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.
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Re: Getting a Windows Refund in California Small Claims Court

Anonymous's picture

>What an idiot, he wastes several hours of his life on getting $300 because he likes Linux.
That is a contradiction in your own logic. To be paid $300 for your time is hardly a loss, unless the time spent was very large. Even if it was 10 hours of time, that's $30.00 an hour, nothing to sneeze at. Besides, it's not about liking Linux, it's about being refunded for a product that you never wanted to buy but were forced to do so as part of a "bundle".

>You guys are supporting OS/2 essentially.
More double-talk. As my foggy memory recalls, OS/2 and Windows NT were at one time a joint project - even to the point of sharing some of the same code. By this extension, and because OS/2 did not succeed, should Windows NT be condemned as well? This is a straw-man arguement, meant to distract from the original issue.

>Until all distros unite with one common vision there's no future for Linux because of brand dilution and customer confusion.
So, by logical extension, there should be only one distro of Linux? After all, it wouldn't matter that Netware or Solaris are around as competitors to Windows Server, there should be only one commercial non-linux vendor, right? More flawed arguements, and more slanting towards a monopoly that doesn't serve the public's interest. Another straw-man arguement.

>Also, wait until SCO is done collecting royalties for the SMP code that was manhandled to get Linux legit in the Enterprise. Not only does it not work at the desktop for anything, but then it'll lose it's footing in the Enterprise.
As far as it can be determined, it appears that SCO itself has 1) inserted the code themselves, and 2) invalidated their claims through the prior sale of Caldera Linux. SCO has a snowball's chance in hell of winning, and frankly, is bordering on slander and financial fraud through the "pump-n-dump" of their executive's stocks (which have been documented elsewhere).

>Nice.
Nice? Why? Because there should be only one company on the face of the earth that produces software, with no choice, no say, and no input from consumers? Sounds like old-style Soviet communism to me. Say, maybe that's what Microsoft is all about - being a communist entity that can dictate to the masses what they should and shouldn't do with their compter.
Tell you what...why don't you pay ME $30.00 an hour for 10 hours, and I'll educate you about the errors in your posting. After all, it's just a waste of time for me to earn that money...

Re: Clarification on OS/2

Anonymous's picture

Nice reply to the troll. Just a little clarification for you on OS/2. OS/2 was being developed by IBM and Microsoft as a MAC attack when M$ decided to go it's own way with Windoze. NT was developed a little later when M$ hired Dave Cutler (VMS daddy) to give them something more robust.

How Does OS/2 Come Into This?

Anonymous's picture

You guys are supporting OS/2 essentially.
As someone who has programmed for OS/2 and gotten a piece of OS/2 shareware internationally noticed, I believe I take penumbrage at your sidelong swipe at OS/2. As a desktop system it had great potential, just waiting for more programmers to come along and see it. As an infrastructural system for an ISP, OS/2 adhered more to the open standards born of the *nix world, unlike products of that Seattle-area company who seemed to go out of their way to shun interoperability.

Re: How Does OS/2 Come Into This?

Suppafly's picture

penumbrage

Anyone know what that word means? I couldn't find it on m-w.com

Re: How Does OS/2 Come Into This?

Anonymous's picture

Just a guess but I'd say Penumbrage means partial offence.

Think Penumbra and Umbra...

I wish I could get paid to post to BB's.

Anonymous's picture

And which "marketing" orginization do you work for? Do you make more or less per hour than a telemarketer does?

Note... Anonynimity doesn't disparage MY point. I wonder what it does for yours???

(oh wait... not if it comes at the cost of having my own opinion)

Re: Getting a Windows Refund in California Small Claims Court

Anonymous's picture

Actually this happened to me because the laptop that I got only came with XP Home and I needed to get XP Pro. So I got chumped into buying XP twice.

Well not me, my employer but I'm sure that you can see that most readily available laptops (ie pre-built) come with XP Home.

