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: 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.

Suggestion: boot the computer using a Linux bootable diskette or CD (Tom's Root Boot? Knoppix?) that groks the NTFS filesystem, locate the EULA document (can anybody with XP handy post the filename?) and save or print it out that way. THEN wipe the drive.

Re: Getting a Windows Refund in California Small Claims Court

Anonymous's picture

How about taking a picture of the original EULA printed on the original MS Windows install?

Re: Getting a Windows Refund in California Small Claims Court

Anonymous's picture

I don't think that hack your dirve is a good idea, Maybe your are breaking the license doing that?.

Best thing to do...

Anonymous's picture

boot your box up, stop by the licence screen.

take a picture with your digital camera (if available).
scroll down.
repeat.

print it out.

so the court will know that this is the right licence.

EULA

Anonymous's picture

Commonly located at C:WINDOWSsystem32eula.txt

Re: Getting a Windows Refund in California Small Claims Court

Anonymous's picture

Eula.txt. It's usually in the i386 directory of the CD, though some OEM's might have it in the root. If it's an OEM'ed version, it might also be under the name OEMEula.txt.

Re: Getting a Windows Refund in California Small Claims Court

Anonymous's picture

c:windowshelplicense.txt

Re: Getting a Windows Refund in California Small Claims Court

Anonymous's picture

>>Suggestion: boot the computer using a Linux bootable diskette or CD (Tom's Root Boot? Knoppix?) that groks the NTFS filesystem, locate the EULA document (can anybody with XP handy post the filename?) and save or print it out that way. THEN wipe the driv.

But then are you not completely destroying the installation, as you will be keeping a hard-copy, and thus part of it?

Re: Getting a Windows Refund in California Small Claims Court

Anonymous's picture

eula.txt

Re: Getting a Windows Refund in California Small Claims Court

Anonymous's picture

Why not use a second computer to transcribe the license by hand?

Re: Getting a Windows Refund in California Small Claims Court

Anonymous's picture

that'd be better since, you went through the trouble since the company wouldnt let you.

Re: Getting a Windows Refund in California Small Claims Court

Anonymous's picture

What about getting a copy of the license from a friend? Isn't it on Microsoft's webpage somewhere?

Re: Getting a Windows Refund in California Small Claims Court

Anonymous's picture

SystemrootSystem32eula.txt -- Interesting that you can't find it on the web...

EULA.TXT

Anonymous's picture

Microsoft Windows XP Professional

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PRODUCT, OR OTHERWISE UNDER OR IN
CONNECTION WITH ANY PROVISION OF THIS
EULA, EVEN IN THE EVENT OF THE FAULT,
TORT (INCLUDING NEGLIGENCE), STRICT
LIABILITY, BREACH OF CONTRACT OR BREACH
OF WARRANTY OF MICROSOFT OR ANY
SUPPLIER, AND EVEN IF MICROSOFT OR ANY
SUPPLIER HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.

14. LINKS TO THIRD PARTY SITES. You may link
to third party sites through the use of the Product. The
third party sites are not under the control of Microsoft,
and Microsoft is not responsible for the contents of any
third party sites, any links contained in third party
sites, or any changes or updates to third party sites.
Microsoft is not responsible for webcasting or any other
form of transmission received from any third party sites.
Microsoft is providing these links to third party sites to
you only as a convenience, and the inclusion of any link
does not imply an endorsement by Microsoft of the third
party site.

15. LIMITATION OF LIABILITY AND REMEDIES.
Notwithstanding any damages that you might incur for any
reason whatsoever (including, without limitation, all
damages referenced above and all direct or general
damages), the entire liability of Microsoft and any of its
suppliers under any provision of this EULA and your
exclusive remedy for all of the foregoing (except for any
remedy of repair or replacement elected by Microsoft with
respect to any breach of the Limited Warranty) shall be
limited to the greater of the amount actually paid by you
for the Product or U.S.$5.00. The foregoing limitations,
exclusions and disclaimers (including Sections 11, 12 and
13 above) shall apply to the maximum extent permitted by
applicable law, even if any remedy fails its
essential purpose.

16. U.S. GOVERNMENT LICENSE RIGHTS. All
Product provided to the U.S. Government pursuant to
solicitations issued on or after December 1, 1995 is
provided with the commercial license rights and
restrictions described elsewhere herein. All Product
provided to the U.S. Government pursuant to solicitations
issued prior to December 1, 1995 is provided with
"Restricted Rights" as provided for in FAR, 48 CFR 52.227-14
(JUNE 1987) or DFAR, 48 CFR 252.227-7013 (OCT 1988),
as applicable.

