Italian Judge Tells HP To Refund Pre-Installed XP

Paolo DF writes "An Italian user asked for a refund after buying a Compaq computer that came with Windows XP and Works 8 pre-installed. HP tried to avoid the EULA agreement which states, approximately: '[I]f the end user is not willing to abide by this EULA... he shall immediately contact the producer to get info for giving back the product and obtaining refunds.' The court ruled in favor of the user (Google translation from the Italian), who received back €90 for XP and €50 for Works. Here is the ruling (PDF, Italian)."

Comments

Progress.

[nozzo]

This is progress, the more this happens the better the choice for the consumer. It shows the vendors that users prefer OS choices a la Dell.
True, this is but 1 user but every little helps as we say in the UK.

Re:Progress.

[rtyhurst]

"REIMBURSEMENT - Repayment thin, but has great symbolic value: 90 euros for Windows XP and 50 euros for Works 8 which is obviously accodano legal costs."

Hey if I got even *semi*-accodano legal costs, I'd be celebrating on the Via Dolorosa with pizza in my Ferrari!

Re:Progress.

[chromatic]

The Via Dolorosa's pretty narrow. Also, it's in Jerusalem.

Re:Progress.

[AusIV]

True, this is but 1 user but every little helps as we say in the UK.

It's not just one user. It's a legal precedent. Now Italian Linux users may be more likely to request refunds for Windows licenses that come with computers, and since there's a legal precedent, the vendors may be more likely to comply.

Re:Progress.

[genaldar]

I thought the EULA just meant that you could return the computer. It doesn't entitle you to a refund. In the case of the pre-built machine its a package, don't like the bundled software. Fine, remove it. But don't expect your money back. Time to break out the classic analogy. I want a Ford with a Chevy engine, should Ford take back the engine and give me back a portion of my money? No, thats stupid. How about I buy a mac, should Apple refund me the cost of the OS since I want windows? They'd just smile and send me a link to boot camp (or whatever they're calling it now).

Re:Progress.

[rtyhurst]

Escalope!

Jerusalem is part of Italia Irridenta!

And so is XP!

pwned!!!

Re:Progress.

[houghi]

And do not forget people and companies who still have already bought XP legaly previously.

This is good news for the consumer. The ad news is that this will not harm Microsoft in the least, even if EVERYBODY would do this. It will be the computercompanies who will need to caugh this one up.

They will not be able to get their money back from Microsoft. So either they will start loosing money (because they do not make that much on a PC) in Italy, or stop selling PC's altogether.

Most likely the latter will be happening with other companies, like Dell. The result will be that larger companies will not be selling computers in Italy. Tghis will result in lower quality and people who want Windows paying more. So if the consumer wants the same product, he will end up paying more then he does now.

The solution? Have this implemented in the rest of Europe. The European market is big enough to force a change and balsy enough to force Microsoft to pay back the companies in full.

After that South America will follow and then Asia. Africa, Austriala, Canada and Mexico will follow after that. The USofA? They will follow the moment the consumers have some rights, except the right to shut up and spend money. Sorry.

Re:Progress.

[davester666]

> I thought the EULA just meant that you could return the computer

I believe this is referring to the Windows EULA, which only discusses your non-rights w.r.t. Windows, and doesn't discuss the hardware at all. I don't have it handy, but when I read it [and when it's come up before in slashdot, for the odd person getting a refund in the US], the EULA explicitly states [at least for the US] that you have the right to return the software [specifically] for a full refund if you don't agree with the EULA.

And I don't think MS wants to revise the EULA to force the return of the computer as well, because then it explicitly goes back to that monopoly situation, where for the large vendors, you must then buy Windows to get a computer. Now, it's just a big hassle for both the consumer and the vendor to buy a computer without Windows [in general], but it's not legally forced by Microsoft [except perhaps in some non-pubic legal agreements between the vendors and Microsoft, where they pay for each computer shipped instead of each Windows license shipped - Windows licenses refunded].

Re:Progress.

[the_womble]

I thought the EULA just meant that you could return the computer

For that to apply you would have to sign an agreement when you bought the computer. You agree to the EULA after you have bought the hardware, so it cannot affect your ownership of the hardware. In any case, it is an MS EULA that only applies to the software.

Time to break out the classic analogy

Time to break out the classic flawed analogy.

