Getting a Windows Refund in California Small Claims Court

[Pradeep]

Thanks to good records and a Small Claims judge, Steve Oualline got a $199 refund for his unused copy of Microsoft Windows XP. One Linux user's story shows how to establish a good refund case.


http://www.linuxjournal.com/article.php?sid=7040&mode=thread&order=0

 

[Buck]

Thanks for the link, it made for an interesting read.

 

[zx]

This works for retail versions I think...not OEM's. If you're not satisfies with the OS that came with you Dell, you must return the system for a full refund. I don't know if you can just get a refund for windows.

 

[zx]

satisfies

satisfied

 

[Pradeep]

This works for retail versions I think...not OEM's. If you're not satisfies with the OS that came with you Dell, you must return the system for a full refund. I don't know if you can just get a refund for windows.

Sounds like the guy had an OEM copy of Windows. If it was retail he would have a had a receipt for the full price and wouldn't have had to jump thru so many hoops. The only thing with an OEM license is that it can only be used on the machine it comes with.

It would be very interesting if Dell was forced to reveal in open court just how much it pays for WinXP licenses.

 

[Howell]

This works for retail versions I think...not OEM's. If you're not satisfies with the OS that came with you Dell, you must return the system for a full refund. I don't know if you can just get a refund for windows.

Presumably the OEM version also has a EULA. If the company can/will not provide you with the price you paid for it you will provide the judge with a reasonable estimate. The other laywer may try to argue that OEM copies are cheaper but can produce no evidence indicating what the cost should be.

 

[Fushigi]

It's nice to see someone fighting for what's right instead of taking the lazy way out and just accepting things. He obviously spent enough time & effort on this that he's out money in the long run. I applaud his fight for the principle.

 

[zx]

Presumably the OEM version also has a EULA. If the company can/will not provide you with the price you paid for it you will provide the judge with a reasonable estimate. The other laywer may try to argue that OEM copies are cheaper but can produce no evidence indicating what the cost should be.

What I meant is that if his windows copy is OEM, it is an integral part of the machine. So if he does not like it, he has to return the machine for a full refund. Dell, or any OEM, do not sell you Windows, nor do they sell pentium processors, seagate hard drives, etc.... They sell machines. Can I buy a dell machine and then tell them that I want a refund for the CPU? Obviously not. The same applies to windows.

Maybe the guy found something in the EULA that give him the right to get a refund of the OS that comes with the machine. But his method has not been tested at all, since his manufacturer did not show up. So I guess the judge did not do much research and did not read the license agreement. If the manufacturer had been present in court, he may have lost his claim.

It's nice to see someone fighting for what's right instead of taking the lazy way out and just accepting things. He obviously spent enough time & effort on this that he's out money in the long run. I applaud his fight for the principle.

You can look at it that way, but you can also see the guy as someone who is trying to take advantage of a way to get a 200$ discount on his computer. Why does he buy a computer bundeled with windows when he does not want windows? And like I said, if he was not satisfied with OS in his new machine, he should return it.

If his computer is made by an OEM like Dell, HP or IBM, I really doubt that he was entiteled to a refund of his copy of windows. If someone was present to defend the cause for the company, it would have never happened. Hell they could have sent me, I would have done a better job! But if he bought his compter from a computer shop with a retail version of Windows, he should have his refund, and cudos to him for defending his cause.

 

[Howell]

So I guess the judge did not do much research and did not read the license agreement. If the manufacturer had been present in court, he may have lost his claim.

Judges do not do research.

Part of this guys defence was that you have to accept the license agreement before you get a button to print it out (so he could show the judge).

I think it's neat from a legal strategy point of view. I have no current emotional stake in it.

 

[Mercutio]

Windows isn't an integral part of the PC. Windows' license explicitly states that it can be returned for a refund if you don't agree to the terms. This is the license in EVERY version of Windows. I imagine that if that language wasn't there the contract probably wouldn't be binding in some way (Santilli? Little help here?).

 

[Fushigi]

You can look at it that way, but you can also see the guy as someone who is trying to take advantage of a way to get a 200$ discount on his computer. Why does he buy a computer bundeled with windows when he does not want windows? And like I said, if he was not satisfied with OS in his new machine, he should return it.

If his computer is made by an OEM like Dell, HP or IBM, I really doubt that he was entiteled to a refund of his copy of windows. If someone was present to defend the cause for the company, it would have never happened. Hell they could have sent me, I would have done a better job! But if he bought his compter from a computer shop with a retail version of Windows, he should have his refund, and cudos to him for defending his cause.

1. According to the author, the EULA provides for the refund.

2. The manufacturer, Dell, by offering the $10 check, validated the refund claim.

3. The $199 amount is only because Dell wouldn't divulge the OS cost (because of contractual obligations) and the author looked up the street price of the product to find fair market value. <opinion>While I can't say for sure, I imagine he would have been satisfied with a lesser amount.</opinion>

4. Who among non-Apple laptop manufacturers offers a laptop without Windows? Seriously, the larger question here is why can't a system be ordered w/o Windows? Dell, IBM, and Gateway all force you to pay for Windows whether you want it or not. I think it is entirely reasonable for a Linux user to not pay for Windows. I also think it's reasonable for the manufacturer to not offer any software/OS support for those who elect to not purchase Windows.