17. APPLICABLE LAW. If you acquired this Product in the United
States, this EULA is governed by the laws of the State of
Washington. If you acquired this Product in Canada, unless
expressly prohibited by local law, this EULA is governed
by the laws in force in the Province of Ontario, Canada;
and, in respect of any dispute which may arise hereunder,
you consent to the jurisdiction of the federal and
provincial courts sitting in Toronto, Ontario. If this
Product was acquired outside the United States, then local
law may apply.

18. ENTIRE AGREEMENT. This EULA (including
any addendum or amendment to this EULA which is included
with the Product) are the entire agreement between you and
Microsoft relating to the Product and the support services
(if any) and they supersede all prior or contemporaneous
oral or written communications, proposals and
representations with respect to the Product or any other
subject matter covered by this EULA. To the extent the
terms of any Microsoft policies or programs for support
services conflict with the terms of this EULA, the terms
of this EULA shall control.

19. The Product is protected by copyright and other intellectual
property laws and treaties. Microsoft or its suppliers own
the title, copyright, and other intellectual property
rights in the Product. The Product is licensed, not sold.

Si vous avez acquis votre produit Microsoft au CANADA, la
garantie limit

Re: EULA.TXT

Anonymous's picture

This EULA is an example of the EULA for a full retail version of Windows XP Professional, not an OEM version. Thus it would be completely irrelevant.

No! Quote the one on the disk or not at all

Anonymous's picture

Problem is, if you printed this one out and tried to use it in court the judge would want to know if its the same as the one on the disk, and if so how you know. After all, maybe MS has modified the terms, or maybe the poster above lied.

If I couldn't print the license it then I would make a handwritten copy of specific clauses, including the refund clause and any clause that I didn't agree with. I'd also point out in a letter to the company that I could not obtain a copy of the EULA, and so perhaps they should bring one to the court.

Re: No! Quote the one on the disk or not at all

Anonymous's picture

Don't waste your time, just take photos which also include a view of the hardware. If you can include proof of date it would be helpful also.

I don't know how "evidence" it is, but I guess it is not less evidence than hand writing :)

Re: Getting a Windows Refund in California Small Claims Court

Anonymous's picture

Better, find a friends computer and print out their copy. It should be in the system32 folder, under the windows directory.

It's named eula.txt

Re: Getting a Windows Refund in California Small Claims Court

Anonymous's picture

You are my hero!

Re: Getting a Windows Refund in California Small Claims Court

Anonymous's picture

and mine =)

Re: Getting a Windows Refund in California Small Claims Court

Anonymous's picture

My refund check will be arriving this month.
You have a judgement in your favor. You now want to collect. You'll almost certainly have to go back to court to get your judgement enforced.

A judgement is a powerful thing

Anonymous's picture

A judgement is a powerful thing. Collecting judgements against individuals is difficult because it's hard to find the assets that can be seized to settle them. Ditto small companies. You might know where they live, but vehicles, work tools, and a modest amount of personal goods are normally exempt from seizure.

But any corporation selling laptops is large enough that they should pay judgements immediately. It's impossible for them to hide when the sheriff comes with an order to seize property for public auction to satisfy a judgement (property such as, oh, the computer in the CEO's office. Used computers aren't worth much, but it should cover your judgement and collection costs.) It's impossible for them to hide their bank accounts.

The thing about small judgements is that it's almost never just about the money. Nobody would pay hundreds of dollars to collect a few hundred dollars if they only care about the money. But if you're legitimately pissed, e.g., they gave you the runaround once, you won, and now they're trying to give you the runaround again, then you're probably willing to write off the judgement just for the harassment value.

If the other party unquestionably has the money but is just trying to jerk you around, judgements almost always include collection costs. If you know you'll get the money eventually, there's really no downside in spending whatever it takes to make them pay.

Re: A judgement is a powerful thing

Anonymous's picture

In CA and other places, if they don't pay you go to the judge with a Writ of Execution. This writ goes to the sheriff, and he goes to the retail store, and every customer that buys something pays the sheriff until the debt and the sheriff's time are paid. The sheriff will not let any money be taken in by the store.

It's virtually suicide for a retail store to refuse to pay a judgement... the check will arrive without a doubt.

Re: A judgement is a powerful thing

Anonymous's picture

Let's not forget that they cannot sell property they own until the judgement is settled.

Collection Limitations?

Anonymous's picture

Do you have to be so specific as to try to seize the CEO's computer? Can't you just go to one of their offices and seize the phone system switch, the receptionist's desk, the front door (confirm they own the building and are not leasing it and the door -- but if they own the building, maybe seize the building), and the cafeteria cash register (do you have to open it)? Then put it up all for sheriff's auction and if it sells for more than your judgement then you've gotten your money. I assume any extra money goes back to the corporation.

