My experience (IANAL and I don't know the specific laws here): you can return the product if you don't agree to the bundled licensing terms, generally even if you've opened it and encountered the licensing terms after the fact (though not every retailer may appreciate this one).
I've gotten a few "non-refundable" refunds after being given legal terms post-purchase that I didn't agree to. Most recently a talent release for an event. But in every case, I had to prove that the agreements weren't available pre-purchase.
If you want to use the product, shrug. But if you suddenly don't, then hey, there's a potential exit.
I get the feeling that you want more than that (like a custom license agreement, or some punishment for the sales person for not mentioning the EULA), and I don't think you're going to get that. Return it for a refund, RED has to sell it as an "open box", and the EULA costs them a few hundred bucks this time. Or make a fabulous video and forget all about their updates that move things around in the UI, and just live with it because the video quality is so good. Those are the best possible outcomes here.
> I get the feeling that you want more than that (like a custom license agreement, or some punishment for the sales person for not mentioning the EULA), and I don't think you're going to get that.
I do want more. I want to have peace of mind that it's safe to use my camera. I don't think that's an unreasonable request. Especially considering the price tag.
I definitely don't want the sales people to be punished. It's not their fault. It's possible that they've never even seen this since you'd only have seen it if you set one up straight out of the box.
One could argue that, unless there is a mechanism by which OP can make use the camera without agreeing to the unexpected contract, OP has been a victim of false advertising.
That seems unlikely. My layman's understanding is that you have to purchase the hardware and license the software, and the two are considered distinct items. The hardware is entirely capable of what was promised, but OP will either have to agree to the terms of the software or create their own.
That exists in a lot of markets. Phones are advertised running OS' that require EULA's, computers are marketed running OS' and apps that require other EULA's, etc. I think my car even has an EULA on it.
It feels bad when there realistically isn't an alternative like there are with phone or computer OS', but I don't think there's anything legally different.
You also need:
- an offer
- acceptance of that offer
- some sort of consideration, i.e. some exchange of value
- capacity (i.e. you can't contract with someone who is incapable of consenting)
- legality ("lets steal a car" is not a valid contract)
> Consideration in contracts refers to the benefit each party receives in exchange for what it gives up in the contract. It is a vital element that must be present in a contract in order to make it legally binding on the parties.
(though ofc., Google is also not a lawyer.)
There is no consideration here. (The purchase of the product is separate, or at least, ought to be, if these terms weren't considered by the buyer then. Otherwise, it's just bait & switch.)
You are typically not entitled to a refund in this situation. Many companies will allow it under a goodwill return policy, but they are not legally obligated in most situations.
Your average store clerk will roll their eyes if you discuss this with them - you’d have to sue. For $30k it might be worth it, but most purchases it is not.
In fact, I don't know of even one camera that's as high quality without also being almost double the price. RED has a lot of leverage here.
I think you could spend 50% of the price on a c500ii or a FX9 and get 90% of quality. That leaves a lot of money on the table for a decent set of cinema glass.
Or you can get a used Alexa Mini for the same price as a Raptor.
If you find your work on their site or in their promos, they are in violation of copyright laws and are liable. No judge would stand behind such weak boilerplate to allow RED to steal artist's work with impunity.
I hate to say it, but you're far too worried about this. I understand the misgivings but the reality of the situation doesn't match your concern over the matter, or to put it another way, you're making mountains out of molehills.
But ultimately this is an abstract debate, because the main point of EULAs is to disclaim legal liability for the company, as contrasted with creating it for the user. Even if you do manage to avoid entering into their bullshit contract, the company will do whatever it wants with your data, and it will be up to you to sue them. Part of that uphill battle will be proving you didn't assent to their bullshit.
So really, like always, an end user's protection is ultimately of a technical nature. If the camera (or accompanying desktop software) does not have Internet access, then there is no way for RED to backhaul your footage and there is no issue to be worried about. If the camera does have Internet access, then your data will easily leave your control, and that's the real flaw with the product to focus on!
Good luck getting a full refund without some restocking fee subtracted. Something like 15% of $30,000 is... reaching outside of small claims court
By law?
Like the GDPR? I'm not an expert on it, but I think it does forbid a few of the liberties RED has taken with this EULA.
This is true of any and all "license agreements" that are presented to the user after money has changed hands. You can safely click agree on any such things without actually agreeing to anything.
I don't actually know, but I believe that in the US things are more complex.
It sounds reasonable to me personally, but not convincing in reality. There are 27 legislations in the EU.
