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: You windows Haters are unblievable and insane.

Anonymous's picture

I would like to write and distribute software for windows that is free for the users and have the source code available for the users to then adapt this software for their own use.
But I do not want to let those users take my IP and then create a product to sell because it's my IP and not theirs.
So I want to use the GPL to license this software to the users community.
Under the current windows license I can't do that because my making free software is against the license I would have to agree to when installing windows.
So because of this license from Microsoft no Windows user will ever be able to use my software and benefit from any other free (as in freedom) software unless it is created illegally. (All you guys that are creating software that is licensed under the gpl and compiled or even the source code edited with Windows as your OS are just going to have to turn yourselves into the thought police.)

Re: You windows Haters are unblievable and insane.

Anonymous's picture

And exactly why are we supposed to pay to have windoze installed on our new computer? Why can't we get a "blank" one and install our own OS on it?

Re: You windows Haters are unblievable and insane.

Anonymous's picture

Because... umm.. you suck and Bill G. is god?

Re: You windows Haters are unblievable and insane.

Anonymous's picture

Bill gates is my *****.. I shove copys of OpenBSD up his ass all the time.

Re: You windows Haters are unblievable and insane.

Anonymous's picture

ooooooooh, I just luuuuuuuuv OpenBSD

Re: You windows Haters are unblievable and insane.

Anonymous's picture

Thats the best argument I ever read!
I like food becaus its far away... duhh..

Re: You windows Haters are unblievable and insane.

Anonymous's picture

best argument ever...

Re: You windows Haters are unblievable and insane.

Anonymous's picture

you poor thing... Come to the light

Re: Getting a Windows Refund in California Small Claims Court

Anonymous's picture

I have to agree.. I would like to see a copy of this check posted. With personal info black out of course..

Wedge

how to extract money (was Re: Getting a Windows Refund in Califo

Anonymous's picture

in new york city (maybe state, i'm not sure), if the loser doesn't pay up within some period (90 days?) you take the ruling to the marshal's office. the marshal then goes to the bank in question and demands that the amount be withdrawn from the loser's bank account. it helps -- a lot -- to have basic info about the loser's banking info; this process can take several months. but it really does work. one way to obtain the info is to pay by check. last time i did this, which was several years ago, the processing fee was ~$3. :)

Another reason that $10 cheque comes in handy!

Anonymous's picture

That's another reason for getting that $10 cheque :)

What is actually better, GLP

Anonymous's picture

What is actually better, GLP or BSD?

Re: Another reason that $10 cheque comes in handy!

Anonymous's picture

Be more specific.

That $10 check has information which identifies a bank account.

Another way to find a bank account is to buy something directly from the company, then look at your cashed check to see what bank it was deposited in. But that is irrelevant for this check, as if you deposit it then it just goes away from you.

Say, you got $10. Shouldn't that be the first part of the judgement payment?

Re: Dell ads look very nice now

Anonymous's picture

Dell was advertising a $499 desktop and a $799 laptop (or maybe it was gateway) on TV. If you could front the money and the legal costs, maybe you could drop it to $300 and $600 respectively

Re: Getting a Windows Refund in California Small Claims Court

Anonymous's picture

And if it doesn't arrive then that will only piss off the judge. Then the company will be in a lot of hot water. The fines will keep adding up until they loose a lot of money by eventually paying up or the judge decides to throw someone in jail for failing to comply with a judges order.

Re: Getting a Windows Refund in California Small Claims Court

Anonymous's picture

Agreed. You might be able to get costs again. Maybe even some sort of enforcement order, like getting a sheriff to seize assets or garnish a bank account? Ultimately, it could come down to a contempt order, in which case someone gets jail time.

Re: Getting a Windows Refund in California Small Claims Court

Anonymous's picture

You hope.

Contempt of court (via willfull disobedience of a court's order) will cost them a helluva lot more than $334.

It could even cost them their ability to do business in that state.

It's easier to write him a check.

Re: Getting a Windows Refund in California Small Claims Court

Anonymous's picture

Wrong. Failing to pay a judgement is not contempt of court. However the plaintiff would have many avenues open to him, including seizing the defendant's property.

