Getting a Windows Refund in California Small Claims Court

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.

Getting a Microsoft Windows refund from a manufacturer is seldom easy to do. In this article, I describe some techniques you can use to get your refund, including how to deal with the manufacturers (and all their excuses) and going to small claims court.

The first step to getting a refund is to ask for one. In most every case, you immediately hit a wall of stupidity and evasion when you do this. Dealing with this part properly is important, though, because you are building a record for the court case that may follow. Your job is to be as reasonable as possible and to make them look as dumb, inflexible and unreasonable as possible.

It's important to know what excuses the manufactures will come up with and how to counter them.

Excuse: You aren't entitled to a refund.

Answer: Then why did the software come with a license that said I was. Isn't the license a binding contract?

Excuse: Contact Microsoft about the refund.

Answer: The license said contact the manufacturer. That's you. Why should I contact Microsoft when they said to contact you?

Excuse: The software comes bundled with the hardware and can't be separated.

Answer: Then why did you give me a license that said they could?

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

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

Excuse: The software is only worth $10.

Answer: Okay. Send me the check.

Although this doesn't look like it, you've won a major victory with these words--that check is written evidence of the fact that the manufacturer owes you a refund. If you go to court, you don't have to establish that the company owes you something. All you have to do is establish the amount.

But before you do that, you should follow up with the company. There are several ways of doing this.

Follow up #1: I got your check for $10. You say Windows XP costs only $10, so I'd like to buy 100 copies please. To whom do I make out the check for $1000?

You won't sell me Windows XP for $10? I'll have to pay $199 for it? Then that means the check you sent me is too low. Please send me a check for the full amount.

Follow up #2: I got your check for $10. But your $10 price is far lower that the retail price of Windows XP ($199). Because of the vast difference in the amounts, I'm going to have to ask you for a copy of your purchase contract with Microsoft so I can verify the price.

You can't verify the price. Well, I can only find one documented price and that's $199. You'll have to pay that amount or document your price.

One company tried this excuse with me. When I asked for documentation, the customer service representative said, "I don't have access to price information".

"Then how did you come up with the $10 price figure?"

"I just know it's the right amount."

"So what you are really doing is guessing. Well, my guess is the software is worth $1,000,000. Tell you what, let's split the difference. Send me a check for $500,005."

Excuse: We'll give you a refund but that applies to only Microsoft Windows, not the other bundled software.

Answer: No problem. Please provide me with a copy of all the other software on another disk so I can install it under Linux using the Wine program.

In all of these cases, follow up the phone conversation with a written letter describing what was said and why you're unhappy with it. Remember you are creating a record for the judge.

At some point in this process you'll either get your refund (rare) or you'll realize the manufacturer is going to be totally unreasonable. So now is the time to present your argument to an unbiased third party who has the power to get you your refund. This person is a Small Claims Court judge.

I am not a lawyer, so any legal advice I give isn't official, but I have been to small claims a few times and have won a few cases. (I lost a couple as well.) Also, my experience is limited to the California Small Claims Court; Courts in other states may be different.

The first step in filing suit is to figure out who you are suing. If you are going after a corporation, you need the name of the registered agent for the company. You can't serve legal papers on a fictional entity, such as a corporation, so the law requires the corporation to name someone--the registered agent--who handles all the legal stuff. You usually can get this information from your secretary of state. (In California, the web site is www.ss.ca.gov/business/business.htm.)

The next step is to fill out the forms. Most states now put these forms on-line. (California Small Claims forms can be found at www.courtinfo.ca.gov/selfhelp/smallclaims.) Most of the questions are simple and obvious.

One thing you should notice is the forms provide limited space to state why you are suing. This is because the judges don't want a lot of detail, only a simple explanation of what's going on. For a Windows refund case, you should write something like, "The computer came with a license that said if I didn't agree with it, I could return the software and get a refund. They won't give me a refund." If you've received a $10 check, you can say something like, "They would only give me a $10 refund for $199 of software."

After you fill out the forms, you have to go to small claims court and file your case. This usually means standing in line for a long time and giving your papers and a filing fee to the court clerk. The clerks can help you make sure you filled out the forms correctly, but don't ask them any questions about your case because they can't give legal advice.

In California, you need to have the papers served. This means someone needs to give the papers to the registered agent of the company being sued. One way of doing this is to have the court clerk send them out certified mail. This is the easiest way of serving most companies.

