The Toshiba Standoff

A disgruntled laptop buyer demands an OS refund and is told “see you in court”.

Many others have fought this battle in the past, but my education into the specifics of Microsoft's monopoly began a little over a month ago when I became interested in a Toshiba Portege 2000. While customizing the laptop with a sales representative at 1-800-TOSHIBA, I inquired as to whether I could purchase the device with no operating system installed. This question seemed to confuse the salesperson, who needed to pass the question on to a supervisor. Eventually, I was told that I could not purchase the hardware without a copy of Microsoft's OS pre-installed and this stipulation was not open to negotiation. At this point, I realized that on some level my rights as a consumer were being violated. I knew I needed to take a step back and educate myself before continuing this conversation. Here is what I found out:

(Taken from the Microsoft Windows 2000 Professional End User License Agreement)

YOU AGREE TO BE BOUND BY THE TERMS OF THIS EULA BY INSTALLING, COPYING, OR OTHERWISE USING THE PRODUCT. IF YOU DO NOT AGREE, DO NOT INSTALL OR USE THE PRODUCT; YOU MAY RETURN IT TO YOUR PLACE OF PURCHASE FOR A FULL REFUND.

After spending a few days researching other people's similar situations when dealing with these OEMs, it became clear to me that I was not going to be allowed to order a piece of hardware without a bundled OS. I would have to exercise my rights as defined in the EULA if I wanted justice. I called 1-800-TOSHIBA again to place my order for my new Portege 2000. Because I wanted to exercise my rights as defined by the Microsoft Windows 2000 Professional EULA, I confirmed with my sales representative that this OS was to be pre-installed on the system before I committed myself to the sale. Additionally, in an effort to be proactive, I informed a supervisor in the office that I would be pursuing this refund.

The laptop arrived sometime during the first week of August. After taking special care to leave the bundled software media (and associated documentation) in it's original packaging, I plugged in the laptop, connected the USB floppy drive, inserted a floppy disk and performed a network install of Red Hat Linux 7.3.

The following is a history (cleaned up a bit for readability) of the e-mail thread I have since engaged in with John Smithson of Toshiba America Information Systems, Inc. (TAIS):

