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.'"
EULAs are not meant to be read (Score:5, Insightful)
First of all, it can be summed up into "We may do everything, you may do nothing, essentially, you're a dork for using our software". And second, almost all of them violate our consumer protection laws.
So, why bother wasting time?
A lawyer is quoted as saying... (Score:1, Insightful)
All 'not saying / just saying' aside, this could prove an interesting testbed for EULAs of this nature.
what with companies ? (Score:4, Insightful)
Re:When you buy a new PC... (Score:1, Insightful)
Re:When you buy a new PC... (Score:5, Insightful)
critical mass (Score:5, Insightful)
If there is wisdom within the world of corporate law, someone will realise that this is approaching and will work for internal reform, before external reform arrives as a consequence of insults to humanity like this.
Re:EULAs are not meant to be read (Score:5, Insightful)
Re:EULA (Score:3, Insightful)
(IANAL)
Re:???? Lawyers are idiots !!!!! (Score:5, Insightful)
Not easy being a computer user (Score:5, Insightful)
Sums up the US court system nicely (Score:4, Insightful)
Somebody please explain (Score:5, Insightful)
Is it even possible in US to get in such agreement? I am Polish.
It is possible in US to just make a license that disallows you to sue by the other party? That is kind of retarded - even if it is possible - what it is for?
I thought that you _ALLWAYS_ have a right to sue (fight for your rights) and nobody can take it from you?
Re:EULAs are not meant to be read (Score:5, Insightful)
EULA's are not a legal contract (Score:5, Insightful)
i've always had the opinoin that eula's are not legal, and are just used as a bully tactic. i hope this guy wins.
Re:"By winning, he's lost." (Score:5, Insightful)
Abraham Lincoln would have been proud then.
And these blokes [askmen.com] need to re-evaluate what they are doing in life
Having said that Abe Lincoln probably would have preferred to finish/receive an education.
Re:???? Lawyers are idiots !!!!! (Score:4, Insightful)
Re:Small Claims (Score:3, Insightful)
Re:When you buy a new PC... (Score:3, Insightful)
Re:what with companies ? (Score:3, Insightful)
I predict they won't be in business for much longer.
Re:critical mass (Score:3, Insightful)
When people don't understand a law, they will not uphold it. Worse, they will not support it, and at the utmost extreme, fight it. For reference, see prohibition laws or the whole legal system of the former Warsaw pact countries.
The worst thing that can happen to a state is that its subjects reject the whole legal system based on too many stupid laws. When it becomes impossible to NOT break a law, people start ignoring ALL laws. The effect is already visible in copyright laws. There are so many different, often contradicting, laws in existance that there is almost no way to steer clear of all obstacles and uphold all of them. You WILL break one. So people start thinking, why bother trying?
Re:EULAs are not meant to be read (Score:3, Insightful)
This guy got lucky (if you can call it luck, since he has no chance of defeating Gateway's lawyers) because Gateway never gave him a chance to read the EULA. But if he had had the chance to read it, he would have been legally presumed to have read it. This presumption seems very strange to the non-lawyer, but the whole system of contracts would collapse without it.
BS He won and he won big time (Score:4, Insightful)
So he goes in and does a crappy job arguing his case and looses, well so what he still cost them
100 times the cost of a new system, goes home empty but still stuck it to them.
Re:EULAs are not meant to be read (Score:3, Insightful)
In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.
Maybe I just don't understand how they are defining common law, but how are all these companies getting away with adding a non signed contract that takes away an inalienable right?
Re:When you buy a new PC... (Score:5, Insightful)
Gateway loses. Period. (Score:3, Insightful)
Re:???? Lawyers are idiots !!!!! (Score:2, Insightful)
In all likelihood, however, you're probably right and they'll wind up settling once the media has lost interest.
Who really lost? (Score:2, Insightful)
What is the cost to Gateway in bad PR?
Either he got a replacement PC or he didn't - I would assume that on delivery someone would have needed to sign for it...
Rule out any shipping mistake or some hare-brained fraud on the customer's part and move on. Sounds easy. Why
send in the lawyers and turn it into a big deal?