Edit: Based on a quick web search it seems correct for Germany and Austria.
However, in this price class I could have my doubts whether consumer laws are applicable. Businesses are less protected, they are supposed to know what they do.
The question was about European laws. There mostly is no such thing (very few exceptions exist, like e.g. GDPR). Laws are national, so you have 30 of them. EU directives set some borderlines for those who are members or associated. But they are not always implemented in a timely manner, and even if they are the details are up to national legislation by design.
Actually afaik in most jurisdictions the sale of goods carries an implicit warranty from the merchant that the goods are "fit for purpose" - essentially that it "will work like you expect it to", or at least in the way that most people would expect a hammer to work - as well as that it is of an even kind and quality for the good. So like, if they sell you a hammer and it's actually made of glass, or the head falls off after the first hit - both of those would carry an implied warranty from the merchant and you would get your money back (in small-claims court, if necessary).
The US is one such jurisdiction.
https://www.law.cornell.edu/wex/implied_warranty_of_merchant...
IANAL, but the plain text is pretty obvious. Are you a lawyer, or can you explain how merchantability wouldn't apply?
These two aren't the same thing. That the hammer works as most expect a hammer to work isn't the same as that the hammer works as I expect it to work. If I try to take my hammer back because I thought hammers also worked on screws, I'm pretty sure they aren't obligated to take it back. It would be very hard to argue that your new RED camera isn't "fit for purpose" due to its onerous EULA, because plenty of people successfully make films with RED cameras.
If you buy a hammer and get mad that it doesn't make pizzas, the merchant isn't going to accept that, nor is a judge in small claims court going to be remotely amused. It's a hammer. Stop wasting my time, plaintiff pays all court fees and time for the defendant. They deal with bullshitters all day and they generally tend to be completely unamused by it.
If you ask the merchant nicely they will probably take it back, most retailers have return policies and most of them will stretch them even further to keep the business of a repeat customer. But merchantability is a thing, and they can't sell you a thing labeled as a hammer that doesn't work in the way an ordinary reasonable person would expect a hammer to work. One person being an unreasonable person doesn't really change that.
If you try and abuse it then the judge is gonna slap you down, but if they try and fuck you around about how a toaster is kind of a hammer in some ways then the judge is gonna slap them down.
OP said "you're not entitled by law to take a hammer back if it doesn't work as you expect it to" and that's false, if it's sold as a hammer it needs to serve the ordinary purpose of a hammer, and that is covered by law in most jurisdictions (US/EU at the minimum).
Whether you could argue that a post-sale EULA (or EULA change) that renders the device inoperable for its ordinary purpose invokes merchantability is an interesting argument though, and that really gets back to "how much money do you have for lawyers", "how much are they willing to try and test their EULA's validity", etc. Tractors are probably an interesting example there (don't remember if it's been brought up here or not).
I think the big problem there is that merchantability is a claim against the merchant, and while you'd probably get your money back if you disagreed with the EULA a week after the sale, what happens if John Deere pushes an update a year after you buy the tractor and it's de-facto bricked at that point if you don't agree? The situation with software makes the whole thing so much more complicated, and the law is different there around ownership in general (you don't own the software, you have a license to use the software, but the tractor doesn't work without the software either).
It's shitty and the "ownership" situation with software really needs significant reform (that will never happen in the US). Ownership of a software license needs to be brought closer to ownership of a physical good, but that will break the business models of a lot of companies who will lobby to make sure that never happens.
He can return it, or he can consent
Nothing here is illegal. This structure is common, even though you guys are saying "that's absurd"
Your indignation and lack of familiarity does not change that this is well accepted in international law
> Your indignation and lack of familiarity does not change that this is well accepted in international law
There is absolutely nothing whatsoever in international law that is even remotely related to these issues. Consumer rights and sales contracts are national (and in many countries even sub-national, e.g. state) issues.
If you're going to make strong assertions and tell people they're "missing the point" it might be a good idea to a) properly read & comprehend the comments you're replying to, and b) actually know what you are talking about.
You cannot.
Good day
.
> it might be a good idea to a) properly read
I'd say the same to you, frankly.
Yes you are. If it’s not fit for the purpose you’re entitled to return it.
(Though in this case I think it's perfectly reasonable to claim that the camera is not fit for purpose if the EULA terms were not clearly disclosed before the purchase was made.)
