When consumers purchases a product, they expect that it will work. However, with software, this is often not the case. This has been proven recently with the failed launch of Electronic Art's Sim City. They deserve a refund but can not get one. The problem is that consumers buy these faulty products and are offered no protection.
Major retailers do not take returns on opened software (and with good cause since they often do not get reimbursed) they simply will give you another copy in the event the disc itself was damaged. That leaves the consumer to go through the publisher which are protected by End User License Agreements. These can include verbiage like "By entering into this agreement, you [...] expressly waive the right to trial by jury or to participate in a class action".