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I don't hold a legal qualification, but Copyright was my chosen topic for Engineering Law in my Software Engineering course. So this is a topic close to my heart. I am not a lawyer, but I play one on TV

While this will make rental DVDs more expensive (possibly?) it will give us Australians certain rights over our purchased DVDs which I don't think we have over purchased movies:Copyright ACT 1968

Part III Division 4A is the interesting part:

COPYRIGHT ACT 1968
Division 4A--Acts not constituting infringements of copyright in
computer programs

47AB. Meaning of computer program
47B. Reproduction for normal use or study of computer programs
47C. Back-up copy of computer programs
47D. Reproducing computer programs to make interoperable products
47E. Reproducing computer programs to correct errors
47F. Reproducing computer programs for security testing
47G. Unauthorised use of copies or information
47H. Agreements excluding operation of certain provisions

Firstly, the meaning of a "Computer Program":

In this Division: computer program includes any literary work that is: (a)incorporated in, or associated with, a computer program; and (b)essential to the effective operation of a function of that computer program.

Sections 47B and 47D protect the right to make reproductions of software for the purposes of studying the software and making compatible software (reverse engineering)

Section 47C protects the back-up rights of software, including for any of the following purposes:

(i)to enable the owner or licensee of the original copy to use the reproduction in lieu of the original copy and to store the original copy; (ii)to enable the owner or licensee of the original copy to store the reproduction for use in lieu of the original copy if the original copy is lost, destroyed or rendered unusable; (iii)to enable the owner or licensee of the original copy to use the reproduction in lieu of the original copy, or of another reproduction made under this subsection, if the original copy, or the other reproduction, is lost, destroyed or rendered unusable.

However, these are not valid (amongst other restrictions)

(b)if the owner of the copyright in the computer program has so designed the program that copies of it cannot be made without modifying the program; or

However I think the DeCSS case showed that copies can certainly be made without modifying the "program".

And the funnest bit is that the license agreement cannot deny these clauses:

An agreement, or a provision of an agreement, that excludes or limits, or has the effect of excluding or limiting, the operation of subsection 47B(3), or section 47C, 47D, 47E or 47F, has no effect.

Sideline: Grr to Slashdot not liking <dl>'s.

More interesting sideline: Ross Jones, commisioner of the Australian Competition and Consumer Commission had this to say about DVDs:Difficulties between the pro-competitive community and Intellectual Property

The essential point here is that in the Commission's view, there is an attempt to use copyright laws for a purpose related to areas beyond their real purpose. This coding system is a mechanism to allow price discrimination, not to protect the inherent rights of Intellectual Property owners.

It's worth noting that the ACCC has a good history in this area. If you read the linked article, as well as the full reasoning for DVD region coding being a breach of the Trade Practices Act, also mentioned is the ongoing case by the ACCC against Sony, Warner and Universal over parallel CD imports. Sony settled without admitting liability, but did give $200k to the ACCC for legal costs. Universal, Warner and several senior execs were still facing court, with the penalty being up to $10 million per contravention.

I don't hold a legal qualification, but Copyright was my chosen topic for Engineering Law in my Software Engineering course. So this is a topic close to my heart. I am not a lawyer, but I play one on TV

While this will make rental DVDs more expensive (possibly?) it will give us Australians certain rights over our purchased DVDs which I don't think we have over purchased movies:Copyright ACT 1968

Part III Division 4A is the interesting part:

COPYRIGHT ACT 1968
Division 4A--Acts not constituting infringements of copyright in
computer programs

47AB. Meaning of computer program
47B. Reproduction for normal use or study of computer programs
47C. Back-up copy of computer programs
47D. Reproducing computer programs to make interoperable products
47E. Reproducing computer programs to correct errors
47F. Reproducing computer programs for security testing
47G. Unauthorised use of copies or information
47H. Agreements excluding operation of certain provisions

Firstly, the meaning of a "Computer Program":

In this Division: computer program includes any literary work that is: (a)incorporated in, or associated with, a computer program; and (b)essential to the effective operation of a function of that computer program.

