Is This Fair?

[Astrobserver99]

I purchased "The Handbook of Astronomical Image Processing " from Willmann Bell in the USA. After purchasing, I became aware from other users that the software would be unsuitable. So I requested a refund from Willmann Bell. They said the package had already been shipped but I could return it for a refund. After receiving the book and software, I thought I would install the software on my PC to see if it would be OK. I found the software unsuitable for a number of reasons. I then returned the software the following day. Later, I received an insulting email from the president of Willmann Bell accusing me of fraud and refusing to give a refund because I opened the package and installed the software. He also sent a cc of his email to the authors of the book and software:mad2:. In hindsight, I should not have opened the package:(.

I am astounded he thought the incident so important that he wanted to hurt me professionally and personally!

[CoombellKid]

Yup! IMO you should of just shipped it back unopened. Otherwise mate...
well ummm errr... it does look pretty dodgy. Especially as you requested
a refund as it was being shipped or in the process of being shipped.

What would you think the reply would be????:shrug: sorry if that sounds tough!

Cheers,CS

[Baddad]

Hi All, :)

I have very strong thoughts of this kind of purchases.

The product does not perform as advertised. If proof can be shown that the software is deleted from the computer, the customer has a right to a full refund.

Open to argument.

Cheers Marty.

[leon]

Well Rob I have to say I do agree with Rob C on this one, I also have a copy of this book and to found it quite useless.

Leon

[sjastro]

Are you referring to the AIP4WIN software?

Steven

[[1ponders]]

Aip4win? Works a treat for me in the areas I bought it for. I have also found the book invaluable. Particularly the first half.

[dpastern]

Well, my well understood views on the legal side of this (IANAL) is that you have every right to install the software. And if it isn't to your liking, then you have every legal right to uninstall it and ask for a refund.

The software industry is a joke - software manufacturers can do whatever they want, and presume no responsibility for their often poorly written products. Imagine if cars were sold "as is" with no enforced safety standards, or minimum standards of operation. Governments need to tighten up on software manufacturers and make EULAs illegal imho.

Rob (OP) - you are quite entitled to a refund, although as they are in the US, and you're in Australia, they can give you the finger cos they know it's not financially worth it for you to initiate legal action against them.

Now - onto the real beef. Firstly, the president of Willmann Bell has undoubtedly broken privacy laws for starters (by releasing your name to the authors of the software without your consent). Secondly, I believe that you have a reasonable case for defamation of character. If it was me, I know how I'd be drafting my reply.

Dave

[PCH]

Microsoft products used to say in the micro-print on the back of the box, that if you weren't happy with the way the software performed - clearly after you'd installed and tried it - you were welcome to remove it from your pc and take it back to the supplier for a full refund.

Whether this would have actually worked I can't say, as I never did it. But on the strength of the wording on the box I would have been happy to go back and argue as loudly as necessary to secure a refund.

Of course it becomes a whole level harder when you've purchased from across the pond. Basically they can just tell you to bu--er off. And, let's face it, who would bother taking it to the next (expensive) step :shrug:

But with regard to this OP's issue, I would have thought it more prudent to NOT install it before returning it. The more so since he realised it's probable unsuitability before it even arrived. If I'd wanted to check out the s/w, I would have sent an email to check if I could return it, after opening it, if it didn't work to my satisfaction, prior to doing it.

Cheers :)

[marki]

When I bought my copy (new) and installed and registered the program I also got a very nasty email from the said gent (he accused me of being a thief :mad2:). In my reply I did suggest he go forth and multiply several times as well as seek help for chronic masturbation :P. The second email I received from him was a little more civil and I was only too happy to answer his questions. Turned out someone from the shop I bought it from had not only loaded the software on their computer but also registered it. The brand new book was then sold on to me :eyepop:. I ended up getting a new serial number but am not sure what action they took against the shop. I did end up with an apology and gave one in return. They really should find out what has happened before going for the throat.

