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Danish FreeBSD Dev. Sues Lenovo Over "Microsoft Tax" 318

Posted by kdawson
from the cracks-in-the-dam dept.
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.'"
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Danish FreeBSD Dev. Sues Lenovo Over "Microsoft Tax"

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  • Re:Full refund (Score:5, Insightful)

    by Maxo-Texas (864189) on Friday August 14, 2009 @10:49AM (#29065625)

    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.

  • Re:Full refund (Score:3, Insightful)

    by FudRucker (866063) on Friday August 14, 2009 @10:51AM (#29065649)
    find enough people and make it a class action...
  • Whole product... (Score:1, Insightful)

    by Anonymous Cowar (1608865) on Friday August 14, 2009 @10:53AM (#29065667)
    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. It is true i could sell those seats for a profit on ebay, the original dealer would not be required to refund me the cost of the seats. In fact, it could be assumed that you pay $2000 for the laptop hardware and they throw in windows for free.

    Should you be able to sue for not being able to arbitrarily get a refund on a part of a computer? What if you want to run thin clients that never touch the hard drive? Should you be able to refund the hard drive? Just because what you're trying to get rid of has no legal resale value doesn't mean you should be able to refund it, especially if Lenovo never included an itemized list.

    You know what? I'm gonna sue the next laptop company i buy from because they won't refund the cost of the touch pad, I hate those things! More than most linux people hate microsoft, i'm talking like a seething, infuriating hatred. /sarcasm

    What if you wrote software that included printer capabilities or SQL database access, would you refund someone who didn't want printer capabilities or SQL database access? Too bad lenovo isn't doing what sane people would do and try to work with the customer to come to something that works, but, if you don't like the back seats, either buy the whole care and remove em yourself, or don't buy the car.

    Reason people! While microsoft's monopoly is bad, you shouldn't be sueing for a refund, sue for variety! And NO I didn't RTFA, so for all i know, the terms of the settlement may be "Sell blank slate laptops".
  • by Anonymous Cowar (1608865) on Friday August 14, 2009 @10:59AM (#29065741)
    heh, so he never tried to contact microsoft or the microsoft affiliate? This is gonna be a short case.
  • by Anonymous Coward on Friday August 14, 2009 @11:00AM (#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.

  • Re:Full refund (Score:3, Insightful)

    by FudRucker (866063) on Friday August 14, 2009 @11:01AM (#29065771)
    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?)...
  • Re:Full refund (Score:4, Insightful)

    by IdleTime (561841) on Friday August 14, 2009 @11:02AM (#29065799) Journal
    Du er sikkert ikke dansk men en Amerikaner!

    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.
  • by fuzzyfuzzyfungus (1223518) on Friday August 14, 2009 @11:02AM (#29065803) Journal
    Your analogies are missing something:

    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.
  • Re:Full refund (Score:5, Insightful)

    by Sloppy (14984) on Friday August 14, 2009 @11:04AM (#29065831) Homepage Journal

    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.

  • Re:Full refund (Score:1, Insightful)

    by Anonymous Coward on Friday August 14, 2009 @11:07AM (#29065875)

    Not really.

    The EULA he declined 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.

  • by Galestar (1473827) on Friday August 14, 2009 @11:08AM (#29065909)
    They are to Microsoft. And MS may have a contract with Lenovo that Lenovo has to honour that clause too.
  • Re:Full refund (Score:4, Insightful)

    by Jiro (131519) on Friday August 14, 2009 @11:09AM (#29065921)

    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.

  • by TinBromide (921574) on Friday August 14, 2009 @11:11AM (#29065959)
    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.
  • by iCEBaLM (34905) <icebalm@@@icebalm...com> on Friday August 14, 2009 @11:11AM (#29065969)

    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.

  • Re:Full refund (Score:4, Insightful)

    by Sloppy (14984) on Friday August 14, 2009 @11:18AM (#29066077) Homepage Journal

    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.

  • Re:Full refund (Score:5, Insightful)

    by Anonymous Coward on Friday August 14, 2009 @11:20AM (#29066107)
    Btw, the US do not have a justice system, it only has a punishment system.

    This statement alone should be marked +5 insightful (and that's coming from US citizen).
  • Re:Full refund (Score:1, Insightful)

    by Anonymous Coward on Friday August 14, 2009 @11:41AM (#29066457)
    No, He would have been a troll if he just called people names. You know, like you just did.
  • Re:Full refund (Score:4, Insightful)

    by kevinNCSU (1531307) on Friday August 14, 2009 @11:41AM (#29066463)

    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?

