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?
Re:EULAs are not meant to be read (Score:5, Informative)
Re:EULAs are not meant to be read (Score:5, Insightful)
Re: (Score:3, Informative)
Re: (Score:3, Interesting)
So why not use an open source installer? On Windows Inno Setup [jrsoftware.org] is very good; it doesn't force you to do this. (R [r-project.org] offers the GPL in an information screen, with instructions saying "Please read", and "When you are ready to continue, click Next". I think that's about the right level: you want users to be aware of the GPL, but they don't need to accept it to do an installation.)
Re:EULAs are not meant to be read (Score:5, Insightful)
Re:EULAs are not meant to be read (Score:4, Interesting)
For Windows installers, I like WiX [sourceforge.net]. It's open-source (CPL), yet made by Microsoft and used to package Microsoft software (e.g. SQL server, Office 2007). It also compiles to standard .MSI (or MSI-based .EXE) files, instead of relying on all custom code like some installers do.
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):
Re:EULAs are not meant to be read (Score:5, Insightful)
Re:EULAs are not meant to be read (Score:5, Interesting)
"this software is not guaranteed in any way"
part, rather than the
"if you distribute, then..."
parts. ie. it's more a disclaimer of responsibility
Re:EULAs are not meant to be read (Score:4, Insightful)
Re: (Score:3, Insightful)
Re:EULAs are not meant to be read (Score:5, Interesting)
The GPL requires that users be given the software under the terms of the GPL, with no further restrictions.
The GPL does not require users to accept it to use the software.
Software which DOES require the users to accept the GPL to use the software is enforcing a restriction not listed in the GPL.
Therefore, the software-mandated license acceptance is in violation of the GPL.
Not sure if this argument would apply if the GPL were taken apart in detail with regard to its restrictions against adding restrictions. I just thought it was an interesting concept...
Re:EULAs are not meant to be read (Score:5, Funny)
Don't Do It! (Score:4, Funny)
Re: (Score:3, Insightful)
This guy got lucky (if you can call it luck, since he has no chance of defeating Gateway's lawyers) because
Re:EULAs are not meant to be read (Score:5, Interesting)
Is general society so bad at reading that most people can't be bothered to look at what they're agreeing to? I suppose so, or else the title company person at my first home purchase wouldn't have had to move us to another conference room once she realized that I was actually going to read things before I signed them. She apparently expected it to take 5 minutes instead of half an hour and had scheduled the room accordingly.
In any case, the law regarding contracts is that for a contract to be valid, there must have been a "meeting of the minds" where both parties knew substantially what they were agreeing to. Of course, nowadays some people probably sign the statement that they've read and understand the contract without even reading that statement, but some people are stupid that way.
I have lots of experience with all sorts of times when actually knowing what was in a contract I'd signed was useful, even when simply looking up and reading the VA state law online that pertained to a specific company health insurance provision and pointing it out to HR made their lawyers drop all their demands and sent a letter of profuse apology once they figured out that technically they owed me 3x the amount of a $25K claim they had illegally refused to pay until I signed a subordination agreement that I refused to sign (having read it and recognized it as obligating me to things that they had no right to get out of me), but since you don't read things you probably aren't still reading this anyway.
Heck, you probably don't read documentation either. You still have that extra set of screws left over from when you built that bicycle that rattles kind of funny?
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: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: (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 ta
How (Score:4, Interesting)
Nobody actually reads EULA's, right? I'd say at least 99.9% of EULAs are just clicked on through without any consideration for the implications.
Does the reality of 99.9% of cases over-rule the law?
Re:How (Score:4, Interesting)
Now that's just me and common sense talking, and I'm aware of the fact that the legal system abandoned common sense at some point in the 20th century, but I believe as a general principle there's no way an EULA could be enforced.
what with companies ? (Score:4, Insightful)
Re: (Score:3, Insightful)
Small Claims (Score:5, Informative)
Re: (Score:3, Insightful)
in small claims court, doesn't the complaintant always represent themselves? And that court is structured to deal with such?
Yes, but you can bring a lawyer to represent you if you want, and corporations essentially have no one BUT a lwayer to send. Small claims judges don't like lawyer bullshit gamesmanship, though. If Gateway sends a slick lawyer to try to bring a "world of hurt" down on Sheehan, the judge will tear him (the lawyer) a new asshole. Likely the appeal will consist of the judge telling Gateway "show me proof you didn't sell him a fucked up computer and then try to weasel out of refunding the purchase price, or cra
Re:Small Claims (Score:4, Funny)
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: (Score:3, Funny)
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:California Small Claims Process (Score:4, Interesting)
1) The staff attorney has no direct bearing on the matter in his employment capacity and can offer little in terms of evidence in the case.
2) The staff attorney will have to travel to the court location
3) The judge might not be so friendly with a lawyer in the courtroom (small claims judges are a different breed)
In any case, Gateway will be hard pressed to produce an employee who knows all the details of this situation AND who is willing and able to travel to El Dorado. The total judgement in the case at the high side would be less than $5,000.00 and they've already put time, money, and energy into the case that turns further investment into a bad business decision. If he wins the appeal and it still gets kicked to small claims, I expect gateway either will not show up, or they will settle with him prior to trial.
