Handbrewer writes "The FreeBSD developer Poul-Henning Kamp (phk) has sued Lenovo in Denmark (Google translation, original here) over their refusal to refund the Windows Vista Business license, even though he declined the EULA during installation. Lenovo argues that they sell the computer as a full product, and that they cannot refund it partially, such as the power supply or the OS even if people intend to use a different one. This seems to be contrary to previousrulings in the EU where Acer and HP has been forced to refund the 'Microsoft tax.'"
Nah. Much better to push a microsoft tax onto the company via lawsuits. Then they will feel the pain and make refunds a standard policy. Lots and lots of lawsuits even better.
Why is it that you think class action lawsuits are something found all over the world? Why is it you think that the world follow the US judicial system? Are you really so totally uninformed about the world outside your own country?
Btw, the US do not have a justice system, it only has a punishment system.
I just spent 3 weeks on jury duty, and while I would have probably agreed with you before that, I have to disagree. We have a fantastic justice system, and while it may not be perfect, it does work.
Sadly I can vouch for that. My mom was selected for jury duty a couple of years back in an Arson case. She ended up hanging the jury 11 to 1 and causing a mistrial. Why? Because the other 11 said "the defendant is Italian and haven't you ever seen Goodfellas? He is probably in the mob and must have done it"
It didn't matter that there wasn't any actual...oh what is the word? oh yeah, EVIDENCE, or that the guy had to file bankruptcy because he didn't have enough insurance to actually cover his losses, or that even the fire investigator admitted on the stand he couldn't say for sure WHAT had actually caused the fire, they had seen Italians on TV are mobsters and therefor he did it.
Sadly when hearing this I was reminded of that old saying that 'juries are 12 people too stupid to get out of jury duty". If mom hadn't been civic minded and actually went that guy would be doing 3 to 5 for being Italian and having a jury who had seen Goodfellas. Sad but true.
by Anonymous Coward
on Friday August 14, @01:18PM (#29068781)
I would argue that that is not true. In principle all citizens are your peers. In reality, that's not true. Tell the poor, black guy that gets convicted by an all white, middle-class jury when he was innocent, that he was convicted by his peers.
No double jeopardy? Well technically you are right, but tell that to OJ. Whether or not you think he was guilty, he still got "punished" in a civil trial after winning the criminal one. The guy doesn't get convicted for murdering your relative? No problem, just file a wrongful death suit in civil court where the burden of proof is less.
Are you really so uninformed as to believe the majority of the people in this world have a deep understandings of the workings of their own legal systems let alone all the particulars of the legal systems of all the other countries of the world?
Or did it just seem like a convenient time to bash the ignorant Americans and get modded up for it?
"Are you really so totally uninformed about the world outside your own country? "
Because understanding every nuance of the court systems of other countries is obviously the indicator of how informed someone is. Keep the dickish outrage to yourself.
Why is it that you think class action lawsuits are something found all over the world? Why is it you think that the world follow the US judicial system? Are you really so totally uninformed about the world outside your own country?
No but it seems you are. Here's a nice "fuck you" list for the ignorant US-basher.
Austria The Austrian Code of Civil Procedure (Zivilprozessordnung â" ZPO) does not provide for a special proceeding for complex class action litigation.
Canada Provincial laws in Canada allow class actions. All provinces permit plaintiff classes and some permit defendant classes. Quebec was the first province to enact U.S.-style class proceedings legislation in 1978. Ontario was next with the Class Proceedings Act, 1992. As
Class action suits don't help anyone but the lawyers. I've been contacted by lawyers pressing class action suits against various companies, but I never reply any more. Gyped out of a hundred buck by some ratty product, and you get maye five bucks out of the deal while the lawyers get millions. It's not even worth sending the card back in.
Or even better to make them offer Windows as a totally separate product, not automatically part of every computer purchase.
Let's not lose sight of who is to blame, though. (I take that back: let's lose sight after all, because it's more complicated than most people suspect.) Microsoft sells a product to Lenovo. Lenovo resells it. Microsoft puts wording on a paper or the screen, saying that if you don't want their stuff, Lenovo will give you your money back. WTF? How can Microsoft speak for Lenovo? Pretty damn arrogant. Did Lenovo agree to that?
Actually, that's a very serious question: Does Lenovo become bound to the EULA? Are they re-selling Windows or re-licensing it?