Re: Getting a Windows Refund in California Small Claims Court

Anonymous's picture

Thats what the 'upgrade' version of Pro is for... Upgrading from basically any other MS OS, including XP Home. I certainly hope your employer didn't pay the full retail price for Pro. Thats their own fault if they did. Sure its still expensive, but if you want to use MS products you'll just have to pay the price. Like it or not its their software and they can charge whatever they want for it. And if you don't want to use it, then I do agree you should get your money back for it. Good luck convincing a judge (or anyone) you should get money back for windows just so you can save a bit on an upgrade to the professional version. IMHO, thats like saying you should get your money back for the CPU that came installed with the computer because you want to upgrade it to a faster model. Also note that most companies give you the option to upgrade to pro when you buy their laptops (or any computers), often for fairly cheap, compared to the retail price of the upgrade - $80 from Dell, for example. Obviously you have to get a customized model for this, but the option is there.

Total price for Home ($200) + Pro Upgrade ($200) is $400, if you pay full retail for the software (and you sure didn't pay full retail for your OEM copy... despite this article - you can buy your own OEM copy for about half price from places like newegg.com with hardware, say if you are building your own computer) Full retail price for Pro is $300. So even if the actual value of the bundled XP Home was $200 (and I'd argue its not since the average consumer can buy the OEM version for half that - obviously big companies are paying less than even that because they're buying in volume), you still only paid $100 more than you 'should' have.

Re: What an idiot, he wastes several hours of his life...

Anonymous's picture

While you might see this as a waste of time, it's not. It's about people taking a stand against their consumer rights being abused. It's about the common consumer leveling the playing field for other software companies (yes Linux distributors DO count as software companies). When will people with your narrow mindset finally wake up and relize that when you blindfully hand over your freedom of choice, not just in the OS that runs on your computer but ANYTHING you purchase, you are allowing yourself to be controlled by someone else. That's certainly not what I call freedom of any sort. This guy who "wastes several hours of his life" is only exercising his consumer rights as an American. The freedom of choice is what drives a free enterprise, no t having a product shoved down the consumer's throat. That stifles competition. Companies like Microsoft do not understand this. Apparently you don't either. Wake up and enjoy the rude awakening you're due for.

Re: What an idiot, he wastes several hours of his life...

Anonymous's picture

"yes Linux distributors DO count as software companies"

Not to search in the mud for a penny, but what if i create a Linux distribution as individual? Then i'm not a software company.

Re: What an idiot, he wastes several hours of his life...

Anonymous's picture

You certainly have the ability to choose to be a company. That's a matter of choice and within the constraints of the statement's logic.

You don't get it, do you?

Anonymous's picture

It's not about Linux. It is, however, about restrictive, unreasonable "Shrink-wrap" licensing, that has unfortunately become common with software products. Note also that the claims made were of an entirely resonable dimension. There was no talk about suing for millions of dollars in (imagined?) damages, as is so common in the screwed-up American legal system.
Have somebody read a Microsoft license to you and I think you'll probably be amazed at what you find in there...Troll.

Re: Getting a Windows Refund in California Small Claims Court

Anonymous's picture

I can't speak for every Linux user, but I can speak for myself. I'm not a salesman for RedHat or SuSe, I'm an end user. I do not run Microsoft Windows, instead I run Gentoo Linux and possibly OS X. It's maddening that all the notebooks I've looked at so far come preinstalled with an operating system that is going to be overwritten instantly, and I'm paying for an OS I don't use. I could really care less about Linux's success on the desktop or in the enterprise, I care about freedom of choice and when Microsoft curbs all computer users freedom of choice whether they've ever gone near an MS product in their life or not is plain wrong, this needs to be fixed and the author of this article is taking one of the first real steps towards doing this.

Re: Getting a Windows Refund in California Small Claims Court

Anonymous's picture

"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"

How did you go about returning the software license to the place of purchase?

And what does "otherwise using" mean? That's pretty ambiguous. I guess going through the initial phases of setup for the product and reading the EULA for the product is not "using" the product in any way.