Subject: re: License To: akosmin@nyp.org From:
CSD.Customer.Service@tais.toshiba.com Date: Tue, 20 Aug 2002 09:15:59
-0700
Adam ,
please send me your complaint.
Thank you,
John Smithson 800-272-0569x4034
Date: Tue, 20 Aug 2002 12:55:00 -0400 From: "Adam Kosmin"
<adk9001@nyp.org> To: Adam Kosmin <adk9001@nyp.org>
        , CSD.Customer.Service@tais.toshiba.com
CC: akosmin@nyp.org Subject: Re: License (Correct Version)
John,
        I sent the wrong license. Here's the correct attachment and
        snippet
from Windows 2000 Professional.
***********************************************************************
YOU AGREE TO BE BOUND BY THE TERMS OF THIS EULA BY
INSTALLING, COPYING, OR OTHERWISE USING THE PRODUCT. IF
YOU DO NOT AGREE, DO NOT INSTALL OR USE THE PRODUCT; YOU
MAY RETURN IT TO YOUR PLACE OF PURCHASE FOR A FULL REFUND.
***********************************************************************
Please note, that upon receiving the laptop, I inserted a Linux boot disk
and formatted the contents of the hard drive. This means that I never
accepted the terms of any End User License Agreement (EULA) that would
have been presented. I did not install, copy, download, access, or
use the software and therefore, am requesting a full refund as well
as instructions (if any) on how to return the unused product. Also,
please note that when I say "product", I am not speaking of the laptop
but rather the software as defined in the EULA.
Thanks, Adam Kosmin
Content-Disposition: inline;
 filename="EULA.TXT"
Subject: re: License To: akosmin@nyp.org From:
CSD.Customer.Service@tais.toshiba.com Date: Mon, 26 Aug 2002 13:22:06
-0700
Adam Kosmin,
I have received the following regarding your complaint.  Please consider
this as an answer to your question.
"The Master EULA (C1192-4) is a standard item on all BOMs, shipping with
all units. It is part of the documentation set inside the pizza box,
which means it is shrink-wrapped along with the Resource Guide, Warranty
booklet, etc.  However, now that we moved away from the pizza box to a
"pouch", it is may or may not be in a separately shrink wrapped package
inside the pouch.
It is a single half sheet of paper, printed on one side. The language
referred to is in capital letters in the 1st paragraph from the Master
EULA copied below for your convenience.
Notwithstanding anything to the contrary in the separate terms provided
by the Software supplier, TAIS does not accept the return of component
parts, or bundled Software, which have been removed from the TAIS
hardware product.  Pro-rata refunds on individual PC components, or
bundled Software, including the operating system, will not be granted."
Thank you for your inquiry,
Sincerely,
John Smithson
Case Manager
Customer Relations
800-272-0569 x 4034
Date: Mon, 26 Aug 2002 16:33:36 -0400 From: "Adam Kosmin"
<adk9001@nyp.org> To: CSD.Customer.Service@tais.toshiba.com Cc:
akosmin@nyp.org Subject: Re: License X-Mailer: Sylpheed version 0.8.1claws
(GTK+ 1.2.10; i386-redhat-linux)
John,
        This is totally unacceptable. If I do not receive instructions
        on how to collect the reimbursement for my unused software by
        the end of the week, I will start filing my complaints with the
        Federal Trade Commission.
Please note that my complaints will target Toshiba since the license
clearly defines the manufacturer as being the party who is responsible
to provide this refund. It is clear to me that you have not actually
read the EULA and you have just forwarded me a generic response from
your Microsoft contact. Again, I must remind you that your company is
violating the terms of this license. I will not accept this reply.
Adam Kosmin
Date: Mon, 26 Aug 2002 16:53:21 -0400 From: "Adam Kosmin"
<adk9001@nyp.org> To: CSD.Customer.Service@tais.toshiba.com Cc:
akosmin@nyp.org Subject: Re: License
John,
        In your last email, you pointed out the Master End User License
        Agreement. I have found the copy of the agreement in my "pizza
        box" and offer the following observations...
*** taken from the MEULA *******
IMPORTANT: Use of any software or any related documentation (collectively,
"software") preinstalled on, or shipped with a TAIS hardware product
or otherwise made available to you by TAIS in whatever form or media,
will constitute your acceptance of these terms.
********************************
Well, looks like I was able to avoid that trap since (as explained
earlier) I haven't used any software or any related documentation. My
legal foothold just keeps getting stronger and stronger with every
rebuttal that Toshiba offers. The bottom line here is simply that Toshiba
cannot bind me to terms that I did not agree to. As stated earlier, I am
giving Toshiba until the end of the week to provide me with instructions
on how to collect the refund I am entitled to. If I do not receive an
appropriate response by that time, I will file my complaint with the
Federal Trade Commission and take this to a lawyer.
Best, Adam Kosmin
Subject: Toshiba License Agreement To: adk9001@nyp.org From:
CSD.Customer.Service@tais.toshiba.com Date: Thu, 29 Aug 2002 10:59:33
-0700
Dear Adam,
I have relayed your message to the Legal Dept.  They have replied below.
The user has two chances to return the system. [The user accepts the
license when]
1.    The user first sees a shrink wrap label on the computer baggie,
reads about Toshiba's policy regarding no pro-rata returns, ignores the
written policy, and tears off the shrink wrap label.
On the plastic baggie that contains the notebook there is a shrink wrap
label that reads substantially as follows:
Toshiba America Information Systems, Inc. (TAIS) currently sells personal
computers with a Microsoft Windows operating system pre-installed, based
on general customer demand.  In order to maintain the highest quality
standards under the Toshiba brand name, TAIS is committed to delivering
computing solutions to the customer as a total PC system.
TAIS does not accept the return of component parts, or bundled software,
which have been removed from the PC system.  Pro-rata refunds on
individual PC components or bundled software, including the operating
system, will not be granted.
If you wish to return a complete PC system, contact the TAIS dealer where
you purchased the product, and comply with the dealer's standard return
policies and procedures.
Sincerely,
John Smithson Case Manager Customer Relations 800-272-0569x4034

This was the final e-mail exchange between John Smithson and myself. On Tuesday, September 3, 2002, I called him and explained that I was not satisfied with the position Toshiba had taken. He replied, “see you in court”.

Along with filing my complaint with the Federal Trade Commission that same day, I am charging Toshiba Corporation with making a conscious decision to deny me the refund I am entitled to for my unopened and unused copy of Windows 2000 Professional. Additionally, I am charging Toshiba with trying to strong arm me into accepting unwanted product through the use of additional licenses that make broad assumptions about my acceptance when, in fact, I never consciously made any effort to forfeit my rights regarding this refund. Although I am not a lawyer, my instincts tell me that Toshiba's “little sticky label” and MEULA violates article 2 of the UCC, which states:

2-204. Formation in General (1) A contract for sale of goods may be made in any manner sufficient to show agreement, including conduct by both parties which recognizes the existence of such a contract.

My take on this is that both parties need to know they are entering into a contract for it to be worth anything at the end of the day. Toshiba's MEULA does not disclose to the user the opportunity to enter into any such agreement. Rather, it wrongfully interprets a totally unrelated (but yet predictable) action made by the user as acceptance of an offer that may never have been reviewed.

In closing, I have a few questions for the community:

1. Has anyone actually gotten refund program this work? I would appreciate hearing about your experiences, and I promise to post them (with your permission) so that others can benefit and gain additional insight.

2. Are there any law students who would like to explore this situation for a research project or school assignment and publish their results? I can only imagine how cheap law school would seem if enough momentum was created and a class action lawsuit was won that once and for all rid the world of this violation against consumer rights.

______________________

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John Smithson is a heartless snake.....