The Blizzard case's judge asserted that "title transfers" don't ever happen with software. Nothing is ever sold. Ergo, if you walk into a retail store and pay cash for a Blizzard game just like you would for a loaf of bread, you're not actually buying it. That means the retailer never bought it either. Ergo, the retailer must have licensed it as well (though they never even opened the package so never even implicitly agreed to the EULA -- ah, the mystical magic of EULAs, the only kind of contract of its kind!).
The Blizzard judge would say that Lenovo signed a contract in blood with both Microsoft and the computer purchaser, and therefore Lenovo agreed to every term Microsoft put in the license: Lenovo must pay the refund that Microsoft offered. Any layman would say Lenovo is just a reseller and has no obligation to Microsoft to pay refunds on their behalf; the EULA is between Microsoft and whoever reads it -- but that layman also wants his money back and damn well knows Microsoft ain't gonna pay it.
Of course Lenovo is not bound to the EULA. Lenovo is not the EU, End User. They have a different agreement/license/contract.
The EULA specifies that the user may decline by returning the purchased copy and destroying all backup copies. But if the OEM is not bound, then the user has no way to decline. In this case, the consideration [wikipedia.org] on the user's part is dubious, and the user is likely not bound by anything but the same laws that apply to someone who buys a book: sale of goods law and copyright law. I don't know about Denmark, but in at least the United States, it is not an infringement for the owner of a copy of a computer program (where state law defines "owner") to copy the program into a computer to use it (17 USC 117).
Your analogy would work if there was a note in the car saying that you either agree to an additional contract regarding your use of the tires, or the dealer will refund the price of the tires and take them back.
When buying a new car you can in fact let the dealer know that you do not want the stock tires and wheels. You can then work a deal with the dealer to pay less for the car. Or. You can sell the stock tires and wheels as you paid for them and now own them. The same is not true for a software license.If the car dealership sells you the car. Offers no way to not pay for certain parts and then makes it illegal to sell any of the parts you bought and no longer want then you would be correct. Another horrible/.
Indeed, Lenovo has made it abundantly clear that they want to Microsoft whores. That's why, although I love my T61, I recently bought a Dell Latitude E6500 when I needed a new computer. Dell couldn't sell it in the configuration I wanted without Windows, but they gave me an $80 discount when I told them I'd be using Linux! It's a solid laptop, metal hinges and all -- good riddance, Lenovo!
you can buy a car without a radio, or without air conditioning, but this is not a car so it is not the perfect analogy, PC makers should give customers what they want and if that includes selling desktops & laptops without windows or without any OS whatsoever on it then that is what they should do, microsoft does not own the OEMs (or do they?)...
This is like buying a family sedan and saying you don't want the family they provided, as you've got your own.
It's a major part of the problem that Lenovo thinks they are selling me an operating system, and an even bigger problem that they think this is their "IP" and a value-add thing rather than just corrupt bundling.
Yes, but it also says that if that retailer doesn't give you a refund to contact Microsoft or a Microsoft affiliate in the region to get their refund terms. The EULA only obligates Microsoft to refund the user's money not Lenovo.
Au Contraire, if you sell a product which has undisclosed terms refusing those terms should result in a refund. In order to use Microsoft Windows, you must accept their EULA. Unless you are claiming the Lenovo forced him to agree to the EULA prior to purchasing the computer, then those terms were undisclosed up to the point where he booted the computer and was presented with them.
Secondly, the EULA doesn't state that the retailer of the product is obligated to refund the user's money for the Microsoft license.
As you say, bullshit.
By using the software, you accept these terms. If you do not accept them, do not use the software. Instead, contact the manufacturer or installer to determine their return policy for a refund or credit.
By using the software, you accept these terms. If you do not accept them, do not use the software. Instead, contact the manufacturer or installer to determine their return policy for a refund or credit.
And if their policy is "no partial returns, if you don't like the package we sold you then return it (yes, all of it)." then everything seems legally fine and dandy to me. They accept that you do not want what they sold you and will now take the product back in exchange for some/all of your money back.
The wording in the Danish version of the EULA is slightly different. Translated to English it reads
By using the software, you accept these terms. If you do not accept the terms, you do not have the right to use the software. Instead, contact the manufacturer or installer to get information on how you get a refund for the purchase or credit nota.
This can interpreted as giving the user the right to return Windows, without returning the entire computer. Similar cases have been taken to court in Italy and France (against HP and Acer, respectively), where both vendors were ordered to pay a refund for Windows.
The computer manufacturers aren't obligated to sell him a computer in the way he wants it.
