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.

______________________

Comments

Comment viewing options

Select your preferred way to display the comments and click "Save settings" to activate your changes.

OEM price means nothing

elektrikçi's picture

OEM price means nothing.

Orjin Krem

Orjin Krem's picture

Not making a case for Windows, but anyone can buy Dell, HP, IBM computers without an OS.very nice web page.thank you

Coward's Way Of Doing Business

Sumguy's picture

Buying something which you know contains an element that you don't want, and suing for a refund of the full retail price of that element, when you did NOT pay full retail for that element, is a coward's way of doing business. If you want to be a crook, rob a bank- I'd have more respect for you, because at least then you'd have some nads.

This just shows the lunacy of the courts, too (assuming that this is a real story and not satire)- rendering a judgement without seeing the contract which governs that judgement.

We ALL end up paying in the long run for nonsense like this. When it's time for my next new 'puter, I'll either order one with no OS so I can install Linux, or build my own...but i will not sue somebody for providing what they contracted to provide. It is not some right to be able to buy a computer with a certain OS- it is something which you agree to by purchasing.

Meh. Not worth the trouble.

Anonymous's picture

You know... it just doesn't seem worth the trouble just for a $200 check. I know people might do it for a very public statement that they don't want or like Windows... but... most small claims lawyers cost more than that $200 check there! So you're not only not really getting a refund, but now you're spending extra gobs of money just to make an almost political statement.

I think what would be better would be filming yourself unpacking the PC, turning it on, REJECTING the Windows EULA, visibly placing a Linux install CD and installing it over that preinstalled copy of Windows, then send it to Steve Ballmer. It has pretty much the same effect, except this time you won't spend thousands of dollars doing something nobody really notices or frankly cares about. However you actually get the bonus of maybe getting the slightest chance of pissing off Ballmer. After all, that's what these refunds are about anyway, right?

I'm a huge Linux fan. I really am. But I have learned when things are worth the time and effort. I have better things to do than seek a $200 refund from a company that doesn't want to give it out. At all.

That's probably why Microsoft says to talk to the OEMs for the refund. Because they know the OEMs will try their damnedest not to give it away to the point you'd have to haul them to small claims court for a measly $200!

The trick is to get an OS-less computer or build your own. Its the only real way to get a PC without paying the Microsoft tax.

Oversight

Anonymous's picture

He spent $135 to file the papers. Where do you get your gobs of money figure from?

This is ridiculous !

Anonymous's picture

Having to do all this only to get what they owe you in the first place. No one is going to accept going through all that for 199$ (if you get them at all). All the time wasted, the cost of hotlines, the legal fees and I don't know what else.

There should **really** be a class action for this and a jurisprudence. This is precisely why there are class actions in america.

Refund

jefelex's picture

I would simply ask the manufacturer to remove the M$ OS before delivery to me, and remove the software price from the bill. If they wouldn't, then move on to someone else - there are lots of H/W vendors that are crying to get rid of inventory, all of which is supported by the Linux community. I am a staunch Linux supporter, and even discussing MS sh*t makes me angry - talk to anyone I work with!! :-)

jefelex

Retail Price of Windows

Anon y mouse's picture

When I built my computer in 2005, the retail price of Windows XP Home Edition was $199 and XP Pro was $299.

To be useful other people

sikiş's picture

To be useful other people need something to work from.
Kudos for getting $199 - probably easily more than was factored into the price of the system.

As a lawyer I can saysikiş
the most important thing in claims is records records records. Make a note of everything,porno
all your conversations. Contemporaneous file notes, date them, note as best you can whaporno izle exactly is said.