Now you prepare for your case. Judges like documentation. For example, you should have:

  • A copy of the initial letter asking for the money

  • Any responses sent by the company

  • The $10 check (if you received it)

  • A Windows XP advertisement showing the price is $199

  • A phone log giving details of every call you made trying to get your refund and the company's response

  • Any other document generated by this process

Number each document for easy identification. I also create a cover sheet with a one-line description of each document to help the judge locate any document he wants.

There's one document that I've not talked about yet, and that's the license agreement. I never have been able to find a copy of the license agreement in any of the printed materials that comes with the laptop. The only copy I know of is on the disk itself.

When you start the software, there is no way of printing the license without agreeing to it. To print it you must install the software. If you install the software, you agree to the license.

One thing you can do is get the court to issue a subpoena for the license and require that the company bring a copy of the license to court. Or you can ignore the problem and try your case without a printed copy of the license.

In my case I made a tactical decision not to subpoena the license. I didn't want to look like a lawyer or, more importantly, someone using legal tricks to try and get money out of a company. Also, I thought it would be better if I could go into court and argue: "Your honor, I would like to present you with a copy of the legal document governing this dispute, but according to its terms, I was not allowed to print it and was forced to destroy the copy on my hard drive." As neither one of these strategies has been tried in court, I can't tell you which one to try.

After you file suit, you're going to get a phone call from someone at the company to see if the case can be settled. Unlike most of the people you find handling the customer service line, these people are allowed to think and given the authority to do the right thing, even if it costs the company money.

In my case, the manufacturer called a week before the trial and sent me an offer the night before. The offer was for $199, but I had to agree to a gag order and could not talk about the case. That was unacceptable to me; I wanted $199 and court costs. (Court costs in this case were high, $135, because the company was located out of state.) Also, I wanted to be able to tell people what happened. So I went to court.

Contrary to what you see on TV, small claims court is based on common sense and reasonableness. Also small claims court is where the common man can plead his case against the big corporation.

Cases are handled quickly, so the judge is not interested in a lot of detail and complex arguments. I would suggest that your argument be something like, "Your honor, I read the license agreement, and it said they'd give me a refund. But they won't do it." That's it. A simple contract dispute. Judges understand things like that.

The thing that you do not want to do is be a nut case. Don't bash Microsoft; simply say the license contained terms you can't agree with. Don't bash the manufacturer, just present the facts. And make sure you have the paperwork to back up those facts in a form easily accessible to the judge.

The other thing you do not do in a courtroom is tell the judge about the law. The judge knows the law. And in his courtroom, whatever he or she says about the law is the law. If you try to quote the law to a judge, he or she probably will put you in your place by finding some way of interpreting the law in favor of the manufacturer, followed by a ruling against you.

The role you are playing is an ordinary Joe who has a simple problem and is being cheated out of a refund, because manufacturers' bureaucracy is too fouled up to give you your refund. Most judges are used to little guys being picked on by a big company that's too slow and stupid to follow the law. Make sure your judge sees you that way, and you'll probably win.

Here's how a typical case might go. Remember I'm not a lawyer, and I've not been to court on a case like this, so this probably is wrong. But, here's the fictional case of John Doe vs. the Big Computer Maker (BCM):

Judge: Mr. Doe, I've read your complaint. Why do you think that BCM owes you money.

Mr. Doe: When I first turned on my computer, I was presented with a license screen. It said that if I didn't agree to the license, I could get my money back from BCM.

Judge: Do you have a copy of the license?

Mr. Doe: No. The license stated that unless I agreed to it, I had to destroy all the data on the disk. This included the only copy of the license available to me.

Judge: What is it about the license that you don't like?

Mr. Doe: One of the terms of the license stated that I had to give Microsoft permission to do anything that they wanted to in the name of security. Later they defined security as preventing me from doing things on my computer that they didn't think I should do.

Judge: Such as?

Mr. Doe: They didn't define that. But in the past they have issued licenses that prevented people from using Microsoft software to develop code licensed under the GPL. Since I write such programs, that means that if I accepted the license, the computer could be made totally useless to me.

Judge (turns to BCM): Mr. Doe has explained why he thinks you owe him money. Why don't you think he should get it?

BCM: We agree that Mr. Doe should get his money, but the cost of Windows XP is only $10.00.