Sections 47B and 47D protect the right to make reproductions of software for the purposes of studying the software and making compatible software (reverse engineering)

Section 47C protects the back-up rights of software, including for any of the following purposes:

(i)to enable the owner or licensee of the original copy to use the reproduction in lieu of the original copy and to store the original copy; (ii)to enable the owner or licensee of the original copy to store the reproduction for use in lieu of the original copy if the original copy is lost, destroyed or rendered unusable; (iii)to enable the owner or licensee of the original copy to use the reproduction in lieu of the original copy, or of another reproduction made under this subsection, if the original copy, or the other reproduction, is lost, destroyed or rendered unusable.

However, these are not valid (amongst other restrictions)

(b)if the owner of the copyright in the computer program has so designed the program that copies of it cannot be made without modifying the program; or

However I think the DeCSS case showed that copies can certainly be made without modifying the "program".

And the funnest bit is that the license agreement cannot deny these clauses:

An agreement, or a provision of an agreement, that excludes or limits, or has the effect of excluding or limiting, the operation of subsection 47B(3), or section 47C, 47D, 47E or 47F, has no effect.

Sideline: Grr to Slashdot not liking <dl>'s.

More interesting sideline: Ross Jones, commisioner of the Australian Competition and Consumer Commission had this to say about DVDs:Difficulties between the pro-competitive community and Intellectual Property

The essential point here is that in the Commission's view, there is an attempt to use copyright laws for a purpose related to areas beyond their real purpose. This coding system is a mechanism to allow price discrimination, not to protect the inherent rights of Intellectual Property owners.

It's worth noting that the ACCC has a good history in this area. If you read the linked article, as well as the full reasoning for DVD region coding being a breach of the Trade Practices Act, also mentioned is the ongoing case by the ACCC against Sony, Warner and Universal over parallel CD imports. Sony settled without admitting liability, but did give $200k to the ACCC for legal costs. Universal, Warner and several senior execs were still facing court, with the penalty being up to $10 million per contravention.

If I buy one of these CDs, for use in my computer's CD player, and it doesn't play, and I have no warning that it may not, I want to be able to return it. I have grounds for a refund, that the product is not "fit for the purpose".

In Australia, there are several sections of the Trade Practices Act which may be relevant (IANAL)

SECT 74D
Actions in respect of goods of unmerchantable quality

SECT 74B
Actions in respect of unsuitable goods
(1) Where:

(a) a corporation, in trade or commerce, supplies goods manufactured by the corporation to another person who acquires the goods for re-supply;

(b) a person (whether or not the person who acquired the goods from the corporation) supplies the goods (otherwise than by way of sale by auction) to a consumer;

(c) the goods are acquired by the consumer for a particular purpose that was, expressly or by implication, made known to the corporation, either directly, or through the person from whom the consumer acquired the goods or a person by whom any antecedent negotiations in connexion with the acquisition of the goods were conducted;

(d) the goods are not reasonably fit for that purpose, whether or not that is a purpose for which such goods are commonly supplied; and

(e) the consumer or a person who acquires the goods from, or derives title to the goods through or under, the consumer suffers loss or damage by reason that the goods are not reasonably fit for that purpose;


the corporation is liable to compensate the consumer or that other person for the loss or damage and the consumer or that other person may recover the amount of the compensation by action against the corporation in a court of competent jurisdiction.

SECT 74C
Actions in respect of false descriptions

If a CD won't play in a CD player, and a refund is refused as the package is opened, I think you would still have grounds as the product is not fit for the purpose.

If I buy one of these CDs, for use in my computer's CD player, and it doesn't play, and I have no warning that it may not, I want to be able to return it. I have grounds for a refund, that the product is not "fit for the purpose".

In Australia, there are several sections of the Trade Practices Act which may be relevant (IANAL)

SECT 74D
Actions in respect of goods of unmerchantable quality

SECT 74B
Actions in respect of unsuitable goods
(1) Where:

(a) a corporation, in trade or commerce, supplies goods manufactured by the corporation to another person who acquires the goods for re-supply;

(b) a person (whether or not the person who acquired the goods from the corporation) supplies the goods (otherwise than by way of sale by auction) to a consumer;

(c) the goods are acquired by the consumer for a particular purpose that was, expressly or by implication, made known to the corporation, either directly, or through the person from whom the consumer acquired the goods or a person by whom any antecedent negotiations in connexion with the acquisition of the goods were conducted;

(d) the goods are not reasonably fit for that purpose, whether or not that is a purpose for which such goods are commonly supplied; and

(e) the consumer or a person who acquires the goods from, or derives title to the goods through or under, the consumer suffers loss or damage by reason that the goods are not reasonably fit for that purpose;


the corporation is liable to compensate the consumer or that other person for the loss or damage and the consumer or that other person may recover the amount of the compensation by action against the corporation in a court of competent jurisdiction.