For the purposes of that comment, I meant them to be equivalent ...under the presumption that a typical person knows what a hammer does. (I was avoiding the legalese)
For example, you are not legally entitled to return a camera because you thought it could shoot in 3D and it couldn't, unless the advertising falsely claimed that. The seller might accept a return, but they're not obliged to.
The EULA thing is sort of on the edge of that. Many (most?) devices come with EULAs these days. So you could make an argument that the buyer can't reasonably expect there to not be additional terms that they must accept before using it. I don't really find that argument very compelling, though, if the terms are not available to the buyer at the point of sale.
If a camera refuses to take pictures, why would you not be entitled to a refund?
The "smart hammers" are coming. And how about Peloton style group hammering.
Paging @internetofshit ...
Maybe a bit naive but definitely practical advice. I hear you.
That's what this is. This is a step in that process. This post on this forum, with both of us replying to it. You think what? There's a "scandal" and an "outrage" and then...what do you expect? The entire PR industry--a few others as well--is built to undermine scandals and outrage. Oh there's stuff on TV that sounds scandalous sure--every two months or so, in a merry-go-round set of industries...I only watch when there is nowhere in a restaurant I can avoid looking at it, but what are the scandals, steroids in baseball? A corporation that did something disgusting but isn't getting punished at all (as opposed to the many corporations that do get punished for real, TV hates showing those because then people learn what justice actually looks like). Or...some celebrity...some celebrity getting lynched. Or a rogue employee like on a crusade...or a lawsuit that the news wished had lost so they lie about it as much as possible to make the plaintiff look greedy (real easy if you just multiply the settlement by a lot, or report the claim instead of the awards, or lie about the award being reduced to what the plaintiff was asking for, or fucking insult the jury too while you're at it, even insult the judge, it's disgusting, they think they're strictly better than everybody).
They wouldn't go out of business if they did that. They just have to do it in lockstep with the rest of their industry, then they'll be fine.
> if you want to make video, make video.
Now I very much don't want to make video, and frankly lost a lot of respect for digital video in general. And for contracts. And every time I hear the word "consent" I go on full alert, as I said in a previous comment, https://news.ycombinator.com/item?id=31104705 "...no rapey cookie "consent" contract, like those are just disgusting I hate getting asked for consent it means I'm about to get fucked. Every single time you get asked for consent it's because you're about to get fucked."
You know why that is? Because in order to defend the act of fucking you, they have to say you consented. Or they get fucked just as hard as they fucked you. And they live in fear of that, fear of retribution, they know how harmful they are, this is like--justice is often eye for an eye[1], despite striking others blind (or in this case peeking through their eyes), I never want that to happen to me, so I need magic spells because otherwise I would feel the harm I do to others. So I need to get consent with a long disgusting contract, and further I need to get people to sign things as often as possible, for every little thing so they are desensitized to what it means to consent to being struck blind, and they give up on reading contracts.[2]
[1] So justice basically is eye for an eye, historically, normally. These days it is both more and less. So you have on the one hand the Sacklers paying 10 billion instead of 3.4 trillion, that's less than an eye for an eye. The Sacklers are paying with the eyes they stole, and have plenty left. Plenty of eyes to go around! Then in the halfway point you have murderers getting the death penalty for one murder, exactly an eye for an eye. Then, the multiple-eyes-for-an-eye, a convicted rapist will spend...it really depends, but like 10 years is a common one. And due to that conviction, will be targeted by the other inmates, with the guard's approval, to rape that convict as much as they please basically. In movies it's just one rape, one time, in real prisons it's continual. So what you get, is virgins who ipso facto didn't rape anybody getting raped about 3 times a day, for 10 years, so about 10000 times, on the basis they were accused of one rape. So to translate 10000 eyes for an eye, but not even a real eye, like a glass eye.
Oh you didn't like talking about that? Too gross? But it's germane to the subject, we had been talking about consent this whole time!
[2] There's a synergy between abusing people's eyes and getting them to sign contracts, now that I think about it. Blind people can't read contracts, like everybody screams from the pain in their ass when a blind man asks for a contract in braille, like the discrimination is very real. And they lie to them when reading out loud. So in this slightly different case, you could be filming your screen with a RED camera to identify manipulation in a contract--like shitty javascript moving items when you click--with a RED camera, but then RED looks at what you filmed, oh he's filming the signature of a contract, we don't want that, he's using this camera as an eye to READ a CONTRACT, let's add in our update the terms that we get to edit what he recorded so we delete the evidence. Oh wait, that's even more literal! Literal striking an eye blind just when you needed it to preserve evidence! Good synergy.