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Gateway Customer Sues to Get His PC Fixed 147

Posted by Zonk
from the toss-the-tossing-toses dept.
prostoalex writes "The Sacramento Bee tells the story of an El Dorado resident who had to go to small claims court to get his Gateway PC fixed: 'Right out of the box, he says, the computer displayed scattered graphics and wouldn't work properly. He says he called a Gateway salesman five times and sent him an e-mail to get an authorization number to send the computer back, but his phone calls and message were never returned. Then, over the course of months, Sheehan said he called Gateway technical support dozens of times.' Gateway insists that by clicking 'Accept' on a customer service EULA when the computer was first booted, Mr. Sheehan has waived his rights to sue the computer manufacturer in United States courts. The Gateway EULA states that conflicts must be resolved via private arbitrage. Sheehan, though, argues that he never saw the EULA, because of the broken graphics. As such, he's not held to that agreement." Some connections between this and a discussion about a Second Life case we had yesterday.
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Gateway Customer Sues to Get His PC Fixed

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  • Yes... (Score:5, Informative)

    by evilviper (135110) on Saturday June 09, 2007 @07:22AM (#19449591) Journal

    Some connections between this and a discussion about a Second Life case we had yesterday.

    And even more connection to THIS ARTICLE from yesterday:
    http://hardware.slashdot.org/article.pl?sid=07/06/ 07/2317239 [slashdot.org]
    • I tried (Score:1, Redundant)

      by Evets (629327)
      Saw this come from "the mysterious future" and I e-mailed the on-duty editor like it says. I guess that doesn't work so well. Sheesh. This one's only two days old.
    • by Kierthos (225954)
      I was about to say... I mean, I thought the article looked familiar, but lately, I've been seeing things on Yahoo! news before Slashdot...
    • Re: (Score:3, Funny)

      by tomhudson (43916)

      [_] Zonk is reposting for those who don't have the CowboyNeal option ,,, (original story [slashdot.org] posted by CowboyNeal).

      ... [_] Zonk is the new CowboyNeal, like orange was the new pink

      [_] Zonk uses a Gateway and can't see the stories

      [_] Zonk - "Hmmm this is a dupe story, I think I'll can it ... OMG Ponies!"

      [_] "What goes around, comes around, especially on /.."

      [_] This is a "Best of slashdot" repeat presentation"

      [_] "I didn't see the original story on my f***ed-up Gateway, you ignorant clod!"

      [_] There

    • by frdmfghtr (603968)

      And even more connection to THIS ARTICLE from yesterday:
      http://hardware.slashdot.org/article.pl?sid=07/06/ [slashdot.org] 07/2317239 [slashdot.org]
      And by linking the exact same article the connection is complete.

      Duplicating a story from two different sources is like a pair...would a dupe linking the same article be like a pair of the same suit?
      • by DeadChobi (740395)
        I like to think of it as an electron-positron pair meeting for the first time. Soon they will annihilate in a beautiful pair of gamma rays.

        • That's it! It's strange attraction! Or is that entanglement?

          One story attracts another story - and since Zonk is entangled he lets them through.

          Do the quantum encryption guys know about this breakthrough?

          Just send Zonk your message and it gets through no matter how much duplication it entails!

    • Re: (Score:2, Funny)

      by utopianfiat (774016)
      Oh ye of little long-term memory, this is MUCH more than a day old. I saw this half a week ago.
      In gamer circles, we call this a M-M-M-M-MONSTER DUPE!!
  • Zonk (Score:5, Funny)

    by PenGun (794213) on Saturday June 09, 2007 @07:27AM (#19449613) Homepage
    He just posts here ... I don't think he reads the site much.
    • by seebs (15766)
      I have never seen a Zonk story that was good. Often dups, and very very often with additional comments or questions which are painfully insipid. I think people would like him better if, instead of trying to spur discussion, he would STFU. "It is better to remain silent and be thought a fool than to open your mouth and remove all doubt."
    • At this point, the last 16 articles have been posted by him, and he has posted all but one of the articles in the first page.