Re:EULAs are not meant to be read (Score:3, Insightful)
Re:EULAs are not meant to be read (Score:5, Insightful)
Re:"By winning, he's lost." (Score:3, Insightful)
Re:EULAs are not meant to be read (Score:5, Insightful)
Then instead of putting COPYING.txt itself in there, they should put the following (or something like it):
Call 800-369-1409 (Score:3, Insightful)
Unlikely.... But I'm gonna call them anyway.... Just for sport.
Re:When you buy a new PC... (Score:2, Insightful)
Re:When you buy a new PC... (Score:5, Insightful)
Re:When you buy a new PC... (Score:5, Insightful)
By winning, he's lost. (Score:3, Insightful)
I find it hard to believe that the company would claim they sent him a second computer. Is there not a record of shipment? The plaintiff said he didn't receive a replacement computer. If he had signed for a delivery, surely he wouldn't be stupid enough to say he didn't.
But here's the thing I'm having trouble with: Company waste. They are paying their attorneys and the courts system way more than the value of system in question. Shouldn't someone be complaining to the board of directors over crap like this? Not only is the direct accounting of the situation bad business, but the potential for further loss through bad faith dealings and bad word of mouth (not to mention appearances on slashdot) presents such a negative value to the shareholders that someone on the board should be voting some executives out of a job.
I have heard it time and time again on slasdhot that corporations are required by law to create value for the shareholders. Well, here's an example of a corporation acting in a pretty aggressive and vindictive manner costing the company more in direct fees and probably 100 times that in bad word of mouth.
Re:giving up rights (Score:3, Insightful)
When the delivery guy complains, he can tell you what it really is that he wants you to sign.
- RG>
Re:EULAs are not meant to be read (Score:4, Insightful)
I don't like non-compete agreements, and I don't like "everything you do in your spare time belongs to us" agreements. And while I've argued the former out of contracts, I've never managed to argue the latter, immoral as it may be, because the people I've worked for have had THEIR clients force it upon THEM.
Similarly, I disagree with certain clauses in the Windows license. But if I didn't agree to the clauses, I'd really be out of a career. I don't agree to "binding arbitration in the state of Virginia" if my VCR explodes and burns my house down, but I can't seem to find a manufacturer who doesn't have that clause written on a sticker on their VCR somewhere. If you buy a video game, take it home, open it, and discover in the EULA that they want to slime your computer with a spyware / monitoring application... what are you going to do? The store sure isn't going to take it back, whatever the heck the click-through license says.
THIS IS WHY WE HAVE LAWS, PEOPLE! The only, THE ONLY reason for forcing your customers to agree to binding arbitration is to take away their legal rights. Don't put up with this.
Re:When you buy a new PC... (Score:5, Insightful)
In this case, there is a good argument there was not proper notice.
There's also a good argument that he did nothing to enter into the agreement. If you buy a car, and there's a cap over the ignition from which a sign is hanging saying that you agree to various terms and conditions if you use the car, that's a pretty shitty way to get someone to enter into a contract, but someone can point to the moment where you agreed to it, or at least failed to raise an objection. If there's a stack of papers in the back seat that you've never seen before telling you that you've forfeited all sorts of rights and incurred all sorts of obligations, that's thinner stuff.
You may be right about "contract iff signature" bullshit in general, but any printed EULA's that were introduced to him only when he received the computer, not during any part of the sale, he didn't sign, didn't mail in, didn't scratch off any of the boxes to see what he won, didn't connect the dots to see what kind of flower they made, they were just foisted upon him without his consideration or consent. It's the same as if Gateway had randomly stopped somebody on the street and handed him a stack of documents that said he could never sue them. That's not a contract. Oh, right. IANAL. I hope that's not a contract.
Re:When you buy a new PC... (Score:4, Insightful)
While this is true as far as it goes, a contract will under normal circumstances only form in a two-way exchange - in legal parlance, there must be "consideration" for both parties. Since these EULAs usually don't grant anything to the consumer that they did not already have, they cannot be presumed to automatically form at the time of exchange, which is the normal basis for these things in the absence of a signature. Some form of explicit hoop-jumping, such as a signature, is required to get these one-way things to activate. Corporations like to play games with forced "I agree" buttons; their legitimacy is actually quite weak, and judges will often (although not always) void them if the user hasn't done anything "wrong" and is sufficiently aware to make this argument. You can't force somebody into a contract, and any agreement made under duress is invalid (and the "but they could have returned it to the store, so they had a choice" line does not amuse very many judges, particularly since the store is not legally required to take the computer back if there's nothing wrong with it)
Re:EULAs are not meant to be read (Score:4, Insightful)
The modern concept that thwarts what I think is the way it ought to be done is the "Contract of Adhesion"... the notion that says that once a contract is signed, insofar as the terms are reasonable and similar to other such provisions in like contracts, whether or not you knew about the terms is of no concern. I find the Contract of Adhesion to be a villainous development in our laws; it should be done away with entirely in all circumstances.
