February 10, 2003 9:23 AM PST

Lawsuit challenges software licensing

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A California woman is suing Microsoft, Symantec and some software retailers, claiming the companies "concocted a scheme" to mislead consumers by requiring them to consent to software licensing agreements they haven't read.

The suit, filed Friday in Marin County Superior Court in San Rafael, Calif., seeks class-action status on behalf of all Californians who've bought software including Norton Antivirus 2002, Norton Systemworks and Windows XP Upgrade.

Specifically, the suit, which was brought by Cathy Baker, claims that Microsoft, Symantec, CompUSA, Best Buy and other unnamed retailers don't allow people to read "shrink wrap" licenses--agreements printed inside the box or incorporated into the software itself--before they buy a product.

"Defendants acted in concert and have concocted a scheme to sell consumers in the state of California software licenses in retail stores without allowing them to review the terms and conditions of such software licenses prior to sale," Ira Rothken, Baker's lawyer, wrote in the complaint.

Further, the suit claims that people who don't accept the terms of the agreement cannot return software to the stores. According to the suit, Baker tried to return the Microsoft and Symantec software to CompUSA after refusing to consent to the licensing terms. However, CompUSA refused to take the software back, saying the packages had been opened, according to the suit.

End-user license agreements have become a hot-button issue in the tech industry as more and more companies try to forge increasingly restrictive contracts. Some companies have tried to ban class-action lawsuits, damages or reverse engineering of their products.

In one of the few cases so far to test the limits of such agreements, a judge in New York ruled last month that Network Associates could not enforce wording that prohibited reviews of its product without prior consent.

Representatives from Symantec, Microsoft and Best Buy did not immediately respond to requests for comment. CompUSA executives could not be reached for comment.


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