And the author of the EULA isn't obligated to offer a refund in the EULA. Lenovo isn't obligated to bundle that refund offer with their computer. But Microsoft and Lenovo did that. Somebody (whether you think it's Lenovo or Microsoft) TOLD the user, in writing, they can have their money back if they don't want Microsoft's crap.
They weren't obligated to sell him a computer the way he wants it, but then they said, "Ok, you can have it the way you want it, and here's our offer written in legalese." So, dude, are you really sure they're still not obligated to sell him a computer the way he wants it? He has a piece of paper that says they are, and he didn't write the words on that paper.
In some jurisdictions, the law supersedes that and makes the seller responsible for such terms. If Lenovo is unhappy with that, they could always refuse to sell there.
I know the EULA states you can get a refund if you don't agree to the terms however, that still doesn't mean Lenevo have to give you the laptop sans windows at a cheaper rate. They can simply say "you don't won't to pay for windows? Fine, send us the laptop and we'll refund what you paid for it".
I wouldn't be surprised if lenovo paid something low as in $5 per license of windows when everything was said and done, and then recouped the cost of the license with bloatware. This guy would be miffed to get a $5 check and microsoft would be miffed to have their B2B cost revealed to be a tiny tiny fraction of what they gut consumers for.
Guys, I have used FreeBSD for a decade on multiple machines, some running CURRENT, and thus have had the privilege of not only listening to PHK's reasoned discussions, but also engaging in such discussions with him. I also supported his paid development project a few years ago, so you can be sure that I am *not* an unbiased contributor to this article.
That said, I am pretty sure that PHK didn't just decide over coffee or beer to sue Lenovo without giving the matter serious thought, research and consideration. Certainly, what MS charges OEMs and distributors for licenses is far less than the retail price you or I would pay, so I don't personally think that money is the issue at all. I haven't asked him personally so can't say with authority, but I would imagine that this is more about OS choice (or none) during the configure/customize process when shopping online and opting out of a MS OS up-front rather than any monetary settlement. It's the principle of the issue, not the money. At least that's how I see it and how I would like to see the outcome. Give consumers a choice to opt out of a forced MS OS, even if there is no financial benefit.
The Vista EULA specifically states:
By using the software, you accept these terms. If you do not accept them, do not use the
software. Instead, return it to the retailer for a refund or credit. If you cannot obtain a refund
there, contact Microsoft or the Microsoft affiliate serving your country for information about Microsoftâ(TM)s
refund policies.
He chose to not accept them.
But that EULA doesn't obligate Lenovo to give him a refund.
That's a very common sense way of looking at it. And maybe it's even true, in Denmark.
Some people (and I hate them) think that users license software, instead of buying authorized copies, like they would buy a book. They say that title to the software never leaves the publisher. Ergo, when the computer was at Lenovo and Lenovo installed Windows on it, Lenovo didn't own a copy of that software either (Microsoft still owned it). So how did Lenovo legally do that? Why didn't Microsoft sue them for piracy? Maybe it's because there's a contract between Lenovo and Microsoft. And that contract says: if the end user doesn't want Windows, he gets a refund from Lenovo.
I think it's all bullshit, but such absurdities are the inevitable consequence of taking EULAs seriously. Microsoft and this user never met or did business in any way, so if there's somehow magically a contract between them, then something weird has to happen. Given that there's already something para-normal going on, it isn't any more of a stretch or leap of logic that Lenovo is involved too, especially since they did do business with both parties.
by Anonymous Coward
on Friday August 14, @10:00AM (#29065761)
If i buy a car, i can't yank out the back seats and require a refund from the car dealer.
Of course not, but by the same token you won't find a sticker on the back seats saying "even though you supposedly own this car, you're not allowed to use these seats unless you agere to the following conditions...".
The right to refuse and get a refund is the only vestige of any pretense that the EULA is a contract. Without that it should be cut and dried non-enforceable. If you own the machine, including the software (and the back seats) then you can go ahead and do with it whatever you please.
Your car seats are either produced by the company that made your car, or purchased and integrated by them. Windows is resold by the guys who sell you your laptop; but it requires you to agree to a EULA, between you and Microsoft, in order to use it(compare this to your BIOS, which is almost certainly made by Phoenix or Award, not Lenovo; but is integrated by Lenovo and not licenced separately). If your car seat required a separate licence in order for it to be used, you should be able to treat it as a separate part.
Same with your other examples. As long as MS insists on having a separate EULA between it and you, its product can't be considered an intrinsic part of Lenovo, or anybody else's machines. If they started licencing it the way BIOSes, firmware, and drivers are typically licenced, I'd give the notion that it was an intrinsic component more weight.
