Troubled by rigorous theory vs. "seat of your pants" control argument

[Terry Given]

Terry Given wrote:
[snip my anti-sw diatribe]

How screwed up this situation really is came to light about a year ago.
Here in Australia we have some fairly solid consmer laws. We also have a
software retail industry that refuses to refund or accept returns of
software for any reason. The fear being that you've illegally copied the
code and now want your money back. This backfired, and revealed a hole
in the entire licensing process. Since the License is invariably
contained on the installation disk, and since it cannot be read until
installation, the law deems it unreasonable to expect a purchaser to
agree to something they haven't yet been able to see or evaluate when
their is no recourse should you not acceopt the license. ie if they
won't refund my money because I don't accept the license then the law
deems me to have bought the software, since the license terms were not
made known to me until after purchase, I am the owner of that software,
and therefore free to do as I please with it. Including making and
selling copies. Of course you'd better have deep pockets , or be a
lawyer to push this, unless, as in my case I had the Australian consumer
council fighting for me. Under Australian law the retailer, not the
manufacturer of the product is my poj tof legal redress. Therefore if a
legally appointed retailer will not refund your purchase price when the
license proves to be unacceptable the manufacturer can do nothing about
it. Even were the license made available to read prior to purchase, it
is not a reasonable license unless opportunity is given to first
evaluate the product.


Al

Hi Al,

I hadnt thought of that. In NZ we too have excellent consumer legislation,,
along similar lines - the contract is between the purchaser and the seller,
the manufacturer doesnt enter into it (none of this "go complain to the
manufacturer" bullshit I had to put up with in MA). IIRR it is the law of
torts which says you cannot enter into a contract without being made aware
of its provisions first. An inability to read the license agreement
certainly fits that bill, so I will file that away, and use it the next time
i buy sw i dont like.

(Funnily, many music stores wont give you a refund if you dont like the cd,
but will if its damaged....duh, clearly the solution if you buy the wrong CD
is to scratch it, then ask for your money back. Smart music stores let you
change your mind.)

So we've got a little bit of consumer protection, but until the loop is
closed with the sw "manufacturer," the current appalling state of affairs
will continue unabated.

Watched the Brumbies-vs-Crusaders last night. Wow, what a way to start a
game, the Brumbies were fantastic. And the crusaders comeback was almost as
good - perhaps the best super-12 final yet! And a thoroughly deserving win
for the ACT brumbies. I was especially pleased to see how graciously they
won.

Cheers
Terry

Cheers
Terry

 

[Terry Given]

That last bit would be in violation of the Universal Copyright Convention
(UCC) and the Berne Convention for the Protection of Literary and Artistic
Works (AKA the WIPO Copyright Treaty). Austalia signed both treaties.

Guy is right. But, the license (usually) prevents you from on-selling the
sw, which you would be free to do now that you own it.

Terry

 

[onestone]

Hi Terry, great match, I didn't catch it all, just the tail end, but
worth a watch.

Guy pointed out that part of my comment was in breech of the universal
copyright laws. He's probably correct, however I'm only commenting on
feedback after I complained to the ACCC and the local SA consumer
affairs. In the case above there were other complications as well, in
that the retailer specifically stated that the software had certain
features which it didn't. Anyway, after having to put up with crap
software and no service for so long it was very satisfying to score a
win. Over a large company.

Cheers

Al

Terry Given wrote:

[snip my anti-sw diatribe]

How screwed up this situation really is came to light about a year ago.
Here in Australia we have some fairly solid consmer laws. We also have a
software retail industry that refuses to refund or accept returns of
software for any reason. The fear being that you've illegally copied the
code and now want your money back. This backfired, and revealed a hole
in the entire licensing process. Since the License is invariably
contained on the installation disk, and since it cannot be read until
installation, the law deems it unreasonable to expect a purchaser to
agree to something they haven't yet been able to see or evaluate when
their is no recourse should you not acceopt the license. ie if they
won't refund my money because I don't accept the license then the law
deems me to have bought the software, since the license terms were not
made known to me until after purchase, I am the owner of that software,
and therefore free to do as I please with it. Including making and
selling copies. Of course you'd better have deep pockets , or be a
lawyer to push this, unless, as in my case I had the Australian consumer
council fighting for me. Under Australian law the retailer, not the
manufacturer of the product is my poj tof legal redress. Therefore if a
legally appointed retailer will not refund your purchase price when the
license proves to be unacceptable the manufacturer can do nothing about
it. Even were the license made available to read prior to purchase, it
is not a reasonable license unless opportunity is given to first
evaluate the product.


Al

Hi Al,

I hadnt thought of that. In NZ we too have excellent consumer legislation,,
along similar lines - the contract is between the purchaser and the seller,
the manufacturer doesnt enter into it (none of this "go complain to the
manufacturer" bullshit I had to put up with in MA). IIRR it is the law of
torts which says you cannot enter into a contract without being made aware
of its provisions first. An inability to read the license agreement
certainly fits that bill, so I will file that away, and use it the next time
i buy sw i dont like.

(Funnily, many music stores wont give you a refund if you dont like the cd,
but will if its damaged....duh, clearly the solution if you buy the wrong CD
is to scratch it, then ask for your money back. Smart music stores let you
change your mind.)

So we've got a little bit of consumer protection, but until the loop is
closed with the sw "manufacturer," the current appalling state of affairs
will continue unabated.

Watched the Brumbies-vs-Crusaders last night. Wow, what a way to start a
game, the Brumbies were fantastic. And the crusaders comeback was almost as
good - perhaps the best super-12 final yet! And a thoroughly deserving win
for the ACT brumbies. I was especially pleased to see how graciously they
won.

