agreement - but that's a moot point since the
    product has been returned in the case of a refund.

    The buyer's willingness to sacrifice $7.95 in shipping to get back
    $149.00 prevails over the principal that he's also due the $7.95.

    It's wrong, but it's standard practice everyone seems content to live
    with... me included as long as I get back that $149. But I reward
    guys like that with no more business. Software dealers are a dime a
    dozen.
     
    Jim Higgins, Oct 19, 2005
    #77
  18. MB_

    Leythos Guest

    Which seems to indicate that if I never read the EULA and ignore it
    without reading it, that I can do as I want without any issues - NOT.
     
    Leythos, Oct 19, 2005
    #78
  19. MB_

    Jim Higgins Guest

    Who wrote the EULA? Who is assigning the license to use the software?
    The manufacturer. If the distributor won't refund the purchase, then
    the manufacturer is obliged to or the EULA is out the window. If the
    distributor is indeed the agent of the manufacturer as you suggest -
    and I'm not saying he is or isn't; I'm just going with the flow - then
    when the distributor refuses a refund the EULA is out the window.

    It really isn't complicated. A valid EULA must have a remedy to the
    buyer if he doesn't agree with the EULA once it is revealed to him. No
    remedy or failure to perform per the stated remedy that must
    substantially sets things back as they were before the sale - we'll
    not quibble over shipping charges - and the EULA is out the window.
     
    Jim Higgins, Oct 21, 2005
    #79
  20. MB_

    Jim Higgins Guest

    It indicates no such thing. You really have no idea what you're
    talking about when it comes to this topic. A 5-minute Google run
    would have the next 99 out of 100 people running one in a better
    informed position than you seem to be.

    There is a basic presumption under the law that when the package has
    been opened the EULA has been read. Woe to the buyer who opens the
    package, deliberately avoids reading the EULA, violates it and then is
    hauled into court. If the violated terms aren't objectionable to the
    court for reasons previously touched on, the buyer is toast.

    How about you go find some specific citations to back whatever agenda
    you're trying to advance?
     
    Jim Higgins, Oct 21, 2005
    #80
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