SECT 74C
Actions in respect of false descriptions

If a CD won't play in a CD player, and a refund is refused as the package is opened, I think you would still have grounds as the product is not fit for the purpose.

If I buy one of these CDs, for use in my computer's CD player, and it doesn't play, and I have no warning that it may not, I want to be able to return it. I have grounds for a refund, that the product is not "fit for the purpose".

In Australia, there are several sections of the Trade Practices Act which may be relevant (IANAL)

SECT 74D
Actions in respect of goods of unmerchantable quality

SECT 74B
Actions in respect of unsuitable goods
(1) Where:

(a) a corporation, in trade or commerce, supplies goods manufactured by the corporation to another person who acquires the goods for re-supply;

(b) a person (whether or not the person who acquired the goods from the corporation) supplies the goods (otherwise than by way of sale by auction) to a consumer;

(c) the goods are acquired by the consumer for a particular purpose that was, expressly or by implication, made known to the corporation, either directly, or through the person from whom the consumer acquired the goods or a person by whom any antecedent negotiations in connexion with the acquisition of the goods were conducted;

(d) the goods are not reasonably fit for that purpose, whether or not that is a purpose for which such goods are commonly supplied; and

(e) the consumer or a person who acquires the goods from, or derives title to the goods through or under, the consumer suffers loss or damage by reason that the goods are not reasonably fit for that purpose;


the corporation is liable to compensate the consumer or that other person for the loss or damage and the consumer or that other person may recover the amount of the compensation by action against the corporation in a court of competent jurisdiction.

SECT 74C
Actions in respect of false descriptions

If a CD won't play in a CD player, and a refund is refused as the package is opened, I think you would still have grounds as the product is not fit for the purpose.

Are you talking about US copyright law there, or Australian? Australian copyright lasts for fifty years after the death of the author.

Actually there is legislation that was passes last year in Australia that is not far off from the DMCA, its called the Digital Agenda Act (CADA). It has some similiar section such as the following:

The CADA provides civil remedies and criminal sanctions against the manufacture, commercial dealing, importation, making available online, advertising, marketing and supply of a circumvention device or service used to circumvent technological protection measures such as program locks. The actual use of a circumvention device or service is not specifically proscribed.

Sounds familiar?

I'd be seriously referring this case to the Australian Competition and Consumer Commission (ACCC) because this represents a violation of my privacy. Your own ISP is collecting information about your internet access without your prior knowledge or permission (granted the more technically adept have already guessed it by now by looking at their access logs, but I'm also talking about the people who don't know). Yes, I know that other services have doing the same thing for years but it is easier to prevent an external company, that exercises no influence over your ISP (eg. Gator), from collecting personal information without permission.

Now IANAL, but unfortunately there is no specific legal protection for this kind of activity (at least not in NSW) under the Privacy and Personal Information Protection Act 1998 (NSW), as the principles in the Act that must be applied in the collection and use of personal information (see Section 10) only apply to the public sector and are still subject to exemptions.

Your best bet would be the Privacy Amendment (Private Sector) Act 2000 (which amends the Privacy Act 1988 (Cth)), as this adds conditions under which the private sector can collect personal information. It's also a Commonwealth Law, so that the Act can be applied to cases all over the country (although in most cases, the courts tend to follow the lead of NSW). One big caveat of this amendment is that this still could possibly allow Excite@home to collect information if "the collection is necessary for the establishment, exercise or defence of a legal or equitable claim" (see Schedule 3, 10.1(e)). But the way things are going for Excite@home at the moment, lawyers would probably be the last thing on their minds.

If you're serious about putting a stop to this, then try your government privacy body (in my state, it's the Office of the NSW Privacy Commissioner). More letters to these people (particularly now as it's close to an election) would help all of us stand up for our collective rights.

