WindowsRefund.net: Marching On

Updates on the continuing fight to make computer manufacturers comply with the EULA.

Many readers already know that my case against Toshiba American Information Systems (TAIS) was dismissed (without prejudice) in June, 2003. Since that time, I have been working on the next phase of this campaign and have some important updates to share with our community. For starters, I have obtained the transcripts of the court hearing and have posted them on WindowsRefund.net for review. If you are interested in learning how Microsoft's EULA was kept out of evidence or simply want a good laugh when you hear Terry Thompson of TAIS claim that he has no knowledge of such an agreement, you'll enjoy the read.

July certainly was a productive month, when I consider Steve Oualline's favorable California ruling. Although this event certainly is a step in the right direction, it may be worth noting that the defendant did not show up in court. My guess is the defendent didn't know Steve would follow through by writing about his experiences in an effort to inspire and motivate others. Steve's victory is an important one, but we're still a long way from where we need to be. We need to get to the point where computer manufacturers implement internal policies to empower refund seekers and shudder at the thought of spending their dollars on legal defenses.

Getting back to my case against Toshiba, I remain fully committed to establishing a legal precedent that empowers future refund seekers to collect on the promise of the EULA. In order to prepare for the next phase of this ordeal, I have retained legal councel and am exploring options that can be used to obtain the desired outcome.

At this time, I am interested in communicating with people who, like me, have been denied refunds they were offered (in the EULA, for example) or who would have sought refunds if they believed they would be given. In order to help track this information, I have enhanced the user profiles on WindowsRefund.net to store the relevant details that typically apply in these cases. This information will be used only for the purpose of locating appropriate persons, and they will be protected against misuse.

Now is the time for us to show our strength in numbers.

______________________

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Video the eula

Anonymous's picture

Set up a video camera of the process of rejecting the eula. Also, have someone with you during the viewing/rejection of the eula who is willing to go to small claims court with you. Before rejecting the eula, if you are serious about taking on microsoft, hand copy, using pen and paper (you remember those, right?) the eula text. Then get the eula text notarized/signed by you, and your witness.

Bring the video tape (and notes) with you to small claims court. It would be best if you typed into a wp, then printed out an additional copy of the eula that is clear and legible for the judge.

Prior to going to the court on your trial date, it would be a good idea to ask the county clerk questions as to procedure for viewing the tape if the judge requests to view the tape. They may not allow video tapes. Or you may have to bring a vcr/monitor with you.

If I had the capability, I would make a digital version of the video that can be viewed on a computer using (yeah, I know) ms's apps, which is all the court probably has. I'd do this as a backup, in addition to the video tape, even if they accept the video tape. Put the digital version on several cds, in case the possibly older cd drives in the court can't read your cd. Use several different brands if possible. Better yet, post the video on an apache server, so that if there is no vcr/monitor, and the cd doesn't work, the judge can go back to his chambers, or ask the clerk to download (broadband would be a good idea) the video for viewing.

I've been to small claims court. Many times, the judge will accept what you say is on the tape, but will give the opposing side a chance to object, and see/hear the tape. If they don't object, then what you say is on the tape (if reasonable) is what the judge accepts. Otherwise, the judge may want to here the tape (they don't have the time to waste). Audio recorders and video recorders, or electronics with that capability are seized at the court entrance, and if the judge wants to hear (in the case of an audio tape) the tape, he sends the court officer to get the seized recorder/player.

The reason for the handwritten/typed transcript of the eula is so that you can hand the judge the eula without the judge being forced to view the tape.

Also, and important, you are presenting the court with your evidence in several different formats. It shows that you have taken extra steps to make it easier for the court to view your evidence. So you won't look like an idiot because you have evidence in an incompatible format. You brought several formats, the court should have one, you made the effort, understand?

If presenting more than a few documents, it would be a good idea to put them in a binder, with colored tabs, and a table of contents at the front.

Informally, at small claims court, you generally don't have to ask to "admit as evidence" documents, but if a lawyer is representing the other side, be prepared for possible objections to what you bring, and have good reasons to argue against the objections. And don't sound like a lawyer if you aren't one. Big mistake. You are the common man. Remember that.

The little things that you do to show the judge that you are trying as best as you can to make it easy for presenting your evidence, and for explaining in a clear, precise manner, what you are litigating for, why you are there, why the judge should side with you, etc., will go a long way in helping with the disposition of the judge, which can make or break your case.

From experience.

btw, now in NYC, small claims court cases are heard without an audience. You are escorted by court officers to a hearing room, with just the judge, officers, and sometimes lawyers in training, or clerks, present, besides the opposing side. But in other areas, it may be different. If you hear the judge yelling, or getting into arguments with opposing sides prior to your case, find an excuse to postpone the case.

You don't want a pissed off judge hearing your case.

From experience.

