Is there actually a reason, under US copyright law, for a software retailer to not allow the return of opened software?
Second, the background:
A good buddy of mine works for a large electronics/software retail chain. In the course of us hanging out last weekend, he mentioned that Best Buy will not allow the return of any opened software. You are allowed to exchange a defective product for a different copy of that product, but no refunds (either in cash or store credit) are permitted. When questioned on this, he vaguely referred to “copyright law” as being the justification for the policy. According to him, the company would be unable to verify that the customer had not illegally copied the software following purchase, and therefore could not allow a return/refund. Similar logic was applied to CDs, DVDs, and video games.
I feel that my good buddy was speaking from an uninformed position and merely repeating what his managers have previously told him. Unfortunately, I was unable to muster sufficient eloquence to convince him of my point. This was due, in some small part, to the thought that I might be completely wrong. Therefore, I come before you all hoping for assistance in fighting this glaring example of ignorance (mine or his, I really don’t care).
That wasn’t too bad for a first real post, I think.
First of all, the store can set whatever policies they wish about refunds; copyright law is not an issue (though it may be convenient to blame it, just like it’s convenient to blame the health department as an excuse to ban bare feet in a restaurant).
Second, software is not actually sold – it’s licensed. You do not own the software; you are allowed to use it under certain conditions. I believe the license specifically states that once the seal is broken, the software cannot be returned for credit. There is some debate about the legality of such contracts, but the store can refuse simply because it’s their policy.
You do own the physical media though, and you’re not bound by a license until you’ve accepted it. This can sometimes be by breaking a seal, or by clicking “I AGREE” during installation – depends on the shadiness of the company that provides the software.
There’s nothing in the license that can say no money back – you’re not bound by the license until you accept it. The problem though, is that there’s often no place to get your money back when you don’t agree to a license. The software maker will say to return it to the place of purchase, where presumably you’ve read their gaudy return policy posted on the wall while standing in the God damn line for twenty minutes (oh, yeah, I don’t much like Best Buy for having to stand in the God damn line for twenty minutes every, single time I’ve ever gone there).
I believe your friend is mistaken. One could make the same argument about books and magazines. Federal copyright law says nothing about return policies.
As far as “store policies” and software licenses are concerned, things aren’t as clear and obvious as some people would like you to believe. According to the Uniform Commercial Code, there are express warranties, and implied warranties of merchantability and fitness for a specific purpose. Disclaimers of these warranties may not be valid. The terms of a software license may not stand up in court for any number of reasons.
That may be the case but to my knowledge has not been tested in the courts. There is a potentially valid legal argument that buying a box of software in a store is not the contractual agreement that some software makers would like it to be, but is in fact a sale, because it is like any other exchange of money for goods. If they pulled out the EULA and had you sign it when you handed over your money, that would be another thing. But they didn’t. Essentially, it’s a sale because it seems like a sale. As it stands, the EULA may not be valid because once you get to even see it (as you’re installing the software), it’s too late. You’ve already bought the software and are no longer required to agree to anything the previous owner didn’t spell out when the purchase was made.
The store, of course, can still refuse to take returns on opened items. The above legal argument would probably be used against a software company that tried to enforce their EULA.
Thank you all very much for your explainations; I think I’m starting to get it. To summarize (to check this newfound understanding): the store can set whatever policies it feels like, subject to the consumer protection laws of the locality. The whole deal with bringing copyright law into this was just a smokescreen on that front. As far as what an individual software license might say about return for credit, that varies and is of uncertain legal standing regardless. Is that about right?
Thanks, in particular, to mks57 for giving me another line of reasoning to discuss with my friend.
This seems to be a much larger can of worms than I had thought I was opening; although on further consideration, I should have known that nothing involving computers and intellectual property is simple anymore. I am surprised that no one has tested an EULA in court yet, though. The last EULA I remember reading was for a Borland C++ compiler, and I seem to recall that it implied giving Borland the right to enter your home or place of business at any time to search for illicit copies of their software. Sounds like the kind of thing that the ACLU would want to raise a stink over. Then again, if the software companies don’t enforce (or no longer include) such passages, it’s probably not worth anyone’s time to fight it over the principle of the thing.
I don’t think that copyright is just brought up as a smokescreen; I think that retail stores stand to lose quite a bit from such petty violations if they accepted returns of opened media. How many people would use Best Buy as a free video rental store by returning movies they’ve already watched or copied? A lot, I bet.
As far as no one challenging the EULAs… my theory is that nobody really wants that to happen on either side. As it is, the threatening language is enough to convince enough people to go along with it and keep big businesses like eBay from listing opened software because of the possible danger of litigation. But if either side presses it, then bad things could happen. If EULAs stand up in court, then that gives software companies license to do all kinds of things that various groups would rather not have happen. If they don’t, then companies probably can’t get the intimidation factor from printing them anymore. So they are generally careful not to try to enforce outrageous demands, and to settle any serious disputes before they are in danger of setting precedent.
They’re not liable, at all. They haven’t made copies, or condoned copy-making. All they’re doing is trying to prevent lost sales through people copying the software and then returning it.
I bought a copy of Windows XP with a hard drive at Fry’s electronics. I changed my mind only to discover that their policy said it could not be returned at all even if it wasn’t opened. The OEM version I purchased had the license key visible on the outide. They begrudingly took the return but informed me they’d have to send the copy back to Microsoft to be destroyed.
That’s what I meant to say. I guess I didn’t clearly state that they stood to lose sales as opposed to losing money in legal battles over copyright issues. Thanks for clearing it up.
This sounds like another smokescreen to guilt you into not trying to return. If your goal was to copy a plainly visible license key, why not do that in the store without bothering to buy the product? Was the key somehow concealed by a label or packaging until you unwrapped it?
One thing to note, an OEM license key will not work on a retail copy of microsoft software.
Microsoft produces three distinct key types which are tied to the bits on the disc:
OEM
Retail
Volume License
The use of a key on any software type on any other type of disc will not be allowed. The installation wizard will tell you you have an invalid key.
On a side note, Microsoft also has a 30 day money back policy on it’s software. So if you have an MS retail product (the retail part is important here) you can return it to MS for a refund based on the satisfaction policy.
Now with OEM software, Microsoft has sold this to another party. That party in turn sells it again. In this case MS will not provide you money back, that’s between you and the person who sold it to you. Think of this as say, buying a can of Coke. If you for some reason wanted to return it, you’d go to the store, not to the Coca Cola company for a refund.
The whole “won’t accept returns once opened” policy is a pain in the ass I agree. However it does have a function. Back when Software Etc had a “return anything within 14 days” policy, everyone I knew would buy a game, copy it, return it for a new game, etc etc etc.
Thus illustrating exactly iamthewalrus(:3= 's point. It also proves that I was overly hasty in saying that the copyright law issue was purely a smokescreen. Perhaps a better way to phrase that would be as a more palatable answer to people complaining about not being able to return open software.
I didn’t realize that Microsoft had a 30 day refund policy. A good thing to know, I think. That’ll teach me to not read my EULAs well enough, I guess.