The United States of Australia has also enacted a similar piece of legislation to the DMCA. Whilst not quite as draconian (because you can't get slammed just for having DeCSS or DiXV on your PC), it is still one sided nevertheless. Our weak-kneed government seemed to roll over and play dead when asked by the US to enact these type of laws. (No wonder Asia calls Australia the US's deputy... and our dumb Prime Minister is proud of it). Here is where you can find the Australian legislation Copyright Amendment (Digital Amendment) Act 2000 Unfortunately, since Australia does not have the first amendment, there is nothing that an Australian academic can do to defend themselves against s132 (5B)(c) which makes it an offence to "distribute a circumvention device with the intention of trading, or engaging in any other activity that will affect prejudicially an owner of copyright

Part IV of the Trade Practices Act deals with restrictive trade practices such as monopolisation, exclusive dealing, resale price maintenance and predatory pricing. In particular, section 45 of the Act basically provides that a Corporation shall not enter into an arrangement which has the purpose, or is likely to have the effect of, substantially lessening competition. In principle, this includes agreements made outside Australia which have the effect of lessening competition within Australia, although it's doubtful to what extent Australian law can be used to affect conduct originating in other jurisdictions. There are also a pile of exceptions to these provisions (eg. for arrangements between related companies), but none seem to apply to DVD region coding. The ACCC is perhaps the most powerful (and active) regulatory body in Australia, with a broad mandate and power to prevent anti-competitive, unfair and unconscionable conduct in trade and commerce.

While in the big-bad real world, Australia (my wonderful home!) may seem like a bit of a Backwater, the ACCC - http://www.accc.gov.au/ will be tenatious.

One of two things will happen as a result of this challenge: either all region types of DVDs will be sold in Australia, or more likely the compromise will be for DVD players to be made region-free as a mandatory requirement (Thus "negating" the region-locking).

you might find this useful: http://scaletext.law.gov.au/cgi-bin/download.pl?/s cale/data/pasteact/0/115 or the definitive entry point: http://www.fed.gov.au/ where you can search for legislation etc.

Aussie Aussie Aussie! Oi Oi Oi!

Dan =)

Forwarding a personal e-mail is unlikely to breach copyright laws. A court would need to find that the contents of the e-mail were an "original literary work". For example, if the e-mail was simply a joke that everyone had been re-hashing for years, it is doubtful it would have the necessary originality to be protected by copyright. Similarly, a casual exchange of personal information or office gossip would probably not be original enough to have copyright in it.

The Attorney General has issued a press release refuting the claims in The Sunday Telegraph. Here is a quote from the release: "Contrary to alarmist media reports, sharing e-mail is not banned by law. Amendments to the Copyright Act that came into effect today do not outlaw the practice of forwarding personal e-mails to other people. That would be ridiculous."

• The current govt is on the way out later in the year. It has a 50's mindset, which is when everyone wishes they had last seen this mob of unimaginative no-hopers
• Last election (compulsory voting + preferential voting, remember) they (the conservative coalition made up of the two right-wing parties, named, ironically enough, the liberal and national parties) managed to sneak back into office despite getting (after redistribution of preferences) less than half the vote. They took this as a mandate to introduce a GST (aka consumption tax)
• I was in the majority who didn't vote for them (my first pref wasn't the other major party (labor) either, due to the local candidate, but he would have got my preference in the end anyway)
• Yes, as the other posters have noted, mainstream media interests are just as active in shaping public opinion and policy here as they are elsewhere. For this reason, I am taking this at face value (ummm, where is the source... Rupert Murdoch's news.com) until I see it elsewhere (thank God/Allah/QEII/Menzies for the ABC). It hasn't appeared on Richard Alstons (the AG) media releases, nor does it appear in the other major papers I have looked through this morning. There is no specific mention of anything of this sort in the amendments to the copyright act but that doesn't mean that it isn't covered. If I find something out, I will see if I can get an "update" to the article.
• There is a quick workaround that I will use if this turns out to be legit -- stick a short "permission" notice in your standard e-mail footer. I am not really sure how this works with transcontinental e-mail. Maybe one day we will all be using a "Permission-to-forward:" mail header that mail clients will be forced to obey.

