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
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.
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.
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.
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.
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.
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.
Nicely researched and I stand corrected, at least for that ruling, of the requirements for a refund. Tom
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.
Is there /any/ company that offers refunds plus shipping both ways for software products with an EULA? Gerhard
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.
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
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.
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.
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.
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.
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.
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?
