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F & F


Software Returns Illegal Under the DMCA?
posted by scubacuda on Thursday October 30, @09:27AM
from the I'm-sorry,-Sir,-I-can't-do-that dept.
Copyright One GrepLaw reader describes how a Best Buy return manager said that returning opened software was "illegal" under the DMCA. (click through for his story)

Greg Thacker writes "Hi, folks.

Iíve been trying to research the finer points of the Digital Millennium Copyright Act as itís related to my specific situation and Iíve been unsuccessful as of yet. I found your website and felt you might be a good position to answer my (hopefully) simple question.

I attempted to return a defective PC software title to my local Best Buy. The title indicated it was indeed compatible with Windows XP but, in fact, was not. According to the tech support help online, the only way to get this title to work properly is to remove some of the more recent Microsoft Service Packs from my machine. Not an idea for which I care too much. The store manager indicated that, since this copy was opened, he could only exchange it for the exact same title. It then turned out that this is an older title (from 2000, I believe) and is no longer in stock at any other Best Buy store or their warehouses. Because of this fact, the manager told me I could not return this title, even for a store credit, because it was ďillegalĒ to do so; he indicated that Best Buy would be violating the terms of the DMCA if they accepted a return for an opened software product (although an exchange would be permissible).

This struck me as very odd. He indicated that, hypothetically speaking, I could have made a copy of this software title and simply been trying to return this software. This was the crux of his argument for stating that a return (even for store credit) would be in violation of the DMCA.

I really donít care about the cost of the software title involved (it was only right around $20), but I am highly suspicious of this Best Buy store managerís insistence that such an action (returning open software) could land his company in legal hot water. Since Iím by no means an expert on the subject of the DMCA, Iím hoping you might be able to provide a clearer answer to this question.

I was honestly so disgusted with this fellowís attitude (he was quite cranky) that I asked him to throw that defective software title in the garbage (which he did), so Iím now unable to even make a return if I were to prove this managerís statements false (thatís what I get for being so stubborn myself, I guess). But since itís the principle of the matter that really has me bothered, Iím hoping you might be able to shed some light on this particular matter for me.

I'd appreciate any feedback or other info you could provide.

Thank you!

~ Greg ~"

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    Software Returns Illegal Under the DMCA? | Login/Create an Account | Top | 9 comments | Search Discussion
    The Fine Print: The following comments are owned by whoever posted them. We are not responsible for them in any way.
    Section 109(b) (Score:1, Interesting)
    by Anonymous Coward on Thursday October 30, @09:52AM (#1347)
    I'd venture that your manager is 1) not up on the finer distinctions in copyright law; and 2) therefore equates the DMCA with the whole of copyright law. There is nothing in the DMCA that compels the described above -- there is no indication of a technical measure preventing access to a work, and no ISP is involved. The only provision copyright that might be used to argue the manager's point is 17 U.S.C. 109(b) (2003) [cornell.edu], which limits the first sale right. It reads:
    "unless authorized by ... the owner of copyright in a computer program (including any tape, disk, or other medium embodying such program), ... [no] person in possession of a particular copy of a computer program (including any tape, disk, or other medium embodying such program), may, for the purposes of direct or indirect commercial advantage, dispose of, or authorize the disposal of, the possession of that phonorecord or computer program (including any tape, disk, or other medium embodying such program) by rental, lease, or lending, or by any other act or practice in the nature of rental, lease, or lending."
    Presumably, Best Buy could get in trouble for accepting opening software, if it was in the nature of renting or lending. Certainly, the manager's concerns motivate this provision: surreptitious copying of software that is provided to consumers on a temporary basis.
    Re:Section 109(b) (Score:0)
    by Anonymous Coward on Thursday October 30, @05:46PM (#1348)
    I went through this once. Bought some software at a Best Buy (in Minnetonka, MN IIRC); software was mislabeled and what I got was not useful to me (wrong OS). After they refused to refund my money after selling me a defective product, I was pretty unimpressed. I didn't get the DMCA speech though.

