Man Sues Gateway Because He Can't Read EULA 666
Scoopy writes "California resident Dennis Sheehan took Gateway to small claims court after he reportedly received a defective computer and little technical support from the PC manufacturer. Gateway responded with their own lawyer and a 2-inch thick stack of legal docs, and claimed that Sheehan violated the EULA, which requires that users give up their right to sue and settle these cases in private arbitration. Sheehan responded that he never read the EULA, which pops up when the user first starts the computer, because the graphics were scrambled — precisely the problem he had complained to tech support in the first place. A judge sided with Sheehan on May 24 and the case will proceed to small claims court. A lawyer is quoted as saying that Sheehan, a high school dropout who is arguing his own case, is in for a world of hurt: 'This poor guy now faces daunting reality of having to litigate this on appeal against Gateway...By winning, he's lost.'"
Small Claims (Score:5, Informative)
California Small Claims Process (Score:5, Informative)
In California Small Claims (which this case was just kicked down to), an employee or executive of the company must be present at the trial - not a lawyer, and not somebody hired specifically for the purpose of defending the small claims suit.
If the defendant loses, there is exactly one possible appeal. At the appeal (to superior court), lawyers can appear, but the case is still treated as a small claims case (i.e. you aren't going to get out of it based on a legal technicality if that technicality violates the basic fairness of the case).
If Gateway doesn't send an employee, the appeal is going to be much harder because they have some pretty serious explaining to do as far as why the appeal should be heard. If they do send an employee, it is still tough because no new evidence can be presented at appeal so they will basically have to say that the judge was wrong and why.
Either way, this guy will have resolution within 120 days at the far side - as the appealin California for small claims must be filed within 30 days of the case being heard and if the appeal is approved, they put it on the docket pretty quickly.
Re:EULAs are not meant to be read (Score:5, Informative)
Re:When you buy a new PC... (Score:5, Informative)
http://www.badsoftware.com/hill.htm [badsoftware.com]
Re:EULAs are not meant to be read (Score:3, Informative)
Re:When you buy a new PC... (Score:5, Informative)
Credibility (Score:2, Informative)
"On Monday, Attorney William Portello, a partner in a Concord law firm, and Sheehan, a high-school dropout who has argued his own case, faced off in a Cameron Park courtroom."
It saddens me that courts can be manipulated more by credibility rather than facts. I hope that the judge can look past the 'high-school dropout' and listen to the claims. I'm not sure why Hudson Sangree (Bee Staff Writer of this article) deemed necessary to introduce a David vs. Goliath scenario but I hope it won't influence the decision.
Also, why is there a quote from some unknown source given?
From the article:
"This poor guy now faces daunting reality of having to litigate this on appeal against Gateway," Palefsky said. "By winning, he's lost."
After reading the article, the writer shows many discrepancies. I've actually felt the need to dismiss the article and read up on this story from a different source.
Does anyone else get the impression that the way this article was written, the writer was laughing at Sheehan the whole time?
Re:EULA (Score:3, Informative)
i seriously doubt gateway will win this. you can't tell someone they have no right to legal recourse either, to allow that strips the courts of their power and doubt they will be happy about that attempt.
A contract need not be read to be effective (Score:5, Informative)
A contract need not be read to be effective; people who accept take the risk that the unread terms may in retrospect prove unwelcome.
A vendor, as master of the offer, may invite acceptance by conduct, and may propose limitations on the kind of conduct that constitutes acceptance. A buyer may accept by performing the acts the vendor proposes to treat as acceptance." Id. at 1452. Gateway shipped computers with the same sort of accept-or-return offer ProCD made to users of its software.
Re:When you buy a new PC... (Score:5, Informative)
It's a modification to contract law that is intended to make in-box agreements legal. The point of the law is to speed up transactions in cases where the cost involved in drafting a proper contract would negate the value of the transaction. Therefore the law provides the consumer the opportunity to review the contractual information in the form of a pack-in contract, which the consumer is free to reject by returning the product. Using the product constitutes acceptance of the contract.
Given that courts have ruled this legal several times (see: ProCD, Inc. v. Zeidenberg, Carnival Cruise Lines, Inc. v. Shute, and - of course - Rich Hill and Enza Hill, v. Gateway 2000, Inc.), consumers should BE CAREFUL WHAT YOU AGREE TO. If the terms of the contract are considered reasonable, you may be held to them in a court of law.