      Who decides which articles are posted, anyhow? Monoculture is bad, diversity is good, maybe the Slashdot algorithm would benefit from a reject() if $author == "Zonk"; statement.

    • Re: (Score:3, Funny)

      by noidentity (188756)
      Not a dupe! Yesterday's article appeared as scattered graphics and didn't display properly.
  • Bullshit (Score:5, Insightful)

    by nighty5 (615965) on Saturday June 09, 2007 @07:28AM (#19449623)
    Some awesome legalise there.

    Regardless if a user accepts a EULA, its actually against the law to unlawfully restrict their rights in tapping into some legal protection for sale of faulty goods. Well it is in Australia, I'm sure the US has similar laws to protect consumers.

    Don't accept this garbage - I'm glad his fighting for his rights to receive what was intended - a working product.

    • Re:Bullshit (Score:5, Interesting)

      by _KiTA_ (241027) on Saturday June 09, 2007 @08:05AM (#19449777) Homepage

      Regardless if a user accepts a EULA, its actually against the law to unlawfully restrict their rights in tapping into some legal protection for sale of faulty goods. Well it is in Australia, I'm sure the US has similar laws to protect consumers.


      Actually... given the brazen attitude of EULA writers, I don't think we do. I know that EULAs are changed to be more consumer friendly in the UK and Australia, simply because if they tried half the shit there that they try here they'd get sued by the government, but they keep trying it here, so it must be at least somewhat legal, right?
      • Re: (Score:3, Informative)

        IANAL, but my general understanding of a 'covenant not to sue' is that a covenant not sue that has a 1:1 relationship is likely to stand up in court, as it is a release of liability, at least as to the items enumerated in the covenant (i.e., you agree not to sue someone for product liability, but then trip on their sidewalk, you can still sue them for the sidewalk). But a covenant not sue that has a 1:many relationship is not likely to stand up.

        IOW, while someone agreeing to such a EULA may be limited in
        • by weicco (645927)

          This brings really silly, maybe stupid even, idea to my mind. I close my monitor when installation program is about to display EULA. Then I randomly click left mouse button every now and then and jerk mouse around and hope I hit the "Agree" button. Am I bound to EULA now when I clicked "I agree" but didn't actually saw the EULA? :)

          Luckily here in Finland one can wipe his/her virtual ass with EULA. I'm thinking about writing a software which allows one to drag'n'drop the text of EULA to a picture that look

          • Won't work, as you were unable to read the EULA due to your own unreasonable action. Same as if you tell your six-year old to do it, or if you intentionally get yourself legally drunk before you go to negotiate a business deal.
            • by jamesh (87723)
              I wonder if you could claim duress? You've just traveled all way into the city to purchase your new computer, spent a whole day wandering around comparing what's available, arranged finance and made your purchase, come all the way back home again, unpacked it, realised it won't fit on your existing desk, travelled all the way back into the city, found a desk, loaded it into your car, come home again, assembled the desk, disassembled the desk because you'd assembled half of it back to front, re-assembled it,
              • by jamesh (87723)
                Reading a bit further, and replying to my own post, wikipedia says this about duress in Contract Law (English Contract Law):

                Economic duress

                Although hard bargaining occurs legitimately in commercial situations, there is a point where it becomes economic duress. Putting aside issues of consideration, this often involves one party threatening to breach an existing contract between the two parties unless the innocent party agrees to enter into another contract. The contract is voidable if the innocent party can

      • #include <ianal.h>

        The elements of a contract are Offer, Acceptance, and Consideration. Once you've agreed to certain terms and money has changed hands, neither party can impose additional terms on the other. I know that argument by analogy is fraught with peril, but let's try this one on for size:

        I buy a new Chevy. My signature is on the purchase contract, I've handed the salesman a check and he's given me the keys. I get in the car, turn the key, and out of the dashboard comes an End User Lice

        • Re: (Score:3, Informative)

          by Scott Wood (1415)

          The only reason why software EULAs have any traction at all is that installing software onto a computer requires copying of copyrighted files to the hard drive. In the case of an integrated computer system, the software has already been installed. I take the position that any software advertised as part of the purchase is, well, part of the purchase. The legalities of getting that software onto the computer's hard drive have been worked out between the publisher and integrator are their affair, not mine.