This mumbo jargon is so creepy when you really read it.

Re: Getting a Windows Refund in California Small Claims Court

Anonymous's picture

so if you use your windows cd for a coaster are you still bound by the eula? if so can microsoft stop you from using certain types of beverages on said coaster for "security reasons"?
It seems strange that a company so concerned about security causes most of the computer security problems out there. ie slammer worm. etc..

Re: Getting a Windows Refund in California Small Claims Court

Anonymous's picture

How did you go about returning the software license to the place of purchase?

It's not referring to the software license. It's referring to the product.

Re: Getting a Windows Refund in California Small Claims Court

Anonymous's picture

Might sound stupid but isn't the license part of the product?

Re: Getting a Windows Refund in California Small Claims Court

Anonymous's picture

Possibly it means 'doing anything except for clicking the accept or reject button'? If so, this might put those who mount the disk, to extract a license copy, on shakey ground? Maybe the 'photograph the screen' option, mentioned by another poster, is the best option?

Re: Getting a Windows Refund in California Small Claims Court

Anonymous's picture

Why not get a copy of the EULA from a friend who did accept it on their computer?

Re: Getting a Windows Refund in California Small Claims Court

Anonymous's picture

How do you know your friend's EULA is the same as th EULA which was presented to you? Courts worry about these sorts of things. It is best to record it off your computer.

If you're going to be really paranoid, have a witness present to back up the photographs, and sign and date them. (Though this would stop making you look like a 'Joe Average'. Maybe have the witness, but keep him in reserve in case the company disputes your photographs? There should be little danger of dispute though, since the company knows what is in their EULA, it is easy to rerun installation to verify the EULA, and it is not in the company's interest to lie when it is so easy to find them out. Then again, there are companies out there who have lying so ingrained in their culture that they do it without even thinking about it. Also, when it is not so easy to find them out, my experence is companies will tell any lie which will gain them an advantage.)

Re: Getting a Windows Refund in California Small Claims Court

Anonymous's picture

I'm not sure what "otherwise using" means, but I'm pretty sure nuking the installation isn't "using" it.

If you delete the software, you're in the clear.

Re: Getting a Windows Refund in California Small Claims Court

Anonymous's picture

I wonder what kind of precedence this is going to set (if any.) Couldn't the manufacturers and M$ get together and have a document that states "the bundled cost is X number of dollars or less so you are only entitled to X dollars refund"? Which is still better than nothing.

I hope this is the beginning of something good (like getting computers with no M$ tax.)

Re: Getting a Windows Refund in California Small Claims Court

Anonymous's picture

"I wonder what kind of precedence this is going to set"

Absolutely none. Small Claims cases do not set binding precedent...

Re: Getting a Windows Refund in California Small Claims Court

Anonymous's picture

yeah, if this becomes common enough, the manufacturers will start to set policy. They might ferinstance just decide to 'define' the price at like $100 or, basically, attack at any of the nodes in your chain of events, with something legal, like another piece of paper clarifying whatever. Something instead of nothing. This depends on how much of a nuisance it is to them.

What a hassle. I certainly don't have time to do this stuff. Therefore, I own Windoze on my latest laptop. OK so might as well install it for some games.

Re: Getting a Windows Refund in California Small Claims Court

Anonymous's picture

The whole point of Small Claims Court is that they dont GET to "attack at any of the nodes in your chain of events, with something legal"... Both sides get a very short time to explain their case to the judge (think TV court, Judge Judy, Judge Joe Brown, etc). No legalese involved, plain english.

Re: Getting a Windows Refund in California Small Claims Court

Anonymous's picture

Technically they have to tell the court the truth about what they paid, or how much they (oem) charged the customer for the computer os. Hidden price agreements I believe can fall under price fixing or is that only between groups? ms and the manuf? ur...
"""""swear to tell the truth?""""""
Oh... this is only the case if they have hidden agreements for how cheap they can get the os for... Technically that's where they lost their case.
Hey a bit of history.... didn't the chief justice marshal back in the day decide against someone when they didn't show up for court/or was about to and the states created and amendment (11th?) to prevent the court from being the dispute agent for that type of case? They had to hurry up and present a case or lose by default (with an arg. like above or not, guess this depends on the judges mood). In the above guys case they fucked up bad... even a state has to show up to defend itself... then the justice will dismiss the case or not depending on that stuff.

