[SLL] Re: [linux-biz] Re: Toshiba learned a dirty trick
tjhanson at tscnet.com
Mon Mar 1 21:41:21 EST 1999
On Sun, 28 Feb 1999 13:37:21 -0800, "Jeffrey B. Siegal" <jbs at quiotix.com> wrote:
>Darren Boyd wrote:
>> If all of the consumer's obligations were clearly stated *before* the
>> plastic was opened, then it is likely to be enforeable. i.e. the
>> consumer accepts the license agreement.
>No, the consumer's obligations need to be stated before making the
>purchase, not before opening the plastic. After the purchase it is too
>late, even if it is before opening the plastic. I don't believe that
>notations such as "purchase subject to license agreement (enclosed)" on
>the external package are effective either, unless it is clear that the
>consumer read and agreed to the license (not just had the opportunity to
>read and agree to, though even this is probably not the case in most
>retail environments) prior to the purchase.
>Do not accept that the EULA is effective just because it claims to be.
>You need to study the legal history of shrink-wrap licenses, and that
>overwhelmingly says they're not valid.
>I'm not on linux-biz, so my replies aren't being accepted there. If one
>of you is on that list, please repost my message (including my earlier
>message reproduced below).
>I am not a legal expert, but my understanding is that shrink-wrap
>licenses have, with extremely unusual and limited exceptions, been found
>to be unenforceable. That would apply to the EULA just as it would to
>any other shrink-wrap.
>Interestingly, this means that the Windows Refund Day concept, while a
>perfectly legitimate publicity stunt, is legally bogus because the
>refund seekers are basing their demands for a refund on a term from an
I think that is the case if memory serves; perhaps there is some state-to-state variance. The state Attorney General would be the one to ask about this.
>Your inclination to boycott is a step in the right direction, though an
>organized boycott is probably excessive. Simply don't buy computers
>which are bundled with something you don't want (Windows), just as you
>would be unlikely to buy toilet paper that came bundled with diapers if
>you don't have an infant. Though if you feel (as I do) that bundling
>Windows with computers is illegal tying, then you might lobby for
>government action to put a stop to it.
I think the "Refund Day" was more a solidarity event and, yes, a publicity stunt (successful at that) than anything. Nothing wrong there, mind you.
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