While microsoft's monopoly is bad, you shouldn't be sueing for a refund, sue for variety!
Ok!! I'll sue so that we can have: Vista Home Basic Vista Home Premium Vista Business Vista Enterprise Vista Ultimate Vista Super Ultimate Vista Bloodsport Vista: Ballmer vs. Gates Vista: Is Windows
While i applaud companies that refund the microsoft tax, i do sort of see where lenovo is coming from. If i buy a car, i can't yank out the back seats and require a refund from the car dealer.
Unless they sell you the car, but stipulate that only persons aged between 19 and 20 can use the back seats, and only for approved uses. They inform you that use of the back seats is monitored and non-personally identifiable data may be sold, in aggregate to third parties. Ownership of the back seats may not be transferred so that when you sell the car the new owner must install his own back seats. Even though there are two seats, only one person may use the seats at one time. The seats will from time to time check with the manufacturer to make sure they are installed in the same car as you purchased, and if a discrepancy is found, they will not allow anyone to sit in them. They then inform you that if you don't like these terms, you can CHOOSE TO RETURN THE BACK SEATS FOR A REFUND.
The license agreement specifically states that if you do not agree with the EULA you can return it for a refund. Computer makers know this. Computer makers license it from Microsoft that way. Computer makers have to abide by it.
Part of my CIS degree program required two semesters of business law, and I remember the liability lectures well. In the US, there is a chain of product liability that goes like this:
Company A make car windshields. Company B makes cars, and buys its windshields from Company A. Customer buys a car from Company B.
For whatever reason, a defect in the windshield causes Customer to incur a loss that can be recovered in court, so Customer wants to sue. Who does Customer sue?
1) Microsoft basically invented the concept of software licensing in the first place, and so got a good head-start 2) Microsoft began as a software (only) company, therefore they were able to sell their OS to dozens of OEMs, and not only on their own machines (as opposed to, say, Commodore or Apple.) 3) Europe/Asia/the rest of the world, for some reason, was *waaay* behind on the whole affair. What I don't get is why Japan buy Windows-- Japan was building computers for decades, it never occurred to anybody there to make a home-grown OS? Why didn't France make one? What's the UK's version of Microsoft? In fact, why is every non-English-speaking country running an OS created by the whitest of the white Americans in Redmond, WA?
I'm pretty sure IBM was licensing software long before Microsoft existed, probably before Bill Gates existed. They also got in trouble with the government for bundling hardware and software, and were subject to a consent decree until 2001. Current PC manufacturers probably can get away with bundling because they're not producing both the hardware and software.
I don't know, but I remember a slashdot story about Dell selling PCs with Linux installed, and iirc the otherwise identical machine cost MORE with Linux than the Windows version did.
If you don't want Microsoft Windows then do not buy a computer that comes with Microsoft Windows pre-installed, it is as simple as that.
If you don't want to provide Microsoft refunds, do not sell a computer that contains a EULA saying you will provide refunds if the EULA is unacceptable.
I understand your point, but you often don't have a choice when you're buying a laptop.
For example, when I bought my laptop, I chose some specs, and then looked at various manufacturers to find the cheapest price. No manufacturer sold a model with those specs without Windows preinstalled.
Dell was cheapest by a few hundred dollars, so I called them up to see if they'd sell me the model I wanted without an OS. Of course, I got some CSR in India who couldn't understand why in the world I'd want a computer with no operating system, no matter how simply I tried to explain it (even saying just "I already have one" didn't work).
I ended up just getting XP Home and living with it.
But you would have me "go buy from someone else", despite the fact that nobody else was selling a comparable laptop without an OS for that price?
It's not about "growing up", it's about being annoyed that in order to get the hardware I wanted, I had to get software I didn't want, and I didn't really have a choice.
I'm talking about laptops, here. I build my own desktops, and I obviously don't pay for Windows for those if I don't need to.
If you don't want Microsoft Windows then do not buy a computer that comes with Microsoft Windows pre-installed, it is as simple as that.
I understand your point, but you often don't have a choice when you're buying a laptop.
For example, when I bought my laptop, I chose some specs, and then looked at various manufacturers to find the cheapest price. No manufacturer sold a model with those specs without Windows preinstalled.
This is basically the exact thinking behind phk's actions, from before the purchase and up to the law suit. You can't get a high-powered computer without also paying for a Windows license, and in his case, being a FreeBSD developer, that amounts to a forced purchase from the main competitor.
