THE GRIPE LINE: ED FOSTER                       http://www.infoworld.com
Tuesday, December 21, 2004


* A Fatal Blow to Shrinkwrap Licensing?
* A Real Rhapsody-Roadrunner Runaround
* If Holiday Greetings Were EULAs

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Having so often been the bearer of bad news from the legal front, I am
thrilled to have some good news to report for a change. The
old-fashioned shrinkwrap license appears to have suffered from what may
well be a mortal wound.  Microsoft, Symantec, Adobe, CompUSA, Best Buy,
and Staples have agreed in the settlement of a California lawsuit to
change their ways, and you can already see the first results at the
software retailer nearest you.

In January 2003, California resident Cathy Baker walked into her local
CompUSA store to return copies of Windows XP and Norton AntiVirus she'd
purchased there.  When trying to install the programs, she had of course
been confronted by all the obnoxious terms in the Windows and NAV End
User License Agreements. Instead of clicking OK, she took them back to
the store for a refund, as the EULAs said she was supposed to do if she
refused to accept the terms.

At CompUSA, however, Baker was told the store's policy was that it could
not give refunds for software once the customer has opened the package.
Even though Baker had no way of seeing the EULAs until after she
purchased the products, took them home, opened the package and tried to
install the software on her computer, she was now told she could not get
her money back even when she rejected the terms. (In a somewhat bizarre
twist, after she protested enough, one CompUSA employee told her that
they had "secret instructions" from Symantec to provide refunds in such
circumstances.) So, like many others before her, Baker was confronted
with the classic shrinkwrap license conundrum (
http://newsletter.infoworld.com/t?ctl=A8D07F:2B910B2 ): She could
only see the terms by opening the box, and opening the box meant she was
stuck with it. But Baker did something most others before her had not -
she went and got a lawyer.

"When Miss Baker came to us, we felt it was an important case to bring
for the benefit of the general public," says Baker's attorney, high tech
litigation specialist Ira Rothken ( 
http://newsletter.infoworld.com/t?ctl=A8D089:2B910B2 ). "In our
research, we found that it hadn't been discussed before - there was no
guidance on it in the literature. Here you have a multibillion-dollar
industry that is using improper business practices as a consistent
policy, in violation of federal and California consumer warranty
statutes. As a practical matter, the consumer couldn't review the terms
and conditions prior to the sale and couldn't reject them with any
certainty they could get all their money back."

After Rothken first filed the lawsuit in February of 2003, ensuing news
coverage brought more consumers forward with similar stories of their
own. An amended complaint to the case Rothken filed in May of that year
added a second plaintiff along with Baker and also included Adobe,
Staples and Best Buy as defendants with Microsoft, Symantec and CompUSA.
Ultimately the parties entered a mediation process and in April they
reached a settlement under which the six defendants had up to 120 days
to ...




Does any company ever give customers a straight answer to an e-mail
asking for help? One reader's recent experiences prompted him to ponder
that question.
"I've begun to realize lately that no customer 'service' organization is
able to successfully answer email support questions," the reader wrote.
"No matter who it is, the first email to request information or to
report a problem always comes back with an answer that has nothing to do
with the question asked and often is just a repeat of easily-found
information from the vendor's own Web site.  They must think that we are
unable to find this information on our own or the response is from a
robot based on matching -- poorly -- words within the support request. 
EBay is the worst and there is no other way to communicate with them
other than their support Web forms."

What really got the reader thinking though was the runaround he
experienced when trying to use a free trial offer for RealNetwork's
Rhapsody music download service that was sent to him by his cable modem
service, Road Runner. "I've been a fairly happy Time-Warner/Road Runner
customer for several years now, and this Rhapsody offer was ...




Reader Mark Mailloux recently e-mailed me his best wishes for the season,
and he has generously granted me license ... so to speak ... to share
his tidings of comfort and joy with you:

Dear Ed,
With the holidays fast approaching and EULAs pretty much a fact of life,
please accept -- with no obligation, implied or implicit, on behalf of
the wisher or wishee -- my best wishes for an environmentally-conscious,
socially-responsible, low-stress, non-addictive, gender-neutral
celebration of the winter solstice, practiced within the traditions
and/or within the religious or secular belief(s) of your choice and with
respect for the traditions and/or religious or secular beliefs of others
or for their choice to not practice traditions and/or religious or
secular beliefs at all; and for a fiscally-successful,
personally-fulfilling, medically-uncomplicated recognition of the onset
of what is generally accepted as the new Gregorian calendar year, but
with due respect for calendars of other cultures whose contributions to
society have helped make America great*, and without regard to the race,
creed, color, age, physical ability, sexual orientation, political
affiliation, or choice of computer operating system of the wisher.


By accepting this greeting you are accepting the terms of the greeting
and all responsibility ...


Contact Ed Foster at [EMAIL PROTECTED] .

Ed Foster's "Reader Advocate" column,
http://newsletter.infoworld.com/t?ctl=A8D084:2B910B2 , can be read exclusively
at his GripeLog Web site: http://newsletter.infoworld.com/t?ctl=A8D088:2B910B2



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