The complaint, filed in Marin County Superior Court in San
Rafael, California, is seeking class-action status. This means that
all Californian consumers who bought certain software –including
Windows XP, Norton SystemWorks and Norton AntiVirus 2002 – are
invited to join the action and seek damages.
The case was brought by Cathy Baker. According to media reports,
she decided to sue after buying the Windows XP home edition upgrade
and Norton Antivirus for her home PC last month. When she began the
installation of the software, she was asked to click a button to
indicate her acceptance of licensing terms that were, to her,
unacceptable.
Such agreements are known as "click-wrap agreements." Ms Baker
then tried to return the software, but the retailer refused to take
it back because the package had been opened.
In her filing, Baker claims that consumers are unable to read
the terms of the licensing agreements for packaged software until
they open the box or start installing the software.
Also, she claims, consumers who have already purchased software
but refuse to agree to the licensing terms cannot return the
products to the stores. Such consumers, Baker says, have to contact
directly the software companies, which impose further delays and
costs, aiming to "chill" attempts for refunds.
Together with penalties and unspecified damages, the lawsuit
seeks a court order requiring software makers to ship printed
copies of the licensing agreements together with the software, to
post the agreements on an accessible web site, and to print the
site's address at the front of the packages.
Before click-wrap agreements became prominent in software,
licence agreements were often printed on paper which was placed
between the packaging and its clear plastic wrapping – known as
"shrink-wrap agreements." However, it often was impossible for
someone to read the agreement without first removing the
wrapping.
Both Microsoft and Symantec have reportedly declined to comment
on the case, claiming they have not yet received the complaint.
The complaint is available at:
www.techfirm.com/Baker-Final.pdf