Mr. Doe: That's the wholesale cost. I bought my computer retail. Also, I have been unable to find any place that would sell it to me for $10.00. I even tried to buy it from BCM for that price, but they refused.

The only documented price I can find is the one I gave to your honor of $199.

Judge (to BMC): Do you have any evidence to backup up your price of $10?

BMC: Our agreements with Microsoft are confidential, and we can't reveal what they charge us for Windows XP.

Judge: Well, in the absence of any evidence to the contrary, I'm going to have to go with Mr. Doe's valuation. Judgment for the plaintiff of $199, plus court costs.

Again, I wish to stress that this case is fictional, but in real life the judge would probably spend only this much time on the case. Things go fast in small claims court.

My case was even simpler. The company did not show up. The entire case, as best I can remember it, went like this:

Judge: The defendant didn't show up, but Mr. Oualline you still have to prove your case. You say that they owe you some money. Why?

Me: I bought a computer from them, and when I booted it up it displayed a license agreement with a long list of restrictions that limited what I could do with my computer. It also said that if I didn't agree with the license agreement, I could get a refund.

Judge: I take it you didn't get your refund.

Me: They sent me an e-mail yesterday offering me one, but it was only for the software. I want my court costs too.

The judge then fumbled through my papers looking for the printout of the refund letter. He found it.

Judge: You removed the software from your system.

Me: Yes.

Judge: You installed something else.

Me: I installed Linux.

Judge: Judgment for the plaintiff.

Two things should be noted about this case. First, because only two letters were in my exhibit, I didn't supply a cover page listing them. That was a minor mistake as the judge momentarily was confused by what I had presented. The second thing to note is he didn't ask me what Linux was.

The main thing to remember throughout this process is to remain calm and reasonable. The more reasonable you seem, the more silly they seem. Remember you're dealing with a large company, and the larger an organization, the higher its potential for collective stupidity.

When that stupidity crosses the line and the company won't follow the law, that's where small claims court comes in. In court, most of the time common sense and reasonable win, even when it's a small guy against a big big company. And the case always ends with those magic words, "It is so ordered."

My refund check will be arriving this month.

______________________

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Re: Post your court filings for other people to use

Anonymous's picture

Hello,

Is there such a thing as a precedent in small claims court here in CA? If so wouldn't it be a straightforward matter to refer to the particular case for a refund?

Regards,
Eusebio

The Windows XP OEM EULA Makes No Such Guarantee

Anonymous's picture

I would first like to make it clear that I think that you should be able to buy any PC without an operating system if you feel like it. I also believe Microsoft's EULA has clauses that are not legally binding or enforcable. However, the Windows XP OEM EULA does not guarantee that you can get a refund for the operating system alone without returning the whole computer.

When the EULAs for OEM versions of Windows promise a refund, they mean a refund for the operating system and the computer together (Microsoft has changed the language in the EULAs within the past couple of years to make this more clear, but it was never intended to mean anything else). When the manufacturer says, "The software comes bundled with the hardware and can't be separated," they are correct according to the EULA. The reply to this, "Then why did you give me a license that said they could?" is not true. There are portions of the OEM EULA that clearly indicate that the software cannot be separated from the hardware once it is applied (not even by the manufacturer). Therefore any reference to returning the software would also include returning the hardware, according to the EULA.

I am not saying that I don't think you should be able to return the operating system without the hardware, mind you. I am simply saying that the EULA makes no such promise, and should not be used as a basis for trying to do this. I think that the provision that the software cannot be separated from the computer or resold is ridiculous and probably not legally enforcable. If you want to challenge something, that may be a good place to start.

The fact that you may be able to hustle a manufacturer into sending you a small check based on the false idea that the EULA promises a refund for the software alone, and then use the fact that they sent you a refund as a basis to press a case does not change what the EULA actually promises. If you press a case to get refunded the amount of money that a retail copy of XP costs, that is just a bigger hustle since that really is not what you paid for the copy that came with the computer.

Not true - the Software IS the Product

Michael's picture

The previous poster wrote:

"When the EULAs for OEM versions of Windows promise a refund, they mean a refund for the operating system and the computer together"

This is not true - check the current license agreement for Windows XP Professional. There it states:

"This EULA is a legal agreement (...) for the Microsoft software product identified above (...) ("Product")"

So they refer to the Software as "Product". further:

"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."

No mention of the hardware I bought at the same time.