• circumvention device
  A device (including a computer program) having no, or only a limited, commercially significant purpose or use other than the circumvention, or facilitating the circumvention, of an effective technological protection measure

The Second Reading Speech (which has legal bearing on the spirit of the law) is here

Found it !

Try this or the PDF of the report is here

Found it !

Try this or the PDF of the report is here

Here's an opinion on our useless Government's farcical privacy bill.

If you have something to say to the Government, tell the Parliament what you think by May 12.

alexgp

Here (I think) is the amendment that enables the .au govt to regulate the internet. Here is an ~summary~ of it. I don't have the time now to fully disseminate it or learn the ramifications of it but I will try later when I do have the time. Glancing through the summary, here is what I my take on it:

-Purpose of the amendments to the Broadcast Services act is to enable regulation and control of the internet as it pertains to the .au domain (As in where the .au govt has control).

Amendment 5:

The first component of the proposed scheme is proposed Schedule 5 to the BSA contained in the Bill as proposed to be amended. Under this component, the Commonwealth will be responsible for regulating Internet content service providers and Internet content hosts. This component does not impose any obligations on producers of content on the Internet or persons who upload or access such content.

-It aims to go after the HOSTS of the content, rather than the PRODUCERS (I think that is totally wrong) or consumers.

The next line of the summary causes a mindpuck
The second component of the proposed scheme is proposed uniform State and Territory laws that will create offences for the publication and transmission of proscribed material by producers of content on the Internet or persons who upload or access such content. It is intended under the national scheme that the States and Territories will be primarily responsible for regulating the activities of persons who create, upload or access content.

-Does this mean they say the govt goes after the hosts while the local and "state" go after everybody else?

I will try to do a little more digging on this.

Enjoy
RB

Here (I think) is the amendment that enables the .au govt to regulate the internet. Here is an ~summary~ of it. I don't have the time now to fully disseminate it or learn the ramifications of it but I will try later when I do have the time. Glancing through the summary, here is what I my take on it:

-Purpose of the amendments to the Broadcast Services act is to enable regulation and control of the internet as it pertains to the .au domain (As in where the .au govt has control).

Amendment 5:

The first component of the proposed scheme is proposed Schedule 5 to the BSA contained in the Bill as proposed to be amended. Under this component, the Commonwealth will be responsible for regulating Internet content service providers and Internet content hosts. This component does not impose any obligations on producers of content on the Internet or persons who upload or access such content.

-It aims to go after the HOSTS of the content, rather than the PRODUCERS (I think that is totally wrong) or consumers.

The next line of the summary causes a mindpuck
The second component of the proposed scheme is proposed uniform State and Territory laws that will create offences for the publication and transmission of proscribed material by producers of content on the Internet or persons who upload or access such content. It is intended under the national scheme that the States and Territories will be primarily responsible for regulating the activities of persons who create, upload or access content.

-Does this mean they say the govt goes after the hosts while the local and "state" go after everybody else?

I will try to do a little more digging on this.

Enjoy
RB

Regardless of the terms of the EULA (End User Licence Agreement) for THE PRODUCT (Windows 95/98), THE MANUFACTURER (Toshiba) as a registered Australian company AND as the supplier of THE PRODUCT are subject to the rules and regulations of at least:

• The Australian Trade Practices Act (1974)
• The Australian Competition and Consumer Commission
• The Australian Taxation Department

In reading the previous posts, THE MANUFACTURER (Toshiba) has been reported in such a manner that it has violated several subsections of the Trade Practices Act, Section 53.

In particular:

SECT 53 False or misleading representations

A corporation shall not, in trade or commerce, in connexion with the supply or possible supply of goods or services or in connexion with the promotion by any means of the supply or use of goods or services:

(bb) falsely represent that a particular person has agreed to acquire goods or services;

THE MANUFACTURER (Toshiba) can not force you to agree to purchase THE PRODUCT, nor can they force you to keep THE PRODUCT once it has been purchased. By preventing you from purchasing the notebook computer without THE PRODUCT they are already violating the TPA. They are doubly violating the TPA by refusing the accept THE PRODUCT for refund at a fair and reasonable price.