Anonymous's picture

Currently the Hollywood Film Company of which I am C.E.O. has had Mr. Smithson hold one of our company notebooks without cause. It is under warranty till 2011 yet it has been over a month and still no laptop in our hands. Our investors are ready to go to war over this. We thought that Toshiba would be a good brand to go with however because they failed to fix it 4 times and didn't even plug in the LCD screen properly (a no brainer) all pixels that are to be black are now red. From now on I would suggest Fujitsu. A very stable unit. Even their older units were very good. As far as the situation now. They claim that the warranty that was purchased is now invalid and that a refund will be made for it. They didn't expect a Hollywood film production company to be on the other end of the call. Mr. Smithson acts like a saint but has no heart thus he has been promoted from the position that is stated above and is now head of the department at Toshiba America Information Systems corporate Headquarters as the person who handles hazardous notebooks / laptops. They also didn't expect that I was able to speak Japanese and will be calling Japan's corporate headquarters. I am sure that when I finish talking to the C.E.O. in Japan Mark Simons will fire Mr. Smithson due to his gross negligence in relation to this matter. I am also certain that others that did not work with me on the phone will be fired as well. It is ignorant of Mr. Smithson with his fake halo to underestimate who he is talking to. Very apologetic but all fake apologies. We will be sure to insure The Japanese corporate headquarters leaves Mr. Smithson where he belongs "In a garbage heap". Because our company bought one of the high end laptop / notebooks we will not be in small claims court. We have all the investors lawyers to back us. We will win this war.

Get a life!

Anonymous's picture

Honestly man, do you really have nothing else better to do than to piss and moan about warranty or other agreements you agreed to when buying that laptop? Toshiba, or any company for that matter, isn't responsible for you mucking up your computer with third-party crap! There may be some legitimacy in the fact that you didn't use the OS as stated in the EULA, but that doesn't mean that you somehow negated your warranty or some other agreement by trying to put something on your notebook that wasn't there originally and especially something as big as a completely different OS! Why don't you just give it a rest and realize that you are a gnat trying to damage a freight train at ramming speed, and for no good reason to begin with. You apparently don't realize that big companies like Toshiba, most especially Microsoft, have a room full of lawyers just waiting for a moron like you to show up with a legal challenge that they can squash into the ground. Why do you think lawyers, the blood-sucking parasites that they are, drive cars that cost more than your pathetic life? Give it up, no one cares.

4 years too late, but I think I have a solution...

Anonymous's picture

I know this topic has been and gone, but a solution occurred to me and it goes like this (I've only read the first page of comments, so forgive me if someone has already thought of this):

1. It seems pretty clear to me that Toshiba's offer to offer a refund for the whole laptop is enough to satisfy Microsoft's promise of a refund on the Software.

2. But, if Toshiba refuse to do pro-rata returns and the EULA promises you a refund on the software if you don't use it, then couldn't you just use the laptop for a few years until it is well and truly depreciated, and then present the unused software to Toshiba, demanding a full refund for the whole software/hardware package? It would then be up to Toshiba to try to force a pro-rata refund on you when they had explicitly "promised" not to do pro-rata refunds.

Re: The Toshiba Standoff

Anonymous's picture

Toshiba the most anti-consumer company in the world. I was suckered into buying a pocket PC that they decided not to support, despite thousands of petitions by angry PDA owners. I vowed then and there that I, nor anyone in my company would ever buy a Toshiba product of any kind again.

Re: The Toshiba Standoff

Anonymous's picture

My questions (and these are questions not necessarily for or against this lawsuit, which may be reiterations of previous posts) are:

Can an OEM "sell" you a copy of Windows? Whether it be Windows 3.1, WindowsXP, or what have you, can they "sell" you licensed software? From my (maybe limited) understanding of an OEM contract the company, in this case Toshiba, acts as an agent to provide you with a licensed copy of whatever software and as a condition of your buying the laptop have agreed (insists) to pre-installation of that software. As such, shouldn

Re: The Toshiba Standoff

Anonymous's picture

This is a reply to my own post. After posting my opinion, I realized I had never really read the EULA that came with the computer I was using to type the post. So I went back and read the section on refunds and would like to post my opinions on them. I would like to state that I am not now or have ever been an employee of Toshiba or any other PC OEM or otherwise employed by the Software industry. IANAL and the opinions refelected here are my own, if you disagree, please don't flame me.

Excert found from the EULA.txt file on a Dell OEM Windows 2k + Service Pack 1 disk:

IMPORTANT-READ CAREFULLY: This End-User

License Agreement ("EULA") is a legal agreement between

you (either an individual or a single entity) and the

manufacturer ("Manufacturer") of the computer system or computer

system component ("HARDWARE") with which you acquired the

Microsoft software product(s) identified above ("SOFTWARE

PRODUCT" or "SOFTWARE").

My understanding from this is that the EULA is actually an agreement between the Purchaser and the Reseller/Distributor of the software, not Microsoft. That would put EULA responsiblities in the hands of the OEM.

If the SOFTWARE

PRODUCT is not accompanied by new HARDWARE, you may not use

or copy the SOFTWARE PRODUCT. The SOFTWARE

PRODUCT includes computer software, the associated media, any

printed materials, and any "online" or electronic documentation.