Cheers

Brendan

I am not saying that I don't

Hosting's picture

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

Thanks

Yıldız Sürücü Kursu's picture

Thank you

Terms and Conditions

Anonymous's picture

What happens when the Terms and Conditions state that you don't get a refund? Basically it's a final sale. Can you still take the company to small claims court? Can you demand the manufacturers information? Even if there is no damage, no nothing, you just happened to change your mind.

tr

Anonymous's picture

HSGD

Hi

Anonymous's picture

Thanks

wow

nurettin's picture

wow very thanks

camfrog haber

camfrog haber's picture

THANK YOU BRO

App Downloads

Anonymous's picture

thanks

Hello

film's picture

u want to get high penguin ?

thanks

Anonymous's picture

thank you

photoshop tutorials

mer's picture

thank you

RootWarez

Anonymous's picture

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

Linux

Anonymous's picture

I used to work for a company that was contracted to do at the factory setup of Fleet Bank's servers and workstations. What we would do is remove the brand new copy of Win2k that came pre-installed on the machines they used for workstations and Ghost a pre-configured partition with WinNT 3 on it over to the machines. What did we do with the licenses for the Win2k you ask? Why we tossed THOUSANDS of them in the dumpster.

define

define's picture

Thanks you site admin.

Forum

Forum's picture

Uh, yeah. It's called satire

bulgarca

Anonymous's picture

thanks..

Erdem

Erdem Artan's picture

Thanks Bro.

Mediation v. Small Claims Court?

Cindy's picture

When I look at the Dell "warranty" - it says that when you purchase a Dell product - if you have any dispute - you agree to do it thru mediation (not litigation). Subject to individual state laws. Can Dell dispute a small claims court dispute / judgement on these grounds?

Dell could show up to court

Anonymous's picture

Dell could show up to court and argue that the court should dismiss the complaint because of the mediation agreement. Dell, of course, would have to show up to court though. Like it says, different states treat arbitration agreements differently (some are hostile, some are positive, most are tacitly accepting).

I am not a lawyer and this is not legal advice.

Dell

Anonymous's picture

Wow, I wonder if you could just buy a $279 Dell box and ask for a $199 refund for XP Home. Might be a good strategy to get cheap Dell boxes. Would this work if you bought from Dell directly?

Very interesting article and

Anonymous's picture

Very interesting article and it sure gave me a good laugh :) .
I might try the same here in Sweden next time I buy a laptop,
just for the fun of it.

// BBB

How did you enforce the judgement?

Anonymous's picture

Getting a small claims court judgment in any state I've lived in means NOTHING.

Simply because the judgement doesn't legally enforce payment. In general if they opt not to pay you, you have to take up another legal action to enforce payment or 'garnish' the judgement for lack of a better term.

This involves additional fee's that are difficult to recover. If BCM actually sent you a check, I'd count yourself as lucky. Cause 9 times out of 10 a small claims judgement is worth less than the paper it is printed on.

value of judgement

Eivind's picture

Simply because the judgement doesn't legally enforce payment. In general if they opt not to pay you, you have to take up another legal action to enforce payment or 'garnish' the judgement for lack of a better term.

This is generally true. Even if you win, this does not in itself actually force them to pay. They can, in principle, simply refuse, which leaves you with no other choice than ask the state to enforce the judgement, which means returning to court, or some other entity. (depending on your jurisdiction)

It's been my experience though, that judgements are still acted upon. For a different reason. Judgements are public. Banks, investors and insurance-companies likes to keep up with judgements against their customers.

What would be your reaction as a bank if you had lent a 20 million to some company, and you now learn that they have final, unappealable judgements against them that aren't paid ? You be happy about it ? Remember, there's only two possibilities: They cannot pay (i.e. are on the verge of bankruptcy) or they will not pay (i.e. they prefer to ignore the law)

Neither of which is likely to make you want to lend money to, or invest in the company in question.

Think corporate

Anonymous's picture

Just think about how many business double pay for windows.

First they buy the machine with Winodws XP Home Edition on it, they they go to Microsoft and negotiate a bulk license agreement for Windows XP Pro or Windows 2003. And no credits given for the bundled version.

The only solution to this is to have the anti-trust people unbundle Windows from the hardware - make this monopolistic anti-consumer practice illegal. Until the US government gets off it's ass and enforces the law, we consumers are stuck.

As I to wanted a Dell laptop with Linux/Fedora as the OS and be dammed, but I could find one.

2 copies of Windows.

Bill Mason's picture

I used to work for a company that was contracted to do at the factory setup of Fleet Bank's servers and workstations. What we would do is remove the brand new copy of Win2k that came pre-installed on the machines they used for workstations and Ghost a pre-configured partition with WinNT 3 on it over to the machines. What did we do with the licenses for the Win2k you ask? Why we tossed THOUSANDS of them in the dumpster.