(c) represent that goods or services have sponsorship, approval, performance characteristics, accessories, uses or benefits they do not have;

This one is highly debatable. It could be argued that because you have no intention of using THE PRODUCT or anything of similar specifications, THE PRODUCT is of no benefit to you and can not be sold to you on the basis that it does have uses or benefits to you. In other words, it's no good to you so they can't force you to keep it!

(e) make a false or misleading representation with respect to the price of goods or services;

THE MANUFACTURER (Toshiba) is likely to be making misleading representations by saying that they are providing you with THE PRODUCT free of charge. It is highly unlikely that THE MANUFACTURER (Toshiba) is obtaining THE PRODUCT from MICROSOFT free of charge themselves, nor for anything near the price of AUS$5.00. You may DEMAND that THE MANUFACTURER (Toshiba) provide you with a copy of a valid MICROSOFT invoice to THE MANUFACTURER (Toshiba) in order prove their purchase price of THE PRODUCT and to justify the amount of their refund.

(g) make a false or misleading representation concerning the existence, exclusion or effect of any condition, warranty, guarantee, right or remedy.

This is where the EULA comes in:

• The EULA accompanying THE PRODUCT is a three-party agreement between YOU, THE MANUFACTURER (Toshiba) and MICROSOFT.
• THE MANUFACTURER (Toshiba) has supplied YOU with equipment which includes THE PRODUCT and the EULA. Implicity, by doing so, they have already accepted the terms of the EULA and are under a legal obligation to perform under those terms. In other words, THE MANUFACTURER (Toshiba) has no RIGHT OF REFUSAL.
• The EULA specifically states that if you do not accept the terms of the agreement that:
• • YOU MAY NOT use THE PRODUCT, and
  • YOU CAN obtain a refund from THE MANUFACTURER (Toshiba). One presumes that THE MANUFACTURER (Toshiba) can then return THE PRODUCT to MICROSOFT for reimbursement, but this is actually of no concern to YOU the end user.
• If THE MANUFACTURER (Toshiba) insists that they have supplied THE PRODUCT to you free of charge (as a gift) then they must be "WRITING-OFF" THE PRODUCT and claiming it as a LOSS on their AUSTRALIAN TAXATION DEPARTMENT annual CORPORATE TAXATION RETURNS. Hence, you can DEMAND that THE MANUFACTURER (Toshiba) provide you with a COPY of that claim showing how much they are writing-off THE PRODUCT for. They can not refund you less than that amount unless THE PRODUCT is damaged or unservicable. Refusal to comply with that DEMAND could conceivably be reported to the Australian Taxation Department as an avenue of investigation for Taxation Fraud.
• Having worked for a computer dealer which was a Microsoft OEM Supplier, I know that the dealers actually pay in the vicinity of AUS$90 - AUS$110 per copy for OEM versions of Windows 95/98, depending upon quantity pricing. On top of that the dealer adds their 5% - 10% mark-up (for whole systems, not individual products) so in fact the end user is paying more than the dealer's purchase price. I can't see Toshiba paying much less than AUS$80, so how can they justify a refund of AUS$5? Even an amount as little as AUS$50 would be highly questionable.

In summary, just looking at it from a TPA point of view, and only by checking Section 53 (look at all those other Sections!), THE MANUFACTURER (Toshiba) does not have a leg to stand on:

• They MUST provide you with a refund.
• They MUST provide you with a fair and reasonable amount for that refund.
• The ONUS of proof for the amount of refund is on THE MANUFACTURER (Toshiba) and is subject to review by the ACCC under the guidelines of the TPA

I hope that this information proves TRULY USEFUL.

Regardless of the terms of the EULA (End User Licence Agreement) for THE PRODUCT (Windows 95/98), THE MANUFACTURER (Toshiba) as a registered Australian company AND as the supplier of THE PRODUCT are subject to the rules and regulations of at least:

• The Australian Trade Practices Act (1974)
• The Australian Competition and Consumer Commission
• The Australian Taxation Department

In reading the previous posts, THE MANUFACTURER (Toshiba) has been reported in such a manner that it has violated several subsections of the Trade Practices Act, Section 53.