This EULA is valid and grants the end-user license rights ONLY if

the SOFTWARE PRODUCT is genuine and a genuine Certificate of

Authenticity for the PRODUCT SOFTWARE is provided with the

SOFTWARE PRODUCT. Any software provided along with the

SOFTWARE PRODUCT that is associated with a separate end-user

license agreement is licensed to you under the terms of that

license agreement. You agree to be bound by the terms of this

EULA by installing, copying, downloading, accessing or otherwise

using the SOFTWARE PRODUCT. If you do not agree, Manufacturer

and Microsoft Licensing, Inc. ("MS") are unwilling to license the

SOFTWARE PRODUCT to you. In such event, you may not use or copy

the SOFTWARE PRODUCT, and you should promptly contact

Manufacturer for instructions on return of the unused product(s)

in accordance with Manufacturer's return policies.

And here is the rub. The "tag" on the "baggie" that stated Toshiba's stance on the returns/refunds of Pro-rata software is a statement of the Manufacturer's return policy. As such it appears that policy is upheld in the EULA.

From my statements above, I am of the opinion that Toshiba is NOT breaching contract, as company policy states that bundled OEM copies of can only be refunded by returning the entire system (usually this is because the price of the software is bundled into one invoiced payment for the hardware.)

The question is not whether Toshiba is required by the EULA to give you a refund of only only the price of the OEM operating system, because they are not. The EULA only binds them to their internal refund policy. The question is, should OEM's be legally allowed to bundle a licensed Operating System, which is an intergral part of the Total Computing System that you purchased, without allowing a means of recourse. In essence, should OEM's be allowed to distribute a non-free (free as in freedom) OS without an equally satisfing alternative? I myself (from a legal stand point) have no idea... does anyone out there?

Wesley

WindowsRefund.net

akosmin's picture

Please show your support by visting the new website. The forums are up and running now so I'm looking forward to hearing your comments and viewpoints.

Best,

Adam Kosmin

Toshiba *does* ship a Linux laptop?

Anonymous's picture

http://en.hancom.com/bbs/scripts/?table=press_en&mode=noticeview&id=27

says "The new DynaBook SS S4/275 will go on sale in Japan on May 13.

In addition to Hancom Office 2.0J, it includes both the Windows XP

operating system and Caldera OpenLinux Workstation version 3.1.1.

More information about this product is at

http://linux.toshiba-dme.co.jp/linux/indexj.htm.

Toshiba's Libretto L3 and DynaBook SS M3 notebook computers also come with Linux preinstalled. "

Could this be true? I haven't checked yet...

Time to relocate

akosmin's picture

windowsrefund.net is waiting for you.

Adam Kosmin

Re: The Toshiba Standoff

Anonymous's picture

Adam,

I can understand your frustration. I can offer an alternative for you. I am a consultant in the Pacific Northwest and have been a reseller for Equus Computer Systems for several years. They are a fairly large manufacturer of desktop, laptop and server systems and will happily provide systems with or without OS. They are wholesale only so you would need to find a reseller near you. Their systems come with 1, 2, or 3 year warranty and are well put together. Check them out at: www.equuscs.com

David Rapp

david@islandexpertise.com

I WOULD NEVER BUY A TOSHIBA

Anonymous's picture

It refuses to call back defective floppy drivers in China market while it does in other markets.

windowsrefund.net

akosmin's picture

"keep talkin..."

- Carl McCoy

Fields of The Nephilim

Re: The Toshiba Standoff

Anonymous's picture

could you not send them a letter through the mail with your own contract that becomes valid upon their opening..or an email that becomes valid upon their viewing of the data?

BY OPENING THIS LETTER YOU AGREE TO ALL TERMS AND CONDITIONS CONTAINED HEREIN.

on the back of a standard envelope would be just fine.

play their game and see what happens

Re: The Toshiba Standoff

Anonymous's picture

Exactly. You will make contract with Toshiba xor MS. Not both, because their terms are contradict. You should either get back the MS Windows Tax or you can freely distribute the MS Windows, with is really a "bad thing to the world" (tm).

Toshiba says: You cannot refund all the softwares.

MS says: You can refund the software.

Simon says: Oops.

Re: The Toshiba Standoff

Anonymous's picture

This isn't true - the contracts don't contradict. Toshiba's contract is simply more strict than Microsoft's.

Microsoft says: You can refund the software.

Toshiba says: You can refund the entire product (which includes the software).

By offering to refund the entire product, Toshiba are implicitly offering to refund the software, thereby honouring both the Microsoft EULA and their own EULA.

-Jezz

Re: The Toshiba Standoff

Anonymous's picture

Take them to small claims court. The ammount you want refunded cant be more than the $500 limit can it? Anyways they cant bring lawyers to small claims court and as a result most likely will just give in and pay you what you want.

recovering Items and /or monies for items taken

Anonymous's picture

Items ,2002 Fantom Vacume cleaner,value 120.00,car stero value 100.00
in automobile taken from place of employment of son in law.

