Announcing WindowsRefund.net

A new web site to help organize the battle to make OEMs accountable for the EULA and responsive to the consumer.

Many people are familiar with the Windows refund debate that started in the late 1990s. A Google search turns up dozens of pages belonging to people who have made attempts to provide helpful information to those seeking a refund. Browsing these pages reminds me of a recent trip I took to Salem, Massachusetts, where I participated in a guided tour through the burial grounds of the Witch Trials of 1692. Every link, another tombstone telling a piece of the bigger story, another graveyard where we can pay our respects to those who have suffered.

WindowsRefund.net has been created to provide a safe haven for those who have lost their way in this struggle, as well as to provide guidance to those that are only now getting involved. I, myself, only recently took a personal interest in this situation when I purchased a Portege 2000 laptop from Toshiba American Information Systems (TAIS). Although I was well informed about how I should proceed in my quest to receive a refund for the unused OS (yes, the tombstones were helpful to some degree), I have not yet been successful doing so. I continue to be in pursuit. Linux Journal published my original article, called “The Toshiba Standoff”, on September 13, which describes my ordeal in greater detail.

“The Toshiba Standoff” was a huge success; it received the attention of the Open Source Initiative (OSI), the Free Software Foundation (FSF), the New York Linux Scene (NYLXS), Red Hat, empathetic lawyers, as well as thousands of individuals who frequent the LJ web site. Any questions I had as to whether or not the community still cared about this issue were put to rest within the first two days of the article's publication. My inbox was overloaded with e-mails. It became clear to me that I had not planned my attack as effectively as I could have, because I had no way to wrap my arms around the explosion that the article had generated. WindowsRefund.net is my attempt to do that now. The web site will become the central point of organization and collaboration as we take this battle to the courts.

Over the past two weeks, I have had a chance to hear many different opinions on the Windows refund debate and feel obligated to share my thoughts on the most common misconceptions that people tend to have.

Common Misconception #1: “Microsoft is the problem. The OEMs are not at fault.”

There is nothing to win by going after Microsoft for resolution. The End User License Agreement (EULA) already includes the provision for a refund. At this point, is is the OEM's responsibility to make good on this.

Furthermore, I am a firm believer that human nature justifies the desire to want more. Too much is never enough. All single entities are entitled to pursue this unreachable goal. With this in mind, I place no blame on Microsoft for trying to increase it's market share. I do, however, blame the OEMs for delivering the increase. These OEMs have the ability to ship systems without a preinstalled Microsoft operating system but choose to ignore that option at the customer's expense. By focusing on Microsoft, we are avoiding the real issue. Instead, we need to hold the OEMs accountable and force them to rewrite their policies so that customers are given a choice. The first step in this change is to assure that refunds are granted to those who seek them. Only when customers are given true freedom will the market decide what is appropriate.

Common Misconception #2: “Buy from another vendor.”

This does not fix the problem; it is simply an attempt on the end user's part to avoid the problem. In the case of a desktop system, the approach makes more sense because, at the end of the day, we could always build our own “white box” using the exact parts that we require. However, huge differences exist in the laptop solutions that are being offered today, and no one I know builds their own laptops. For example, in my opinion, the Portege 2000 that I am writing this article on is second to none when it comes to my requirements for portability, power and value. By “blacklisting” Toshiba's products in an effort to escape the bundled OS, I would be limiting myself. This is not the answer.

One other option available today for the Linux enthusiasts among us is to buy a system from a vendor like EmperorLinux.com. Unfortunately, the company did not offer the system I wanted, and I therefore was unable to support their business. To summarize, I don't believe that customers should have to try and escape this problem. I believe customers should be free to purchase whatever product they intend to use and not be strong-armed into paying for unrelated components.

Common Misconception #3: “Some guy in Australia got a refund.”

Good for him. Unfortunately, this is a “one in a million” case, and I do not believe these OEMs have created internal procedures that allow this to happen on an as-needed basis. I have personally been shocked, time and time again, when speaking to high-level personnel from both Dell and Toshiba who never even read the Microsoft EULA. It is the EULA that provides the foundation for this argument. As long as we continue to not hold the OEMs accountable, there is no need for them to educate themselves and create the procedures that we deserve.