In particular:

SECT 53 False or misleading representations

A corporation shall not, in trade or commerce, in connexion with the supply or possible supply of goods or services or in connexion with the promotion by any means of the supply or use of goods or services:

(bb) falsely represent that a particular person has agreed to acquire goods or services;

THE MANUFACTURER (Toshiba) can not force you to agree to purchase THE PRODUCT, nor can they force you to keep THE PRODUCT once it has been purchased. By preventing you from purchasing the notebook computer without THE PRODUCT they are already violating the TPA. They are doubly violating the TPA by refusing the accept THE PRODUCT for refund at a fair and reasonable price.

(c) represent that goods or services have sponsorship, approval, performance characteristics, accessories, uses or benefits they do not have;

This one is highly debatable. It could be argued that because you have no intention of using THE PRODUCT or anything of similar specifications, THE PRODUCT is of no benefit to you and can not be sold to you on the basis that it does have uses or benefits to you. In other words, it's no good to you so they can't force you to keep it!

(e) make a false or misleading representation with respect to the price of goods or services;

THE MANUFACTURER (Toshiba) is likely to be making misleading representations by saying that they are providing you with THE PRODUCT free of charge. It is highly unlikely that THE MANUFACTURER (Toshiba) is obtaining THE PRODUCT from MICROSOFT free of charge themselves, nor for anything near the price of AUS$5.00. You may DEMAND that THE MANUFACTURER (Toshiba) provide you with a copy of a valid MICROSOFT invoice to THE MANUFACTURER (Toshiba) in order prove their purchase price of THE PRODUCT and to justify the amount of their refund.

(g) make a false or misleading representation concerning the existence, exclusion or effect of any condition, warranty, guarantee, right or remedy.

This is where the EULA comes in:

• The EULA accompanying THE PRODUCT is a three-party agreement between YOU, THE MANUFACTURER (Toshiba) and MICROSOFT.
• THE MANUFACTURER (Toshiba) has supplied YOU with equipment which includes THE PRODUCT and the EULA. Implicity, by doing so, they have already accepted the terms of the EULA and are under a legal obligation to perform under those terms. In other words, THE MANUFACTURER (Toshiba) has no RIGHT OF REFUSAL.
• The EULA specifically states that if you do not accept the terms of the agreement that:
• • YOU MAY NOT use THE PRODUCT, and
  • YOU CAN obtain a refund from THE MANUFACTURER (Toshiba). One presumes that THE MANUFACTURER (Toshiba) can then return THE PRODUCT to MICROSOFT for reimbursement, but this is actually of no concern to YOU the end user.
• If THE MANUFACTURER (Toshiba) insists that they have supplied THE PRODUCT to you free of charge (as a gift) then they must be "WRITING-OFF" THE PRODUCT and claiming it as a LOSS on their AUSTRALIAN TAXATION DEPARTMENT annual CORPORATE TAXATION RETURNS. Hence, you can DEMAND that THE MANUFACTURER (Toshiba) provide you with a COPY of that claim showing how much they are writing-off THE PRODUCT for. They can not refund you less than that amount unless THE PRODUCT is damaged or unservicable. Refusal to comply with that DEMAND could conceivably be reported to the Australian Taxation Department as an avenue of investigation for Taxation Fraud.
• Having worked for a computer dealer which was a Microsoft OEM Supplier, I know that the dealers actually pay in the vicinity of AUS$90 - AUS$110 per copy for OEM versions of Windows 95/98, depending upon quantity pricing. On top of that the dealer adds their 5% - 10% mark-up (for whole systems, not individual products) so in fact the end user is paying more than the dealer's purchase price. I can't see Toshiba paying much less than AUS$80, so how can they justify a refund of AUS$5? Even an amount as little as AUS$50 would be highly questionable.

In summary, just looking at it from a TPA point of view, and only by checking Section 53 (look at all those other Sections!), THE MANUFACTURER (Toshiba) does not have a leg to stand on:

• They MUST provide you with a refund.
• They MUST provide you with a fair and reasonable amount for that refund.
• The ONUS of proof for the amount of refund is on THE MANUFACTURER (Toshiba) and is subject to review by the ACCC under the guidelines of the TPA

I hope that this information proves TRULY USEFUL.