Corrected that for you.

I want a Ford with a Chevy engine, should Ford take back the engine and give me back a portion of my money?

The first time you start the Ford does it flash up a notice saying: "before using this engine, you must agree to these terms, otherwise return the engine for a refund"? If it does then yes, otherwise no.

How about I buy a mac, should Apple refund me the cost of the OS since I want windows?

If they have a similar EULA, then yes.

Re:Progress.

[eiapoce]

Nevertheless reading the full article you can see that the guy who sued works for a Consumer Association and on his side there were not legal expenses. This is a win/win situation. If he wins he gets the money and attorneys get paid + pubblicity for the association - If he loses noone gets hurt.

Enrico

Re:Progress.

[pipatron]

So either they will start loosing money (because they do not make that much on a PC) in Italy, or stop selling PC's altogether.

Or start selling PCs with linux, and have Windows as an add-on with a price tag.

Re:Progress.

[lbbros]

Although it is a legal precedent, it must be noted that Italian law is not based on precedents, like UK or USA. Even the rulings of our "Corte di Cassazione" (akin to the Supreme Court) are not completely binding (i.e. they show the "correct" interpretation of the law but judges can decide differently).

Re:Progress.

[Bert64]

There are too many differences...
If you want a car with a chevy engine, buy a chevy... You do have the choice.
Ford supply their own engine in their car, its not like theyre fitting a third party engine into their vehicles. Where they do supply third party goods (eg tyres) you often can request another brand.

Re:Progress.

[Bert64]

The difference with Apple is that they supply their own OS with their own hardware. If every PC vendor supplied their own OS too that would be great, no monoculture and plenty of competition.

Re:Progress.

[the_womble]

So by your logic because there is a Eula, as opposed to nothing, MS is on the hook for your whims? Incredible.

Yes, if MS requires a EULA, you have the right to reject it.

What if I wanted Windows but decided to use another OS because I did not wish to agree with a clause in the EULA? I already own the hardware and have every right to keep it, so I should be able reject the EULA and get a refund on Windows.

According to you, MS should be able to impose whatever arbitrary conditions they want on the use of a produce AFTER getting paid for it, and consumers should have no alternatives other than not using the product (which they have paid for) or agreeing to MS's conditions. Now that really is incredible.

As for paying for the war etc., are you suggesting that no-one should raise any minor issue until all major political issues are sorted out? Then you can NEVER raise any consumer rights issue because there will always be something more important.

You do realise that complaining about MS does not preclude caring about other issues. I am opposed to the US invasion of Iraq AND corruption AND anti-competitive product bundling.

Yes, I can actually have opinions on three issues at once. If your brain explodes if you have to think about more than one issue a month, that is your problem.

Re:Progress.

[Bert64]

While i agree that there are more important things to worry about...
People can only be knowledgeable in one field, and that field is computing for the majority of people on slashdot. I'm sure there are similar politically-focused sites where people are discussing the corporate corruption of governments.
Also it's all part of the same problem, remember your paying to enforce anti-piracy laws, which benefits large corporations not citizens. Your paying for the US government to put pressure on other countries on behalf of microsoft, just look at china and the EU. All of these things and more are paid for by you, the taxpayers, but they provide you no benefit in return.

Re:Progress.

[Sique]

Ford supply their own engine in their car, its not like theyre fitting a third party engine into their vehicles. In fact they do. The smaller engines are either Yamaha or Mazda engines. And the Diesels (ok, not so interesting for the U.S. right now) are using FIAT/Peugeot technology.

Re:Progress.

[jamar0303]

And let Mac or Linux gain marketshare? They'd never do such a thing.

Re:Progress.

[Teun]

The ad news is that this will not harm Microsoft in the least, even if EVERYBODY would do this. It will be the computercompanies who will need to caugh this one up.
I'm not so sure about this, last May I wanted to buy a HP computer in The Netherlands but without the Microsoft (XP) operating system as I wanted something more robust.
I contacted HP through their website and their (in Dutch) reply was:
Het is niet mogelijk om de HP Pavilion Slimline s7730.nl pc te ontvangen met Windows XP of zonder besturingssysteem.
Wij HP kunnen u hierover niet verder helpen, u heeft de mogelijkheid om via Microsoft te genieten van de terugbetalingsvoorwaarden.
Voor meer informatie hierover kunt u zich verder laten informeren door Microsoft zelf.

