Warning: This entry contains an abnormally high level of law geekdom.
The other day I became one of the first consumers in the tragic history of software licensing to use a shrink-wrap user agreement to my advantage. Last week I bought a copy of Microsoft Office, got it home and realized I didn't want / need it. So I brought it back, unopened, whence I bought it. As predicted I was met with a rhetorical, "You are aware of our no returns policy?" And indeed I was.
In response I pointed out that the software was unopened, and told the guy that I didn't accept the end user license agreement. I then pointed to the fine print on the box that said I should go to www.microsoft.com/blahblahblah and read the EULA before opening the package, and if I didn't accept it I was entitled to a refund. The TSW guy read the fine print, frowned, and sought the assistance of someone who brought down a higher hourly wage than he did.
Eventually I got the refund, but while the woman was processing it she asked (our of curiosity) what specifically I objected to in the license agreement since she had never had anyone do this before. Since I hadn't actually read the damn thing I just said, "I'm a law student. What can I say?"
The best part is that the shrink wrap agreement was with Microsoft, not the store, so they could have told me to try and get a refund from Microsoft. But I guess they figured that once people start trying to use the Law against you it's better to buy them off for nuisance value rather than try and push merits or technicalities.
Mm. IIRC the ProCD case (which is fairly lousy, though well-established; Klocek v. Gateway is better IMO) did point out that in order for EULAs to be effective, rejection and return would have to be available. Now, I sincerely doubt that J. Easterbrook ever tried to return software, but at least there's something that even such an ardent supporter of EULAs has provided the other side with in order to oppose them.
I did this at a Sam's Club last year. Bought a copy of a Microsoft DTP/Print Shop Clone 2003, loaded it up, saw that it was a POS and put it back in the box and returned it to the store, which had a no returns policy on OPENED software. They grudgingly took it back, which says something because all the Sam's clubs I've delt with are real hard asses about returns.
And of course, the M$ box said, in fine print, return to the store if you don't agree with the EULA!