Well there are other options

Mark Dean's picture

Not making a case for Windows, but anyone can buy Dell, HP, IBM computers without an OS (most recently, one company I know bought several hundred so-called "N" series Dell Optiplex systems-no OS!). Most corporations that I've worked with have done just that. They have a VL agreement for XP or whatever.

RE: Getting a Windows Refund in California Small Claims Court

Cosby's picture

The problem is that you know the version of windows on the computer is not worth the 199. All you are doing is wasting a companies time and the courts. Pretty much you are lying to the judge if you say it is worth that. Saying the software is worth what your can buy it for(OEM) is one thing but people don't realize that this judgment means nothing. If you did not want the software then you should not have bought the notebook. Many OEMs will also not honor there warranty's without the orignal software installed. If you really want to make a statment don't buy a notebook with windows on it. You don't have to build one as many companies sell whiteboxed computers without an os. I've done this for clients before. Hell I love my BSD machines but know that I will be using BSD before hand and thrus buy prebuilts or build my own that don't have windows on them.

...

Anonymous's picture

I would never choose Linux over Windows.

Either a M$ flunky or just ignorant

Anonymous's picture

Why would someone type "I would never choose Linux over Microsoft" on a linuxjournal page?

  • Ignorant? Maybe. (Please note the distinction between ignorant and stupid)
  • One of those "Evangelists"? Probably.


#find | grep "Useless comments are useless." | less

That is not the way to go, only...

Anonymous's picture

You can't suggest to someone that has a legal option to buy a piece of hardware without software, of which the vendor doesn't either honor their own product options or agreement to a buyer they must not buy. Your statement of 'you know it isn't worth' is meaningless. The value is based on MSRP or an agreed value at the time of purchase. In this case, the company has no way to offer or prove the value other than MSRP cause they are not willing to or are binded against with a M$ agreement to disclose what they pay for it and thus something of a value. MSRP is the only option. As for buying without windows on it, good freaking luck. I went to Apple cause Dell, Compaq and other 3rd party folks for x86 don't provide no software install/delivery. That said, I don't want to go to M$ or Dell, or F*ckNuts LLC to demand money back. The funny thing, I now have a wonderful fairly inexpensive, highly productive OS that makes me smile, makes me money, and I don't get M$ lacky viroware infections. If you want to make a statement to the x86 world about M$ dick in the collective ass of x86 vendors (and their customers), don't buy x86 hardware. Unfortunately, SJ's dick in ass doesn't feel a lot better in real life, ask his dog :P

$199

Aredridel's picture

Actually, as a former small computer builder, I can't buy windows for less than retail. I've been forced out of my industry, except where I can make Linux work.

You don't have to build one a

Anonymous's picture

You don't have to build one as many companies sell whiteboxed computers without an os

Actually, most companies can't sell bare-metal machines, as a result of agreements with Microsoft, except in large-volume purchases or sales to companies with SLA-type agreements. Dell is the only retailer I'm aware of who has ever sold single computers with out a Microsoft OS pre-installed, and I'm not at all sure they do it anymore. If you want a PC, laptop or no, without Windows, the only way to do it is to build it by hand.

HP gives the option to buy a

Anonymous's picture

HP gives the option to buy a computer with FreeDOS. AFAICT it is some loophole in their agreement with M$.

Re: Getting a Windows Refund in California Small Claims Court

Anonymous's picture

Something oftrack from this topic, but according the the EULA you can transfer the software from one computer to the other, you must wipe it from the old computer and can not copy it indirectly from the old computer.
For this you can request the CD from the computer manufactuer with windows on it, becuase the one that came with your computer wont work on your new one, they may cahrge you for postage and packaging but not for the software, so you shouldent pay more than $10 then with your new computer, request for a refudn on the software, or as noted some ware else, buy your computer, phone your credit card up and ask them to withhold $199 from the transaction and tell them the reason (dident aggree to the terms and use it as a refund) then send a letter to inform the manufactuer.
Now you have got a refund using ither the small claims court, or the easy way which is free, and have still got a copy of windows, which you paid for in the first place, but remember to send back all windows software that came with your new computer and have it singed for, unless it contains all your diver information, then you may keep the CD for this purpose, but not use or install that version of windows.