        • by cfulmer (3166)
          The problem with your analysis is: "what is the offer?" Nearly every box of software has a notice that says something about being subject to the terms of an EULA. The outside of most computer boxes too, and when you buy computer on-line you are (or should be) notified of the EULA's existence.

          Generally, in the US, if the existence of the EULA is made known to the purchaser before the purchase AND he's given a chance to reject the purchase after being given a chance to read the EULA, then the EULA is enforc
        • by jamesh (87723)
          I think the 'out' for the manufacturer in this case is that they include a "if you don't agree to these conditions, please return the product to the place of purchase for a refund" clause. It could be argued that the customer could have refused to accept the EULA at any point, nobody was twisting their arm.

          But you are right, if the contract is already complete they shouldn't be able to impose additional terms on you. At least you should be able to charge them a re-packaging fee for having to return the thin
      • by Sycraft-fu (314770)
        There are tons of unenforceable clauses in EULAs. What's more, it had been ruled in more than one case that simply clicking "I agree" doesn't constitute a legal agreement. They keep trying probably because it doesn't cost them anything and they hope they can bully people with it. However, without a change to contract law, EULAs won't stand up when really pushed. There's a few major reasons why:

        1) They are ex post facto. Contracts must be executed BEFORE the exchange takes place, that's just how they work. H
        • 2) They aren't an exchange.

          Note the "L" in "EULA" :-), you receiving a license to use copyright material.
          • Nope, sorry, doesn't work that way. They'd like to think so, but any and all licensing and such has to be done prior to the sale. After the sale, normal law applies. You don't need a license to use things you purchased. Software companies like to pretend like they are special, but thus far all the court cases I'm aware of where this has come up (there aren't many) have held that click thru and/or shrink wrap EULAs are unenforceable. You paid for the merchandise, their time to get you to agree to a license i
            • Nope, sorry, doesn't work that way. They'd like to think so, but any and all licensing and such has to be done prior to the sale. After the sale, normal law applies. You don't need a license to use things you purchased. Software companies like to pretend like they are special, but thus far all the court cases I'm aware of where this has come up (there aren't many) have held that click thru and/or shrink wrap EULAs are unenforceable. You paid for the merchandise, their time to get you to agree to a license i
              • Ok then cite case law. I've never seen such a case and it completely flys in the face of over two centuries of contract law. If you know of them, I'd love to review the cases. Remember: Case law is only cases that were decided by an actual trial. Default judgements, ex parte rulings and so on have no precedential value.
    • by 56ker (566853)
      Here it's called tort law. Basically what that means is that even if you agree to a contract with illegal clauses (eg you waive your legal rights etc) it's not enforceable.

      However it's a David vs Goliath battle when you have the little guy versus big corporate behemoth. If a corporation has a commercial interest in doing everything they can to drag a court case out (eg if they lose they'll lose more money than it costs them in legal fees) they will.

    • I really don't understand the situation.

      Gateway claims that he got a second computer, and that the buyer kept the first computer. If that's true, then I can see how the company might think that he wheedled himself a free computer.

      If the computer didn't work initially, and he really couldn't get help from the company, then I think that's grounds for a chargeback with the credit card issuer. I forget the deadline for a chargeback, but I think it's 90 days. That's a lot of time to resolve a problem.
    • Regardless if a user accepts a EULA, its actually against the law to unlawfully restrict their rights in tapping into some legal protection for sale of faulty goods.

      Actually, he's alleging that Gateway broke their support contract, right? I've been wondering about this. If they broke the contract, then why is he still bound to it? I'd be naively tempted to try that angle: since the purchase contract is now null and void, and the EULA was dependent on the purchase, than the EULA is void and here's your

  • by iknownuttin (1099999) on Saturday June 09, 2007 @07:35AM (#19449645)
    "We are at a point now where every large corporation that has the ability to say 'take it or leave it' is opting out of the civil justice system," said Cliff Palefsky, a San Francisco trial lawyer and expert on arbitration agreements. "Some do it in a straightforward manner. Others do it in an underhanded manner."