WindowsRefund.net is looking for input from the community. You can show your support by completing the surveys, sharing your opinions in the forums, submitting your articles and asking questions to help the FAQ grow. Securing legal representation is a high priority at the moment, and I plan to provide news on it's development through the web site. If you feel you are entitled to a refund and wish to be included in this representation, please send your contact information to info@windowsrefund.net.

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Re: Announcing WindowsRefund.net

Anonymous's picture

I think your approach of targeting the OEM is the correct one. If successful it will force the OEM to pay twice for the Windows OS: once for their MS 'license' to install it and once to the consumer they sell the PC to, for each consumer who selects Linux as their OS. This will double the effective market power of Linux consumers.

I noticed that Dell is using the dodge of selling FreeDOS as the "alternate" OS to avoid selling a "naked" computer. This tactic obviously indicates that the current OEM agreement between MS and Dell includes clauses prohibiting the inclusion of Linux (with or without?) a copy WinXX OS and prohibits a "naked" PC sale. MS Lawyers thought they had Dell trapped into including a copy of WinXX with every PC sold. They fumbled the ball and probably got fiired. However, MS won't let that trick get by a second time. If the OEM agreement is for three years then Linux has three years to bring the LinuxDesktop the 'newbie can install' level, if it is not already there (see below). A better solution would be for Dell to get some backbone and tell Gates to buzz off, or even sue MS for attempting to force Dell to violate the Sherman-Clayton Anti-trust Act, and pre-install Lindows.

Why Lindows? Well, I prefer Mandrake but if you've read the new story about Lindows at ZDnet you'll see that they think Lindows has arrived. Lindows isn't even grass on the radar of total Linux installs, but if it takes off you can bet that the other Linux distros will use a similar install paradigm, forcing power users to use a set of control keys to trigger the expert install route. That should really be no problem though.

Re: Announcing WindowsRefund.net

Anonymous's picture

ok first off, like you i use mandrake ;0)

i sometimes wonder why people need to buy pc's from the big boys (dell, compaq etc etc) when they have so many small local computer shops that are not tied to m$ in any way at all !!!

i for one would have no problem building a machine and installing any o/s requested (that would work on the hardware).

after all someone wants to purchase a computer !

not a collar and lead !!!

just suppose they were another "linus torvalds" for example?

i just want a computer, and i want to write my own o/s.

dell can't do it, compaq can't do it but your local guy / shop can!!.

i do agree that laptops are a different world though, and maybe its about time that the component parts were available

for purchase (like pc components) so that one could build ones own.

anyway getting back to the subject at hand,

when you purchase a pre-installed machine the licence agreement has already been accepted by the installer on your behalf (has it not) how else is it installed.

this is the crux of the problem, if it has been agreed (but not by the owner of the pc) is the owner liable for the agreement?

or is the installer?

especially if the purchaser (owner) has requested a pc without o/s or with a non m$ o/s from the begining.

but then if the purchaser asked for a non m$ o/s machine at the first point of contact and was told it could not be supplied

then why go ahead with the purchase anyway?

(laptop scenario excepted)

look elsewhere or learn to build your own pc (courses are available)!!!.

regards

reb

Re: Announcing WindowsRefund.net

Anonymous's picture

MS Lawyers thought they had Dell trapped into including a copy of WinXX with every PC sold. They fumbled the ball and probably got fiired.

Unfortunately you are very wrong. Dell sells a computer with Windows XP for $PRICE. Dell sells a computer without Windows XP and bundles FreeDOS for... guess what?

$PRICE

That's right, Dell charges you the same for FreeDOS as for Windows XP. So if Dell is charging you the cost of XP for something that they get for free, then they are making $XP dollars more on the naked pc right?

Wrong.