Translation:
It's not possible to receive this PC without XP or OS.
We of HP cannot help you any further, you have the possibility to enjoy the payback conditions via Microsoft.

I contacted MS by phone and they claimed I could get a payback in the order of 51 euros.
Because XP costs nearly 300 euros I decided not to take their offer and make this a dual boot computer.

In other words, at least here in The Netherlands it's Microsoft that sells the OS on a HP computer.

Re:Progress.

[DiamondGeezer]

It sounds like typical Dutch bureaucratic intransigence. It should be the unofficial motto of the Netherlands: "Dat kan niet"

Tell HP you'll take them to court. You didn't pay Microsoft for Windows XP, you paid HP. And you want your money back.

Re:Progress.

[Teun]

Well if you'd want it "The typical Dutch way" then it's the shops responsibility to do any refunding.
Legally they are the only party you as a consumer have a contract with.

Re:Progress.

[Bert64]

Mazda is owned by Ford...
Some Land Rovers use Jaguar engines too, but both companies are also owned by Ford..
The diesels may use technology developed by Peugeot, but licensed to ford who produce the engines.

And even if ford use a third party engine, you still get a choice... Most cars are available with a choice of diesel or petrol engines of various sizes.

Re:Progress.

[bigdavesmith]

IANAL, obviously, but now that this case has been presented, and a decision made, doesn't that open the door for other people getting their money back without going to court, or trial, whatever? So thanks to this one person paying the legal fees, other people can just do a 'same thing, gimme the cash' type deal?

Gimme the cash... I think my ignorance might be showing.

Re:Progress.

[Fred_A]

Nevertheless reading the full article you can see that the guy who sued works for a Consumer Association and on his side there were not legal expenses. This is a win/win situation. If he wins he gets the money and attorneys get paid + pubblicity for the association - If he loses noone gets hurt. I know for a fact it is so in France, but I believe it can be done in quite a few places in the EU, you can get a consumer association to sue with/for you and provide you with legal counsel if they can be interested in the case.

The bundling problem has been considered several times in France but hasn't been really tested in court yet. Whenever it seemed it was going to go legal a settlement has been reached. On the side the DGCCRF (which stands for Direction générale de la concurrence,de la consommation et de la répression des fraudes - General Directorate for Fair Trading, Consumer Affairs and Fraud Control) is also considering whether software bundling is legal or not (forced bundling is normally illegal). So far they heven't reached a decision.

Of course as elsewhere, either a legal decision or a clear judgement, especially if it could be used as jurisprudence would be better.

Re:Progress.

[Fred_A]

Translation:

It's not possible to receive this PC without XP or OS.

We of HP cannot help you any further, you have the possibility to enjoy the payback conditions via Microsoft.

I contacted MS by phone and they claimed I could get a payback in the order of 51 euros.

Because XP costs nearly 300 euros I decided not to take their offer and make this a dual boot computer.

In other words, at least here in The Netherlands it's Microsoft that sells the OS on a HP computer. What I find surprising is that MS actually replied.

This kind of inquiry typically goes like :
Shop : not our problem go see MS
MS : not our problem go see your shop
goto Shop

In your case it also contradicts the EULA (and basic commercial principles in which you deal with your seller not its sellers as pointed out by others).

The amount is also fairly low. Although it's probably close to what HP actually pays to MS when it buys a million licences for resale.

Re:Progress.

[TheVelvetFlamebait]

I don't want to use Zune software, guess what I didn't buy? A fucking Zune.

I must admit I cracked a smile at that line. That has "Penny Arcade" written all over it.

Re:Progress.

[marcello_dl]

And Court of Cassazione decisions often contradict previous ones, e.g. asserting that a person wearing jeans could be raped as removing the jeans was an impossible operation to perform without the victim's consent.
http://tinyurl.com/2vomdd (Italian)

Re:Progress.

[at_18]

So thanks to this one person paying the legal fees, other people can just do a 'same thing, gimme the cash' type deal?

He didn't have to pay the legal fees, he got those refunded too. This is normal in Italy, which has a loser pay legal system.

Re:Progress.

[riegel]

> They will not be able to get their money back from Microsoft. So either they will start loosing money (because they do not make that much on a PC) in Italy, or stop selling PC's altogether.