Cases are handled quickly,

Torres's picture

Cases are handled quickly, so the judge is not interested in a lot of detail and complex arguments. I would suggest that your argument be something like, "Your honor, I read the license agreement, and it said they'd give me a refund. But they won't do it." That's it. A simple contract dispute. Judges understand things like that.

The EULA for XP Home is even

Ebel's picture

The EULA for XP Home is even more clear, as it states:
"IF YOU DO NOT AGREE, DO NOT INSTALL, COPY, OR USE THE SOFTWARE; YOU MAY RETURN IT TO YOUR PLACE OF PURCHASE FOR A FULL REFUND, IF APPLICABLE."

hardware != software.

AAC plugin for XMMS

Anonymous's picture

does anyone know of any AAC audio plugin for xmms, i want to be able to play my itunes ripped aac music files in xmms.

(don't buy Itunes either.)

Anonymous's picture

TACO!!!

EULA

Anonymous's picture

The license is on the XP CD under: /i386/eula.txt

Re: Getting a Windows Refund in California Small Claims Court

Anonymous's picture

To the EULA issue, why not just turn off the computer when it comes up, and take it with you (especially if it's a laptop!) to court, to demonstrate the text of the EULA. That would seem to get rid of the issue of whether it is the EULA on the computer or not.

Re: Getting a Windows Refund in California Small Claims Court

Anonymous's picture

Doing that negates the fact that you've installed linux. If you havent removed the software (winblows), then you haven't complied with the terms of the EULA, and you lose.

$10 huh???

Anonymous's picture

Copies of Both Windows XP Pro and Home are available from MS as an OEM, they come shrink wrapped with a pretty manual, a sticker and a fancy CD. This copy runs $89 for home and $130 our cost. We are small store front so we don't really get any bulk discount. I would bet the company he was dealing with is small as well. What I'm getting at is, the vendor is either lying about the cost of the of the product or they are selling counterfeit copies of the software. I'd bet the first.
Personally, I bend over backwards for my customers and I would have just given you the refund. Life's too short.

Here's another example of how to get action for yourself/your customer. I call it the CEO email trick. Simply email all the company exec's. Name the employee that that can't fix the situation in the subject and a description and describe the situation in the body.

Example ---

YOUR INTUIT EMPLOYEE FIRSTNAME LASTNAME AT 123-456-7890x123 IS UNABLE TO SATISFACTURALY RESOLVE OUR REGISTRATION ISSUE

I purchased Quickbooks Pro 2003 5 user value pack from my vendor Ingram Micro.

My customer tried to install the product this Sunday and found that the product had been register on the east coast earlier that same day.

Since Ingram Micro is the world

Re: $10 huh???

Anonymous's picture

I am going through a nightmare with my Dell and have searched high and low for Michael Dell's email address. Would you be so kind as to let me know what that address is? If so please email me at curliesandy@hotmail.com

Re: $10 huh???

Anonymous's picture

Where did you get those execs' email addresses from? Surely Michael Dell isn't mdell@dell.com...

SCO and Small Claims Court

Anonymous's picture

Very interesting. I was wondering if I could do the same thing to get SCO to "put up or shut up" as far as Linux goes.

Suppose I was an independant consultant who specialized in Linux services and I lost a job because my potential client was worried about the "legal cloud" hanging over Linux. Could I sue SCO to either:

1) Have SCO detail why they think Linux is voilating their copyrights

2) Grant me indemnification so they guarantee they will not sue me or my clients

3) Pay for the revenues I lost because of their statements

4) Get them to retract their statements

If they ignore the summons, I could present proof of their statements and the threats and try to get a default judgement against them.

SCO may think the amounts are too small to bother with but if it works multiple people could do the same and eventually SCO would have to deal with it.

Just an idea . . .

Re: SCO and Small Claims Court- Too Late

Anonymous's picture

Uh too late... like Red Hat did it already... bastards ... always taking other people's ideas to make money eh.

Re: Getting a Windows Refund in California Small Claims Court

Anonymous's picture

If you want to stick it to them a little, you can check to see if California has a statute providing for post-judgment interest in the money you won. Another key point that is implicit in your post, but never made clear is if you get that $10 check DO NOT CASH IT. Cashing the check could be seen as acceptance of an offer to settle, or what is known as an "accord and satisfaction." Best of luck collecting on your judgment. If you want, I think I have some email messages in my Inbox offering to teach you how to make a lot of money collecting on "judicial judgments" (although I don't know of the existence of non-judicial judgments, but I digress). I'm sure you could use that invaluable business opportunity to help collect on your own judgment...

