How many just say NO? » Forum Post by Fordson

You should read Microsoft's license agreements sometime. Most of these agreements I doubt would hold up in court, if anyone ever seriously felt a piece of software was worth going to court over.

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I believe that if you don't agree to the EULA the publisher is required to give you a refund even if the store you bought it from won't.

-Dewar

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".. and are satisfied"
LOL, i dunno, might be one of those few times in the world where there are no such people?

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Why pay attention to the EULA at all? There haven't been any clear court decisions (in the USA anyway) that have established their legality. From the Wiki article on this:

"The forceability of an EULA depends on several factors, one of them being the court that the case is heard in. Most courts that have addressed the validity of the shrinkwrap license have found them to be invalid, characterizing them as contracts of adhesion, unconscionable, and/or unacceptable pursuant to the U.C.C."

More info here, including what little there is of the existing case law:
http://en.wikipedia.org/wiki/EULA

That doesn't mean you can ignore all legal rights of the software developer. For example, copyright and trademark laws still apply.

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Late Double Post

-Dewar

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whismerhill

Join Date 03/2006

+19

I believe that if you don't agree to the EULA the publisher is required to give you a refund even if the store you bought it from won't.

-Dewar

good luck on that one !

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The EULA can't give away any thing you didn't have a reasonable expectation you won't have when you purchased it.
For example. A company can't add 'If you agree, you owe us 10,000 dollars" to the EULA
They can however state 'If this software breaks your computer it's not our problem' because it was expected that the software was sold as is in the first place. (minus any negligence issues that there may be)
Truthfully though the company already had such protections in the first place and technically doesn't need an EULA.
What it does do however is give them more ammo if there were to be a law suit over something covered by the EULA and prevents you from claiming 'Well I didn't know that'.

Basically, the EULA is not a valid contract but more of reminder of your rights.

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I wonder about that EULA bit 'If this software breaks your computer it's not our problem' , where there is a problem with the software that does cause computer issues. I speak of "The Movies", where disk 2 shipped with a computer virus.

Not that I understand all of the language in EULA's to begin with, but I do read them, and they do vary quite a bit. Ones that require you to maintain an Internet connection while playing the game, and ones that support Starforce are especially creepy.

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EULAs have been upheal in several courts before, so beware.

Also, EULAs are horrible, most of them even include a clause stating you automatically agree to any revisions they make to the EULA (its like signing a blank contract).
The EULA has also been a tool to eliminate the fair use rights you had (but have no more).

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wonder about that EULA bit 'If this software breaks your computer it's not our problem' , where there is a problem with the software that does cause computer issues. I speak of "The Movies", where disk 2 shipped with a computer virus.

Not that I understand all of the language in EULA's to begin with, but I do read them, and they do vary quite a bit. Ones that require you to maintain an Internet connection while playing the game, and ones that support Starforce are especially creepy.

That's why I included that bit about negligence.
Product liability is very complex....
But from what I understand if they didn't know their software could cause damage, they made a reasonable effort to ensure it didn't cause damage, and it's uncommon enough that they couldn't be reasonably expected to know that it could cause damage. Then they should be safe from any liability.

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I actually asked this question of a leading copyright lawyer when he came to speak at the company I was working for at the time and he had a good chuckle because I guess he'd heard it a million times before.

A. The EULA is stored digitally within the packaging and cannot be read without opening the box and discs inside
B. The product cannot be returned under any circumstances once the box is open

Ergo, if you disagree to the EULA, then you're out of luck. The user is basically forced to agree to the EULA under duress and this is upheld in courts! Simply purchasing a product has become an implicit and even secret contractual obligation.

On a side note, if anything's wrong with the software (movie, music, application software, etc.), then you're also out of luck because software doesn't come with any warranties or satisfaction guarantees. This is why major studios have become complacent and can effectively get away with producing absolute crap -- the only way to know it to spend the money and be stuck with whatever you've bought or to rely on third-party information/reviews. What's also really great is that these studios aren't obligated to tell you anything about the copy-protection schema that they employ and which could purposely prevent your software from working at all or cause other untoward damage. How many CDs say anywhere on the cover that they employ copy protection? How many have slips inside that say it? How many say nothing at all?

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The EULA is only available to you after buying and unwrapping the game. You'd be entirely entitled to a refund if you didn't agree, and it would be the STORE that would be responsible for providing that refund since they're providing the product, not the developer. They in turn would then need to take it up with the publisher.

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Actually, shrinkwrap licenses have been held to be mostly enforceable. See the ProCD decision by Judge Easterbrook.