Microsoft charges Dell a Windows XP license for every computer they sell, regardless of what OS is on it. Sounds familiar doesn't it. Microsoft actually makes $XP dollars when Dell gives you FreeDOS, and Microsoft never has to give you a license too.

Re: Announcing WindowsRefund.net

Anonymous's picture

The "some guy in Australia" is Geoffrey Bennett. You can read
about his 1998 experience with the EULA and Toshiba at

http://www.netcraft.com.au/geoffrey/toshiba.html

Re: Announcing WindowsRefund.net

Anonymous's picture

I know someone who called MS tech support to get information on this subject.

the tech support guy basically said that Windows was sold as part of the computer, and therefore could not be returned for a refund any more than one could return the harddrive for a refund on the drive and to call the OEM's tech support for more information. This seems to be the same theory the OEM's go by, and to me seems like a breach of the EULA by both parties.

OS is not Hard drive!

Anonymous's picture

The OS is not a component like the hard drive. Precisely because, unlike the hard drive, you have to agree to a separate license to use it. Buying the laptop entitles you to use all its components, CPU, disks, memory, motherboard etc, without the need to enter into any separate agreements. On the other hand with the OS you must agree to additional terms to use it. This, to me, proves that it is a separate product, apart from the lap top. Legal minds can shed additional light here.

This however still leaves two other issues. Is the buyer entitled to a refund and from whom should they get the refund. If the EULA states the buyer is entitled to a refund, then they are. But from whom? Does the EULA place a burden on the retailer or OEM to give a refund? i would think that the seller of the system e.g. Best Buy would have to give the refund. But are they bound by Microsofts EULA? Can they just ignore it and say "those are not our terms". Again lets hear from legal minds on this.

If the EULA does not promise a refund, is there any legal basis for claiming a refund, if you are not satisfied with the product or don't use it. In fact does any buyer have any right to return a product to a seller if they decide they don't like it or won't use it? Legal minds?

emk

Re: Announcing WindowsRefund.net

Anonymous's picture

Sure, but there is nothing stopping me from selling the harddrive and buying a different one. But according to Microsoft you cannot legally sell the OEM Windows that came with the system.

Actually, it is only the licence that stops you. Since we haven't agreed to the licence the terms cannot be binding can they? So we fall back to plain copyright, which allows first sale rights.

Who needs law school?

FR

Re: Announcing WindowsRefund.net

Anonymous's picture

Concerning misconception # 1

Yes it is the vendor that is ignoring a responsibility of the vendor's according to the Microsoft EULA.

but...

there is an agreement in force between Microsoft and the vendor (which we are not privy to) and the vendor is acting as an agent in the sale (passing on the EULA). I think the act of allowing a vendor to continue selling the product when the vendor is breaching the terms of the EULA implicates Microsoft as condoning the vendor's action.

so...

If Microsoft is informed of the vendor's failure to uphold the EULA they do become responsible for bringing the vendor in line with the agreement or must not allow the vendor to continue selling the product or they risk breaching the terms of the EULA making the EULA void.

It surprises me that currently Microsoft is doing nothing to rectify this, I would think that the potential consequences could be very drastic.

I am a engineer not a lawyer so this is just engineer style law theory (let the buyer beware). But I have seen situations where not enforcing a contract (the EULA in this case) puts a party in material breach of contract. This is always a bad or even fatal mistake on the part of the party in breach because they usually are ruled to have lost the protections of the contract. I believe that that would result in falling back to some type of common law ownership thing (I have a CD (with data on it) and I can do whatever I want with it.) I think the only question is if this would cause Microsoft to forfit copyright protections or not.

Any real lawyers like to comment on real law in a case like this?

Re: Announcing WindowsRefund.net

Anonymous's picture

I am an engineer too, but as far as I know, a contract (between MS and Tosh here) cannot be opposed to a third party (the consumer), at least in France.

Therefore, Toshiba has to take any action to conform with its contract with the consumer. This would mean that, as a consumer, there is no contractual relationship between you and MS, because the EULA becomes between you and Toshib.

Adam: I sincerely hope you will succeed, and be sure there are a lot of people to support you all over the world

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