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Microsoft Sends Takedown Notice To MSFreePC.com
DJFelix writes "Just to add some more drama in California this week, legal counsel for Microsoft issued a takedown notice to Lindows CEO Michael Robertson, demanding the immediate shutdown of the MSFreePC.com website. The MSFreePC.com website allows people who purchased certain Microsoft products in California, or used certain Microsoft products in California to submit a claim in the $1.1 billion class action suit Microsoft lost in California. The site is still up for now, but how long will it last?"
Yup. If the claim has to be signed, a site saying that you don't need to sign one, yet promises to handle your claim seems either fraudulent, or at least useless and misleading.
Read the link, all it says is that it will not work. The agreement states that people have to mail in a signature. You can't do that on their website... Now about shutting down a site, that stinks...
In the article, Microsoft objects to the site because it misrepresents the settlement and encourages people to submit claims that are invalid.
It's just as likely that Lindows is being self-serving as it is that Microsoft is being malicious.
Toronto-area transit rider? Rate your ride.
It appears that MS's claims may be valid. MSFreePC.com offers a way to "click to join" the class-action lawsuit, but MS argues that all submittals must be signed, and such. The web-site is definitely in poor-taste, but it may very well be illegal as well.
Why not read the linked article? The site does more than inform consumers. It sets up a system that supposedly allows consumers to file for a claim through the website, and allows Lindows to accept their rebate for them and apply it to a purchase through Lindows. MS claims this violates the terms of the settlement. IANAL, and have only seens MS's side of the claim, so I have no idea if what MS says is correct. They seem to have a point, but it's relatively easy to spin legal jargoneese that sounds good but is completely bogus.
"The legitimate powers of government extend only to such acts as are injurious to others." Thomas Jefferson.
Before bashing MS, read the letter. Lindows (MSFreePC.com) is mis-leading the public into thinking that they can enter them into the class. MS is only saying that due to the nature of the settlement and to the agreed method of joining the class, the way that MSFreePC.com is going about it is invalid. Wake up and RTFA before you go screaming about how evil MS is.
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You obviously just assumed they were suing over the domain. Instead, what the article said was that they were suing because the web site was deceptive and encouraged people to make false/fraudulent/inaccurate submissions that don't qualify for the settlement.
Complexity is Easy. Simplicity is Hard.
They state they are not acceptable per the terms of the settlement agreement. Most likely that is something the lawyers came up with - not Microsoft.
"Takedown notice" usually refers to a procedure defined in the DMCA that allows someone alleging copyright infringement to demand that an ISP take a site down. This is not what is happening in this case. Microsoft has no means of forcing Lindows to take the site down without a lengthy legal process.
Factually incorrect, and do some research. Cease and Desist orders were available and used long before the DMCA was a twinkle in your RIAA chairwomans eye.
Party A says to Party B that Party B is doing something that is wrong. Party A gives Party B an opportunity to cease doing something before Party A proceeds with legal action that will be very costly for both parties, but probably more so for Party B.
Dacels Jewelers can't be trusted.
Cnet Article
Microsoft has demanded that Linux seller Lindows.com take down a Web site that offers to process customer claims from the settlement of a California class-action suit against the software giant.
In a letter sent to the Linux seller on Friday and reprinted in a Lindows announcement Monday, attorney Robert Rosenfeld said Lindows' MSfreePC site includes false and misleading information and encourages filing of fraudulent claims. It demands that Lindows take down the site by noon Monday or face legal action by Microsoft.
Lindows announced the MSfreePC service earlier this month, offering to file claims on behalf of current and former California residents who qualify for proceeds from the $1.1 billion settlement of a class-action suit claiming Microsoft overcharged for its Windows operating system. People who submit a valid claim through the Lindows site receive an immediate credit in the amount of their anticipated settlement, good for the purchase of Lindows software or hardware.
The first 10,000 people to submit claims will also get a free WebStation, the stripped-down network PC the company introduced earlier this year.
Lindows CEO Michael Robertson said he wanted to make it as easy as possible for people to claim settlement awards, which range from $5 to $29. If few eligible consumers go through the claims process, Microsoft could pay out considerably less than the maximum $1.1 billion it agreed to.
But the Lindows service won't result in any valid claims, according to Rosenfeld, because it fails to meet several requirements detailed in the settlement. For starters, claims must be submitted with an actual signature.
"Claim forms submitted through the www.msfreepc.com Web site will be invalid because they will not be signed," according to his letter. "Instead, these claims will include only the claimant's typed name (called a 'digital signature' by the Web site), which is invalid under the settlement agreement."
The settlement agreement also specifically prohibits third parties from filing claims on the behalf of others, according to the letter, which alleges that the Lindows service encourages the filing of fraudulent claims by not presenting claimants with the terms of the settlement or adequately quizzing them on qualifying purchases.
"The Web site's clear objective is to encourage claimants to maximize the amount of their claims rather than submit claims that accurately reflect purchases made or benefits to which they are entitled," the letter said.