Re: Getting a Windows Refund in California Small Claims Court

Anonymous's picture

Well, I am not a lawyer, but would a victory in small claims
court pave the way to a class action suit?

Re: Getting a Windows Refund in California Small Claims Court

Anonymous's picture

no. small claims judgments do not carry any weight beyond themselves.

Re: Getting a Windows Refund in California Small Claims Court

aicra's picture

Bravo!

A fine example of how we may pursue our endeavors and use the legal system to our advantage.

In particular, I enjoyed the fact that they made you an offer with a gag order. Also, that you pursued this, documented it and saw it through is spectacular.

Thank you!
-aicra

Re: Getting a Windows Refund in California Small Claims Court

Anonymous's picture

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.

How about getting a camera and taking a picture of the screen? Just scroll down and take another picture if the EULA won't fit on the first screen.

Re: Getting a Windows Refund in California Small Claims Court

Anonymous's picture

How about getting a camera and taking a picture of the screen? Just scroll down and take another picture if the EULA won't fit on the first screen.

I take it your digital camera has drivers which work on Linux?

Cameras don't necessarily need

Anonymous's picture
  • Traditional cameras use a strange storage material known as "photographic film. They go through a chemical process known as "developing" that does not normally involve computers in any vital way.
  • Many digital cameras have interfaces that _are_ usable with Linux. My Olympus works perfectly well, for instance.
  • Recent digital cameras come with memory cards that you can take out and plug straight into a printer. No need to worry about hooking the printer up to a computer...

Re: Getting a Windows Refund in California Small Claims Court

Anonymous's picture

I have yet to find any linux drivers for my 35mm camera...

Oh, that's because 35mm camera's use something called film, which is processed....

and if you are still confused, unplug.

almost all cameras work with Linux

florin's picture

At least the digital ones with a USB interface.
Just add this line to /etc/fstab:

/dev/sda1 /mnt/camera auto noauto,user 0 0

Make sure the /mnt/camera directory exists (create it if it doesn't).
Turn off the camera, plug it into the USB, turn it on (if it has multiple ON modes, turn it to the one that allows downloading the pics), then run this command:

mount /mnt/camera

Bingo! You can access your camera through the /mnt/camera directory. You can download pics, delete them, etc. Heck, you can even upload arbitrary files into your camera, since it's essentially a Flash hard-drive (although i advise against it since it can potentially do damage).
Once you're done with it, then get out of the /mnt/camera dir, run "umount /mnt/camera", turn off the camera, and only after that disconnect it from USB.

If you're running Gnome, once you added that line to /etc/fstab and created the dir, there's an easier way to mount the camera: instead of running the mount command, just right-click on the Desktop, go to the Disks entry, and select Camera or whatever it's called. This will mount it automatically. An icon will appear on the Desktop, named Camera. Use it to browse through the files.
To unmount it with Gnome, look on the Desktop for the Camera drive icon, right click on it, then select Unmount or Eject.
All the other maneouvres remain the same:
plug / turn on / mount / do stuff / get out of dir / umount / turn off / unplug

Re: almost all cameras work with Linux

Anonymous's picture

All cameras except those cameras made by Fuji, Toshiba and a few others. That means >15% of the market is incompatible regarding Linux.
Kindly use experience as a guide, I'll give you some of my experience.

Not quite

John Bailey's picture

My Fuji would tend to disagree with you. It's worked automatically from the first time I tried it three years ago on Linux. Plug it in and it is seen as a removable drive. Perhaps the compacts are different.

Re: Getting a Windows Refund in California Small Claims Court

Anonymous's picture

Mine just shows up as a USB drive. Couldn't be easier to set up.