 

[timwhit]

There were vendors in the past that sold laptops with linux as the operating system. Check out http://www.nextcomputing.com for instance. There aren't nearly as many now as there were the last time I checked though. Eventually one of the bigger names will start offering linux instead of Windows. It's not IF it's WHEN.

 

[Pradeep]

You can get Dell servers with no OS at all. But I take your point that a Dell laptop comes with winXP, and you can't deselect it. Therefore the price of winXP is included in the price, whether you want it or not.

It just goes to show that the EULA is unenforceable garbage, it was aprobably a deliberate ploy of the defendant to not turn up, so that a default judgement was entered, instead of having a precedent set re: the EULA.

 

[Howell]

..., instead of having a precedent set re: the EULA.

A few of the people in the talk back for the article think that small claims court can not set precedence.

 

[zx]

Excuse: We'll give you a refund, but not for the retail price.

Answer: I paid retail for the computer and the software.

He said he paid retail for the computer and the software, so I guess that means he has a retail version of the software.

 

[Howell]

Seriously, the larger question here is why can't a system be ordered w/o Windows?

Absolutely. I presume there are some marketing "bonuses" that the companies get now that would be reduced if a HW manuf were to offer a naked system thus effectively increasing their cost.

Something I'm trying to think about is how will MS make this go away within the law. Assuming that enough people take this to court to make it hard on a manuf, MS needs to show that the non-secret cost of the software is low. Then make up the differnece in a secret way that would not be considered the cost of software.

 

[Mercutio]

IIRC, Microsoft only sells Windows at the contractually discounted price (something under $40, perhaps closer to $25 in some cases) if the OEM includes the price and gives Microsoft a $40 or whatever "cut" for every desktop/notebook PC they sell. Microsoft gets paid regardless, and it's probably more of an administrative hassle than it's worth to offer "bare" PCs (imagine if a normal home user was accidently shipped a PC with a blank hard disk).

This is why Linux-equipped PCs are pretty much always the same price or more expensive than the windows versions, when sold by major, name-brand OEMs.

Also, Microsoft stopped putting an MSRP on Windows shortly before Win 95 came out. Coincidently, Win 95 was the first version of desktop version of Windows I remember thinking was expensive.

 

[zx]

1. According to the author, the EULA provides for the refund.

We will have to check on this... I still doubt he had the OEM EULA.

[/quote]
2. The manufacturer, Dell, by offering the $10 check, validated the refund claim.

That was very clever of him, because it validated his refund claim. Now, the amount of the refund must be established. The manufacturer claims an arbitrary amount of 10$, the plaintiff says it's the price of the retail version. But then again, it depends if he actually had a retail version.

3. The $199 amount is only because Dell wouldn't divulge the OS cost (because of contractual obligations) and the author looked up the street price of the product to find fair market value. <opinion>While I can't say for sure, I imagine he would have been satisfied with a lesser amount.</opinion>

They could not divulge it, but they gave him 10$ for it. Like I said, at this point, the dispute is on the amount of the refund. His claim that he is entitled the price of the retail box is not founded, like the 10$ his manufacturer gave him.

4. Who among non-Apple laptop manufacturers offers a laptop without Windows? Seriously, the larger question here is why can't a system be ordered w/o Windows? Dell, IBM, and Gateway all force you to pay for Windows whether you want it or not. I think it is entirely reasonable for a Linux user to not pay for Windows. I also think it's reasonable for the manufacturer to not offer any software/OS support for those who elect to not purchase Windows.

Because they don't wanna . Seriously, there are alternatives for people who do not want an OS on their computer, or want Linux. For desktops, build your own computer, or go to a shop like Tannin's and buy one, and have you favorite nephew install windows on it. For laptops, buy a barebone desknote system from ecs (there are probably others). However, I doubt most people will want not to have pre-installed windows on their computers. So these solutions are less popular.

So yes, you can get a system without windows, it's just that it's not from Dell or HP. It’s unfortunate, but all you have to do is not buy from them. If there is enough people doing that, they may think of offering systems without windows pre-installed and no software support.

And frankly, of the people who do not want windows pre-installed, how much people install another OS on it? Most people will install an illegal copy of windows anyways.

PS : He never said his manufacturer was Dell, it was just an example of an OEM.

 

[zx]

Ok, here's a Windows 95 EULA that came with an IBM Aptiva. It's in french though. It's the only thing I have.