Wrongfully awarded

Ward Heller's picture

I might not be a lawyer but I know a thing or two about these sort of cases. The EULA specifies that you CAN get a refund if you don't agree with the EULA, but that refund should be for the entire package you bought, not just the software. If this case would have actually been fought by the manufacturer they most certainly would have pointed this out. And your only option would be to give back the entire system and get your $300 refunded. You bought a system including Windows, if you don't want to waste money on Windows, you shouldn't have bought the system.

"YOU AGREE TO BE BOUND BY

Anonymous's picture

"YOU AGREE TO BE BOUND BY THE
TERMS OF THIS EULA BY INSTALLING, COPYING, OR OTHERWISE USING THE
SOFTWARE. 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."
thats a quote from the first paragraph of the:
"END-USER LICENSE AGREEMENT FOR MICROSOFT SOFTWARE
MICROSOFT WINDOWS XP PROFESSIONAL EDITION SERVICE PACK 2"
which can be found here:
http://download.microsoft.com/documents/useterms/Windows%20XP%20SP2_Prof...
this and other licences can be found here:
http://www.microsoft.com/about/legal/useterms/default.aspx

First off, I believe the

Anonymous's picture

First off, I believe the EULA on pre-installed copies of Windows is different. Someone posted it above. It says you should "contact the manufacturer to return it in accordance with the manufacturer's policies" if you don't agree.

Second off, even the EULA you posted from Microsoft's website does NOT say that they have to give you the full RETAIL price, nor does it say they have to refund just Windows rather than the whole product.

Thus the circle continues...

Anonymous's picture

You bought a system including Windows, if you don't want to waste money on Windows, you shouldn't have bought the system.
-----
Yet that laptop (for example) is the only one with a nifty blue L.E.D status bar that looks extra cool.

Windows is not THE ENTIRE system. Windows is JUST the Operating System. The choice of which Operating System to run on my Hardware System is up to me. I bought the hardware AND the software. And I don't want the software. The question is, who is microsoft to tell me that I must return the hardware if I don't want their software? MS didn't sell me the hardware, they don't have the right to make me take it back. :o)

I'm surprised this is the interpretation of their EULA.

-- B. R.

and continues

Ward Heller's picture

The OS may not be the system but it's part of the package you bought, this is like going to the butchershop, buying a turkey, and then demanding a refund on the bones because you don't want those. It's both legally and ethically wrong.

"going to the butchershop,

Anonymous's picture

"going to the butchershop, buying a turkey, " ? you so cute a guy>.nice metaphor!
vob converter

But to eat a turkey you need

Anonymous's picture

But to eat a turkey you need a knife
I hope for next christmas all butchershop will sell their turkey with a super 199$ swiss knife bundled with the turkey
(WARNING THE KNIFE CAN ONLY BE USED WITH THIS TURKEY
If you don't agree with that just return the knife for a 10$ refund)

the situation is

Anonymous's picture

the situation is different--not all computer retailers require you to buy an OS.

I recently bought a luggage strap. The only luggage strap available from my retailer of choice was bundled with a luggage lock. I did not want the lock. I decided the bundle was enough of a value and that I wanted the luggage strap enough to buy the bundle and throw the luggage lock in a drawer.

I don't think I have any moral, ethical, or legal right to get a refund of the unused lock. Sure, I wish the retailer would sell a luggage strap without a lock. It would make my life easier and sell me some money. But they don't. I chose to accept the bundle--even though I could have gone to other retailers and purchased just the luggage strap. And although a luggage lock would have cost maybe $5 to purchase individually, it did not add $5 to the cost of my bundle.

It's ridiculous that people think there should be some moral right against having to buy bundles. I don't use the Bluetooth adapter in my laptop. I don't use Musicmatch Jukebox or Corel WordPerfect that were preinstalled. Heck, the laptop lock and telephone cable that came bundled with my laptop just sit in some dark pocket of my laptop case. Bundles are a part of life--especially in the computer world. We can press for change--but to tell ourselves that they are illegal is just delusional.

Re: The Situation Is

Anonymous's picture

Actually, if I bought a combo luggage strap / lock, AND the lock came with an End User License Agreement (EULA) that said the manufacturer could limit where I took my luggage, AND the EULA said that if I didn't like that I could return the lock to the store and get my money back on just the lock...

Then, yes, I would return the lock for a refund with no ethical qualms whatsoever.

Your point?

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