    The securities brokerage industry, stocks, bonds, etc.. has been doing this for decades. If you want a brokerage account, I don't care where, you have to agree to an industry arbitration. And some business magazine, I believe "Forbes", many years ago found that the arbitration panels are heavily loaded in the industries favor.

    I have mixed feelings about it. On one hand it sounds like everything is weighted in favor of the company and against the consumer.

    On the other hand, many times consumers cause themselves their own problems and refuse to take responsibility for them. Whether it be installing boards incorrectly themselves, or gambling on the derivatives market. I, for one, don't want to have to pay other's litigations, whether through increased product costs, or insurance costs.

    As Gateway tells it in court filings, the company replaced Sheehan's computer a few months after he first complained, and he kept both machines.

    Oh yeah, it sounds like, if Gateway is telling the truth, that this guy is trying to "game" the system and get a free computer.

    • by mangu (126918)
      many times consumers cause themselves their own problems and refuse to take responsibility for them

      This is a sad truth. Here on /. we see so much of this attitude "if I don't read the EULA it isn't valid for me". Try signing a contract without reading the fine print and see what a court of justice says about its validity.

      The true answer to obnoxious companies is, ahem, *the market*. I always read the EULA, if I don't agree with what it says I don't buy the product. If I can't read the EULA before I open th

      • by SirSlud (67381)
        I think that a transparent market involves not reading a contract for something that is a commodity like a PC. (Or software.)

        If people were more selective about the products they buy instead of bitching about the industry, we would have more better products.

        When you think about one product, sure. But imagine having to review contracts all the time in order to interact with a market. People are overwhelmed by choice. Its not really a transparent market if you can pollute it with legal stipulations to the deg
        • by MoneyT (548795)
          But if people did read them and stopped ignoring them out of "day to day practicallity" then perhaps the EULAs would become more practical.
          • by SirSlud (67381)
            I think you missed the original point. I don't have enough time. Do you? If the tax return industry was full of corruption, would you suggest that everyone should do their own taxes and the whole problem would go away?

            I dislike your hubris. The reality is, a significant portion of people who purchase Windows are not capable of understanding a EULA. Myself included. Some lawyer makes the same money I do to write these things; I can't understand what exactly hes saying no more than he can understand what my c
  • :S... (Score:4, Interesting)

    by joe 155 (937621) on Saturday June 09, 2007 @07:36AM (#19449647) Journal
    Despite the fact that this is such an obvious dupe...

    I wonder about EULA if there was no way that you could have read it, if it would still be taken as being binding (if it can be at all, but someone last time suggested they might be). For example if you were registered blind (which can include very poor vision, at least in the UK) and windows asks you to agree to a EULA, you can see just enough to see there is something on the screen but without a screen reader (which you would need to install after accepting the EULA), you would have no idea what was going on. Here it would seem like randomly pressing things until something happened is a good solution. So you could accept even if there was no way you could have known...

    In this situation would they not be in violation of disability legislation?
    • It's possible to be "legally blind" if you have extremely poor vision in the United States, too.

      That does bring up an interesting possibility though.
  • i didn't read /.'s EULA. my peecee was broken.

    now, can i sue CmdTaco beacuse of this dupe ?
    • by gatzke (2977)

      Class action for millions, I am in. We should make billions and billions.

      Problem with me, I skim digg for stories, since they have tons of crap over there. I now can't tell a dupe from a story I saw on digg. I just assume I saw it over there, not over here. dejanews.

      How difficult is it to get two editors to sign off on a story that is going on the front page?

      Why don't the subscribers notify the poster so they can trash dupes before they go to the general public?

