B&N shipped me a non-functioning Nook Touch!

My new Nook Touch arrived today, and I was ecstatic. But then I tried to turn it on. As you can see from the picture at left, B&N have buggered up the setup process.

It won't work without agreeing to the contract, so my Nook Touch does not work.

Folks, B&N have no right to force us to agree to this contract. And I mean that in the literal legal sense of the word. I own this Nook Touch. I do not have to bow to B&N's wishes in order to use it. The law is quite clear on this point.

Okay, this really doesn't qualify as being broken; it was deliberately designed into the device. But the simple fact is my Nook Touch won't work, and the problem is caused by B&N's deliberate action. I'm furious.

Update: I was going to leave this detail for when you saw the photo, but on second thought it deserves more attention. This contract is 178 pages long.  It is longer than the Constitution. How is that reasonable?

 

Nate Hoffelder

View posts by Nate Hoffelder
Nate Hoffelder is the founder and editor of The Digital Reader: He's here to chew bubble gum and fix broken websites, and he is all out of bubble gum. He has been blogging about indie authors since 2010 while learning new tech skills at the drop of a hat. He fixes author sites, and shares what he learns on The Digital Reader's blog. In his spare time, he fosters dogs for A Forever Home, a local rescue group.

61 Comments

  1. Amelia St. John4 June, 2011

    The TOS is 176 pages?! What do they want your first born child?

    I mean seriously who is going to read all those pages and even understand half of it?

    Reply
    1. Nate Hoffelder4 June, 2011

      I saw that too, and I thought I’d let it speak for itself.

      Reply
  2. Anne4 June, 2011

    Contract? What contract? I haven’t read anywhere about a contract being required for this product. Explain, please?

    Reply
    1. Nate Hoffelder4 June, 2011

      The first step in setting up the Nook Touch is agreeing to the T&C. That is a contract.

      Reply
  3. Mike Cane4 June, 2011

    That is absolutely crazy. I can understand a T&C if you were going to open a B&N account — but how do they know you that you didn’t get this just to sideload public library ePub loans?! Or even your own ePubs?

    Reply
  4. Chris4 June, 2011

    *facepalm* Seriously? Mutant DRM and now a ToC just to use their ereader? I don’t have experience with the other two Nooks or the Kindle. Is this the first time someone’s pulled this?

    Reply
    1. Nate Hoffelder4 June, 2011

      No, Most devices have it now.

      Reply
  5. Clucker4 June, 2011

    IF YOU DO NOT AGREE TO BE SO BOUND, YOU MUST RETURN YOUR NOOK AND RELATED SOFTWARE AS PROVIDED IN SECTION 1(b) BELOW.

    Reply
    1. Nate Hoffelder4 June, 2011

      I’m not trying to be hostile, but what’s your point?

      if you are merely highlighting one of the absurd conditions, thanks. But if you are implying that I am required to send it back, you’re wrong. It’s my property.

      Reply
      1. Clucker4 June, 2011

        You can act like a spoiled child all you want.

        Reply
        1. Nate Hoffelder4 June, 2011

          So only spoiled children stand up for their rights?

          Reply
      2. Krystian Galaj5 June, 2011

        Well, it’s your brick. What will you do with it?

        Reply
  6. Kelly Mosier4 June, 2011

    I haven’t gotten a Nook Touch and do not know details on the TOC, are they related to the device or the software that runs the device. The hardware is yours, if/when it is hacked you can replace the OS with whatever hacked variant you want. But I see no problem with a TOC regarding the device’s software interface. Even if all you intend to do is sideload content you would need to use their OS unless it is rooted.

    Reply
    1. Nate Hoffelder4 June, 2011

      There’s no practical way to replace the installed OS, so your argument is unreasonable.

      B&N sold me an e-reader. If you don’t agree to the T&C it is merely paperweight. That is an unreasonable restriction of my property.

      Reply
      1. Chris4 June, 2011

        Out of curiosity, what are the terms and conditions that they want folks to agree to?

        Reply
          1. Chris5 June, 2011

            Looks fairly innocuous. That said, they should have pointed out that there was such an agreement required before you plunked down your buck-forty. Then again, as litigious a society as we have become, folks should expect to, not expect not to, have to agree to such terms and conditions.

            Reply
          2. Dick Hartzell6 June, 2011

            BTW: I just visited the legal terms laid out at via this link you provided and noticed that at least half of them consist of “GNU GENERAL PUBLIC LICENSE: TERMS AND CONDITIONS FOR COPYING, DISTRIBUTION AND MODIFICATION”.