Re: Getting a Windows Refund [WITHOUT going to court!]

Anonymous's picture

You can also get much the same effect without having to go to court.

Re: Getting a Windows Refund [WITHOUT going to court!]

Anonymous's picture

This is smart stuff. Naturally I couldn't guarantee it'd work but it sure beats the hassle of court. I was able to get a refund by this means out of Yahoo for some web hosting when they jacked up my geocities account ("No, we upgraded it"). After hassling with yahoo customer service for a month and a half of emails and phone calls, It took about 5 minutes on the phone with the credit card company (citibank fwiw) and a followup call after I got my next statement to make sure it was settled, and that was that.

Cheers

Re: Getting a Windows Refund in California Small Claims Court

Anonymous's picture

$10... I hate that crap. But $199... may have been a retail PC, but it was still an OEM copy. They don't even distribute media from Microsoft anymore, the OEMs and DSPs are expected to have their own CDs produced.

Company I worked at got their OEM copies at $65 to $95 and built the price into the cost of the system. Dell is likely paying less than $45, considering they advertise on Microsoft's behalf and the fact that they must produce their own media.

The amount the company paid M

Anonymous's picture

The amount the company paid M$ for the XP copy is completely irrelevant. What IS relevant is the amount that they charged the customer for that copy on the laptop he purchased. If they are not prepared to prove that amount, then the judge should use the only proof of cost which is presented to him, which is the retail price. That's how court works. The amount that the customer was charged for that software is the only relevant issue. If the company is unwilling or unable to present proof of that issue, then the court should take the evidence presented by the customer as to the cost of the software. And the judgment in the case shown would have been for that amount PLUS court costs.

Re: Getting a Windows Refund in California Small Claims Court

Anonymous's picture

just try and buy a notebook without linux. notebooks are ***** computers and I have yet to see a true quality notebook without windows as they are proprietary as *****. but the portability is unmatched by anything else.

I've seen plenty of high qual

Anonymous's picture

I've seen plenty of high quality notebooks without Windows or Linux.

You can buy one here.

Re: Getting a Windows Refund in California Small Claims Court

Anonymous's picture

I can't believe that someone that claims to be smart enough to install and work Linux , is stupid enough to buy a computer from a retailer... you can install Linux, and work it to do all your things, but you lack the intelligence to put together a 10 piece puzzle? I find it seriously hard to believe that Linux users are buying computers from wal-mart or dell. If you are Linux user, you probably are obsessed with performance or something like that, (We all are to some extent) and probably would rather pick and choose every single component rather than have some monkey at dell "custom" make your computer with no-name parts, etc. I seriously think this is probably for only like 1% of the linux users, if even that. The whole idea sounds penny-wise... pound foolish... if you ask me. I've been building computers since like 12, and it's easier today than it ever was before. You can learn how to build your own computer in 30 minutes... how long does it take to learn all about linux? 3 years? and if these linux laggies are claiming the prices are too high, WTF are they doing paying $400 for someone else to put their computer together? This whole article is just so dumb, and unrealistic in real life, it applies to no-one, but the ultra stupid, who buy a computer retail, ($100's more) whine about the overall price of software, which they willingly paid, augh, it just doesn't make any....

Performance is not the only

Anonymous's picture

Performance is not the only reason to use linux. On the other hand this is not the issue, we do not want to pay for something we find useless. So when the EULA offers us a refund it would be kind of stupid not to get it.

EULA ? what EULA ? Ahh you mean the nag screen with the YES button ;)

- All linux users are geeks work at nasa, designing deep space
electronics hardware.
- All Windows users are gamers
- Mac users justy use the computer 'as is'

The world is square

/Martin

to the DIY nut who calls reta

Anonymous's picture

to the DIY nut who calls retail computers ultra stupid.

Did you ever consider that it was a laptop that this was on?
Build your own laptop and then you might have a leg to stand on.

Re: Getting a Windows Refund in California Small Claims Court

Anonymous's picture

>I can't believe that someone that claims to be smart enough >to install and work Linux , is stupid enough to buy a >computer from a retailer... you can install Linux, and work it >to do all your things, but you lack the intelligence to put >together a 10 piece puzzle?

And exactly how many laptop computers has a genius like you put together thru the year?