Watch the bios

Anonymous's picture

I saw a story between two weeks and two months ago, that was on a dell laptop that had a bios where you powered it up, and it said to "hit any key" to accept the license. Yet the license could not be examined prior to acceptance, because if you hit a key or clicked to see the license, you accepted it.

I don't know if this was on slashdot, as I think it was. I tried searching slashdot for the story, but couldn't find it.

The owner of the dell laptop apparently went through an incredible amount of trouble with dell customer service (who hasn't) to try and get copies of the eula. Or to see them online, as customer service was saying they were posted online, but couldn't come up with a url. They also repeatedly were telling him to hit a certain key to see the license, but he refused because by hitting the key, he would be accepting the license.

The story was big enough that a tech reporter attending a tech show brought this up with Michael Dell who was making a speech (keynote?) and then took reporter or attendee questions. Michael Dell responded by saying that he was made aware that a few customers had problems with the eula/bios, and that Dell would work with the customers to address those problems/provide eula documentation.

HE ALSO SAID THAT DELL CUSTOMIZES THE BIOS ON THE PC'S THEY SHIP. So even if it is a phoenix bios, or other company bios, DELL CAN AND DOES CUSTOMIZE THE BIOS, AND THEREFORE CAN FIX/ADJUST IT.

If someone could locate the original story of the DUDE with the Dell laptop/bios incident, along with the tech reporter questioning of Michael Dell about the same incident, please post the urls of the two stories here.

Thanks.

Re: Watch the bios

Anonymous's picture

---snip
I saw a story between two weeks and two months ago, that was on a dell laptop that had a bios where you powered it up, and it said to "hit any key" to accept the license. Yet the license could not be examined prior to acceptance, because if you hit a key or clicked to see the license, you accepted it.

---snip

Minor detail; the "hit any screen" key _is not_ from firmware. The BIOS boots up normally, this "hit any key" screen is on the bootsector of the drive, which then launches the windows installer (or any other installed, for that matter); unless you put the installation CD of your choice in the drive, and choose to boot off of that.

There is nothing special about the BIOS on dell machines at all despite the FUD that seems to have flown about this subject lately. Full Screen != BIOS message.

I agree it is stupid for them to ask you to accept a EULA you cannot read (and for this reason alone I think is a good enough reason not to use their products) but it is perfectly within their rights to decide how their installation routine will run; if you want the bundled OS, follow their installation routine. Don't want it? Install your own. You are not being forced into anything.

Fwiw, Netscape Navigator (the 3 series) warned you to read and important readme file before installation. Problem was, this readme file was compressed and stored within the executable installer...and the warning popped up _after_ the installation finished! Stupid? Yes. Illegal? No.

---snip
HE ALSO SAID THAT DELL CUSTOMIZES THE BIOS ON THE PC'S THEY SHIP. So even if it is a phoenix bios, or other company bios, DELL CAN AND DOES CUSTOMIZE THE BIOS, AND THEREFORE CAN FIX/ADJUST IT.

---snip

I don't know how technical you are, but...the only extent of customization that Dell or any other mainstream (i.e., not embedded systems) manufacturer performs on the BIOS is inserting their graphic into the BIOS manufacturer's pre-supported spot. If you don't like the Dell graphic, it is probably not too hard to dig up the utility for converting a bitmap of your choice to the image format used by the Phoenix (or whoever wrote your firmware) and flash it, just as Dell does.

In any case; the EULA screen is not in the BIOS in the first case (which you or anyone else would know if they just looked at the thing), so this talk about modifying Dell being able to flash the BIOS with updates (or horror of horrors!) is just silly. Calm down.

Re: Dell's shitty BIOS

Anonymous's picture

Indeed, Dell does customize their BIOSs. The result is that the newest laptop BIOS (A22) completely fucks the onboard i8xx video cards for XFree86, and for Windows using Intel's drivers (you have to use Dell's). Dell claims there's no problem.

Re: Watch the bios

Anonymous's picture

Dell customer service

Anonymous's picture

> The owner of the dell laptop apparently went through an incredible amount of trouble with dell customer service (who hasn't)

The video card on my Dimension started acting up. I called Dell and went thru their diagnostic procedure with the support person on the phone. At the end she concluded that the OS (windows) needed patches/updates (in all fairness this incorrect conclusion was probably due to a misunderstanding on my part). I told her that the OS was not the cause of the problem because I see the exact same symptoms under Linux which is what I normally run. She told me that that likely voids the warranty. I asked her how repartioning the disk could void the warrantly, but she seemed quite certain it did. Rather than spend another hour on the phone with another support person trying to persuade them that it was a hardware problem I swapped video cards with an unused machine and continued on my way. I have co-workers who have had similar less than scintillating encounters with Dell support.

Re: Watch the bios

Anonymous's picture

Here's the original story about the laptop:

http://www.cypherpunks.ca/dell.html

Can't help you with the other link, sorry.

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