            Which isn’t to suggest that holding your software hostage to agreeing to its T&C isn’t plenty annoying — just that a lot of that 178 pages may well consist of boilerplate B&N was forced to add to comply with the GNU General Public License.

            BTW: I was laid off by bn.com this past January, so if anybody’s not inclined to give the company slack it’s *me*.

            Reply
  7. KH Acton4 June, 2011

    I have two Kindles (1st & 3rd gen) and don’t ever recall such a contract. I agree with you, if they are going to do it they need to say so before they ship.

    Reply
    1. Andrys5 June, 2011

      KH Acton,
      The Kindle 3 has “Legal” under Menu/Settings/Menu and it’s 88 pages long, but you don’t have to agree to it in order to set up your device to work.

      The agreement is implied, but that’s a lot better than surprising you with having to do an action to agree to everything in it before you can even try it out for whatever time B&N allows you to try it before returning it.

      I think being able to return it within 14 days is probably enough to offset it, but I’d want confirmation it’s returnable within that time period.

      Reply
  8. Pikeboss794 June, 2011

    Whenever you purchase a device that deals with media (mp3, ebooks, etc), you MUST agree to the ToS because of legal reasons. Just because you own an iPod or Nook doesn’t mean you can put illegal media on it. So agree to it or throw it away. You own the device, not the media rights. Are you from the past?!

    Reply
    1. Nate Hoffelder4 June, 2011

      Actually, no you don’t _have_ to agree to anything to use your property. That’s a myth that you’ve been conned into believing.

      Reply
    2. Nate Hoffelder4 June, 2011

      At the very least, it shoudl bother you that they extorted the contract after the sale. If one has to agree to it, why not put that contract in the sale?

      Reply
      1. Krystian Galaj5 June, 2011

        I’d expect there are laws in place that should make them do so. If so, perhaps a class action or some other legal movement would make them fix this problem.

        Reply
    3. Mike Cane5 June, 2011

      >>>Whenever you purchase a device that deals with media (mp3, ebooks, etc), you MUST agree to the ToS because of legal reasons.

      What a crock of shit. How does B&N know if someone is going to buy it to read library ePubs or just FREE ePubs? There is ZERO place for a T&C agreement in order to USE a damn device, period.

      Reply
  9. Michael anderson4 June, 2011

    How could you type this? I mean, Windows and Mac OS X are non working … MS office is non working, nearly every piece of software ever is non working, heck, the more than 1500 video games I have reviewed must all have been broken …

    So long as you use no computers, no software, no electronics, no commercial products whatsoever … In other words, uniformly apply your policy, then I am fine. If you pick and choose and try to use this as some sort of hit gathering example … You are an idiot.

    Reply
    1. Nate Hoffelder4 June, 2011

      There’s a big difference between software and hardware. Most companies try to make it clear that you don’t own a copy of the software; you license it.

      With hardware you clearly own the device, so forcing you to agree to a contract rises to the level of extortion.

      Reply
      1. Michael anderson5 June, 2011

        Um … Are you really so simple that you cannot see that you are accepting T&C on the reading software?

        Also, you never answered questions on other devices … You obviously don’t own a cell phone or computer, right? Or are you OK with T&C that are just printed that you have no option to accept or decline?

        Either way this is a non issue … The whole thing of software licensing is long since decided by the courts. I’m sure someone could tell you how to not accept the T&C and run your own software … But remember that you cannot use the Android base OS either as that has a T&C as well …

        Reply
        1. Nate Hoffelder5 June, 2011

          I’m just going to let your comment stand as it is. There’s no need to defend myself against someone who can’t discuss an issue without being abusive.

          Good-bye.

          Reply
        2. Mike Cane5 June, 2011

          What kind of an idiot are you? It’s a DEVICE. It can be used to read CONTRACT & RESTRICTION-FREE CONTENT. They are PREVENTING him from doing that. The device is USELESS.

          Reply
          1. Michael Anderson5 June, 2011

            Um … no. The ‘device’ consists of:
            – Hardware that he can use as he pleases.
            – Software that is subject to terms and conditions.

            I see you are also not getting this, so let me use an analogy for both of you:
            – You buy a computer.
            – It consists of hardware (the computer) and software (the operating system and apps)
            – You can do whatever you want with the computer (i.e. hardware)
            – The second you try to use the software you need to agree to terms and conditions.