Re: Getting a Windows Refund in California Small Claims Court

Anonymous's picture

actually you can get a refund for windows from the manufacturer on not only brand new systems but any old system you buy that has it installed as long as you wipe the OS. there is no time limit on the EULA.

OEM price means nothing

Anonymous's picture

The $10 price for an OEM copy of Windows means nothing. As Steve pointed out in the article that's the wholesale price of the software.

Assume the PC is $1500 retail, and that's how much you buy it for. But the mfg only paid $1100 for the parts wholesale (including hardware/software/manuals, etc), making a tidy $300 profit on the deal. If the computer blows up the first time you plug it in and you return it for a refund you are entitled to the retail price, not merely the wholesale price. If your computer blows up and sends a refund to you less than the full retail price paid you could certainly sue them for the difference and win.

The problem is that there is

Anonymous's picture

The problem is that there is NO retail price for Windows. Even if the manufacturer DID pay $199, they could easily argue that they gave it to you for free to induce you to buy their hardware.

Think of it this way--computer manufacturers often offer free shipping. If FedEx/UPS/DHL/whoever delivers the package late, you can't demand that the manufacturer give you a full refund on the retail cost of shipping. You weren't charged for shipping, even though the manufacturer obviously paid some negotiated corporate rate for it.

The other problem is that because the computer is sold as a bundle, the computer manufacturer can easily demand that you return the ENTIRE computer. The Windows EULA states that you have a right to refuse Windows--it doesn't state you have a right to refuse Windows while keeping the hardware. The manufacturer can easily require you to return the entire bundle.

The original post isn't really concerned about legal technicalities or justice. It's just concerned with bilking a few bucks out of a big computer manufacturer who is in bed with an OS manufacturer you don't like. To that end, it's a pretty effective strategy. But it's not a strategy with moral or legal high ground.

"The other problem is that

dominik's picture

"The other problem is that because the computer is sold as a bundle, the computer manufacturer can easily demand that you return the ENTIRE computer. The Windows EULA states that you have a right to refuse Windows--it doesn't state you have a right to refuse Windows while keeping the hardware. The manufacturer can easily require you to return the entire bundle"

the "bundle" you refer to is a marketing term. unless the oem makes you sign a contract that takes precedence over all other contracts, which i have never heard of. the reason for that is likely that then they would be taking on liability for all the software companies whose software they throw on that box.

so you are mixing apples with oranges. the msft eula has nothing to do with hardware, msft windows is s/w not h/w... and unless you agree to a contract with the oem stating that you must agree to the msft eula or else send the hardware back, which i have never heard of either... then what you are saying makes no logical legal sense at all.

the fact is that you don't agree to an eula until you click "yes" or sign a contract, up until that point in time you have not fully completed the transaction to purchase the microsoft software, thus you have the right to get your money back.

in lieu of their being another price for microsoft windows being publicaly advertised the court will give you your $199.

having worked in both software sales and contracts for some big companies, and owned my own VAR i know that the price of software is based on what people will pay for it, thus if the advertised retail price is $199 that's what the judge will take, unless anyone show factual hard evidence(i.e., a contract, advertisement or receipt from a real commercial outfit)that anyone here has every paid less than retail price for 1 copy of the latest version of msft windows.... and the OEMs can't do that likely because of confidentiality agreements...

for $199 this may not be worth it, but say you purchased 20 workstations... hey now we are talking 4 g's... if you want to throw that money away please send me the licenses and i'll figure something out... in fact i'll even send you a check for $10 for each one :P

>The problem is that there

Anonymous's picture

>The problem is that there is NO retail price for Windows.

Yes, there is. $199.

>Even if the manufacturer DID pay $199, they could easily argue that they gave it to you for free to induce you to buy their hardware.

Interesting. A manufacturer could then, in your mind, put a "return for refund" sticker on anything (just as the EULA has the same offer), take that part, and then cut you a cheque for $0.00? Sounds like an interesting way to steal money. I wonder, if I were to buy a car with all the options, and then return them to the store (which they would gladly accept at that price!), if they would be allowed to give me only $0.00 in return?

