Danish FreeBSD Dev. Sues Lenovo Over "Microsoft Tax" 318
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.'"
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.
Re:Full refund (Score:3, Insightful)
Whole product... (Score:1, Insightful)
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.
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".
Re:Whole product... (Score:2, Insightful)
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.
Re:Full refund (Score:3, Insightful)
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.
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.
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.
Re:Full refund (Score:1, Insightful)
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.
Re:Whole product... (Score:3, Insightful)
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.
True cost of windows? (Score:5, Insightful)
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.
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.
Re:Full refund (Score:5, Insightful)
This statement alone should be marked +5 insightful (and that's coming from US citizen).
Re:Full refund (Score:1, Insightful)
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?
Re:Full refund (Score:3, Insightful)
Re:Full refund (Score:4, Insightful)
I think it's pretty clear that Windows' licenses require a refund that is separate from the computer.
Re:Full refund (Score:2, Insightful)
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.
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.
Re:Full refund (Score:3, Insightful)
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.
Re:Full refund (Score:3, Insightful)
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)
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)
Re:Whole product... (Score:3, Insightful)
Comment removed (Score:4, Insightful)