With the Contract of Adhesion done away with, even Mortgages Agreements would have to be shortened. Why? The mortgage companies would have to consider the costs of their hourly time in explaining the contract, and the relative merits of their competitors who don't bear such expenses. And so forth.
The EULA obviously couldn't exist at all. It would require a human in the store at the point of sale to go over it with you.
To me, if it's not sufficiently important to justify human intervention, it's simply not sufficiently important to justify a contract.
C//
Re:"By winning, he's lost." (Score:4, Insightful)
Re:dubious, even if it "worked" (Score:5, Insightful)
Re:EULAs are not meant to be read (Score:3, Insightful)
This is very ironic because in many states, no-competes aren't enforcible, the company isn't allowed to keep you from earning a living. But is some of those same states the: "Everything in your spare time belongs to us". Clauses do have weight and have been enforced.
Re:EULAs are not meant to be read (Score:3, Insightful)
No, you don't. This is wrong, at least in the US. Copyright law explicitly allows transient copies made by the owner of a copy of a computer program, as long as those copies are "an essential step in the utilization of the computer program". See Title 17, paragraph 117, part (a)(1) of the US Code [copyright.gov]. It also explicitly allows you to make backups.
As long as you acquired the copy legally, you are the owner of the copy and you're entitled to use it all you like.
Unless Microsoft has managed to get you to agree to some other contract, yes you absolutely do have the right to use it under the law.
This is exactly why F/LOSS software shouldn't require the user to agree to a license. It perpetuates an incorrect idea that MS and all other EULA-proffering companies would love to be true. F/LOSS apps should take the opportunity to show users that it doesn't have to be that way. Rather than display a license and ask the user to agree to it, I think F/LOSS apps should display a simple statement of like "You are free to use this program in any way you like, with no limitations. You are also free to give copies of it to others, with some small restrictions. Click here for more information.", and the dialog should have a button labelled "Continue", rather than "Accept" or "Ok". Finally, the link in the text should bring up another dialog with a brief, one-paragraph layman's description of the terms, followed by the text of the actual license.
Re:EULAs are not meant to be read (Score:4, Insightful)
Re:When you buy a new PC... (Score:4, Insightful)
Nah, it would be "An electronic contract isn't worth the paper it's written on." The whole point of the joke is that a verbal contract isn't written on paper.
EULA clauses? (Score:4, Insightful)
Do you just send the item back to the seller?, who pays shipping?
Imagine if a few hundred people each ordered a new PC, and found they disliked the EULA, so returned them all?
Re:Gateway lost. (Score:5, Insightful)
Re:Call 800-369-1409 (Score:1, Insightful)
Re:When you buy a new PC... (Score:4, Insightful)
Because they want more power over the consumer, and that means restricting the consumer even further.
Re:When you buy a new PC... (Score:5, Insightful)
Shennanigans. Commerce has operated without EULAs just fine for centuries. I never sign a contract when I buy something from a supermarket, or even a big ticket item like a fridge, and somehow those companies don't suffer "unlimited liability" claims. Plenty of businesses have general terms and conditions that aren't disguised as contracts, and they're just as valid -- in fact, probably moreso, as they don't pretend to be something they're not.
Also, tricking people into agreeing to waive their rights is pretty stupid. Even if it were found that a contract was entered into, that sort of term is often thrown out as unreasonable.
Re:"By winning, he's lost." (Score:3, Insightful)
Dropping out of highschool isn't necessarily to his detriment. He may not be able to "get a good job" but he may be able to give you one!
Re:dubious, even if it "worked" (Score:5, Insightful)
Sure you can. Just carry a credit card balance.
Re:"By winning, he's lost." (Score:3, Insightful)
Michael Dell is one of them.
The American public school model is meant to grind out factory workers and soldiers. The people that we stole it from don't even use it anymore.