I strongly doubt that. In fact, I think that would be what we in the industry term "fraud". And punishable by a lot more than a $199 + $135 fee.

>If FedEx/UPS/DHL/whoever delivers the package late, you can't demand that the manufacturer give you a full refund on the retail cost of shipping. You weren't charged for shipping, even though the manufacturer obviously paid some negotiated corporate rate for it.

Actually, yes you can. I have sued said companies for shipping costs along with the cost of goods that were delivered incorrectly. I not only recovered the cost of the goods, but also the cost of the shipping and court costs. This was before I even saw the judge, this was a good-faith settlement by UPS to me when I sued them (which I took). They wouldn't offer anything they thought the judge wouldn't give me (I sued them for treble punitive damages, which obviously I didn't ask for any they clearly didn't offer).

>The other problem is that because the computer is sold as a bundle, the computer manufacturer can easily demand that you return the ENTIRE computer. The Windows EULA states that you have a right to refuse Windows--it doesn't state you have a right to refuse Windows while keeping the hardware. The manufacturer can easily require you to return the entire bundle.

Here is where you are confused. The windows EULA states you may return the SOFTWARE. Nowhere in the EULA does it mention HARDWARE must be returned along with the software. If the manufacturer requires something outside the EULA, they should have obtained permission to edit it first. Otherwise, they are breaking the terms of the EULA and are subject to prosecution from Microsoft (not that they'd bother, but since they are still breaking the law, the law will not support them).

>The original post isn't really concerned about legal technicalities or justice.

Legal technicalities aren't justice. They're bullshit ways to avoid the truth.

Justice is exactly what the article is about, and if you don't believe it, well, that's your life issue, not ours.

>It's just concerned with bilking a few bucks out of a big computer manufacturer who is in bed with an OS manufacturer you don't like.

If he were concerned about bilking money from the manufacturer, he would have asked for $299, as that is the generally the highest retail price I can find for windows.

I am certain if the manufacturer were to offer him a reasonable refund for the software ($50+) he would have accepted it. In fact, he would have accepted $10 if the company were truthful about it. Clearly they weren't, as they had no interest in negotiating an agreement to sell him the software for anywhere near that amount. Any business in the business of making money (aren't they all?) would have said "$10 is what *we* pay. But for a 50% markup, sure, we'll sell you 1,000 copies. $15,000 please!". But they didn't, which exposes the truth: the $10 price is a lie.

Re: Getting a Windows Refund in California Small Claims Court

Anonymous's picture

That's freakin hilarious !!!

*high fives*

Post your court filings for other people to use

Anonymous's picture

To be useful other people need something to work from.
Kudos for getting $199 - probably easily more than was factored into the price of the system.

As a lawyer I can say the most important thing in claims is records records records. Make a note of everything, all your conversations. Contemporaneous file notes, date them, note as best you can what exactly is said.

Cheers

Brendan

White Paper
Linux Management with Red Hat Satellite: Measuring Business Impact and ROI

Linux has become a key foundation for supporting today's rapidly growing IT environments. Linux is being used to deploy business applications and databases, trading on its reputation as a low-cost operating environment. For many IT organizations, Linux is a mainstay for deploying Web servers and has evolved from handling basic file, print, and utility workloads to running mission-critical applications and databases, physically, virtually, and in the cloud. As Linux grows in importance in terms of value to the business, managing Linux environments to high standards of service quality — availability, security, and performance — becomes an essential requirement for business success.

Learn More

Sponsored by Red Hat

White Paper
Private PaaS for the Agile Enterprise

If you already use virtualized infrastructure, you are well on your way to leveraging the power of the cloud. Virtualization offers the promise of limitless resources, but how do you manage that scalability when your DevOps team doesn’t scale? In today’s hypercompetitive markets, fast results can make a difference between leading the pack vs. obsolescence. Organizations need more benefits from cloud computing than just raw resources. They need agility, flexibility, convenience, ROI, and control.

Stackato private Platform-as-a-Service technology from ActiveState extends your private cloud infrastructure by creating a private PaaS to provide on-demand availability, flexibility, control, and ultimately, faster time-to-market for your enterprise.

Learn More

Sponsored by ActiveState