    Ultimately they did give me store credit, which I guess is better than nothing at all. If they hadn't done that I would have contested the purchase via my credit card (my telling them that might have had some effect). Kind of severe for $29.95, but I don't take kindly to being cheated.

    I don't buy software at Best Buy any more. Come to think of it, I don't buy software *period* anymore. :-)

    Re:Section 109(b) (Score:2, Interesting)
    by david on Friday October 31, @03:11AM (#1352)
    User #611 Info
    If they hadn't done that I would have contested the purchase via my credit card (my telling them that might have had some effect). Kind of severe for $29.95, but I don't take kindly to being cheated.
    Not a bad route to go actually. I believe that chargebacks end up costing the merchant a bit, and you can always argue that you disagreed with the EULA presented to you during installation.
    Re:Section 109(b) (Score:0)
    by Anonymous Coward on Friday October 31, @01:54AM (#1350)
    Intereesting viewpoint from "drudgereport.com"
    Re:Section 109(b) (Score:0)
    by Anonymous Coward on Friday October 31, @01:57AM (#1351)
    interesting from http://www.drudgereport.com yes?
    Ah-ha! (Score:1)
    by ptrthgr8 on Thursday October 30, @09:24PM (#1349)
    User #910 Info | http://grep.law.harvard.edu/
    I knew this fellow was full of it... if nothing else I figured he was dropping the DMCA bomb in order to (hopefully) convince me to shut up and go away. If he would simply have said "It's our policy and we're sticking to it" I would have been far less offended and irritated. I'm going to write to their corporate offices (just a few short hours from where I live) and will let them know I don't appreciate a store manager lying to a paying customer. My wife and I spent right around $5000 with these people in the last year... and this guy wants to risk alienating us for a $20 software title? The funny part, too, is that the Best Buy tech guys loaded the game on two of their PCs. It worked fine on one, but crashed the other one every time they tried to run it. They agreed the disk was defective (I'd argue that, though, since I really think it was more of a compatibility issue), yet wouldn't refund me since I could have made a copy or something. Of a disk they agreed was defective. Hmm... yeah, they'll be getting no Rocket Scientist awards this year. Thanks for the feedback, folks. I seriously appreciate the insight. Cheers, ~ Greg ~
    Here's what you're legally entitled to: (Score:2, Informative)
    by mcherm (mcherm@mcherm.com) on Friday October 31, @09:36AM (#1354)
    User #468 Info | http://grep.law.harvard.edu/
    An excellent reference is this url:

    A short summary of the salient points: The UCC (which is law in 49 US states) gives you (the purchaser) numerous rights. Those include the right to inspect merchandise and refuse to accept it (thus being refunded your purchase price) if it is defective. Stores making up stories about laws like the DMCA which simply don't apply is irrelevent. However, the UCC *does* apply, and if this ever happens again, you'd be wise to point that out.
    Best Buy Boycott (Score:1)
    by dcm on Friday October 31, @11:18PM (#1355)
    User #418 Info | http://www.stoned-out-loud.com/
    Based on Best Buy's spurious refusal to refund/return defective software media citing the DMCA; and their exclusive deal with the Rolling Stones to distribute their new box set, I hereby declare that I will henceforth BOYCOTT BEST BUY. Period.
    Best Buy - Best Practices? (Score:1)
    by tennwebfoot on Wednesday November 12, @11:54AM (#1361)
    User #918 Info
    Something to remember about Best Buy, when a customer uses a credit/debit card at one of their stores, the receipt prints everything, name, number, exp date - the whole nine yards. I've had a couple of consumers whose accounts were wiped out within a couple of days of a purchase from Best Buy.

    Humanity has the stars in its future, and that future is too important to be lost under the burden of juvenile folly and ignorant superstition. - Isaac Asimov

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