Re: The Toshiba Standoff

Anonymous's picture

I dont believe the answer to this problem is in small claims court. We need a state or federal judge to rule on this, as I don't believe Adam is that worried over a $200 software package, as he is worried that his rights are being violated, even the rights that Microsoft has "given" him in their own EULA. More people should be like him, he has even inspired me to order a system from Toshiba, just to do the exact same thing(Although my distro of choice is Mandrake :) ). I know, maybe I shouldnt give my money to a company that would do this to its customers. But someone has to make a stand, and I'm standing behind Adam!

Re: The Toshiba Standoff

Anonymous's picture

I think we are missing the most basic elements here:

Microsoft have a EULA that you must either accept or decline.

If you accept it you are bound by the terms. If you do not then you cannot use the product in any way and, according to it, can return for a refund.

It's pretty obvious one must have the opportunity to READ it before being able to accept it.

It is interesting that, whilst one cannot purchase the hardware without the software, one is given the opportunity to return the software after the purchase in any event (according to the EULA).

It would seem that Toshiba have slapped an extra notice on the packaging (talking about not accepting part-returns, etc) to try and stop any such returns as a means to circumvent a "loophole" (I'm sure that's what they'll call it) in their contract with MS.

Remember, keep it simple - you were "asked" BY MICROSOFT "do you accept?". You said no and then followed the resulting directions.

Re: The Toshiba Standoff

Anonymous's picture

Micro***** sucks

Help needed

akosmin's picture

Please contact me if you are a web designer and would like to help. I can do the hosting.

Adam Kosmin

Another angle for Adam:

Anonymous's picture

Hi Adam,

Anonymous 13 yr old posters don't understand 'freedom' except in the sense that THEY don't pay for electricity. ;-) now calm down trolls:

Contracts exist to protect the rights of both parties, and are usually derived through negotiation. Would you buy $10,000 software that came with a five page license that said "we don't promise that the software is suitable for any task"?

This is one reason why shrink-wrapped EULAs haven't yet been upheld in court. AFAIK you can't give someone an envelope that says "by opening this opaque box, you agree to all terms and conditions that we put inside, even though you can't review them first."

The Daimer-Chrysler analogy fails since cars don't come with a door-seal EULA (sic) "When you open this door you agree not to sue us; We don't warrant that this the car is suitable for driving, riding, emergency travel, or life support systems...

Adam received a 2nd EULA in the glove box that says if you don't like the seats, return them to the dealer for a refund.

This simply boils down to, Does the Microsoft EULA (contract) supercede the Toshiba one?

You "agreed" to the following contracts:

1. "Store" will sell me a Toshiba laptop but can't/won't ship it without Windows.

2. Opening package = signing a contract (!?) with Toshiba, the rights of which may vary state to state.

3. Microsoft proposes an agreement that you will not pirate, reverse-engineer, resell, etc your copy of Windows 2000. Microsoft further says that if you don't want to abide by their terms you will get a refund from the authorized seller.

Common sense (not law!) says the Microsoft EULA takes precedence, unless the Toshiba license speficically says "We won't be bound by, nor honor, any other EULA in our package."

OEMs can't get volume pricing without agreeing to Microsoft terms. Returning an unopened copy of Windows clearly entitles you to a refund ($20? but the amount is not important!)

Determining your recourse is simple. Correlate

-The Toshiba EULA you may have (legally) agreed to i.e. Did you surrender any rights?

-Your state law Some states don't allow you to surrender certain rights

-the Microsoft EULA you did NOT agree to invalidating any warranty claim but expressly permitting a refund from the OEM

-the Microsoft-Toshiba OEM supplier contract to see if Toshiba is allowed (within the constraints of the Toshiba-Microsoft agreement) to refuse your refund.

mikebelasko@lycos.com

Re: Another angle for Adam:

Anonymous's picture

I've been following this thread for a couple of days. I also followed a similar case for a while when it surfaced a few years ago.

I think this post is one of the best summarised in this entire thread, which is why I chose to reply to this one out of all of them.

Until a couple of days ago, I used to be of the opinion expressed by Adam. However, after reading all of the posts on this thread, I have been convinced otherwise.

I agree that Toshiba's obligation to refund the product depends on their OEM contract with Microsoft. Ie, Microsoft can't (through their EULA) force Toshiba to refund the software unless Toshiba agreed to this as part of their OEM deal with Microsoft. I believe it is highly likely that Toshiba did make such an agreement with Microsoft, and are therefore obligated to refund the software.

However, I think the point that Mike and Adam are overlooking is this: By offering to refund the entire purchase, Toshiba are implicitly offering to refund the software as well! Nowhere in Microsoft's EULA does it state that the vendor must refund only the software - so long as the software is in fact refunded, then the MEULA is fulfilled. So by offering to refund the entire product (and therefore refunding the software), Toshiba are in fact offering to fulfill their contractual obligation, as stated in Microsoft's EULA. They are not (as suggested by mike, the poster to whom I am replying) actually refusing the refund.

The fact that Toshiba's own EULA (which I gather said that they would not refund part of the product without refunding the entire thing) actually strengthens their position.

I acknowledge that a couple of people have pointed this out already, but I think they were simply flamed and accused as being Toshiba employees because their presented their point in an antagonistic way. Hopefully, by presenting this point in a calm and logical way (as I have attempted to do), people might see past that prejudice.