            You might say ‘no’, but this weekend I set up a new Macbook Pro with Mac OS X and Win7 via bootcamp. To get to the Mac OS I had to agree to the T&C. To install Windows I also had to agree to the T&C. To install MS Office and iWork and The Witcher 2 and so on I had to accept T&C.

            Sure I didn’t HAVE to accept them – but my choice was ‘accept or don’t install’.

            That is your choice here – they are not FORCING you to do anything. You don’t want to accept the terms to use the Nook operating environment and reader software? Fine! Don’t. Figure out a way to get to the root Android OS and do that.

            I mean, is Apple preventing me from using my computer for “CONTRACT & RESTRICTION-FREE CONTENT”? No, not any more than B&N is here.

            Oh, and in the US, what Amazon does with the Kindle T&C is *identical* in nearly every court.

            Reply
            1. Nate Hoffelder5 June, 2011

              Oh, so you’re not always a troll? Surprise.

              I actually covered this before. B&N sold me an e-reader. Without the software, this is nothing more than a paperweight. Given that i have a reasonable expectation to use it as an e-reader, it’s reasonable to conclude that I have a right to use the software.

              It’s simply not possible for the average person to access the underlying OS, so your suggestion that I pursue it is unreasonable.

  10. burger flipper4 June, 2011

    So what’s your next move? Returning it?

    Reply
    1. Nate Hoffelder4 June, 2011

      Probably. (Which would be a pity because I really did want one.)

      Reply
      1. Rich Adin5 June, 2011

        Nate, it seems to me that you are making a mountain out of a molehill. It really is no different than warranty terms. Most of the time you have no idea what a product’s warranty T&C are until after you have bought the product and opened the package. And by the simple act of keeping and using the product, you have agreed to the warranty T&C.

        In the end, B&N can say whatever they want in the T&C and it is meaningless unless they are capable of enforcing the T&C, which they probably aren’t.

        As you say, the hardware is yours — but what good is the hardware without the software? I haven’t read the T&C — not even the T&C on my TomTom GPS or my Sony Readers — because the T&C are, for the most part, irrelevant. The T&C is really for the software not the hardware, so you should be able to wipe your Touch clean and have a T&C-free piece of hardware. I just can’t figure out how you will use it.

        Reply
        1. Nate Hoffelder5 June, 2011

          No. I know what a warranty covers because it is defined by law. It really doesn’t matter what the manufacturer says about the warranty (other than the length of time).

          Reply
        2. Andrys5 June, 2011

          Rich,
          ——> “And by the simple act of keeping and using the product, you have agreed to the warranty T&C”

          Since that’s normally the case, why do they make purchasers do an action that explicitly binds you to the TOS . It leads some to think that they’ll be prosecuted if they do something not allowed in the huge document.

          I do think it’s an unfriendly way to send/introduce a new hardware purchase.

          I haven’t seen this before so it’s, to me, a bit odd, if nothing else.

          Reply
          1. Rich Adin6 June, 2011

            Andrys, some lawyers “think” that by having one agree actively to the TOS that the TOS are more binding. But the reality is it doesn’t matter.

            As for buying just the hardware, that’s a false argument. B&N is not selling you just the hardware. They are selling you the hardware and leasing you the software to run the hardware simultaneously. It is a symbiotic relationship. Nate is ranting about nothing this time. His Kindle, his Nook, his Sony, his Libre — whatever — all have TOS and you either agree to the TOS or return the item. The TOS acceptance is implied by using the device or by actively saying “I agree”. Doesn’t really matter.

            And as for knowing what a warranty covers because it is set by law — that just ain’t true. You have to read the warranty terms to know what is and isn’t warranted. Not only can a seller opt out of certain provisions of the Uniform Commercial Code, but many of the UCC’s “consumer protections” can be limited. The UCC’s terms apply only if no express warranties are included with the device and it is the rare piece of software or hardware that does use express warrranties.

            Want to read a particularly onerous TOS? Read Amazon’s for the Kindle or Apple’s for the iPad. The only thing the consumer really gets under the TOS is the right to be abused by Amazon and Apple.

            Consider how the TOS for these devices force you to go to arbitration. Arbitration is as consumer unfriendly as one can get; a good lawsuit is much better protection for the consumer, but the TOS for all these devices insist on arbitration and usually in a place readily accessible to the company and not to the consumer.