Re: Getting a Windows Refund in California Small Claims Court

Anonymous's picture

That cheque will be worth much more than the amount it's made out for. I would not cash it. (E-bay Auction?)

Re: Getting a Windows Refund in California Small Claims Court

Anonymous's picture

That cheque will be worth much more than the amount it's made out for. I would not cash it. (E-bay Auction)

Re: Getting a Windows Refund in California Small Claims Court

Anonymous's picture

That cheque will be worth much more than the amount it's made out for.

Re: Getting a Windows Refund in California Small Claims Court

Anonymous's picture

"My refund check will be arriving this month."

You hope.

WTF??

Anonymous's picture

I am kind of in awe as to whether this article is real, or just some pro-linux user contemplating what the world should be like. I have read it about 3 times and still cannot come to an answer. On the one hand if this is real, then I question the sanity of the person that wrote it. However if it is a hoax then I commend them for at least making it semi-believable.

If a person is trully that obsessed and anti-windows then why not just build your own machine with your own OS? Simple, to the point and no hassle. If you actually go out to buy a pre-built factory (POS) PC then you have no business or right to complain what software came with it. Most users that can understand and run a Linux box know to build their own machine. So I find the argument and the article a moot point.

-DarkElf

Re: WTF??

Anonymous's picture

DarkElf, you are a g00mb4h, plain and simple. I will answer the positions you pose below and dissect them one by one. This should serve to enlighten you, and also demonstrate the preposterous nature of the rant you posted:

You wrote:

I am kind of in awe as to whether this article is real, or just some pro-linux user contemplating what the world should be like. I have read it about 3 times and still cannot come to an answer. On the one hand if this is real, then I question the sanity of the person that wrote it. However if it is a hoax then I commend them for at least making it semi-believable.

Question Steve's sanity then. He is a real person who did not agree to the outrageous limitations that would have been placed upon him by agreeing to the mACROsFOT license, and excercised his option for a refund from the manufacturer - remember that it was the system manufacturer, and not mACROsFOT, that is the perp here.

---------------------------------------------
If a person is trully that obsessed and anti-windows then why not just build your own machine with your own OS? Simple, to the point and no hassle.
--------------------------------------------

presumably, but not neccessarily, because it was cheaper to buy the machine from the manufacturer that he purchased it from rather than put one together from individual parts.

Beyond that, he did use his own OS.

Simple, to the point and no hassle - until the manufacturer failed to honor their contract.

---------------------------------------------
If you actually go out to buy a pre-built factory (POS) PC then you have no business or right to complain what software came with it.
--------------------------------------------

Wrong. When you buy a pre-built factory PC you have every right to complain about anything wrong with the machine - that's called warranty and merchantibility.

If you were to buy a machine and it didn't work I'm certain that you would complain about it.

As far as the software goes, Steve didn't have any complaints about it - he never installed it to even find out if it ran because the licensing agreement was was not satisfactory. He merely asked for the refund that he was entitled to, and the manufacturer failed to honor their agreement to do so.

-------------------------------------
Most users that can understand and run a Linux box know to build their own machine.
------------------------------------

That is simply not true. Not true at all. You are either blatantly lying, are grossly mis-informed, or guessing that Linux can usually only be installed by brainiacs of some sort.

Linux is easy to install on almost any machine - even Sun Enterprise Servers ;)

------------------------------------
So I find the argument and the article a moot point.
-----------------------------------

Good for you elf-boy :P The world needs more people like you. People espousing your attitude are the main reason why Linux was able to gain so much ground on Microsoft recently.

Oh, and BTW, all those annoying pop-ups you keep getting whenever you try to compose and email to your friends? They're there because of people like you - shorn sheep.

Re: WTF??

Anonymous's picture

You say you read it 3 times lookes more like glanced at it and decided to tear it appart.. All that was stated was facts their was no M$ bashing...All that was wanted was a laptop that he could program open source free bsd programs and drivers on the microsoft licence stated that he would not be allowed to do this if he had accepted this licence. So he decided not to agree and to format his hard drive and install a diffrent operating system one that would allow him to produce the programs / drivers he wanted to produce. so after doing this he wanted his $199 back for a product he did not use and would not use so all he did was follow the instructions with in the licence to get his refund for unused software...
Another way of putting it would be you go out and buy a new cooker for your kitchen but it comes with a whole set of kitchen units that you dont need but you are not allowed to sell them on to anyone else so you take them back to the manufacturer of the cooker and say " hey I dont want these can I have a refund on them like your licence says I can " you spent $800 on the cooker and the units as a bundel the price of the units is a $700 refund and they offer you $20 for the units makes it a very expensive cooker dont you think... now shut up and dont be an idiot

Re: WTF??