Mark

[dpastern]

Well, from a legal perspective, the OP has every legal right to install the software - otherwise, how is he really able to determine if it's suitable or not?

Imagine buying a car without being allowed to test drive it. Imagine where you can't test drive a car, but must buy it, as is, without testing it. And then, post sale, if it's not to your liking, you can't return it. Software is absolutely no different in principle.

The OPs story, and Mark's story have completely turned me off ever buying this book (I was considering it down the track).

Dave

[barx1963]

Just out of curiosity, as I have considered buying this product, in what way was it unsuitable?

[marki]

:shrug:. Works well enough for me.

Mark

[Peter Ward]

This is only true if you don't get out of Kindergarten Oz very often.

Australian consumer laws are very stongly biased toward the consumer.

This is not the case in most other countries, eg the USA.

Breaking a software seal there is a big no-no. You break it, you bought it.

Sure you can save a buck by using the net...but don't expect any ACCC sympathy when things don't work as expected.

[dpastern]

Yes, but Peter, the product was purchased in Australia. The computer used to purchase the item was in Australia, as was the person. Therefore, the seller has the rights of an Australian consumer. Many software items are not available in Australia, and are only available off the Internet - consumers usually have no other choice in the matter.

I don't believe that Australia's consumer laws are biased towards the consumer. I believe the consumer laws in the US and other countries are very weak, far weaker than they should be.

And for that matter, what I've seen of the US legal system, it's a complete farce (SCO vs IBM, SCO vs Redhat, SCO vs Novell as an example). This is very typical of the US legal system from everything that I've seen. Whilst the Australian judicial system isn't great, it's a whole site better than that in the US imho.

Dave

edit: there are 2 sides to this coin - if the seller of the product isn't prepared to honour the consumer laws for the country of the person purchasing said item, then maybe they shouldn't sell to that person? Of course, companies like to make a profit, but hate to actually provide any service to their customer in many instances (not always, I realise).

[marki]

Peter, I bought my copy from an oz telescope shop.

Mark

[Dennis]

Sorry to hear of your bad experience, it must have come as quite a shock when you received the e-mail from the supplier. I recall that on most boxed software that I purchase from bricks and mortar shops in Australia, there is usually a disclaimer sticker on the sealed cellophane wrapper that reads something like:

“If this product is unsuitable, you can return it for a full refund but if the seal has been broken, no refund is possible”

However, the response from the supplier seems quite uncalled for and very, very unprofessional indeed. On a personal note, I have enjoyed reading the book and find some of the functionality of the software very useful.

Cheers

Dennis

[Terry B]

This is not very satisfactory.
I use AIP4WIN extensively and find it very useful for what I need.
I think that if you had decided that the book and software were going to be unsuitable before you even received it then it was not very fair to go and open the packaging and install it.
It will be difficult to resell the package since you have opened it. Do you expect the vendor to take loss because you changed your mind?
There is no suggestion that the book and software was not what it was advertised as. It is a book about image processing and the software is an image software processing ap with a very good photometry module. If it was faulty then that is a different problem. The software does as it is described
This is no different to me buying a shirt, wearing it once and deciding that it doesn't suit me and returning it. It's slightly soiled but thats not my problem. Don't worry about the next person that will wear the shirt.

Just my view.

[dpastern]

And that is actually illegal under the Trade Practices Act 1974. What they say, and what is legal, are quite often 2 different things. Very different things. Retailers that try this route should be extremely heavily fined to stop them from doing so.

Dave

[dpastern]

Terry - I respectfully disagree. The purchaser has the right to open and try the software and if it does not suit their needs, then return it. With software, it is impossible to tell if it's useful to an end user unless you install it.

Again, we come back to my initial conclusion - software companies are a law unto themselves. The sooner the noose is tightened around their necks, the better I'll sleep.

Dave

[Terry B]

Is the key word "unsuitable" rather than non functional or defective etc?
Just because you find after buying something that it isn't quite what you want why does the seller have to accept it back and in what time frame?
I buy a car, take it home and find it doesn't fit in my garage should the seller be obliged to take it back and give me a full refund?
It isn't brand new now and can't be resold as brand new?