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Not true, if you can't return the goods after disagreeing with the EULA then the EULA is invalidated by the simple fact you can't disagree.

Edit: Was responding to Inept

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Ergo, if you disagree to the EULA, then you're out of luck. The user is basically forced to agree to the EULA under duress and this is upheld in courts!

No, it isn't upheld in courts, that's pure urban myth. This is highly dependent on your local state's consumer laws (in the USA, don't know about other countries), and there have been NO real test cases for the overall binding status of "shrinkwrap" EULA's. Read the wiki page I linked above, for the current status of case law (here's the link again):

http://en.wikipedia.org/wiki/EULA

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No, it isn't upheld in courts, that's pure urban myth. This is highly dependent on your local state's consumer laws (in the USA, don't know about other countries), and there have been NO real test cases for the overall binding status of "shrinkwrap" EULA's. Read the wiki page I linked above, for the current status of case law (here's the link again):

Umm did you even read that page?
"A minority of courts have determined that the shrinkwrap license is valid and enforceable: see ProCD, Inc. v. Zeidenberg"
Link
"Judge Easterbrook wrote the opinion for the court and found such a license was valid and enforceable."

For your reading pleasure.
http://www.law.cornell.edu/ucc/2/2-204.html

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Sure, I read it. What does the word "minority" mean to you?

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If you use AMEX, you can dispute ANY charges for 30 days(i think) after getting the bill. Other major CC's do the same. If you paid cash, you are SOL.

A while back, my wife bought me a game that was rated like 2 out of 5 and the store wouldn't take it back. When the bill came, I called AMEX and said it was a total P.O.S. and was crashing my computer. They agreed and told me to send the game to the store and there would be no charge.

I would not abuse this; only when truly necessary.

I think there should be a neutral rating system where if a game falls below a certain number it CAN be returned for credit or refund. Games with a high rating you'd be stuck with. This would truly hurt the crap-mills who repeatedly put out games with no intent on customer stisfaction.

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It means it has been upheld and therefore can not be considered pure urban myth.

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Sure, I read it. What does the word "minority" mean to you?

More than none.

And there have been NO real test cases for the overall binding status of "shrinkwrap" EULA's.

You even capitalized the word lol.

Just because who ever wrote the wiki page doesn't agree with the ruleing doesn't make it any less valid.

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Actually, shrinkwrap licenses have been held to be mostly enforceable. See the ProCD decision by Judge Easterbrook.

Then they should be forced to put the EULA on the cover, so you can read it before you open it. It it's 30 pages that's THEIR problem. Let ti cover up all their cute adver-artwork!

disclaimer- I'm NOT reffering to Stardock, just "in general".

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Then they should be forced to put the EULA on the cover, so you can read it before you open it. It it's 30 pages that's THEIR problem. Let ti cover up all their cute adver-artwork!

disclaimer- I'm NOT reffering to Stardock, just "in general".

They are. In order to agree to you obviously have to read it. So if they put the EULA on the disk you have the right to open it to read it and review it and if you decline you can return the software.

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So, just out of curiosity, what would you do in the situation where a developer updates teh EULA in a successive patch? Alot of them have started doing so, not just MMORPGs (which are an extreme case of that). Obviously one couldn't hold whatever retailer you got it from responsible, as the objectionable material was not in the package that they sold to you, but you would be extremely hard pressed to recover your investment from the developers. Even if the patch in question was one that enabled the software to run at all. (a video card fix for all ATI devices, for instance.)

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So, just out of curiosity, what would you do in the situation where a developer updates teh EULA in a successive patch? Alot of them have started doing so, not just MMORPGs (which are an extreme case of that). Obviously one couldn't hold whatever retailer you got it from responsible, as the objectionable material was not in the package that they sold to you, but you would be extremely hard pressed to recover your investment from the developers. Even if the patch in question was one that enabled the software to run at all. (a video card fix for all ATI devices, for instance.)

My gut feeling would say that they can't change it with out offering you a chance to decline and thus an offer to return it.

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from a eula:

BY PRESSING THE "I DECLINE" BUTTON, YOU DECLINE OUR OFFER, IN WHICH CASE YOU MUST NOT USE THIS SOFTWARE, YOU MUST DELETE THE SOFTWARE AND ALL RELATED FILES FROM YOUR COMPUTER, RETURN THE GAME SOFTWARE AND ALL RELATED MATERIAL TO THE PLACE OF PURCHASE FOR A FULL REFUND OR EXCHANGE BASED ON THE RETURN POLICY OF THE SPECIFIC RETAILER.

So, it would be at the retailers discretion, at least according to this one.

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