Anonymous's picture

"If you actually go out to buy a pre-built factory (POS) PC then you have no business or right to complain what software came with it."
---------------

the MS license agreement says you do have the right to complain -- and not only that, but that you are entitled to a refund if you don't want the software. you said you read the article about 3 times, i guess you missed all those parts where the author mentioned that. ;-)

Re: WTF??

Anonymous's picture

I was thinking the same thing -- I read it once and understood. Besides, the author wasn't even "bashing" windows, he was simply stating that he didn't want to use Windows, and was simply asking for the refund that M$ said he was entitled to recieve.

Re: WTF??

Anonymous's picture

[quote DarkElf]
If a person is trully that obsessed and anti-windows then why not just build your own machine with your own OS?
[/quote]

It's quite hard to build your own laptop..

Re: WTF??

Anonymous's picture

The computer company should offer "blank" versions as well, since the trend is towards customization of PCs.

Not only that, but the writer referred to his purchase of a laptop, not many people have the resources to build their own laptop.

Additionally, even if it was a desktop machine, I don't see why it should automatically come with Windows. Even linux, technologically saavy individuals don't necessarily have the time, or care, to build their own machine. There was a time when self-built systems were all the rage, and they still do have a place, but why burn up time self-building when you can order a standardized system, with warranty and all?

Re: WTF?? - Just Bizarre

Anonymous's picture

Ok fine I will concede it was a laptop, and those are hard to custom build. However, he tells us in the article that he wanted the $199 and the $135 court costs. If he had 140 dollars (i am counting taxs and gas or whatever making it even) to Fart around with WHY not save the money and buy himself something else nice for the laptop. It takes all the effort of typing Format C: at the command prompt to get windows off your machine. Then it's a simple install of putting whatever OS you want on the machine.

My whole argument is this if you are trully that anal about windows and don't have the ability or the knowledge to type Format C: you shouldn't be playing with linux anyway. I don't know if this really works in California but I know it would never work here.

This is just like buying a loaf of bread and then returning it and wanting your extra 50 cents back because you don't want the ends or crust.

If you did win it's only because the judge had no clue what the hell was going on, and decided to get you out of his court room.

Re: WTF?? - Just Bizarre

Anonymous's picture

According to the judge he paid $199 for the OS on that laptop ... an OS he did not want. Why should the manufacturer get to keep nearly $200 of his money just because the manufacturer agreed to a contract with MSFT?

By suing he not only got the original $199 back but also recouped his costs of chasing the money down. Along the way, he enforced the contract instead of laying down, rolling over and playing dead.

MSFT has no qualms about enforcing that contract via the BSA so why is anyone calling this individual names?

Gates crams this onerous contract down millions of throats a year. Every once in a while, someone spits one back out. If more people refused that contract, it would go away.

I guess I'm just as crazy as that guy. I am contemplating purchasing a very nice laptop ... used. Play It Again PC's in Livonia, MI (piapc.com) has off-lease laptops and will install RedHat on them for free or Windows for a fee.

Re: WTF?? - Just Bizarre

Anonymous's picture

format C: (or something very similar to it) is EXACTLY what he did, my dear man! But in doing so he figured he wouldn't at all be using a product that came with something he bought, which he had already paid for and wasn't ever going to use. Why should he NOT want his money back? Think about that -- you buy something from a store (software, hardware, grocery, it's immaterial) and you DO NOT want to use it, so what do you do? You go return it, and get your money back. That's what he's doing. What's so difficult to understand about that, huh? Why should he NOT want his money back?

Ok, here's an example: say you buy a car which comes with $1000 wheels. Before you drive the car off the lot, you realize you don't want those $1000 wheels, because you have to sign a license agreement which basically says you can only drive the car where the dealer says you can, and moreover you have to allow the wheel manufacturer access to the interior of your car whenever he damn well pleases. You realize that this license is not something you can agree to, so you take the $1000 wheels off yourself, replacing them with a different set of wheels. Would you or would you not go back to the dealer now and try to return those original wheels and get back your $1000?

Re: WTF?? - Just Bizarre

Anonymous's picture

Errata:
The bundled software can be transferred to a third party BUT
You may not rent, lease, lend or provide commercial hosting services
to third parties with the
Product.

Re: WTF?? - Just Bizarre

Anonymous's picture

Your example about the car illustrates the pitfalls of analogies. The sad fact is:
computers are not cars and cars are not computers. I know I can't buy a chocalate bar with peanuts then ask for a refund for the peanuts.