Further, the Windows EULA is odd in that *Microsoft* is setting up an agreement between two *other* parties. One party has the right to decline the EULA, and the other party is legally bound to accept that.
Full refund (Score:4, Informative)
Better have a full refund and buy from someone else.
Case closed
Re:Full refund (Score:5, Insightful)
Nah.
Much better to push a microsoft tax onto the company via lawsuits.
Then they will feel the pain and make refunds a standard policy.
Lots and lots of lawsuits even better.
Parent
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Re:Full refund (Score:4, Insightful)
Why is it that you think class action lawsuits are something found all over the world? Why is it you think that the world follow the US judicial system? Are you really so totally uninformed about the world outside your own country?
Btw, the US do not have a justice system, it only has a punishment system.
Parent
Re:Full refund (Score:5, Insightful)
This statement alone should be marked +5 insightful (and that's coming from US citizen).
Parent
Re:Full refund (Score:4, Interesting)
Parent
Re:Full refund (Score:4, Insightful)
Sadly I can vouch for that. My mom was selected for jury duty a couple of years back in an Arson case. She ended up hanging the jury 11 to 1 and causing a mistrial. Why? Because the other 11 said "the defendant is Italian and haven't you ever seen Goodfellas? He is probably in the mob and must have done it"
It didn't matter that there wasn't any actual...oh what is the word? oh yeah, EVIDENCE, or that the guy had to file bankruptcy because he didn't have enough insurance to actually cover his losses, or that even the fire investigator admitted on the stand he couldn't say for sure WHAT had actually caused the fire, they had seen Italians on TV are mobsters and therefor he did it.
Sadly when hearing this I was reminded of that old saying that 'juries are 12 people too stupid to get out of jury duty". If mom hadn't been civic minded and actually went that guy would be doing 3 to 5 for being Italian and having a jury who had seen Goodfellas. Sad but true.
Parent
Re:Full refund (Score:4, Insightful)
No double jeopardy? Well technically you are right, but tell that to OJ. Whether or not you think he was guilty, he still got "punished" in a civil trial after winning the criminal one. The guy doesn't get convicted for murdering your relative? No problem, just file a wrongful death suit in civil court where the burden of proof is less.
Parent
Re:Full refund (Score:4, Insightful)
Are you really so uninformed as to believe the majority of the people in this world have a deep understandings of the workings of their own legal systems let alone all the particulars of the legal systems of all the other countries of the world?
Or did it just seem like a convenient time to bash the ignorant Americans and get modded up for it?
Parent
Re:Full refund (Score:5, Informative)
Why is it that you think class action lawsuits are something found all over the world?
At least they're found in Denmark (Retsplejeloven chapter 23 a), so in this case, they may be entirely appropriate. Unlike your comment.
Parent
Re:Full refund (Score:5, Insightful)
Because understanding every nuance of the court systems of other countries is obviously the indicator of how informed someone is. Keep the dickish outrage to yourself.
Parent
Re:Full refund (Score:5, Informative)
Parent
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Why is it that you think class action lawsuits are something found all over the world? Why is it you think that the world follow the US judicial system? Are you really so totally uninformed about the world outside your own country?
No but it seems you are. Here's a nice "fuck you" list for the ignorant US-basher.
Austria
The Austrian Code of Civil Procedure (Zivilprozessordnung â" ZPO) does not provide for a special proceeding for complex class action litigation.
Canada
Provincial laws in Canada allow class actions. All provinces permit plaintiff classes and some permit defendant classes. Quebec was the first province to enact U.S.-style class proceedings legislation in 1978. Ontario was next with the Class Proceedings Act, 1992. As
Re:Full refund (Score:5, Interesting)
Class action suits don't help anyone but the lawyers. I've been contacted by lawyers pressing class action suits against various companies, but I never reply any more. Gyped out of a hundred buck by some ratty product, and you get maye five bucks out of the deal while the lawyers get millions. It's not even worth sending the card back in.
Parent
Re:Full refund (Score:5, Insightful)
Or even better to make them offer Windows as a totally separate product, not automatically part of every computer purchase.
Let's not lose sight of who is to blame, though. (I take that back: let's lose sight after all, because it's more complicated than most people suspect.) Microsoft sells a product to Lenovo. Lenovo resells it. Microsoft puts wording on a paper or the screen, saying that if you don't want their stuff, Lenovo will give you your money back. WTF? How can Microsoft speak for Lenovo? Pretty damn arrogant. Did Lenovo agree to that?
Actually, that's a very serious question: Does Lenovo become bound to the EULA? Are they re-selling Windows or re-licensing it?