      Why have we been asking the same questions
      • by ari_j (90255)
        My favorite part is that the blurb links to a printer-friendly version of the article, which happens to bring up a printer dialog for me when it loads. Thanks for checking the links, Zonk!
        • by megaditto (982598)
          Would you rather it link to a clickthrough article split into 6-page parts each with 3 popups each?
  • Is it still Thursday or is this post a dupe? Really important because if it's still Thursday I have two extra days to finish the job I'm working on. Man I've got to pay more attention to what day it is.
  • by richg74 (650636) on Saturday June 09, 2007 @07:57AM (#19449747) Homepage

    The Gateway EULA states that conflicts must be resolved via private arbitrage.

    I suspect it states that conflicts must be resolved by arbitration. "Arbitrage" is primarily an economics term; my dictionary defines it thus:

    The purchase of securities on one market for immediate resale on another market in order to profit from a price discrepancy.
    Both words do ultimately come from the same Latin root, though ('arbitrari', to render a judgment).
  • EULAs are not meant to be read.
    Seriously. Have you? Can you keep a straight face and tell me you read all those legalese crap? I didn't.

    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?

    • by pimpimpim (811140)
      Your second point brings me to a question: Is it possible to have a document remove your legal rights to anything? Will an EULA, which is not even signed, you just click a button, have more value in court than the general consumer rights? If I put this in the extreme, is it possible to have kill someone if you have him sign a paper which states that he discards of all his rights to live? Would that be acceptable. I'm all in favor of private arbitrage to lessen the burden on the already overloaded justice sy
      • by Darundal (891860)
        See, that is what I don't understand about anything electronic that doesn't actually have you write your signature to say "I Agree" and then expects you to in some way be legally bound by it. If the guys computer had not been messed up, then how do they know that he actually agreed to it? How do they not know that he had the kid from down the street come to his house and set it up for him, and like any half-sane person, just clicked OK on the EULA before the guy even saw it since the guy would have to do th
        • by pimpimpim (811140)
          Ah yes, I actually came very close to this, when a friend of mine used a free webmail service here in germany, and they had a special offer at one's birthday, giving extra storage and whatever. She clicked it, didn't really read all the stuff, and then later got bills and even legal-sounding threats that she should pay. So I checked the internet and found loads and loads of people with the same problems. The birthday offer appeared to be valid only for 3 months, after which it should be specifically cancell
    • Re: (Score:3, Interesting)

      by tomstdenis (446163)
      It's worse than that, most EULAs are only visible AFTER you bought the software which pretty much renders them invalid.

      It'd be like signing the lease for a new car, then 5 mins when you get into the car you find a notice in the glove box saying "you also can't sue us when you realize this is a lemon."

      EULAs are not part of the purchase agreement and are therefore not binding.

      Tom
    • Re: (Score:2, Funny)

      by Anonymous Coward
      Zaguar, you asshole. You thought you could copy +5 comments from the original story and boost your karma? Well, I just modded you down.
      The editors are lazy fucks for not even checking this, but sadly I can't mode them down... but you're worse, trying to exploit their stupidity

      http://hardware.slashdot.org/comments.pl?sid=23775 1&cid=19431651 [slashdot.org]

      EULAs are not meant to be read
      (Score:5, Insightful)
      by Opportunist (166417) on Fri Jun 08, '07 08:03 AM (#19431651)
      Seriously. Have you? Can you keep a straight face

      • Re: (Score:1, Offtopic)

        by zaguar (881743)
        That was the joke, my friend. Taking the first +5 comment from the previous story would have been stupidly obvious if I wished to exploit it for Karma. But don't worry, I've got Karma to burn.
  • Or have I accidentally agreed to some EULA that restricts me to only using arbitration for settling my complaint about too many duplicate articles?

  • by Anonymous Coward
    A contract is unenforcable unless both parties get some (roughly equal) benefit.

    "The Uniform Commercial Code which is followed in most American states has specific provisions relating to standard form contracts. Furthermore, standard form contracts will be subject to special scrutiny if they are found to be contracts of adhesion.