Cheers
Terry

Cheers
Terry

 

[onestone]

Terry Given wrote:

[snip my anti-sw diatribe]

How screwed up this situation really is came to light about a year
ago. Here in Australia we have some fairly solid consmer laws. We
also have a software retail industry that refuses to refund or
accept returns of software for any reason. The fear being that
you've illegally copied the code and now want your money back. This
backfired, and revealed a hole in the entire licensing process.
Since the License is invariably contained on the installation disk,
and since it cannot be read until installation, the law deems it
unreasonable to expect a purchaser to agree to something they
haven't yet been able to see or evaluate when their is no recourse
should you not acceopt the license. ie if they won't refund my money
because I don't accept the license then the law deems me to have
bought the software, since the license terms were not made known to
me until after purchase, I am the owner of that software, and
therefore free to do as I please with it. Including making and
selling copies. Of course you'd better have deep pockets , or be a
lawyer to push this, unless, as in my case I had the Australian
consumer council fighting for me. Under Australian law the retailer,
not the manufacturer of the product is my poj tof legal redress.
Therefore if a legally appointed retailer will not refund your
purchase price when the license proves to be unacceptable the
manufacturer can do nothing about it. Even were the license made
available to read prior to purchase, it is not a reasonable license
unless opportunity is given to first evaluate the product.


Al

Hi Al,

I hadnt thought of that. In NZ we too have excellent consumer
legislation,, along similar lines - the contract is between the
purchaser and the seller, the manufacturer doesnt enter into it (none
of this "go complain to the manufacturer" bullshit I had to put up
with in MA). IIRR it is the law of torts which says you cannot enter
into a contract without being made aware of its provisions first. An
inability to read the license agreement certainly fits that bill, so
I will file that away, and use it the next time i buy sw i dont like.

(Funnily, many music stores wont give you a refund if you dont like
the cd, but will if its damaged....duh, clearly the solution if you
buy the wrong CD is to scratch it, then ask for your money back.
Smart music stores let you change your mind.)

So we've got a little bit of consumer protection, but until the loop
is closed with the sw "manufacturer," the current appalling state of
affairs will continue unabated.

One snippet about the UK is that having a licence that implies that you
are giving up your statuary rights, e.g. suitability for purpose etc is
a *criminal* offence. A UK licence that notes some restrictions,
requires some sort of notice that "your statatory consumer rights are
not effected". This type of notice is often seen in shops to avoid the
connotation when they have other signs saying "no refunds", when they
mean no refund for goods with no faults. Many states in the US allows
one to waive consumer rights, in the UK such waivers are always invalid.
Software is treated in the same way as any other physical goods as far
as consumer protection is concerned in the UK, although the majority of
the consumers don't seem to know this, or their rights. Indeed, there is
a fair contracts law that allows unreasonable clauses to be struck out.

Slightly off topic, but I also recently had a big clash with Telstra
regarding contracts for mobile phone services. In March 2003 I
contracted for a Nokia 3650, over 2 years. In November 2003 it died so I
went back to telstra, who refused to replace it. They stated that it was
policy to return phones to Nokia for repair after they were 1 month old.
In turn I replied that whatever policy was the law stated that Telstra
was my point of contact and they were failing to provide me with the
contracted for service. They initially refused to budge, although they
offered me a cheaper phone to borrow until mine was returned, which
could have been months according to them. I went to the
telecommunications ombudsman who stated that it was fair and reasonable
to expect a brand new replacement phone, and, in addition for Telstra to
waive all contract fees for the period the phone was unavailable.

many big companies try and bully you into accepting crap service, but
usually if you are being reasonable the law will back you up , at least
here in Oz.

Al

 

[Terry Given]

[snip]

Slightly off topic, but I also recently had a big clash with Telstra
regarding contracts for mobile phone services. In March 2003 I
contracted for a Nokia 3650, over 2 years. In November 2003 it died so I
went back to telstra, who refused to replace it. They stated that it was
policy to return phones to Nokia for repair after they were 1 month old.
In turn I replied that whatever policy was the law stated that Telstra
was my point of contact and they were failing to provide me with the
contracted for service. They initially refused to budge, although they
offered me a cheaper phone to borrow until mine was returned, which
could have been months according to them. I went to the
telecommunications ombudsman who stated that it was fair and reasonable
to expect a brand new replacement phone, and, in addition for Telstra to
waive all contract fees for the period the phone was unavailable.

many big companies try and bully you into accepting crap service, but
usually if you are being reasonable the law will back you up , at least
here in Oz.

Al

Alas, rights you do not know about are rights you DO NOT HAVE. Insurance
companies pretty much all work like this.

Terry

 

[Terry Given]

Hi Terry, great match, I didn't catch it all, just the tail end, but
worth a watch.

I didnt like the first 20, but you would have - the Brumbies were on fire,
and scored points off every mistake the crusaders made. way to go!

Guy pointed out that part of my comment was in breech of the universal
copyright laws. He's probably correct, however I'm only commenting on
feedback after I complained to the ACCC and the local SA consumer
affairs. In the case above there were other complications as well, in
that the retailer specifically stated that the software had certain
features which it didn't. Anyway, after having to put up with crap
software and no service for so long it was very satisfying to score a
win. Over a large company.

Cheers

Al

Terry Given wrote:

I successfully returned a piece of software (a game) I bought at DSE for
that reason, it wouldnt even install on my OS despite being told it would (I
specifically asked). I had to argue quite forcefully with the manager
though, despite the Consumer Guarantees Act (which is available on-line -
google NZ legislation).

Terry