The Blizzard case's judge asserted that "title transfers" don't ever happen with software. Nothing is ever sold. Ergo, if you walk into a retail store and pay cash for a Blizzard game just like you would for a loaf of bread, you're not actually buying it. That means the retailer never bought it either. Ergo, the retailer must have licensed it as well (though they never even opened the package so never even implicitly agreed to the EULA -- ah, the mystical magic of EULAs, the only kind of contract of its kind!).
The Blizzard judge would say that Lenovo signed a contract in blood with both Microsoft and the computer purchaser, and therefore Lenovo agreed to every term Microsoft put in the license: Lenovo must pay the refund that Microsoft offered. Any layman would say Lenovo is just a reseller and has no obligation to Microsoft to pay refunds on their behalf; the EULA is between Microsoft and whoever reads it -- but that layman also wants his money back and damn well knows Microsoft ain't gonna pay it.
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Of course Lenovo is not bound to the EULA. Lenovo is not the EU, End User. They have a different agreement/license/contract.
Re:Full refund (Score:4, Interesting)
Of course Lenovo is not bound to the EULA. Lenovo is not the EU, End User. They have a different agreement/license/contract.
The EULA specifies that the user may decline by returning the purchased copy and destroying all backup copies. But if the OEM is not bound, then the user has no way to decline. In this case, the consideration [wikipedia.org] on the user's part is dubious, and the user is likely not bound by anything but the same laws that apply to someone who buys a book: sale of goods law and copyright law. I don't know about Denmark, but in at least the United States, it is not an infringement for the owner of a copy of a computer program (where state law defines "owner") to copy the program into a computer to use it (17 USC 117).
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Your analogy would work if there was a note in the car saying that you either agree to an additional contract regarding your use of the tires, or the dealer will refund the price of the tires and take them back.
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Re:Full refund (Score:4, Insightful)
I think it's pretty clear that Windows' licenses require a refund that is separate from the computer.
Parent
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Indeed, Lenovo has made it abundantly clear that they want to Microsoft whores. That's why, although I love my T61, I recently bought a Dell Latitude E6500 when I needed a new computer. Dell couldn't sell it in the configuration I wanted without Windows, but they gave me an $80 discount when I told them I'd be using Linux! It's a solid laptop, metal hinges and all -- good riddance, Lenovo!
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Terrible analogy (Score:3, Interesting)
This is like buying a family sedan and saying you don't want the family they provided, as you've got your own.
It's a major part of the problem that Lenovo thinks they are selling me an operating system, and an even bigger problem that they think this is their "IP" and a value-add thing rather than just corrupt bundling.
Re:Full refund (Score:4, Insightful)
If the car came with an EULA saying that I could return the radio for a refund, I certainly would expect to be able to get a refund for the radio.
Parent
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Re:Full refund (Score:5, Informative)
Au Contraire, if you sell a product which has undisclosed terms refusing those terms should result in a refund. In order to use Microsoft Windows, you must accept their EULA. Unless you are claiming the Lenovo forced him to agree to the EULA prior to purchasing the computer, then those terms were undisclosed up to the point where he booted the computer and was presented with them.
Parent
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As you say, bullshit.
Re:Full refund (Score:4, Interesting)
By using the software, you accept these terms. If you do not accept them, do not
use the software. Instead, contact the manufacturer or installer to determine their
return policy for a refund or credit.
And if their policy is "no partial returns, if you don't like the package we sold you then return it (yes, all of it)." then everything seems legally fine and dandy to me. They accept that you do not want what they sold you and will now take the product back in exchange for some/all of your money back.
Parent
Re:Full refund (Score:4, Informative)
By using the software, you accept these terms. If you do not accept the terms, you do not have the right to use the software. Instead, contact the manufacturer or installer to get information on how you get a refund for the purchase or credit nota.
This can interpreted as giving the user the right to return Windows, without returning the entire computer. Similar cases have been taken to court in Italy and France (against HP and Acer, respectively), where both vendors were ordered to pay a refund for Windows.
Parent
Re:Full refund (Score:4, Insightful)
And the author of the EULA isn't obligated to offer a refund in the EULA. Lenovo isn't obligated to bundle that refund offer with their computer. But Microsoft and Lenovo did that. Somebody (whether you think it's Lenovo or Microsoft) TOLD the user, in writing, they can have their money back if they don't want Microsoft's crap.
They weren't obligated to sell him a computer the way he wants it, but then they said, "Ok, you can have it the way you want it, and here's our offer written in legalese." So, dude, are you really sure they're still not obligated to sell him a computer the way he wants it? He has a piece of paper that says they are, and he didn't write the words on that paper.