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: (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 ignorin
Sorry but... (Score:5, Funny)
Poor guy? Yes, create more pity for him. After all, you sold him a defective computer, then refused to fix it. Then let the situation make it all the way to small claims court. You've got him right you want him.
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:Somebody please explain (Score:4, Informative)
giving up rights (Score:5, Interesting)
The other day, the cable guy came out. He drops off my HD DVR. He hands me his handheld PC and says "sign here". The thing I'm supposed to sign says something like "I agree to all the stuff above". Of course, I can't scroll up and read anything. So, i ask what I'm signing. He tells me it's that I received the DVR. Grr. OK. So I sign. Then it prints out this huge receipt. Among other things, i've given up my right to sue them.
To make it worse, they often are worded such that you can never sue them for anything
Re: (Score:3, Insightful)
When the delivery guy complains, he can tell you what it really is that he wants you to sign.
- RG>
Re: (Score:3, Interesting)
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.
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).
best hope is a pyrrhic victory? (Score:5, Interesting)
So the take home lesson is that the little guys should never attempt to sue big companies? that even if they have a chance of winning, the big guns will put them "in a world of hurt"? this is how the legal system is supposed work?
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.
reasonableagreement.org (Score:3, Interesting)
Gateway loses. Period. (Score:3, Insightful)
Call 800-369-1409 (Score:3, Insightful)
Unlikely.... But I'm gonna call them anyway.... Just for sport.
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.
This is big for Gateway (Score:3, Interesting)
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:When you buy a new PC... (Score:5, Insightful)
Re:When you buy a new PC... (Score:5, Informative)
http://www.badsoftware.com/hill.htm [badsoftware.com]
Re:When you buy a new PC... (Score:4, Interesting)
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:When you buy a new PC... (Score:4, Informative)
Re: (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:When you buy a new PC... (Score:5, Interesting)
So, because I did it this way, I never get to see Gateway's boot screen EULA, therefore I am never bound by it? Or does blowing away the contents of their HDD also violate some obscure law?
Re:When you buy a new PC... (Score:5, Interesting)
The only possible way in which a EULA would be legal would be if it granted you some right that you didn't already have. The legal technicality that is used by software is that copying the program from the install media to your disk and then to RAM requires extra rights (not valid in all jurisdictions). For hardware, there is no such loophole. If you didn't agree to the contract before sale, then they can't enforce it afterwards.
Re: (Score:3, Insightful)
Re:When you buy a new PC... (Score:5, Funny)
Actually, thanks to this guy, every Gateway purchaser will have to listen to a
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.
Re:When you buy a new PC... (Score:5, Insightful)
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: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.
Re:When you buy a new PC... (Score:5, 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:When you buy a new PC... (Score:5, Informative)
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:dubious, even if it "worked" (Score:5, Funny)
Whaaa??? I am gonna so kick Master's ass when he gets home!
Re:dubious, even if it "worked" (Score:5, Insightful)
Re:dubious, even if it "worked" (Score:5, Funny)
Re:dubious, even if it "worked" (Score:5, Funny)
Re:dubious, even if it "worked" (Score:5, Insightful)
Sure you can. Just carry a credit card balance.
Re:dubious, even if it "worked" (Score:4, Interesting)
Seriously, I was talking with some military types, and it's REALLY easy to get out. They want soldiers who want to do their job, not disgruntled employees who are issued weapons.
Re:dubious, even if it "worked" (Score:4, Funny)
Re:When you buy a new PC... (Score:5, Insightful)
Re:When you buy a new PC... (Score:4, Interesting)
I realize it's de rigeur to say "nuh-uh" to things other slashdotters said that sound legally shaky. Thing is, if you don't know the law either, it turns out not to work very well.
S'pose that's why you were AC, though.
Re: (Score:3, Insightful)
(IANAL)
Re: (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.
Re: (Score:3, Informative)
Re:???? Lawyers are idiots !!!!! (Score:5, Interesting)
Heh, my sentiment exactly when I read that line. If Gateway sends a lawyer to small claims court with "vast legal and financial resources" the judge is likely to put Gateway's lawyer into a world of hurt. As a small claims court judge its more likely that the judge will be unimpressed by big lawyer shenannigans in a common sense small claims court.
Re:???? Lawyers are idiots !!!!! (Score:5, Insightful)
Re:???? Lawyers are idiots !!!!! (Score:4, Insightful)
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.
Small Claims Court (Score:3, Interesting)
Re: (Score:3, Informative)
Re:"By winning, he's lost." (Score:5, Funny)
Re: (Score:3, Insightful)
Re:"By winning, he's lost." (Score:5, Funny)
Re:"By winning, he's lost." (Score:5, Funny)
Wow. You should make a PSA [themoreyouknow.com]. If that doesn't scare kids into staying in school, I don't know what will.
Re:"By winning, he's lost." (Score:4, Insightful)
Re:"By winning, he's lost." (Score:5, Funny)
Re:"By winning, he's lost." (Score:5, Funny)
Re:"By winning, he's lost." (Score:4, Funny)
Re:Gateway lost. (Score:5, Insightful)