Contrat De Licence Utilisateur Final Pour Logiciel Microsoft
MICROSOFT WINDOWS 95

IMPORTANT- À LIRE ATTENTIVEMENT: Ce contrat de Licence Utilisateur Final (le "CLUF") est un contrat entre vous (...) et le fabriquant (...) de l'ordinateur. [...] Si le PRODUIT LOGICIEL n'est pas accompagné d'un ordinateur neuf, vous n'êtes pas authorisé à utiliser ou à copier le PRODUIT LOGICIEL. [...] Si vous êtes en désaccord avec les termes du CLUF, le Fabricant d'Ordinateurs ne consentent pas à vous concéder une licence sur le PRODUIT LOGICIEL et vous devez contacter rapidement le Fabricant d'Ordinateurs afin d'obtenir des instructions pour le retour contre remboursement du (des) produit(s) non utilisé(s).

Now we put some fish magic powder in it...

End-User Licence agreement For Microsoft Software
MICROSOFT Windows 95

Important - Read carefully : This End-User Licence agreement (the "EULA") is a contract between you (...) and the computer manufacturer [... ] If the SOFTWARE PRODUCT is not accompanied by a new computer, you are not authorrized to use or to copy the SOFTWARE PRODUCT [... ] If you are in disagreement with the terms of the EULA, the Computer maker does not agree to give you a licence of the SOFTWARE PRODUCT and you must contact the Computer maker quickly in order to obtain instructions for the return against refunding of the products(s) not used.

(I had to edit it, some parts were not very clear ).

Here we see that he has the right to a refund. But the terms are not set. If you must contact the manufacturer, does it means th refund is by his terms? So the answer here is in the manufacturer's policy.

Like I said many times, if the manufacturer would have presented himself, things would have been different....They would have found something in the refund policy or warranty policy that stated that you cannot refund individual components of a computer.

 

[Tea]

It's not a component. Case closed.

 

[blakerwry]

component in the 7 steps to ruliung the world (or atleast your computer)?

 

[Santilli]

Mercutio:
First my Queen(Al Capone the cat, yes, she is a girl) is making this hard to type. She want attention.

Few legal issues that come to mind with Windows and OEM versions.

One could argue a number of issues.

Since MSFT has a monopoly, by law, and it's nearly impossible to find a major maker that will ship with out the MSFT added cost, one could sue for the retail version amount, and win. The counter would be you could buy a computer from a small maker, without the windows tax, and, if I was the judge, that would work for me. Too many small shops that build better computers then Dell, for less, with support.

The MSFT contract bullshit that they ship with each version is just that.

It's a contract of which you are aware of only after entering into the agreement. The best analogy would be buying a cruise ticket, and on the back of the ticket you've already bought are a bunch of legal mumbo jumbo like if you sue, you have to sue in Washington, or submit to an arbitrator, etc. In other words, the original agreement is valid, but the attempted to add on terms are not. That's much how I feel everytime
I purchase a computer with windows on it. I purchased a product with an operating system. I did not waive a bunch of rights that MSFT's lawyers attempt to fool me into thinking I've waived them.

In other words, MSFT needs to make clear prior to sale, the terms of the agreement. Like in BIG bold, letters on the outside of the package.

I also find it very strange that a party, MSFT, that is not privy to the contract is dictating the terms of the agreement. In other words, they state the contract is between you and the computer manufacturer, but they dictate the terms of use.

In other words, when I buy a computer, I buy a legal copy of the OS, when I buy a computer from a small maker.

MSFT can try all the crap it wants, but the OEM cost is really about what the other makers are selling for(Apple) Linux variants, etc. and the only thing that allows MSFT to price fix higher is their legally proven, illegal monopoly.

I wouldn't want to be the attorney arguing for MSFT against any consumer that challenged this really shady, highly questionable, illegal crap.

Their new, registration policy smacks of another abuse of their position, and, I'm just waiting for the class action suit on that one...

s

Som

 

[CougTek]

Eventually one of the bigger names will start offering linux instead of Windows. It's not IF it's WHEN.

Eventually? How about now?

I'm sure everyone guessed it would be IBM. Well, not according to this article.

In the limelight is the HP Compaq Business Desktop d220 Microtower, which will now be available with either Windows or Mandrake's Linux v9.1. The deal, however, extends to the HP Compaq 230, HP Compaq 325, HP Compaq d330 and the HP Compaq d530.

 

[Santilli]

HP might have a really good position on this one. If MSFT refuses to sell them Windows lic, as they did in the past, if you offer another os, since they have been ruled an illegal monopoly, their further abuse of that position, restraining trade, and the development of other, competing os, is actually the exact aim of the anti-trust laws to prevent. In other words,
they would be abusing monopoly position, to restrain trade, which is in violation of anti-trust law, and, more, the INTENT of the anti-trust laws.

Without the court ruling, regardless of how weak the penalty was, HP would have no legal grounds to attack the discriminatory pricing, and business pressure that has stopped major computer companies from offering other OS on X86 machines...

HP wins both ways, now. They now have the ability to sell to the server/linux market, and, if MSFT uses financial pressure to stop them, they have the ground work, the most important facts for the anti-trust case, already proved in court, in the prior case, making the proof much less expensive, since they can use the prior courts' fact findings in their case...
s