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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:3, Interesting)

    by kc8tbe (772879) on Friday August 14, 2009 @10:59AM (#29065737)

    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!

  • Terrible analogy (Score:3, Interesting)

    by Anonymous Coward on Friday August 14, 2009 @11:06AM (#29065871)

    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.

  • by Conley Index (957833) on Friday August 14, 2009 @11:19AM (#29066091)

    According to some story circulating the net ( http://forum.ubuntuusers.de/topic/wo-kaufe-ich-ein-notebook-mit-linux-13-herste/2/ [ubuntuusers.de] ), the Lenovo hotline in Germany denies that it is possible, but if you talk to a certain person at Lenovo, you will get a refund of 30 Euros for your Windows license.

    I have not tried myself, maybe for my next laptop...

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

    by T-Bone-T (1048702) on Friday August 14, 2009 @11:19AM (#29066097)

    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:3, Interesting)

    by Desler (1608317) on Friday August 14, 2009 @11:25AM (#29066185)
    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.
  • Choices (Score:5, Interesting)

    by mwoliver (688853) <me@kt2t.us> on Friday August 14, 2009 @11:29AM (#29066269) Homepage

    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:Full refund (Score:3, Interesting)

    by Chyeld (713439) <chyeld&gmail,com> on Friday August 14, 2009 @11:30AM (#29066281)

    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.

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

    by mcgrew (92797) * on Friday August 14, 2009 @11:30AM (#29066285) Homepage Journal

    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.

  • Re:Whole product... (Score:5, Interesting)

    by Sloppy (14984) on Friday August 14, 2009 @11:32AM (#29066295) Homepage Journal

    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.

  • Re:How Much? (Score:3, Interesting)

    by mcgrew (92797) * on Friday August 14, 2009 @11:51AM (#29066595) Homepage Journal

    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:Full refund (Score:4, Interesting)

    by tepples (727027) <tepples@gm a i l . com> on Friday August 14, 2009 @11:58AM (#29066691) Homepage Journal

    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).

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

    by Thansal (999464) on Friday August 14, 2009 @11:58AM (#29066705)

    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.

  • I'm still waiting (Score:2, Interesting)

    by silmarilwest (724433) on Friday August 14, 2009 @12:03PM (#29066767)
    for Apple to offer a refund for the copy of OS X sold with their hardware. I'd rather use FreeBSD.
  • Re:Full refund (Score:4, Interesting)

    by maino82 (851720) on Friday August 14, 2009 @12:10PM (#29066875)
    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.
  • Re:Full refund (Score:2, Interesting)

    by zzyzyx (1382375) on Friday August 14, 2009 @12:25PM (#29067045)

    The end user does not need to know who built the power supply, or who made the case, or who licensed the software. The customer bought the product from Lenovo, not Microsoft, so refunds should come from Lenovo. It's the same for every other industry.

    In this specific case Lenovo may not be bound by the EULA, but is by the EU law which limits the sale of product bundles. You can sell a bundle or product A+B, but only if products A and B are available separately. Apparently Lenovo sold laptop+software, but refused to sell the laptop alone.

  • Re:Whole product... (Score:3, Interesting)

    by jim_v2000 (818799) on Friday August 14, 2009 @12:51PM (#29067439)
    "Windows is resold by the guys who sell you your laptop; but it requires you to agree to a EULA, between you and Microsoft"

    That's actually not true at all. The license is NOT between you and Microsoft. Here's the relevant snippet from the Vista Home Premium OEM license:

    "These license terms are an agreement between you andÂthe device manufacturer that distributes the software with the device, or the software installer that distributes the software with the device."

    Next time actually read the agreement instead of assuming that you know what it says.
  • by HoldmyCauls (239328) on Friday August 14, 2009 @01:12PM (#29067727) Journal

    If the computer ceases to function at that point, then Lenovo sold him a broken computer when once the EULA was declined.

    I've never seen an answer to this, and halfway through the posts I still don't. Writing this from work, so I may COTFA later.

  • by Blakey Rat (99501) on Friday August 14, 2009 @01:29PM (#29067993)

    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?

  • Apple and MacOS (Score:2, Interesting)

    by _avs_007 (459738) on Friday August 14, 2009 @01:31PM (#29068019)
    I wonder if the EU will force Apple to stop bundling OSX with Macs, similarly to how MS cannot bundle IE with the OS... What if I want to buy a cool Macbook Air, but don't want to pay for OSX, lol?
  • by KlaymenDK (713149) on Friday August 14, 2009 @02:13PM (#29068705) 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.

    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.

  • by IRWolfie- (1148617) on Friday August 14, 2009 @03:59PM (#29070119)
    and you usaully build your own laptop too?
  • Re:Full refund (Score:3, Interesting)

    by Runaway1956 (1322357) on Friday August 14, 2009 @04:02PM (#29070175) Homepage Journal

    Well - who DOES understand our system? Certainly not the lawyers, or the liberals who like to tamper with the system.

    We imprison more people per capita than countries such as the Evil Iranian Empire, or the Evil Communists of China, or a lot of other nations that might surprise you. We may even compete with the DemiGod of North Korea, but statistics on North Korea are hard to get, and harder to substantiate.

    Seems obvious to me that NO ONE understands our system. We sure as hell don't rehabilitate very many real criminals. Worse, we have a dozen new laws every year that creates yet another sub-class of the criminal class.

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

    by Runaway1956 (1322357) on Friday August 14, 2009 @08:36PM (#29072789) Homepage Journal

    Errr, I'm not comparing the US only to genocidal dictatorships. Check out some links, then draw your own conclusions:

    http://www.nytimes.com/2008/04/23/world/americas/23iht-23prison.12253738.html [nytimes.com]
    http://en.wikipedia.org/wiki/Prison [wikipedia.org]
    Prison population per 100,000 inhabitants:
    US - 756
    Russia - 611
    New Zealand - 186
    UK - 148
    Netherlands - 128
    Australia - 157
    Canada - 107

    There is something wrong with the SYSTEM. One of the biggest problems, of course, is the "war on drugs". There are, literally, millions of non-dangerous people imprisoned each and every year, for violating drug laws. Our rates should be near those of Canada and Australia - we are similar peole, with similar histories, after all, with slavery being the biggest single difference in our histories.

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