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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?"
If the reality is as the letter says it is -- and I'm not in California so I haven't cared enough to look -- then it seems to me that MS's concerns are completely reasonable.
.sig: be the majority of voters.
Remainder of my
Save Maine's economy: write stuff down. All comments are exclusively my own, not my employer.
What? Someone is being deceptive to Microsoft customers? How dare they LIE to Microsoft's customers! MS customers DEMAND honesty and integrity from the companies they buy from, and Mr. Gates will be damned if he'll just sit by and let his unfortunate customers get swindled!
Until it's slashdotted out of existance...
Cause a court order may not be able to shut the site down, but I'm sure a slashdotting will do the job!
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.
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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.
The problem is that they are offering to file the claims for the user when the details of the settlement say the user must file the claim themselves. Also, the settlement says the user must also physically sign and mail in their claim, while the website is just collecting digital signitures which is not permitted by the settlement.
This is just to name a few of the obvious ones. Here is the full text of the letter on Newsforge.
Things you think are in the Constitution, but are not.
From MS (in the letter)
Claim forms submitted through the www.msfreepc.com website will be invalid because they will not be signed. Instead, these claims will include only the claimant's typed name (called a "digital signature" by the website) which is invalid under the Settlement Agreement.
Please Click Below to show that you Accept the EULA before using Windows/Word/Excel
Slashdot Syndrome: the sudden, extreme urge to correct someone in order to validate one's self.
Not really. If they're actually putting out fraudulent information (i.e., a signature is required to join the class action,) then why shouldn't they be enjoined from continuing to do so?
Two things stand out as bizarre about the letter from MS's lawyers, though:
1) The letter claims that the site doesn't disclose that a person must have purchased the software for use in California. The site very prominently does so on the second page.
2) It seems to me that the group that would get burned by this if the "digital signatures" things isn't legitimate is Lindows itself, not the consumer. Lindows is trying to appropriate the right to join the class action in place of the people involved and giving them something for that right. If it turns out they can't, Lindows is left in the lurch, having given out the products.
I thought the most interesting bit about this was Microsoft stating that 'so-called digital signitures' were not acceptable.
Um, hello? This is Microsoft, that thinks its click-through EULA is as good as a contract?
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.
The article is longwinded and legalistic, so I'll recap for the lazy:
Microsoft lost a class action case in California and owes a lot of people there money. msfreepc.com is offering people Lindows in return for their stake in the settlement. Microsoft's lawyers are complaining since the msfreepc.com form does not include things like signatures and certifications that filling out the legal forms firsthand would require, so they say claims from these people will be turned down. Microsoft's lawyers also portray Lindows as taking money away from schoolchildren, because leftover funds go to CA schools, and expiditing the claims means more of the money will be disbursed.
Use the manual form system where you fill out forms, mail back receipts, and wait for up to 6 months or more to receive your settlement.
Or...use MSfreePC.com to get your Instant Settlement* TODAY! [...]
*If you qualify, your "Instant Settlement" is the credit that Lindows.com will give to you to immediately purchase products using the MSfreePC program in exchange for the right to process your settlement claim on your behalf as described in more detail in Step 7 and Step 8 of the Instant Settlement Wizard.
Bash microsoft all you will, I find that very shrewd of Lindows. It's basically piggy backing on the settlement. Not cool.
"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.
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Notice I didn't use plural - it would only take one lawyer - any lawyer - to determine that they were asking for trouble with MSfreePC.com and the way they're going about it. I asked about this in the original story - how can they file claims for people when they aren't even giving people access to the documentation outlining the rules, qualifications and benefits of the class action? I'm sure they did it for the tons of free publicity, as well as the goodwill anyone would get for doing anything against MS, but I think this one may just cost them more than it's worth. I'm surprised it's MS that's contacting them and not the courts. If I were the Judge and I heard about a web site that's sole purpose was to circumnavigate my ruling and orders, I'd be gunnning for the people behind it. Seems to me they could be facing obstruction of justice charges, maybe even fraud.
Don't get me wrong, I hate MS as much as the next guy, but in this case, they are totally right. I think Lindows jumped the gun and didn't think this one out. It looks like they didn't even read the terms of the settlement.
Oh yeah, and what lawyer would ever let them say MS was "found guilty" when it's a civil proceeding?
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Send all the lawyers you want, he'll come up with something new to make you send more lawyers
Problem is, Robertson's track record isn't very good in this regard. Look at his history at MP3.com:
At least Lindows isn't a public company this time, so his investors should understand the risk he is taking better than the public did with MP3.com
Imagine how much harder physics would be if electrons had feelings! -Feynman, maybe
You're right, but here's the thing. What will the schools do with that money? They'll probably upgrade to the latest version of Windows, or accept "free" upgrades from Microsoft for a fixed term as payment. Microsoft wants the money to go to schools, because in the end, it benefits them. The more kids then can get to grow up using only Windows, the better for Microsoft. These kids go on to be CEOs and CIOs later in life, and familiarity has a way of clouding judgement, especially in IT. Apple did the same thing years ago, and without their school programs, Apple would probably be out of business today, or at least relegated to special uses like SGI is (though probably a much less profitable area than SGI).
--That's the point of being root, you can do anything you want, even if it's stupid.
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 $80. At least this way there's a chance I'll cost MS some money and, hey, in the meantime I got something with some modest perceived value.
Gimme a second to gird my loin - I'm about to be flamebaited by the Linux zealots who have surrendered all perspective on the meaning of "free" and "open" and "fair".
*gird* *gird*
Okay, here's the deal. I've already
pointed out that Lindows sueing Microsoft is no better than SCO suing Linux users - in either case it is ultimately a tactic used to increase corporate profits at the expense of a competitor, using the legal system as a prybar.
Micro$oft makes several valid and salient points here about Lindow$'s predatory tactics. What Lindow$ is essentially doing is leveraging their anticipated income on the sale of current products. Moreover, if you look at the MSFreePC, it is quite deceptive. You are not getting a "free pc". You are purchasing a PC from Lindows with settlement rightfully due you for being forced to purchase MS Software in the past.
This whole thing stinks. Now, watch my score drop like a prom-dates panties.
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?
California's
2001 SB97 reads:
This seems pretty clear to me, but then, as they say, IANAL.
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