Given that Toshiba are not in violation of their contract, it would seem that your only recourse is to see if there is any provision in your state or federal law that explicitly prohibits Toshiba from forcing you to buy a piece of software bundled with the hardware. If there is no such law, then you are out of luck and you should either keep the laptop (and software) or return it. Otherwise, you are trying to take away Toshiba's right to sell whatever the hell they want bundled however they want to do it.

-Jezz

Re: Another angle for Adam:

Anonymous's picture

Simple question: since Toshiba chose to include a copy of Windows as a part of their package, wouldn't that automatically obligate them to honor the terms (responsibities) of the EULA that applies to the product that they chose to sell?
Seems to me that Toshiba bound themselves by including Windows in the first place.

Re: The Toshiba Standoff

Anonymous's picture

You made 2 mistakes here:

1) You bought the laptop knowing full well Windows was installed on it.

2) You broke the seal which said if you break it you agree to all, including software licenses.

They win, you lose. Simple. If you get your money back I'll be really,really suprised. People can be so stupid sometimes....

Re: The Toshiba Standoff

Anonymous's picture

Hey Adam,

You admit that before you made the purchase that you talked to them and "Eventually, I was told that I could not purchase the hardware without a copy of Microsoft's OS pre-installed and this stipulation was not open to negotiation."

Then you made the mistake of reading the EULA from an unrelated (to this transaction) MS software product, and then assumed you could return the software product from this transaction under the terms of that unrelated one.

When they sent you the item THAT YOU ORDERED, before you opened the package (not the MS package, the shrink wrapped notebook itself) they gave you another oportunity to understand: "TAIS does not accept the return of component parts, or bundled software, which have been removed from the PC system. Pro-rata refunds on individual PC components or bundled software, including the operating system, will not be granted."

You chose to ignore them again and pretend that they've somehow duped you into an agreement without your full knowledge.

wtf?

Re: The Toshiba Standoff

Anonymous's picture

No is position is that an agreement was forced upon him by Toshiba that he did not be aware of at the date of purchase. Also he could not be certain that the specific MS EULA he would get with his product would be the same as he had read from another source.

He was actually duped into two agreements without his prior knowledge. First the Toshiba MEULA, and second the MS EULA. While he would have a fair chance defending that both agreements have void parts, he is nonetheless always allowed to accept those agreements and ask the other party to uphold them (The MS EULA is a two way agreement, where you either agree upon the terms, or not agree and are entitled to a refund. He uses the second option from the MS EULA and wants to hold the other party to that part of the agreement.)

Re: We are going to court

akosmin's picture

Email me at akosminATnyp.org if you feel you are entitled to a refund.

Best,

Adam Kosmin

Re: Name both Toshiba & Microsoft as co-accused

Anonymous's picture

You should charge both Toshiba & Microsoft. If Microsoft say Toshiba must provide a refund, then Toshiba are screwed. If Toshiba say they do not accept the return of bundled software, then the EULA is screwed. Either way you win.

Archerfish.

Re: Name both Toshiba & Microsoft as co-accused

Anonymous's picture

Either way you win?

Unfortunately the real world is not as simple as planet Archerfish. Your two choices left out the third - the actual case in point. Toshiba is perfectly willing to honor Microsoft's EULA, but they want the rest of their product back too, and they made that clear before the product was opened.

Re: The Toshiba Standoff

Anonymous's picture

Dear Daimler-Chrysler:

I wanted to purchase your Chrysler model XYZ, but I didn't want the bundled Mitsubishi engine. Your sales people told me I could NOT by the XYZ without the Mitsubishi engine. I bought it anyway, loaded it on a truck and brought it home (without starting the Mitsubishi engine). I've removed the engine and replaced it and would like you to take the enginge back and refund me the full retail value of the Mitsubishi engine.

--------

I added the "full retail" at the end. I don't know how much refund you expected, probably $300 or so, even though an OEM copy is much, much less.

Anyway, my point is: This is stupid. I don't know why you want to be so hard-headed about it. Just think of the implications across so many industries if this sort of thing is allowed.

As others have said, if you don't want a notebook with Windows, don't buy one. If you don't want a Chrysler with a Mitsubishi engine, don't buy one.

Yeah, sure, what if every make car worth owning had a Mitsubishi engine, wouldn't that change things? And what if YOU think they were forced by the Mitsubishi monopoly to put them in? Granted.

Well, what if THEY feel 99.9% of their customers want the Mitsubishi engine, and to change their production process would cause them undue expense?

Did you offer to pay them NOT to put windows in? I think if these frivolous cases every make it to the Supreme Court (assuming US) it will boil down to just that - that's the most anyone cold hope for and it probably won't fly either.

Re: The Toshiba Standoff

Anonymous's picture

The thing is, Daimler-Chrysler is in the car selling business. They sell cars. Engines form an integral part of a car. In case you wanted to use a different engine you have the option of selling your engine to someone else, and receive a resonable price for it as it is "new". The problem with the OS is threefold:

<ol>

<li>A computer company is in the computer manufacturing business, not the software sales business, and the OS is not so much an integral part of the computer as an engine is of a car.</li>

<li>An engine doesn't enforce you to agree upon an aditional license that appears to you for the first time you start the engine.</li>

<li>An engine is transferable (you can sell it) while the preloaded copy of the microsoft OS is bound to that particular machine, and is not allowed to be transferred.