[dpastern]

Terry - your analogy is flawed. One can measure a car in the car yard etc. One cannot size up software without installing it. 2 very different scenarios. And that said, even if we took what you've said at face value, the retailer must either offer an equivalent product that works to the customers satisfaction, or they must provide a credit to the same value.

Dave

[multiweb]

Astounded? :lol: You use it you pay for it. Plain and simple.

[KenGee]

I'll try ths next time I finish reading a book I didn't like much, I'll take it back to the bookstore and tell them to give me my money back the plot wasn't what i was expecting.
BTW I'll a software developer for a large Multinational.

[dpastern]

Ken - with all respect - of course you want the customer to buy the software (even if it doesn't suit their needs) - it keeps you in business.

Please, if my thinking is so flawed, why do most software vendors allow trial versions of their software? They do so for exactly the reasons that I've outlined in my previous posts. Tell me, can you get a demo of the software attached to the book in question?

I can go into a music store and pre listen to CDs before I buy. Do I have to pay copyright/licence fees to the artists/label just for that priviledge? I walk into JB hi fi and play with the MacBook that I'm interested in - it doesn't force me to commit to buy it, and nor do I have to pay for that priviledge.

As I've said several times in this thread (I'm a FSF guy, so you're never going to convince me otherwise I might add), software developers get away with Blue murder these days imho. They continuously remove user rights, and charge vastly over priced amounts for what is, in most instances, poorly written bloatware with bugs that do not get fixed. I know I'm generalising here, but it's pretty damn true from my eyes.

Dave

PS - the interesting thing is that several reports have clearly shown that Open Source developed software has less bugs per 1000 lines of code than proprietary software, and by a considerable margin I might add.

[CoombellKid]

Your right that analogy is flawed!!! wish I could of burnt a copy of that
car. Besides there is generally enough info on software pandied about
the internet to give you a pretty good idea of what it will probably do
for you. But I suppose it would be impossible to prove to any software
company that you uninstalled the software after you test installed it, I
would like to see how this is done??? especially when the package has
been opened.

Cheers,CS

[TrevorW]

A Notarised Certified statutory declaration clearly showing that your computer, person and all known haunts, place of residence, have been thoroughly searched and all known associates interrogated to ensure that the so mentioned software does not exist on any device fixed or move able or otherwise belonging to or used by the so signed declarer or any of his or her known associates, friends, family or otherwise,

[CoombellKid]

LOL gotta love the o'l Stat Dec!

Cheers,CS

[Peter Ward]

Ok, it wasn't clear from your post this was the case. If the product has been mis-represented....ie specs/salesman says it does something it doesn't, then you have rights to a full refund. No "ifs"or "buts".

If you simply don't like how well it does something...humm...things are less clear.

As for expecting Oz consumer rights when purchasing off shore....

...... I recall a scene in "Spies like us" Chevy Chase proclaims to a Bedouin group "We're Americans!!" Cut to next scene: him gagged, bound and dangling upside down.

[dpastern]

From a legal point of view, this is quite satisfactory.

In reality, most retailers are quite flexible (at least in Australia). Let's use one more example - say, my mum goes out and buys me some new shoes. She gets a size 8 (which I am) and brings it home. Now, as we all know, clothing and shoe sizes are not static - they vary from country to country, manufacturer to manufacturer, and there's no laws making it compulsary for them to standardise. She brings said shoes home, I try them out, they're a bit too tight and pinch my toes etc.

Now - in my example above, several things have happened:

1) item was purchased (in good faith)

2) item was tried out

3) item was found to be unsatisfactory

I guarantee you that if you have a receipt, and you're within a reasonable period (by law, 7 days), a decent retailer will refund/swap without any question. A more disresputible retailer will try and wriggle out of it, and if you take them to fair trading, you'll win hands down, every time. Most of the larger retailers are pretty flexible - even if you're out of the initial 7 days since date of purchase time frame, they'll usually swap it over etc.