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In some jurisdictions, the law supersedes that and makes the seller responsible for such terms. If Lenovo is unhappy with that, they could always refuse to sell there.
EULA (Score:3, Informative)
True cost of windows? (Score:5, Insightful)
Choices (Score:5, Interesting)
Guys, I have used FreeBSD for a decade on multiple machines, some running CURRENT, and thus have had the privilege of not only listening to PHK's reasoned discussions, but also engaging in such discussions with him. I also supported his paid development project a few years ago, so you can be sure that I am *not* an unbiased contributor to this article.
That said, I am pretty sure that PHK didn't just decide over coffee or beer to sue Lenovo without giving the matter serious thought, research and consideration. Certainly, what MS charges OEMs and distributors for licenses is far less than the retail price you or I would pay, so I don't personally think that money is the issue at all. I haven't asked him personally so can't say with authority, but I would imagine that this is more about OS choice (or none) during the configure/customize process when shopping online and opting out of a MS OS up-front rather than any monetary settlement. It's the principle of the issue, not the money. At least that's how I see it and how I would like to see the outcome. Give consumers a choice to opt out of a forced MS OS, even if there is no financial benefit.
Re:Whole product... (Score:5, Informative)
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Re: (Score:3, Insightful)
Re:Whole product... (Score:5, Interesting)
That's a very common sense way of looking at it. And maybe it's even true, in Denmark.
Some people (and I hate them) think that users license software, instead of buying authorized copies, like they would buy a book. They say that title to the software never leaves the publisher. Ergo, when the computer was at Lenovo and Lenovo installed Windows on it, Lenovo didn't own a copy of that software either (Microsoft still owned it). So how did Lenovo legally do that? Why didn't Microsoft sue them for piracy? Maybe it's because there's a contract between Lenovo and Microsoft. And that contract says: if the end user doesn't want Windows, he gets a refund from Lenovo.
I think it's all bullshit, but such absurdities are the inevitable consequence of taking EULAs seriously. Microsoft and this user never met or did business in any way, so if there's somehow magically a contract between them, then something weird has to happen. Given that there's already something para-normal going on, it isn't any more of a stretch or leap of logic that Lenovo is involved too, especially since they did do business with both parties.
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Re:Whole product... (Score:5, Insightful)
If i buy a car, i can't yank out the back seats and require a refund from the car dealer.
Of course not, but by the same token you won't find a sticker on the back seats saying "even though you supposedly own this car, you're not allowed to use these seats unless you agere to the following conditions...".
The right to refuse and get a refund is the only vestige of any pretense that the EULA is a contract. Without that it should be cut and dried non-enforceable. If you own the machine, including the software (and the back seats) then you can go ahead and do with it whatever you please.
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Re:Whole product... (Score:5, Insightful)
Your car seats are either produced by the company that made your car, or purchased and integrated by them. Windows is resold by the guys who sell you your laptop; but it requires you to agree to a EULA, between you and Microsoft, in order to use it(compare this to your BIOS, which is almost certainly made by Phoenix or Award, not Lenovo; but is integrated by Lenovo and not licenced separately). If your car seat required a separate licence in order for it to be used, you should be able to treat it as a separate part.
Same with your other examples. As long as MS insists on having a separate EULA between it and you, its product can't be considered an intrinsic part of Lenovo, or anybody else's machines. If they started licencing it the way BIOSes, firmware, and drivers are typically licenced, I'd give the notion that it was an intrinsic component more weight.
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Re: (Score:3, Funny)
While microsoft's monopoly is bad, you shouldn't be sueing for a refund, sue for variety!
Ok!! I'll sue so that we can have:
Vista Home Basic
Vista Home Premium
Vista Business
Vista Enterprise
Vista Ultimate
Vista Super Ultimate
Vista Bloodsport
Vista: Ballmer vs. Gates
Vista: Is Windows
Wait a second...
Re:Whole product... (Score:5, Insightful)
While i applaud companies that refund the microsoft tax, i do sort of see where lenovo is coming from. If i buy a car, i can't yank out the back seats and require a refund from the car dealer.