Doubtful. More probably they might offer choice when purchasing. Would you like a DVD burner with your system. Ok, now what operating system would you like on your system?

> This will result in lower quality and people who want Windows paying more.

Makes other OS choices more appealing.

Re:Progress.

[deepsky]

hint:

Civil law or Continental law or Romano-Germanic law is the predominant system of law in the world [including Italy]. Civil law as a legal system is often compared with common law. The main difference that is usually drawn between the two systems is that common law draws abstract rules from specific cases, whereas civil law starts with abstract rules, which judges must then apply to the various cases before them.

source http://en.wikipedia.org/wiki/Civil_law_(legal_system)

Re:Progress.

[mckooiker]

Indeed it is! If you want some (not much) more details check out my blog at mckooiker.byethost5.com/blog/ Did some translation myself friday....

Re:Progress.

[lakeland]

Every case that goes before a judge has facts that are particular to that case.

In most of the world, the judge takes all those facts into consideration and uses them as the primary reason for their decision. This means the 'law of precedent' which dominates the US is of more limited value in other countries -- "Sure, that case sounds similar, but what were the details which made the judge rule this way?" By contrast, the US describes the current case primarily in terms of past cases, with stuff particular to the current case mainly being used to select between precedents.

That's not to say precedents are ignored outside the US, but they do not dominate the system in the way they do in the US.

Re:Progress.

[ILongForDarkness]

No it will just free up the OEM license for the next computer that they sell. All it will cost the computer maker presumably is the time it takes for someone to process the request, and perhaps mailing costs (if internet purchase for example). This might push them to offer more open packages eg:

PC $999 (899 w/o OS)

Re:Progress.

[CodeBuster]

That is interesting. How do they prevent two different courts of similar precedence from reaching polar opposite judgements on substantially similar cases? Wouldn't this type of no-precedent system serve to increase the arbitrariness of the law and if so then how can that be a good thing? How about the EU and equal protection under law? Doesn't the EU have some basic standardized rules concerning laws and legal matters as a condition of membership? Thanks for answering.

Re:Progress.

[Pofy]

>All it will cost the computer maker presumably is
>the time it takes for someone to process the request,
>and perhaps mailing costs (if internet purchase for
>example).

But I read this other news that a lost sale is stealing and the software business is losing so much money each year due to lost sales, and now you come and tell me a lost sale doesn't cost them much at all?

Re:Progress.

[Pofy]

>the EULA explicitly states [at least for the US]
>that you have the right to return the software
>[specifically] for a full refund if you don't
>agree with the EULA.

But if you don't agree to it, there is no agreement right? And if there is no agreement, what is said in it doesn't apply, right? So it is quite pointless to put into an agreement what applies if you do NOT agree to it.

Re:Progress.

[Pofy]

>For that to apply you would have to sign an agreement
>when you bought the computer.

Why?

>You agree to the EULA after you have bought the hardware,
>so it cannot affect your ownership of the hardware.

Exchange "hardware" for anything else you like. A toaster, a postcard, a book an operating system.

> it is an MS EULA that only applies to the software.

But according to what you said above, one would get:

"For that to apply you would have to sign an agreement when you bought the software."

So how do you want it?

Re:Progress.

[ILongForDarkness]

I can't see the courts making the vendor refund more than the cost of their OEM license from MS. So no it won't cost them anything, they still sold the computer. MS might not be happy that they couldn't sell another license of XP, but that is a different problem. Either the user won't be using Windows at all (unlikely), or they all ready have a license from a trashed computer (more likely), or they are planning on pirating a copy and so don't want to pay for the license at all (probably the most likely, but hey I'm cynical).

Re:Progress.

[Pofy]

I think you missunderstood what I was refering to.....

Re:Progress.

[Nintendork]

This article is about HP not wanting to issue a refund. Still though, it's always fun to spin the issue into another Microsoft flame. Down with the man!

Re:Progress.

[neersign]

I recently tried to do something similar with Lenovo and a Thinkpad T61. Lenovo told me that if I wanted a refund for Windows then I had to return the entire laptop, and pay a restock fee since the box had been opened. Their reason is that they do not offer refunds for preinstalled software, and of course, Windows was preinstalled. The first person I talked to actually mocked me for even trying, which almost made me return the entire laptop, but I didn't want to pay return shipping an a restock fee. I had the guy transfer me to another department where another person was much more reasonable to talk to and calmly explained their policy regarding preinstalled software.