But if a buyer can't ask for refund for unwanted software, he should be allowed to sell it to a third party. The same way the car buyer could legally sell the unwanted $1000 wheels to another buyer. Bur READ any software agreement: reselling new software is illegal. Therefore , on that basis, Oualline can ask and obtain a refund from the manufacturer.

Peanut EULA?

Anonymous's picture

"By eating these peanuts you agree to the following End User License Agreement. If you do not agree, then you must return the peanuts to the vendor to get a refund.

1) DAMAGES - You are not entitled to any damages if the peanuts cause stomach injury, disease or anything describeable as unpleasant.
---
...) REVERSE ENGINEERING - The consumer is not allowed to reverse engineer the flavour of these peanuts in any way, therefore all rights to any food manufacturing is denied in the future.
---
...) USAGE AGAINST THE VENDOR - The energy obtained from eating these peanuts is not to be used in any way to harm the Peasoft corporation or any of it's associates. The end user agrees not to critisize or boycott the Peasoft or any of it's associates in the future."

Would you ask for a refund if this was printed on chocolate bar wrappings?

Re: WTF?? - Just Bizarre

Anonymous's picture

you can't buy a chocolate bare with peanuts and ask for a refund because you didn't want the peanuts. Correct.
Then you get a chocolate bar without peanuts, man!
For Qualline, there was no option given to buy his laptop without the nuts in it!

(...and, provided you haven't opened the chocolate wrapping, you can exchange it for one without peanuts)

Re: WTF??

Anonymous's picture

You can believe what you want but would you pay for $1000 dollar wheels with your new car without a choice? Probably not. You would most likely take the stock wheels and save yourself some money. Well this guy didnt want to pay for software he doesnt use and just wanted a blank hard drive. Well they wont do that so its much easier to decline the legal agreemant he was presented with and follow the instructions given by it and to talk to the retailer for a refund. So using the system in the way it was designed he recieved what he was denied, a refund. I dont see why you find it so skeptical? How many ppl said linux was dead from the start? Including minix creator, andrew tanenbaum.

Re: WTF??

Anonymous's picture

It is a bit more difficult to pick and choose the components you want in a laptop.

Re: WTF??

Anonymous's picture

First, I hope it is real. Second, why should I pay for software that I can't use. I am supposed to build a system instead of being able to go to a brick and mortar shop and just pick one up??? Just b/c I use linux. That sounds a bit unreasonable. I love software but hate screwing around with hardware.
The license is a binding contract and I know that if I use the software I will be subverting the meaning and the content in the license. Therfore, according to the terms (that M$ wrote) I would like a refund.
So you expect M$ to get it's money and have me get the software - fine, but that is not the part of the contract in question. I am not agreeing to the contract - and according to M$ I can recieve a refund. I am not sure why that is a problem for you??

Re: WTF??

Anonymous's picture

Most users prefer an operating system installed on their computer when they buy it. If it does not come equiped with software, for these users, it is useful mainly as a doorstop. The equipment manufacturers have agreed with Microsoft, for a fee, to install Microsoft software. Part of that agreement is they will not sell blank machines. You are not permitted to buy a PC with no operating system, because Microsoft is afraid you will load it with a pirated copy of Windows.
This is the way Microsoft built it's monopoly.
Regarding being a Windows hater.
I like to think that when I buy a thing, I decide what is to be done with that thing, not the manufacturer. When I buy a car, the auto manufacturer does not decide what radio station I am permitted to listen to. Why is it that when you buy a computer the manufacturer gets to limit what use you put the machine to? Am I being stupid for wanting to use something I paid for the way I want to use it? Or am I being stupid letting someone else dictate how my property is to be used?

Re: WTF??

Anonymous's picture

According to the terms of the license that Microsoft offers ("for consideration received, we grant you the right to do this -- and since it's a unilateral contract, we have to give you the right to back out of it and get the consideration we received from you back") it's legit. Since when is it a problem for Microsoft to uphold its side of the license agreement, but not for us to uphold our side?

You windows Haters are unblievable and insane.

Anonymous's picture

and stupid.

Re: You windows Haters are unblievable and insane.

Anonymous's picture

Here's another scenario: My client purchased a Microsoft Volume License for Windows 2000 Professional. On their next computer purchase, my intention was to take one of the older machines out of service and use its license on the new PC. Imagine my surprise when Dell refused to sell me a workstation without their copy of Windows installed, even when I insisted that I already had a Microsoft license ready and waiting for it!

It gets worse -- the client had a volume license for Office, as well. But, could I get the Dell machine without either Office or Works installed? No chance.

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