</ol>

Even then there is also the point that the MS EULA clearly states that someone not accepting it can get a refund from the person he got the software from (in this case Toshiba)

Re: The Toshiba Standoff

Anonymous's picture

Apples and ornages. Software is added to the laptop after it is built, and, unlike an engine, costs virtually NOTHING to copy/install. I would suggest that you investigate an issue at least to some degree before commenting on how "stupid" it is, lest you may appear "stupid" yourself.

Not comparable

Anonymous's picture

Except that in the case of a car, he could legally sell the unused engine to someone who DID want it in order to recoup (part of) what he was forced to pay.

Not only was he forced to buy an MS product he didn't want, he's not even allowed to sell it to someone else.

Re: Not a good example

akosmin's picture

Did the engine come with a provision for a refund? If not, then this is not a good example. If so, (which you didn't mention) then you should go get your money! (assuming you don't want to use it)

Keep it simple,

Adam Kosmin

Re: Not a good example

Anonymous's picture

You've got your provision for a refund - return the entire item that you purchased, not just a part of it. And consider yourself lucky, because if it had been the Chrysler and you had tried this cockamamie scheme, especially after being expressly told that you couldn't, you wouldn't get a refund at all.

I know you're basically preaching to the choir here, but this has such a "been there, done that" kinda feel to it. It's been going on for years - has anyone actually won one of these? Even if anyone did ever win, you probably exempted yourself by admitting that you specifically asked about it before the purchase, were told no, and decided to make the purchase anyway. And in your case, if the Toshiba rep was correct, before you opened the notebook itself they warned you again that you couldn't do it. The fact that once you had gone past that point and found MS' EULA and it seemed to give you new rights, it still couldn't nullify your agreement with Toshiba, which had warned you at least twice that it would not accept it.

Re: Not a good example

Anonymous's picture

Clarification:

"The fact that once you had gone past that point and found MS' EULA and it seemed to give you new rights, it still couldn't nullify your agreement with Toshiba, which had warned you at least twice that it would not accept it."

Regarding rights granted by the EULA, I believe all it says is that you can return it for a refund. It doesn't say that you can define the terms of that refund. i.e. remove the software from a larger product and then ask for a refund. THe software was not purchased separately so why should it be refunded separately.

Re: The Toshiba Standoff

Anonymous's picture

Very smart indeed. But you forgot that Chrysler or others

do NOT offer the kind of EULA being offered by Toshiba/MS!!!

If it says I am entitled to a refund, then I AM entitled to a

refund. What part of that is so hard for you to understand?

Re: The Toshiba Standoff

Anonymous's picture

Exactly, Chrysler wouldn't give you a refund, even on the whole car, especially after they told you they wouldn't sell it to you without the engine.

At least he can return the whole package for a refund, even after buying the thing in spite of having been told it wouldn't be un-bundled.

I was just making a point about the greater ramnifications of this whole un-bundling concept. It's just plain wacky to me.

If someone wanted to pursue the "monopoly" angle, I wouldn't blame them. That is, that Toshiba didn't have a choice, etc. which has already some court backing. But just buying something and then taking it apart and trying to force the vendor to refund you for individual parts is a go-nowhere proposition. I think that's basically well known and why the first poster called this "old news".

Re: The Toshiba Standoff

Anonymous's picture

That would indeed be the case if it were a PART (ie video card, HDD, etc) Softwware is not a PART

Re: The Toshiba Standoff

Anonymous's picture

Although I lament Toshiba's stated position, I can't really find legal fault. They have offered a full refund, but not for the software alone. They say that they are selling a product comprised of both hardware and software, and that they can't (or won't) sell their product in separate parts. That's surely their right.

I suppose you could liken it to saying that you want to buy the product sans keyboard, and in which case probably they would sell you, not a single product (laptop without keyboard), but a bunch of spare parts: battery, case, power supply, screen, and so on. That may well be the crunch: You certainly can buy spare parts sufficient to assemle a Toshiba laptop without Windows, but I bet it would cost a signifcant amount more than a new laptop (including Windows.)

davidn at rebel dot net dot au

Re: The Toshiba Standoff

Anonymous's picture

I would do either:

a. file a case with the small claims court.

b. return the laptop for a full refund and buy one from a reputable company.

Taking the Toshiba cocksuckers to the claims court would give a greater amount of satisfaction but considerably more effort than the latter option.

Re: Your suggestions

akosmin's picture

Thanks for taking the time to post. I will comment on your suggestions because I see these misconceptions too often in our community and feel obligated to try and enlighten those that are making the same mistakes.

Small claims court: According to my understanding of this approach, it just seems unproductive since although I'm sure I would receive a favorable ruling, I would be left with no way to collect the refund that is owed to me. Hence, nothing would get done. Also, it's important to acknowledge the lack of effect this would have on changing "the monopoly" as we know it. There is a bigger picture here, a bigger problem, and we're going to fight it in a bigger court room this time.