  • Re:Full refund (Score:3, Insightful)

    by Dishevel (1105119) * on Friday August 14, 2009 @11:44AM (#29066495)
    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 /. car analogy.
  • Re:Full refund (Score:4, Insightful)

    by gabebear (251933) on Friday August 14, 2009 @11:52AM (#29066607) Homepage Journal
    Car analogies break down pretty fast here...
    • Can you sell the tires if you want to? You can't with OEM Windows.
    • Did you technically buy tires? Windows is licensed to you, you own nothing.
    • Did your tires' license have a provision saying that, if you don't agree with the terms of the license, the company would give you a refund?
    • The rest of the car was sold to you and is now legally your property(and is not mentioned in the license for your tires)

    I think it's pretty clear that Windows' licenses require a refund that is separate from the computer.

  • Re:Full refund (Score:2, Insightful)

    by Anonymous Coward on Friday August 14, 2009 @12:13PM (#29066907)
    Really? The last time I was on jury duty, nobody cared about the guy's guilt or innocence. They just wanted to reach a consensus so they could go home and watch NASCAR.
  • Re:Full refund (Score:5, Insightful)

    by jim_v2000 (818799) on Friday August 14, 2009 @12:18PM (#29066969)
    "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.
  • by Hatta (162192) * on Friday August 14, 2009 @12:47PM (#29067373) Journal

    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.

  • Re:Full refund (Score:3, Insightful)

    by bws111 (1216812) on Friday August 14, 2009 @01:04PM (#29067637)
    That is true, and I did not say anything contrary to that. What I am objecting to is the notion that somehow you have a right to FORCE a manufacturer to make a product by suing him. If you don't want the product as offered, don't buy it. If you want to make a point, buy it and return it saying 'I don't agree with the EULA, so you lost a sale'. Suing someone for not offering a product you want to buy is just asinine.
  • by HeronBlademaster (1079477) <heron@xnapid.com> on Friday August 14, 2009 @01:09PM (#29067687) Homepage

    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.

  • Re:Full refund (Score:3, Insightful)

    by AmiMoJo (196126) <mojo AT world3 DOT net> on Friday August 14, 2009 @01:46PM (#29068283) Homepage

    This raises a couple of issues with the law that I have often wondered about.

    Under UK law, and I imagine most EU country's law, a contract has to confer some benefit to both parties. The contract can't just be "give me money", you have to give something (like a service or goods) in return. If you decline the EULA, you could argue that either the computer is now useless to you and so you receive no benefit from it (it doesn't do anything without an OS). Of course you could install Linux but the agreement was for a working computer so even if contract law does not apply, unless Lenovo installed it for you it would be possible to argue that it is not "fit for purpose" under sales law.

    Another related issue is the requirement for all contracts to be negotiable. I don't know about Denmark specifically, but I imagine most EU countries have something similar to the contract law here in the UK which requires that both parties must have an opportunity to edit a contract before agreeing to it. One party can just refuse to agree to any changes the other one makes, but there does at least have to be that possibility of making counter-offers. Since you often cannot edit the EULA (sometimes it's just a text file you can edit before installing) it might be possible to argue that it is unenforceable as a contract.

  • Re:Full refund (Score:4, Insightful)

    by Anonymous Coward on Friday August 14, 2009 @02:18PM (#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.
  • Re:Full refund (Score:3, Insightful)

    by bws111 (1216812) on Friday August 14, 2009 @02:43PM (#29069089)
    No, the EULA states to you must ask the manufacturer what the return or credit policy is. Lenovo says the policy is return the laptop. That fulfills the EULA, and makes the guy whole (he is not out anything). If Lenovo said the policy was 'too bad, you bought it, no refunds' then the guy would have a claim. What the guy wants to do is unilaterally redefine the terms of the sale, from hardware+OS to hardware only, and Lenovo is under no obligation to honor a one-sided deal like that.
  • by iamwahoo2 (594922) on Friday August 14, 2009 @03:34PM (#29069763)
    The way that the whole EULA thing has shaped up does not exactly present the US Law Schools in a positive light. I am not sure how anybody could come to the decision that it would be wise to allow for parties to retroactively apply contract terms that were not previously disclosed. How did this happen? How could the very simple idea of contracts that describe mutual agreement between parties get mutilated into a tool that mainly serves to enable dishonest sales practices? My guess is that many judges rule in favor of shrink-wrapped EULAs because they are so widely used, not because the law actually supports the way in which they are distributed.<p> My hope is that this MS license fiasco will serve as a lesson learned and demonstrate the pitfalls of non-disclosed contract terms to judges in the future. Maybe after seeing how this creates a three-way dispute where nobody can determine what was actually agreed upon some future judge will have a light come on upstairs.
  • Re:Full refund (Score:4, Insightful)

    by hairyfeet (841228) <bassbeast1968@@@gmail...com> on Friday August 14, 2009 @04:40PM (#29070709) Journal

    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.

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