            To get upset because you have to actively agree rather than implicitly agree to TOS seems to me to be hyperventialting over the difference between Tweedledee and Tweedledum.

            Reply
  11. pei5 June, 2011

    Thanks Nate! I am so glad I didn’t buy one. My Sony is wayyyyyyy better than that.

    Reply
  12. Dan Cohen5 June, 2011

    Nate- I really think you created an issue that is really a non-issue. (But well done since your non-issue really got people stirred up!). BUT- your title is misleading at best. They did not send you a “non-functioning” nook. They did sell you a nook that has requirements about which you were not aware. It YOU choose not to accept them then so be it. But your nook ia far from non-functioning.

    If you are going to call BN out at least call them out for something accurate.

    Then again “BN sold me a nook whose terms and conditions I won’t agree with so I can’t use it” doesn’t have the same yummy linkbating fire does it?

    Reply
  13. Steve T5 June, 2011

    I agree with Dan. Much ado about nothing. Almost every electronic device (and iTunes as well) comes with some sort of ToS contract. This isn’t new.

    Getting my new Nook in a day or two and at the risk of a life sentence at a maximum security prison, I will, in fact, agree to their terms of service!

    Reply
    1. Mike Cane5 June, 2011

      How are your supplies of lube holding up?

      Reply
      1. Rich Adin6 June, 2011

        Clearly better than yours. At least he is not self-shafting, which you and Nate are doing over this nonissue.

        Reply
  14. Lew Stiverson5 June, 2011

    In the old days, you could buy a book anywhere you liked…used even. You could just open it and read–no need for lawyers. You could even sell it when you were done reading it!

    Today, you are presumed to be a criminal … or someone who might commit the crime of giving the book to someone else after reading it. Today, you pay 90% of what you used to pay, despite not receiving a physical thing in return. The publisher saves on trees, ink, printing, sorting, shipping, storing, displaying, and selling the book in stores…and all of the above is our reward for book publishers making 5x the profit per ebook sold. Ah…progress.

    Reply
    1. Michael Anderson5 June, 2011

      The problem is – T&C get to be 170+ pages BECAUSE of people who honestly believe their human rights have been violated by agreeing to terms and conditions before using software … and with every new idiot the T&C gets longer.

      Reply
    2. Ben7 June, 2011

      “In the old days, you could buy a book anywhere you liked…used even. You could just open it and read–no need for lawyers. You could even sell it when you were done reading it!”

      I believe that is still an option in the modern era.

      Reply
  15. Michael Anderson5 June, 2011

    OK, one more thing … regarding ownership and use you say “The law is quite clear on this point.”

    While I agree that you own the hardware and are clear in your usage rights, the T&C you object to are clearly software related … and AFAIK the law is anything but clear, and if there is clarity, it is to say that B&N are perfectly within their rights to demand you to either agree & comply, or disagree and not use their software which you are only licensing.

    Reply
  16. Michael Anderson5 June, 2011

    OK, apparently our nested replies reached the limit – in the first place I was never a ‘troll’, just ironic, snarky and perhaps a bit harsh. But I truly believe from the first moment I made valid points. And you just proved it for me. Let me quote you:

    “I actually covered this before. B&N sold me an e-reader. Without the software, this is nothing more than a paperweight. Given that i have a reasonable expectation to use it as an e-reader, it’s reasonable to conclude that I have a right to use the software.”

    At the beginning I stated that it is routine for software to extract T&C agreement from you – that or you can go no further. You said that I needed to understand the difference between hardware and software. Unfortunately in the case of the nook you are getting a hybrid hardware/software product, and they are perfectly within their rights demanding you agree to the T&C to utilize their software … to quote you ‘the law is clear on that’.

    The law is also clear that the T&C apply whether in a booklet in the manual, in software embedded in the product, or as a ‘agree-gate’ when you try to use it.

    This is why there are a number of folks saying this is ‘much ado about nothing’, and why I was snarky – because I checked and my HP200LX from 1991 that required me agreeing to T&C. In one form or other computer devices have demanded that of us literally for decades.

    The issue of whether or not we should have to deal with T&C is entirely different … and sadly we have our sue-happy culture of entitled folks to thank for THAT!

    And just remember – a T&C is basically protecting the maker of the product from liability should you choose to do crazy/illegal stuff … and that is really not inherently unreasonable.

    Reply
    1. Nate Hoffelder5 June, 2011

      You weren’t snarky; you were insulting.