Caveat Emptor.
Re:Small Claims (Score:5, Informative)
But every state is unique, and it seems that the relevant one here permits lawyers in small claims court, which is kind of a shame. (The alternative is that Gateway removed the case from small claims court to a "real" court, which is sometimes a right that defendants have when sued in small claims court.)
As to all the EULA talk, please don't post comments about it until you've read at least the section on their enforceability in the Wikipedia article, which provides a fairly decent summary of the varying law in the area: http://en.wikipedia.org/wiki/EULA#Enforceability [wikipedia.org]. The section on shrink-wrap licenses in the same article is also pertinent, and includes links to other, more prominent cases where Gateway was sued over its EULA. The bad news is that nobody can tell you whether a given EULA will be enforced, given all the things on which their enforceability depends. Never trust a blanket statement that EULAs are or are not enforceable.
Re:EULA (Score:3, Informative)
Re:Somebody please explain (Score:4, Informative)
Re:"By winning, he's lost." (Score:2, Informative)
He's a high-school drop-out.
2 words - statutory rights. (Score:5, Informative)
Nobody can "sign away" their statutory rights. You can't make a contract whereby you agree to be someones slave, because freedom is a statutory right - one granted by statute. Similarly, in a lot of places, consumer legislation gives you the right to sue any manufacturer for a defect - as a statutory right, you can't waive it, and any contract that includes such wording is void.
That's why you always see wording like "Any provision of this agreement that are contrary to local law are excised. You may have other rights depending on your state or province ...." You can't "waive" those rights with an EULA - even one you signed, never mind a post-purchase popup that you never saw and never agreed to.
Also, it'll be fun seeing Gateway try to appeal this one ... they're out of luck here. Asking people to waive their rights to redress just means you think your product is so crappy that there's a good chance that people will sue you out of business.
Stupid Gateway! Remember the old saying - a happy customer might tell 2 peope - a p*ssed-off customer will tell 100? Try a MILLION, because you can be sure that everyone's going to hear about this one - the competition will make sure of it, if nothing else.
Re:When you buy a new PC... (Score:5, Informative)
I have no idea why people think that one actually has to sign anything to form a contract. Most US states have no such requirement. The closest thing to any such requirement is in the statute of frauds, but the statute of frauds is applied very narrowly (the US doesn't typically like formalities).
Contracts are formed all the time without signing anything. More often than not, the only questions for a court in a contract between businesses and consumers are: 1) was there proper notice of the terms and 2) are the terms unconscionable?
In this case, there is a good argument there was not proper notice.
Nevertheless, I think anyone that posts "he didn't sign anything" should be modded like "first post"ers.
dubious, even if it "worked" (Score:5, Informative)
you'd see that he in fact, could not see an "I agree" button.
Even if he could have pressed that button, he'd still have a defective computer if that's all he could do with it. You can't sign a contract that violates the law any more than you can sell yourself into slavery.
Re:When you buy a new PC... (Score:4, Informative)
EULAs are a Contract of Adhesion (Score:5, Informative)
There's nothing that can be done about these types of contracts that force you into binding arbitration in the context of software other than what this man has argued and similar. In fact, your best realistic choice is to exercise your rights and use the option of not agreeing to the EULA, and shipping the machine back at their expense.
By doing this, the company incurs significant restocking and repackaging expenses and will eventually (hopefully) learn that such agreements are not worth the cost. This is especially true when you specifically tell them that binding arbitration terms are the primary reason you are returning the unit. Only in this way do we have any hope of stopping these kinds of unfortunately increasingly common practices (other than, of course, legislation).
Re:giving up rights (Score:2, Informative)
If Ford SUVs started exploding due to a manufacturing defect, the public cannot be realistically be told they can't sue Ford because of a single line in a 200 page contract.
Re:two words: bad law. (Score:3, Informative)
All the states have enacted the UCC, and they did so decades ago. It actually is pretty useful and does a lot of things. It's a good law on the whole, and the bad bits, like UCITA have been flops. Just fix this particular issue rather than throwing the baby out with the bathwater.
Re:???? Lawyers are idiots !!!!! (Score:2, Informative)
Re:lawyers in small claims? (Score:2, Informative)
( http://www.courtinfo.ca.gov/selfhelp/smallclaims/
"If the business is a corporation, an employee, officer, or director must go to court. That person can't be hired just to represent the corporation."