Regarding your suggestion to return the laptop and go buy from some other company, I don't think this is the right thought process. Why shouldn't you be able to buy the hardware that YOU want just because you're trying to avoid being affected by this issue. It is important to realize that by trying to avoid the issue by purchasing from another vendor, you are actually allowing yourself to BE affected since you are now compromising and limiting yourself.

Best,

Adam Kosmin

Please send me your contact information if you want to support t

akosmin's picture

I am working to create a central location for us to keep up to date with this information. In the mean time, it's imortant to realize that this story's headline will continue to drop lower and lower on the Journal's front page and eventually lose the ability to generate attention. If you support this issue, I would really appreciate it if you send me your contact information so I can follow up with you when the new site is ready. This message is especially being directed to those of you that feel you are entitled to a refund for your unused copy of a Microsoft operating system. Please send your info to me at akosminATnyp.org

All the best,

Adam Kosmin

Re: The Toshiba Standoff

Anonymous's picture

Hello,

I am impressed with the suport for Adam from the community. I too am tired of seeing large or even small companies pushing the consumer. I suport your interest in this matter and I very interested to see what would be the out come. It is good to know when there is a good cause that the comunity can and would stick together to fight for the common good. I hope you find what you are looking for. I like both the argument of getting your refund and the notion of reaching into their pocket books for future, not wanted purchases. As an individual consumer, I have not been able to change things but I hope as a comunity at large will. I belive in when there are number of people banning together, there is power. I am a person of principle and agree with sticking to what one belives.

I am not much help with the wintell situation, curently I use and purchase Apple Macintoshes for which I use the Mac OS (digital imaging) and I install and use Linux on other Power Macs for servers and workstations. But I do suport your cause and hope you find what you are looking for, weather it is the return of the procuct (windows) or making an important inpact on future purchasing descison of other companies.

Good luck and keep us informed.

-Adam D. (not Adam Kosmin)

Simple ! Boycott Toshiba !

Anonymous's picture

Simple ! Boycott Toshiba and buy a notebook from the chinese ECS. I have a desktote (www.desknote.biz) that comes with no operating system installed and with a CD of ThizLinux distribuition :-)

Chinese are more smarter than japaneses :-))

Re: Simple ! Boycott Toshiba !

Anonymous's picture

As an American working in Japan I will tel you BS. As for the origional post I wonder do we have enough people to sign on and start a class action suit against this illegal practice???

Re: Yes to the question about a class action

akosmin's picture

Yes we do. I need you guys to start contacting me. Please send your contact information to me at akosminATnyp.org and I will fill you in the plans.

Adam Kosmin

Re: The Toshiba Standoff

Anonymous's picture

You people have to understand this:

Toshiba (or any ohter) have not realy a choise of choosing the OS of your pc.

Imaging a company begining a war with M$ over the OS for a market less then 10%. Not too logical for any company.

The only good thing with toshiba is that they care to help you (of the record ) on pages like this:

http://newsletter.toshiba-tro.de/main/

they are begining to use linux (see the magnia SG20 server)

and they are thinking about using linux in the future

see

http://www.toshiba-tro.de/

(so go vote)

We can not change the world in one night, but if we are asking for it sometime in the future toshiba (and other companies) will use linux on theyre pc's if there costumers that ask for it(there is money in it)

Some Ideas

Anonymous's picture

I am not a lawyer, but I have discussed EULAs and copyrights with several of them. The MS EULA is a sham, a fraud, and a joke. It is time that it is torn down. These comanies hide behind their EULA when it suits them, but run away from it when it is inconvenient.

I believe you should look for an attourney to file suit in Federal Court against both Toshiba and Microsoft. Consider making the following claims:

1) Misusue of Copyright - ask for a declaritory judgement that MS and Toshiba are jointly committing "misuse of copyright" and that the copyright on Windows should be unenforcable *for all Toshiba customers* until the misuse is fixed.

2) Class action breach of contract - ask the court to find that Toshiba and Microsoft have jointly breached their own EULA against anyone who wants a refund

3) Antitrust violation for tying the OS to the computer. Sue both Toshiba and MS jointly for this on behalf of all of their constomers.

4) In the alternative, ask for a declatory judgement that the MS EULA is NEVER enforcable because:

A) It is preempted by federal copyright law if it is part of the conract of sale and therefore not an "extra element" to the "first sale"

B) It is "unconscionable", no matter how it is formed

C) In the alter-alternative to A: It is not valid under the UCC, since it is not a valid amendment to the contract of sale (it lacks the elements of a contrat needed to stand alone)

4) Class action deceptive trade practices: you and others like you bought something you didn't need or want only because you relied on the refund policy

Advice for finding a lawyer: you should look up some published cases where Microsoft was the defendent to see who the firm representing the plaintiff was. Contact those firms to see if they will take your case on a contingency basis. Contact the EFF. Find some law professors who wrote amicus briefs against MS in the antitrust case and write and ask for their advice on how to proceed.

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