Unless they sell you the car, but stipulate that only persons aged between 19 and 20 can use the back seats, and only for approved uses. They inform you that use of the back seats is monitored and non-personally identifiable data may be sold, in aggregate to third parties. Ownership of the back seats may not be transferred so that when you sell the car the new owner must install his own back seats. Even though there are two seats, only one person may use the seats at one time. The seats will from time to time check with the manufacturer to make sure they are installed in the same car as you purchased, and if a discrepancy is found, they will not allow anyone to sit in them. They then inform you that if you don't like these terms, you can CHOOSE TO RETURN THE BACK SEATS FOR A REFUND.
The license agreement specifically states that if you do not agree with the EULA you can return it for a refund. Computer makers know this. Computer makers license it from Microsoft that way. Computer makers have to abide by it.
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Re: (Score:3, Informative)
Part of my CIS degree program required two semesters of business law, and I remember the liability lectures well. In the US, there is a chain of product liability that goes like this:
Company A make car windshields.
Company B makes cars, and buys its windshields from Company A.
Customer buys a car from Company B.
For whatever reason, a defect in the windshield causes Customer to incur a loss that can be recovered in court, so Customer wants to sue. Who does Customer sue?
A) Company A
B) Company B
C) No-one, as U
not quite... (Score:4, Informative)
There is not a EULA when starting OS X on a new machine which says 'if you do not agree, you may get a refund of OS X'.
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P.T.Barnum had it right (Score:5, Funny)
No one ever went broke underestimating the intelligence of the American public.
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Re:It might be bad in denmark (Score:4, Interesting)
I'm no history buff, but the way I see it:
1) Microsoft basically invented the concept of software licensing in the first place, and so got a good head-start
2) Microsoft began as a software (only) company, therefore they were able to sell their OS to dozens of OEMs, and not only on their own machines (as opposed to, say, Commodore or Apple.)
3) Europe/Asia/the rest of the world, for some reason, was *waaay* behind on the whole affair. What I don't get is why Japan buy Windows-- Japan was building computers for decades, it never occurred to anybody there to make a home-grown OS? Why didn't France make one? What's the UK's version of Microsoft? In fact, why is every non-English-speaking country running an OS created by the whitest of the white Americans in Redmond, WA?
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Re: (Score:3, Informative)
I'm pretty sure IBM was licensing software long before Microsoft existed, probably before Bill Gates existed. They also got in trouble with the government for bundling hardware and software, and were subject to a consent decree until 2001. Current PC manufacturers probably can get away with bundling because they're not producing both the hardware and software.
Re: (Score:3, Interesting)
I don't know, but I remember a slashdot story about Dell selling PCs with Linux installed, and iirc the otherwise identical machine cost MORE with Linux than the Windows version did.
Re:Lenovo needs reality check (Score:5, Insightful)
If you don't want Microsoft Windows then do not buy a computer that comes with Microsoft Windows pre-installed, it is as simple as that.
If you don't want to provide Microsoft refunds, do not sell a computer that contains a EULA saying you will provide refunds if the EULA is unacceptable.
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Re:Lenovo needs reality check (Score:5, Insightful)
I understand your point, but you often don't have a choice when you're buying a laptop.
For example, when I bought my laptop, I chose some specs, and then looked at various manufacturers to find the cheapest price. No manufacturer sold a model with those specs without Windows preinstalled.
Dell was cheapest by a few hundred dollars, so I called them up to see if they'd sell me the model I wanted without an OS. Of course, I got some CSR in India who couldn't understand why in the world I'd want a computer with no operating system, no matter how simply I tried to explain it (even saying just "I already have one" didn't work).
I ended up just getting XP Home and living with it.
But you would have me "go buy from someone else", despite the fact that nobody else was selling a comparable laptop without an OS for that price?
It's not about "growing up", it's about being annoyed that in order to get the hardware I wanted, I had to get software I didn't want, and I didn't really have a choice.
I'm talking about laptops, here. I build my own desktops, and I obviously don't pay for Windows for those if I don't need to.
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Re:Lenovo needs reality check (Score:4, Interesting)
If you don't want Microsoft Windows then do not buy a computer that comes with Microsoft Windows pre-installed, it is as simple as that.
I understand your point, but you often don't have a choice when you're buying a laptop.
For example, when I bought my laptop, I chose some specs, and then looked at various manufacturers to find the cheapest price. No manufacturer sold a model with those specs without Windows preinstalled.
This is basically the exact thinking behind phk's actions, from before the purchase and up to the law suit. You can't get a high-powered computer without also paying for a Windows license, and in his case, being a FreeBSD developer, that amounts to a forced purchase from the main competitor.
Further, the Windows EULA is odd in that *Microsoft* is setting up an agreement between two *other* parties. One party has the right to decline the EULA, and the other party is legally bound to accept that.
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