Re:Somebody please explain (Score:1, Informative)
Sorry, had to go there. Seriously, though, you are 100% correct. Even now that we Americans have totally trashed our own rights, the right to sue cannot be given away or signed off.
HOWEVER
When you agree to something that states (quite illegitimately) that you are giving up your right to sue, you do actually make it more difficult. You must first make the attempts mandated by that contract you agreed to settle the matter. Then, if you followed those rules with good faith, and you failed to reach an agreement that a 'normal' person would find appeasing, you can sue and have a chance of winning. If you fail to negotiate in good faith or fail to take the deal that a 'normal' person would take, then you can sue, but don't hold your breath... you'll likely lose.
Re:Small Claims Court (Score:3, Informative)
Re:two words: bad law. (Score:1, Informative)
Re:EULAs are not meant to be read (Score:3, Informative)
There is no such thing as a license which you "need" to agree to before using some software. There is no copyright on usage, only on duplication, distribution of modified forms, and possession or distribution of illegal integers. Anything that you are holding is perfectly legal to use in any way you see fit, unless you've explicitly agreed not to or would be violating some other law in the process.
The "I agree" EULA game is an attempt to con you into accepting a license which you don't need. Nothing more.
Consider: when was the last time you agreed to a license before playing a CD that you bought? Never? That's because you don't need one to use something you own, and only the software companies bother to pretend that you do, in the hope that nobody will call them out on it.
Re:The guy's an idiot. (Score:3, Informative)
There are people who buy things that don't have a credit card. I know a few who aren't idiots; in fact, some of them are clearly smarter than you, because they'd never make a ridiculous statement like this.
I've even purchased a computer in cash myself, because there was a 2% discount for doing so--credit cards aren't free for the vendor. On a $3K sale, I saved $60.
Re:EULAs are a Contract of Adhesion (Score:2, Informative)
Unfair contracts act in UK (Score:1, Informative)
http://www.dti.gov.uk/consumers/buying-selling/sa
"The Unfair Contract Terms Act 1977 limits the use of exclusion clauses in contracts.
"The Unfair Terms in Consumer Contracts Regulations 1999 (SI 1999 No 2083) provide that a term which has not been individually negotiated in a consumer contract is unfair (and hence non-binding on the consumer) if, contrary to the requirement of good faith, it causes a significant imbalance in the rights and obligations of the parties to the detriment of the consumer."
Re:"By winning, he's lost." (Score:3, Informative)
Try getting a job without a high school diploma... I'll be seeing you at McDonald's.
Re:When you buy a new PC... (Score:1, Informative)
You are a fucking LIAR. From the GPL [gnu.org]:
Law != Logic (Score:2, Informative)
Re:When you buy a new PC... (Score:3, Informative)
A further provision of this would be where any conditions which would have a significant impact upon the sale would have to be specifically accepted by the customer prior to the completion of the sale, for example M$ non-warranty warranty. As the sale had already been completed the initial contract was in force, the supplier has to now attempt to prove that the customer entered into a second contract that extended the first contract (with out any benefit to the customer). All the customer has to argue,is that he did not, the supplier is forced to prove that he did, and based upon M$ software warranty, it is impossible to prove that anything happened upon that computer at all.
Re:2 words - statutory rights. (Score:2, Informative)
I'm not arguing "natural rights" here. Statutory rights are rights created by statute - law. Most areas have consumer protection legislation, and that legislation is quite specific as to your right to sue the manufacturer and the distributor and everyone else in the "food chain" down to the final vendor. Gateway can't "present" an EULA that takes away that right, in part because this would be a "contract of adhesion" between two very unequal parties, and also because most consumer protection laws state that they take precedence over any warranty or license that claims to remove your rights to bring suit.
Here's boilerplate from as an example: [microsoftgadgets.com]
Local law takes precedence. Gateway loses this one in a walk.
Re:Small Claims Court (Score:2, Informative)
In Illinois, a corporation of any size MUST be represented by a lawyer in small claims. You can not represent "yourself", because even with a small S-corp, YOU are a different legal entity than the company.
Re:When you buy a new PC... (Score:2, Informative)
I don't understand why people believe that an EULA is only valid if read before purchase. The dividing line is not having seen the EULA, but rather having the opportunity to see the EULA. It doesn't matter whether you actually did it; only if you had the ability. That EULA was easy as pie to get. It stands.
Sloth almost never a defense under American law; similarly, ignorance only applies when it's not preventable.