Re: Getting a Windows Refund in California Small Claims Court

Anonymous's picture

yup
my sony dsc-75
bought it when it was top of the line...

its a 3.2mp camera

check out gphoto2 , they support a decent amount of cameras :):)

Re: Getting a Windows Refund in California Small Claims Court

Anonymous's picture

Welp, sure as hell doesn't support the Olympus u-20. Lame.

Re: Getting a Windows Refund in California Small Claims Court

Anonymous's picture

You Lame.
New Olympus Cameras do work using USB Mass Storage. You only need a stock 2.4.x Linux kernel and use "mount".
What else ?

Re: Getting a Windows Refund in California Small Claims Court

Anonymous's picture

Yepp, Olympus are lame.

nonsense

florin's picture

I own an Olympus, and it works with Linux very well. See my previous post on how to use USB cameras with Linux. Works for almost any USB camera.

Re: Getting a Windows Refund in California Small Claims Court

Anonymous's picture

I think there are still some cameras that work without a computer.

Re: Getting a Windows Refund in California Small Claims Court

Anonymous's picture

%Systemroot%System32eula.txt -- (IE c:system32eula.txt)
Interesting that you can't find it on M$'s web site.

Re: LINK TO ONLINE VERSION OF XP EULA

Anonymous's picture

This is the correct EULA for an OEM version of Windows XP Professional, and if you read it, you will see that it provides no basis for returning the software without the computer and expecting a refund.

Re: LINK TO ONLINE VERSION OF XP EULA

Anonymous's picture

You are wrong, buddy. It is there, almost on top of the document.

"By installing, copying, downloading, accessing or otherwise using
the SOFTWARE, you agree to be bound by the terms of this EULA.
If you do not agree to the terms of this EULA, you may not use or
copy the SOFTWARE, and you should promptly contact Manufacturer
for instructions on return of the unused product(s) in accordance
with Manufacturer's return policies."

"product(s)"... I think it is implicitly defined here:

"License Agreement ("EULA") is a legal agreement between you
(either an individual or a single legal 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")."

So, if the store/company/whatever offers refund options for software, you are to get one.

Re: LINK TO ONLINE VERSION OF XP EULA

Anonymous's picture

One other point. Putting the phrase, "in accordance with the Manufacturer's return policies," as the new Windows OEM EULAs have in them, leaves a hole wide enough to drive a tank through. If the manufacturer's return policy is, "No refunds on bundled software," then, with this phrase, that is in perfect compliance with the EULA.

Re: LINK TO ONLINE VERSION OF XP EULA

Anonymous's picture

No, I am right. Yes, you can get a refund, you just have to return the computer to get it. That is the Manufacturer's return policy. The EULA also says that you can not transfer the software without the hardware, and the software must be treated as an integrated product with the hardware.

Software as a Component of the Computer - Transfer. THIS
LICENSE MAY NOT BE SHARED,
TRANSFERRED TO OR USED CONCURRENTLY
ON DIFFERENT COMPUTERS. The SOFTWARE
is licensed with the HARDWARE as a single integrated
product and may only be used with the HARDWARE. If the
SOFTWARE is not accompanied by new HARDWARE, you may
not use the SOFTWARE. You may permanently transfer all
of your rights under this EULA only as part of a
permanent sale or transfer of the HARDWARE, provided
you retain no copies, if you transfer all of the SOFTWARE
(including all component parts, the media and printed
materials, any upgrades, this EULA and the Certificate
of Authenticity), and the recipient agrees to the terms
of this EULA. If the SOFTWARE is an upgrade, any
transfer must also include all prior versions of the
SOFTWARE.

Therefore, transferring the software back to the manufacturer means transferring the hardware also, according to the EULA. I am not saying this is right or fair, mind you; I am simply saying this is what the EULA says.

Re: Getting a Windows Refund in California Small Claims Court

Anonymous's picture

System32 is in the Windows directory, so that'd be:

C:WindowsSystem32eula.txt

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