      Reply
  17. Tyler5 June, 2011

    Why don’t you do what you have done before and agree to it then send them a letter saying you don’t agree to it and they have 14 days to respond?

    I just bought a new computer with Windows 7 installed on it. I had a user agreement too that I had to use before I could use the computer. No one informed me of that before I bought it I would have to agree. If I didn’t agree to it and returned the product, then I would have been charged a restocking fee for not agreeing.

    That said, I agreed to it. I also agreed to the Nook Touch when I received it yesterday morning from BnN. I was just surprised and happy to get it about a week earlier than they told me it would arrive.

    Reply
    1. Nate Hoffelder5 June, 2011

      You’re right, i should. It’s just that this one pissed me off more than any of the others, and I’m frankly tired of it. I know you should never post angry, but there are occasions to break the rule.

      Reply
      1. Tyler5 June, 2011

        Remember one thing, although I doubt you would ever need to worry about it, you need to send this with certified mail requesting a signature. In a court of law, you have to be able to prove you sent it and that they received it. This goes for anything you send someoen because they can always deny they ever got a mail from you.

        It is a nice e reader though! I tried it out in the store and it didn’t seem as fast as the Sony but mine at home works better. I have noticed this with Color Nooks too.

        Reply
    2. Rich Adin6 June, 2011

      Because when you revoke your agreement, then you lose the right to use the software. If you can figure out a way to separate the hardware and the software, you can delete the software and use the device as you wish, including as a paperweight. Sending a revocation letter does nothing except bar you from using the software and the moment you do use the software after sending the revocation letter, you have re-agreed to the TOS. Even the simplest-minded lawyer would tell you that!

      Reply
      1. Tyler6 June, 2011

        It doesn’t bar him from using the software since he is going to use the device if he feels like it. It’s not like BnN are going to send him a patch that deactivates his unit.

        I letter and complaints is what BnN needs to receive to know what their customer base feels.

        I, personally, did not care. I just agreed to it and went about my day.

        No where is the Nook Touch being advertised as the e reader to go out and downlown a bunch of free books. It says access to world’s largest bookstore with over two million titles. Closest is saying that you can borrow books from the library. Guess what happens there. You have to use overdrive and adobe digital editions and then again more user agreements.

        Reply
  18. jon andersen6 June, 2011

    thanks, I was going to buy the new nook. Now with the t/c the answer is no, too bad. jon

    Reply
    1. Rich Adin6 June, 2011

      So you aren’t going to buy any ereader or any software? All ereaders that come with software have a TOS. Even Kindle (or should I say especially the Kindle) has one. The only difference is that one you have to acknowledge the TOS and the other using the device is automatic acknowledgment. At least the Nook tells you upfront, unlike many of the others. The terms are still binding.

      Reply
  19. fjtorres6 June, 2011

    Okay, let’s see now; we have a consumer device that comes with a ToS contract (common) that you must agree to before using it (not common). Most other vendors settle for printed notifications or insert the lawyer-ese before you take the device *online* for the first time so declining simply keeps you off their system. You still have a “usable” device.
    (Microsoft takes a similar stance vis-a-vis XBOX hackers: unlike a certain competitor, they don’t regularly take hackers to court, but rather *permanently* block hacked hardware from their walled garden as a ToS violation. On the grounds that hacked hardware can corrupt the playing experience for other gamers.)

    Anyway, I think Mr Hoffelder should agree to the ToS, but just so he can experience the new Nook home screen in all its non-configurable glory. 😉

    If he finds the ToS offensive, I’m curious to see what he thinks of the next Nook “innovation”; what else they did to *his* hardware.

    Just curious, mind you. 😀

    Reply
  20. DLoard6 June, 2011

    Send it back. Get a Kobo.

    Reply
  21. Phil Olynyk6 June, 2011

    Anybody who is not a lawyer who claims to have read and understood a 178 page contract of Terms and Conditions is clearly lying! The whole thing is a farce. But forcing you to explicitly perjure yourself before playing with a new toy is going too far.

    Reply
  22. […] Noble prevents people from using the new Nook Touch until they’ve agreed to read and abide by a long list of conditions. It’s as if B&N never sold you the device, they’ve licensed it to you. Will that […]

    Reply
  23. Satan2 August, 2011

    Or you could just buy a paper book. You buy it. It’s yours. No TOC. What the f*k are you complaining about? Have you purchased any online service recently that did not have TOC?

    Reply

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