    [edit] Contracts of adhesion

    The concept of the contract of adhesion originated in French civil law, but did not enter American jurisprudence until the Harvard Law Review published a

  • by Alain Williams (2972) <addw@phcomp.co.uk> on Saturday June 09, 2007 @08:29AM (#19449861) Homepage
    Cost of fixing the bust PC: $200

    Cost of lost sales due to bad publicity: $200,000

    How does that make sense ?
    • Must be the Chewbacca defense
    • by Klanglor (704779)
      you forgot one variable. busted PC: X Cost of fixing busted PC: 200$ Cost of lost sales to bad publicity: 200,000$ thus we can safely assume that they ship a lot of crap... 200$ * X > 200,000
    • by $criptah (467422)

      It does not work this way. First of all, check the company's financial reports and press announcements. Gateway has been ranked #1 in customer service satisfaction by corporate users. Here:

      IRVINE, Calif., June 1 /PRNewswire-FirstCall/ -- Gateway, Inc. today announced that it's won the leading position in Technology Business Research's (TBR) Corporate IT Buying Behavior and Customer Satisfaction Study for Corporate Desktops in the first quarter of 2007.

      Here is alink [prnewswire.com] to the full story.

      A company with

  • And this will remove my moderation. Mod overrated or something if you want it out of your face.
    • You know, you can opt out of the moderation system. Just click on options up the top, and then homepage, scroll down to

      [x] Willing to Moderate

      and uncheck the box.
      • by Eudial (590661) on Saturday June 09, 2007 @09:13AM (#19450029)

        You know, you can opt out of the moderation system. Just click on options up the top, and then homepage, scroll down to

        [x] Willing to Moderate

        and uncheck the box.


        O, I am willing to moderate. It's just I accidentally cranked open a huge canister of -1 troll on the wrong post. Figured I didn't want to spoil the poor guy's karma.
  • by jadin (65295) on Saturday June 09, 2007 @10:27AM (#19450413) Homepage
    I installed software once that had the best EULA ever. While it did have the "legal speak" version you had to agree to, it also had a recap in layman's terms. Made it very very easy to see what you were agreeing to.

    Example (not a real example, but you get the idea) :

    1.1 Installation and use. You may install, use, access, display and run one copy of the Software on a single computer, such as a workstation, terminal or other device ("Workstation Computer"). The Software may not be used by more than one processor at any one time on any single Workstation Computer.

    Becomes

    1.1 You get one copy for one computer.
  • Kids (Score:5, Funny)

    by 7311587 (755664) on Saturday June 09, 2007 @11:04AM (#19450665)
    I get my kids to click EULA's since contracts with minors are not valid.
  • From other articles I have read about this the guy refused to follow instructions given by the gateway techs and was shipped a second machine though he never returned the first. I have a feeling this guy is just an idiot making a poor attempt at taking an upper hand.
  • I love this new rerun thing that /. has, if I miss a story I get to see it again a few days later. :-D

    http://hardware.slashdot.org/article.pl?sid=07/0 6/07/2317239

  • Print out the EULA, stick it in the box, and tape it inside in a large neon orange folder saying "EULA: Read This First!" in a way that it has to be removed from the box before the equipment.
  • .. behind Hyundai, Sony and most proprietary software makers with the exception of Microsoft because I need their software.

    There needs to be some laws stopping this. A few years ago an EULA was ruled invalid because it did not have a signature with a notory present to be a valid legal agreement. Then some case with a republican judge came and he ruled click licenses are valid.

    Can I just write a letter to someone saying by opening the letter you agree to the terms inside it, inside it I demand all their asse
  • Stories like this one always remind me of the computer warranty in Pratchett and Gaiman's Good Omens:

    "Along with the standard computer warranty agreement which said that if
    the machine 1) didn't work, 2) didn't do what the expensive
    advertisements said, 3) electrocuted the immediate neighborhood, 4)
    and in fact failed entirely to be inside the expensive box when you
    opened it, this was expressly, absolutely, implicitly and in no event
    the fault or responsibility of the manufacturer, that the purchaser
    should cons

FORTH IF HONK THEN

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