Zero? Huh?

Re: Getting a Windows Refund in California Small Claims Court

Anonymous's picture

I believe that the idea is that the days of having to have M$ and all the other packaged software, which leaves little to no choice for customization, have outlived their time. When a retail buyer wants to upgrade or install M$ software they have to pay some ridiculous price and accept all those agreements. Then to make sure that M$ is saturating the market, the OEM folks are sold the OS's for a fraction of the price. It just looks like a good way of fighting back, bravo to the author!
Want to change things, fight them. It may cost something up front but what doesn't.
By the way I have converted several old OEM systems to Linux along what custom built with excellent results. And like I think your 1% guess is ultra stupid. Old OEM's are being used as Linux proxy servers, firewalls, print servers and desktops.

Re: Getting a Windows Refund in California Small Claims Court

Anonymous's picture

And I can't believe that someone smart enough to rag on a guy saying he's an idiot and cliaming to be a linux die hard linux user and knowing how to build his own computers didn't seem to even read the article and notice that he bought a laptop. I don't know many people putting together high performance compact laptops in their garage or office. Way to make an ass of yourself slick.

Re: Getting a Windows Refund in California Small Claims Court

Anonymous's picture

Actually, Walmart.com has computers with Linux for $200 if I recall...

As a linux geek, I don' t have the time or inclination to build yet another computer, when I can buy a cheap noname computer online. I got my wife's computer from Wintergreen systems.

Re: Getting a Windows Refund in California Small Claims Court

Anonymous's picture

Obviously you didnt read the whole thing. He specifically mentions a LAPTOP that he purchased.
How many laptops have you built since you were 12?

Re: Getting a Windows Refund in California Small Claims Court

Anonymous's picture

I wound up buying a Dell PC early this year, not cause I couldn't build one myself, but because the PC as a whole cost less than the parts to build one (even using Pricewatch.com).
That included Windows XP Home... which by the way most OEMs pay between $65 and $95 for. My guess is Dell pays $45, possibly less during months they advertise on Microsoft's behalf.

Sometimes cost outweighs performance. Wasn't that one of the attractions to linux?

Re: Getting a Windows Refund in California Small Claims Court

Anonymous's picture

For future endeavors, you should cite the court case # / info so that others could cite it as part of their case... if needed.

Re: Getting a Windows Refund in California Small Claims Court

Anonymous's picture

For future endeavors, you should cite the court case #

In general, no. Trial court rulings are,
with a few exceptions, not considered
as authority. An appeals court ruling
would be required, and it seems unlikely
that a defaulting vendor is likely to appeal.

Re: Getting a Windows Refund in California Small Claims Court

Anonymous's picture

Actually you can't cite unpublished opinions in California courts. You could be sanctioned by the court for doing so. Only Appellate and Supreme Court decisions are published. If someone got an appellate court to go for it, that would be incredibly good news for the fight against M$. BTW IAAL.

Re: Getting a Windows Refund in California Small Claims Court

Anonymous's picture

Dear Mr Oualine,
Congratulations Sir! Well played to you and a most enjoyable article.
All the very best.
-Anon.

Who Steve Oualline is...

Anonymous's picture

Steve Oualline is the author is the awesome Vim book by New Riders. This is one of the best technical books I have ever seen written. And he copyrighted it under the Open Publication License. I have it in dead tree form and pdf. It was worth every penny I spent. You have to have alot of respect for this man.
And he got $200 bucks back in court. Not bad.

Re: Who Steve Oualline is...

Anonymous's picture

He also wrote a book for O'Reilly called 'Practical C++ Programming'
It is an excellent book for beginning C++ programming. I must agree with the parent poster, Oualline's writing style is excellent. I actually enjoyed reading both of these books which says a lot considering the topics (Vim and C++).

Lots of geniuses posting to this story...

Anonymous's picture

...first the judgement experts, and good luck getting paid...

they'll cut a check in a couple of days. They can't hide, collection costs can be added to the amount, and the legal bill for the legal firm or internal lawyers/legal secretaries handling the case to waste another half hour on the case FAR outweigh simply cutting a check.

...then the eula experts...

Adam Kosmin, windowsrefund, lost his case because he didn't have a copy of the eula. He had a copy from another computer, which the defending attorney objected to as hearsay, and the judge sustained the objection. Without the eula, the case was thrown out.

