Danish FreeBSD Dev. Sues Lenovo Over "Microsoft Tax"

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 previous rulings in the EU where Acer and HP has been forced to refund the 'Microsoft tax.'"

Full refund

[sakdoctor]

Better have a full refund and buy from someone else.
Case closed

Re:Whole product...

[Galestar]

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.

Re:It might be bad in denmark

[onefriedrice]

I believe Microsoft invented the idea of "licensing" software. They licensed DOS, which they bought from some other guy, to IBM and made bank. Such deals with IBM et al. allowed them to quickly dominate the relatively infant "PC" market, and the rest is history. They've been delivering abuse ever since.

not quite...

[Anonymous Coward]

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'.

EULA

[abigsmurf]

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".

Re:Full refund

[TheDarkMaster]

You don't need to pay the cost of air-conditioning if you choose to buy your car without then.

But with a new PC, you pay the Windows licence cost even you choose to not get the PC with then.

Re:Full refund

[Chyeld]

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.

Re:Full refund

[Desler]

Au Contraire, if you sell a product which has undisclosed terms refusing those terms should result in a refund.

For the whole product, yes. Not piecemeal parts.

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.

Oh bullshit. He knew the terms before buying the product. To claim otherwise is just disingenuous. Secondly, the EULA doesn't state that the retailer of the product is obligated to refund the user's money for the Microsoft license.

Re:It might be bad in denmark

[LMacG]

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:Full refund

[scoof]

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.

Re:Full refund

[Dishevel]

Not only that but if you do not want the A/C or Radio and the only car you can get has them you can take them out and sell them. You can not do that with a Microsoft OEM license.

Re:True cost of windows?

[Anonymous Coward]

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.

a don't think so!

The total of 311.85 euros of the overall purchase price of the notebook of 599 euros that Acer was forced to pay back was made up of 135.20 euros for Windows XP Home, 60 euros for Microsoft Works, 40.99 euros for PowerDVD, 38.66 euros for Norton Antivirus and 37 euros for NTI CD Maker. On top of that Acer had to pay a further 650 euros in, among other things, legal costs.
http://www.heise.de/english/newsticker/news/96581

Re:Full refund

[bcong]

Denmark does have a similar class action lawsuit type civil case. It's called Gruppesogsmal (sic) [google.com]

Re:Full refund

[sjames]

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.

Re:Whole product...

[StormReaver]

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 US law has left Customer to hang by the neck until dead.

Although most of you have instinctively chosen C, you're wrong. As are those of you who chose A. Customer did not buy from Company A, and so does not have standing to sue. Since Company B resells Company A's product, Company B assumes liability for defects. Company B has standing to sue Company A, and can do so to recover its losses for being sued over defects in the products it bought from Company A.

Obviously, this doesn't necessarily apply to this case since it's not in the US, but I suspect something similar to be true.

Re:Full refund

[Anonymous Coward]

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 of 2008, 9 of 10 provinces have enacted comprehensive class actions legislation.

France
Under French law, an association can represent the collective interests of consumers; however, each claimant must be individually named in the lawsuit.

Germany
On November 1, 2005, Germany enacted the âoeAct on Model Case Proceedings in Disputes under Capital Markets Law (Capital Markets Model Case Act)â allowing sample proceedings to be brought before the courts in litigation arising from mass capital markets transactions.

Italy
Italy has class action legislation now. Consumer associations can file claims on behalf of groups of consumers to obtain judicial orders against corporations that cause injury or damage to consumers.

India
In India class action lawsuits are called Public interest litigation and can be initiated by individuals or groups of individuals.

Netherlands
Dutch law allows collective actions brought by associations on behalf of injured parties seeking a judicial declaration that the company is liable for the damage it has caused.

Spain
Spanish law allows nominated consumer associations to take action to protect the interests of consumers. A number of groups already have the power to bring collective or class actions: certain consumer associations, bodies legally constituted to defend the âcollective interestâ(TM) and groups of injured parties.

Re:Full refund

[Zumbs]

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.

Comment removed

[account_deleted]

Comment removed based on user account deletion

Re:What happens when you click "No, I do not agree

[otakuj462]

The option to turn down the EULA is not exposed through the UI at all. The only way to avoid agreeing to the EULA is to turn off the computer.

Re:Whole product...

[jopsen]

heh, so he never tried to contact microsoft or the microsoft affiliate? This is gonna be a short case.

I think the "microsoft affiliate" is Lenovo, which he did contact prior to suing them.

Re:Lenovo needs reality check

[jimicus]

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.

ICBW, but the last time I checked it just said "Contact your OEM for a refund". Didn't say anything about how the OEM is obliged to offer one.