A Lindows representative said early Monday that the company was still reviewing the letter. The MSfreePC site was still operating as of Monday morning. Microsoft representatives did not immediately respond to requests for comment.
Lindows is no stranger to Microsoft lawyers. The software giant sued the company shortly after Robertson formed it, claiming the name infringes on Microsoft's Windows trademark. That case is set to go to trial in December.
What are they giving away? They are giving away the same thing MS is giving away - a "license" to use their software for a period of time. In my case I get 30 weeks of "free click-n-run" plus an OS install which I can use on all my home PCs (if I desire). Whether or not MS ever pays Lindows a penny really doesn't matter - what lindows has done is signed up another potential user.
MS is right about several things. I'm tempted to send many of my friends here and tell'em just to make up some shit so they get the "free click and run."
Once you fill out the form you can download lindows, install it, and use the "click and run" archive for a period of time. They lose nothing but some bandwidth, and in exchange they get the opportunity to show another person how linux can work for them. The user gets a lindows plus account, which is great because it gives them an excuse to give away "premium" software the user usually has to pay extra for.
It may be a bit shady, and MS may be right on many counts, but it doesn't matter - even if Lindows loses the ability to collect on all those "signatures" they still may drive a few more users from the arms of MS. If those new linux users stay with lindows, then they get a fresh revenue stream. And if they don't stay with lindows, maybe some of them will move onto redhat or debian or whatever. Maybe some of them will buy macs. What matters is just that people are encouraged to try something new because they have the promise of free shit. Lindows isn't normally free even to end users, so there's a greater perception of value here on the part of mom sixpack and, therefore, greater incentive to try it. and if they can't collect, so what? As much as I'd like to cost MS money, I honestly wasn't going to jump through the hoops required just to maybe get back a check for $80. At least this way there's a chance I'll cost MS some money and, hey, in the meantime I got something with some modest perceived value.
PUBLIC LAW 106-229--JUNE 30, 2000
.--Notwithstanding any statute, regulation, or .--This title does
ELECTRONIC SIGNATURES IN GLOBAL AND
NATIONAL COMMERCE ACT
VerDate 11-MAY-2000
14:52 Jul 05, 2000
Jkt 079139
PO 00229
Frm 00001
Fmt 6579
Sfmt 6579
E:\PUBLAW\PUBL229.106
APPS10
PsN: PUBL229
Page 2
114 STAT. 464
PUBLIC LAW 106-229--JUNE 30, 2000
Public Law 106-229
106th Congress
An Act
"Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ''Electronic Signatures in Global
and National Commerce Act''.
TITLE I--ELECTRONIC RECORDS AND
SIGNATURES IN COMMERCE
SEC. 101. GENERAL RULE OF VALIDITY.
(a) I
N
G
ENERAL
other rule of law (other than this title and title II), with respect
to any transaction in or affecting interstate or foreign commerce--
(1) a signature, contract, or other record relating to such
transaction may not be denied legal effect, validity, or enforce-
ability solely because it is in electronic form; and
(2) a contract relating to such transaction may not be
denied legal effect, validity, or enforceability solely because
an electronic signature or electronic record was used in its
formation.
(b) P
RESERVATION OF
R
IGHTS AND
O
BLIGATIONS
not--
(1) limit, alter, or otherwise affect any requirement imposed
by a statute, regulation, or rule of law relating to the rights
and obligations of persons under such statute, regulation, or
rule of law other than a requirement that contracts or other
records be written, signed, or in nonelectronic form;..."
So, unless the settlment specificaly denies the use of a digital signature as described, it is legal. On to the terms of the settelment... Oh wait, the final terms of the settelment have not yet been written. It will be a simple matter of law, If MS can get the terms written in a manner that precludes electronic signatures, then they will be right. If they can't, then they will be wrong. Does anyone have the terms of the proposed settelment?
More than just "printing money" they are also supposed to "donate" computers, in practice, their old ones they would otherwise have to take care to dump properly.
And if I remember the deal, the schools are not allowed to install anything else on the received computers(!) only to keep installed MS products.
And that should be the punishment to Microsoft?
California's
2001 SB97 reads:
This seems pretty clear to me, but then, as they say, IANAL.
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No surprise that Microsoft is being "jerks" too:
So maybe the correct term is "liable" not "guilty" but when the government hauls someone into court and wins, "guilty" seems pretty appropriate to me.
The MS threat letter also says:
But if you took a quick look at the FAQs on the MSFreePC site you'll see:
So rather than encourage people to make fraudulent claims, the site suggests people can claim less than they are entitled to if they wish to fall under $100. And this is on the FAQ page, not buried somewhere in their terms and conditions.
I agree, the whole thing is fishy if claims have to be signed by the people and can't be processed by a third party, but it's not like MS is being reasonable here.
HellerEhrman
Robert A. Rosenfeld
rrosenfeld@hewm.com
Direct (415) 772-6609
Main (415) 772-6000
Fax (415) 772-6268
Tell him what you think.