Now - you could argue that I could have eye balled the shoes and not have put them on and decided they were too small. Or got out a ruler, caliper, etc and measured them, and then my feet, etc. All of that instead of wearing them. Is that *really* reasonable? I do not think so, and I doubt that any fair trading department in Australia would disagree with me (nor would the law to be honest).

Software is a tangible product - it can only be really tested by installing it. Plain and simple. You can look at the specs on a car all you like - mpg, etc etc. It won't tell you what it's like to drive.

I am constantly amazed at how little commonsense some people seem to use when thinking about issues like this.

Dave

[marki]

In my case Peter I did want to use the program and had no intention of sending it back. I got a nasty email from the publisher after I registered the product which came with a brand new copy of the book I bought from an oz scope shop. I was accused of being a thief for buying the book new off the shelf and installing the software (my legal right even by their own EULA). The email was not about finding out why the program had been previously registered but rather straight for the throat threatening all sorts of rubbish. His tone only changes after I told him to get stuffed as I had every right to install and use the program.

Mark

[CoombellKid]

Hell, I'm taking back my copy of Win XP because I didn't like the colour
scheme once it was loaded. :thumbsup:

Cheers,CS

[Kal]

From a legal viewpoint consumers in Australia are protected by the Trade Practices Act. However, the question of wether a software licence (you only ever buy a licence with software) is considered as 'goods' or a 'service' under the Act is still a grey area, and it is an important discernation because different amounts of protection are provided for each.

The arguments about shoe sizes and car colours or reading books that don't satisfy are all useless - the only important aspect is what is claimed will be provided, and wether the product (or is that a service?) delivers on those claims.

[dpastern]

Andrew - of course its goods. Again, law and legislation seem to lack any degree of common sense. But that stems from the fact that politicians lack any real world common sense too.

Dave

[Kal]

The physical media that the software is contained on can be regarde as goods, but the software content itself is only intellectual property. As such you only get a license to use it. An analogy would be if I patent an invention, then license the use of that patent to you. You are not covered by the trade practices act with regards to the purchase of goods, you are covered by the purchase of a service. You can see how this is a grey area with regards to the laws governing it?

[Dennis]

Whilst the use of analogies such as motor vehicles and shoes can be useful in helping illustrate a point of view, their use can be limited and not tell the whole story. In particular, software has a special characteristic that makes it unique – in the real world it can be easily copied, pirated and distributed illegally across multiple systems and users; cars and shoes cannot.

Speaking in general terms, as I’m certain the OP did not intend any mischief, what you describe as common sense may not appear so to the supplier or software author.

From the supplier’s perspective, they are contacted by the purchaser to say they don’t want the book/software yet when the goods arrive, they are opened and installed which is quite contrary to the communication received. Maybe the supplier has a case for being concerned about this change in behaviour or intent?

From the software author’s perspective, it is common sense to protect their intellectual property as it puts food on their table and pays the family bills. If someone says they don’t want the book/software and then subsequently breaks open the package and installs it, what is the software author to conclude?

So in this case, common sense is not common across the supplier, software author and purchaser because each is operating in isolation with quite differing needs and requirements.

Note that the above observations are generalizations of discussion; they are not questioning the integrity of the OP nor do they condone the tone and response of the supplier.

Cheers

Dennis.

[dpastern]

I have a very strong disliking of IP. It's a horrid thing. I personally believe that software patents are blatantly illegal. The whole process is a total joke. The DMCA is a laugh, and corrupts the original US copyright act and removes consumer fair use. Extensions to copyright period are an atrocity, and I believe that the original founding fathers of America would roll over in their graves at what has happened in regards to these areas.

Current patents give manufacturers blatantly more rights than consumers, and I'm dead against this.

Dave

[dpastern]

The response of the supplier is atrocious, and as I said earlier, I suspect that they'd be in serious trouble legally if a libel/slander case was actioned against them.

Dave