You want to copy the eula from another computer? Won't be admitted. You can try handcopying the eula, word for word, onto paper, and submitting that. It will be up to the judge to agree to accept it. But the defending attorney will undoubtably object. At that point, you should ask for the defending attorney to examine the wording, and to state what part of the eula is innaccurate. If he can't, the judge will usually admit the document as evidence (from prior experience on other documents, not this exact situation), or you can ask, if this is not the eula, what do you (defending attorney) claim is the correct eula? You are in a position where you have something, and the defending attorney has nothing (he wants to avoid getting the eula into evidence, that's the basis for your lawsuit).

And if you hand copy the eula from the screen, I would have a witness there to watch, and read back every word, or to make their own copy, making sure everything matches, and then bring that witness with you, and indicate in the filing that you have a witness to the license agreement. Having them watch you refuse to agree/uninstall would be a good idea as well.

But avoid all of the above hassle. When you file your lawsuit, you simply ask the clerk how to subpoena the eula. It's called an "information subpoena" in New York, and most other places I would believe. That put's the defendant in a position of fighting the information subpoena (which will cost them more), puts them on notice that you at least have an idea what you are doing, and puts them on notice that there tactic of avoiding getting the eula admitted won't work in this case. At that point, it becomes a case of a simple contract dispute, with everything in your favor.

You need a copy of the eula in your hands, one that will be recognized by the court, before getting anywhere near a courtroom.

How about using a digital or

Anonymous's picture

How about using a digital or film camera to take a picture of the screen? That should get you your EULA.

Re: Lots of geniuses posting to this story...

Anonymous's picture

If the opposition challenges you printout of the EULA then how about offering to plug the computer in and booting it up so the juge can see the original? Of course this means that you have to have the computer with you and you haven't formated the drive yet.

There souldn't be any problem with the fact that you haven't deleted it yet because you attempted to return it for a refund and they refused so naturally you still have it. If you don't get your refund you can still choose to agree to the EULA and use it. You also needed to preserve it as evidence for the court.

Re: Lots of geniuses posting to this story...

Anonymous's picture

Most computers come with all the software (including XP) on CDs, so in case you lose the court case, you can still install the software from the CD.

Re: Lots of geniuses posting to this story...

Anonymous's picture

There souldn't be any problem with the fact that you haven't deleted it yet because you attempted to return it for a refund and they refused so naturally you still have it.
Only problem: if this drags on for weeks, that means that you have to keep your computer in this pristine condition for the whole time, i.e. not use it. But you paid good money for it, and computers are the one thing that devaluates daily... Be sure that after all this time, the computer won't have become cheaper in the shop than $priceYouPaid - $refund.

take a picture of your screen

Anonymous's picture

take a picture of your screen for the eula.

Re: Lots of geniuses posting to this story...

Anonymous's picture

stay tuned, I'll be refiling against Toshiba soon after I return from LinuxWorld SF and will get that EULA into evidence. Don't count me out just yet :)

Adam Kosmin
WindowsRefund.net

Congrats Steve!

akosmin's picture

Thanks for sharing the results of your hard work. This is absolutley inspiring!

Adam
WindowsRefund.net

Re: Getting a Windows Refund in California Small Claims Court

Anonymous's picture

An OEM copy of XP came with the PC so should you not get a refund for the OEM price? The OEM XP cost less and I beleve has more restrictions.

Re: Getting a Windows Refund in California Small Claims Court

Anonymous's picture

should you not get a refund for the OEM price?

You're right that presenting evidence of the OEM price would probably succeed in getting the price set to that amount. But the contract they signed with Microsoft FORBIDS them to disclose the terms of the contract. They cannot present any evidence at all. Therefore the plaintiff's claim of $199 is accepted unchallenged.

Re: Getting a Windows Refund in California Small Claims Court

Anonymous's picture

Even though you are correct, think of the time and effort wasted for 200 bucks. It just isn't worth it.

More than money

Ben's picture

Except that the precedent it sets is priceless.

Re: Getting a Windows Refund in California Small Claims Court

Anonymous's picture

Ah, but if enough people do it ... it may cause enough trouble for the manufacturer and monopolist to adopt a more reasonable distribution policy. Meaning, the manufacturer offers the computer with no OS for reduced price. Why should users of OS' other than Windows pay what amounts to a 'Windows tax'? Let the Windows users pay that tax if they want to; the rest of us just want the hardware.

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