I told both of the people I talked to that I would have avoided the entire situation if they offered other OS choices. Lenovo apparently does sell a T61p with Linux on it, but you cannot find info for it anywhere. And the only way I could find info on the old T60p with Linux was from a link on an external website.

for those contemplating buying Thinkpads, I did find a Linux Certified list. And I did consider buying one of the Dell's with Ubuntu preinstalled, but I didn't like the hardware options.

MS Tax

[indy_Muad'Dib]

90 euros for XP, $130

50 Euros for Works, $70.

so why do we only get back around $10 for a XP turn in?

Re:MS Tax

[JoshJ]

Because Microsoft owns a significant chunk of the American political machine, but owns very little of the European one.

Re:MS Tax

[Spy der Mann]

90 euros for XP, $130
50 Euros for Works, $70.

Telling Microsoft to take their software to the dumpster: Priceless.

Re:MS Tax

[jollyreaper]

90 euros for XP, $130

50 Euros for Works, $70. Canadian dollars, right? So in American that guy just got back $10k, right? Payday!

Re:MS Tax

[falconwolf]

90 euros for XP, $130

50 Euros for Works, $70.

Canadian dollars, right? So in American that guy just got back $10k, right? Payday!

According to the X-Rates currency calculator 140 euros is 201.46 US dollars and 193.784 Canadian dollars.

Falcon

Re:MS Tax

[SnoopJeDi]

I feel a disturbance in the force...

as if many thousands of pounds cried out in a screaming arc over your head.

Re:MS Tax

[Sterling Christensen]

It's probably because US retailers think it should count that they bundled Windows with sponsored crapware bringing net cost down to $10, while the Italian Judge (quite reasonably) thought it shouldn't.

Re:MS Tax

[Plutonite]

That's what the GP is saying, genius. He knows the number for euro to candian will be smaller than euro to dollar, becuase now the loonie is worth more than the USD. That's the whole point of the joke - $10K US dollars for 70 euro. :)

Re:MS Tax

[Asmor]

Someone failed reading comprehension...

He implied ~$100 CDN was ~$10k American. Hence, he implied that the American dollar was around a hundredth what a canadian dollar is.

Re:MS Tax

[kuzb]

-5 ignorant

Re:MS Tax

[Morkano]

You must be stuck in the 60's. Right now the Canadian Dollar is much stronger than the US, and it will only get stronger considering the US economy is based on two kinds of jobs, McDonald's and The Iraqi War Machine. The US will became a "second world nation" (if it isn't already) within 10 years. That was the joke the GP was making. If the Canadian dollar is worth more than the American, a small number of CAD would be equal to a greater number of USD. Thus, the joke.

Re:MS Tax

[timmarhy]

how was the parent ignorant dipshit? he even provided a source.

Re:MS Tax

[MadnessASAP]

Come on everyone knows http://www.xe.com/ is the place to go for currency info, it even has top pagerank on Google.

Re:MS Tax

[Teriblows]

wrong, its because microsoft isn't a European company. its a bit of the old economic warfare.

Re:MS Tax

[Teriblows]

canada is being propped up by oil in the west. i don't think you realize certain industries won't like the strong canadian dollar. all those film/tv productions from the us that go to canada for the "savings" will now have no reason to stay for one. which is honestly a good thing since bland canadian cities/locations trying to pass as us ones is getting a bit tiresome.

Re:MS Tax

[BrentH]

Oh boy. Please check out European news before you spew such nonsense. European co's are constantly under fire for anti-competitive practices. A lot more often than non-EU ones.

Re:MS Tax

[muyuubyou]

I'm not supporting granparent's exaggerations, but there's a big difference between the chinese economy and the american economy: the chinese are exporters and a weak Yuan makes them more competitive, and the USA is, relatively to the size of the economy, a smaller exporter. America benefits from a weak dollar as it makes debt smaller and exports bigger, but at the same time it means America is losing international weight and buying power.

The USA can't afford a very weak dollar, because many things aren't even made in the USA anymore. Inflation would sky-rocket and the economy would collapse.

Do you know that the average programmer already makes more in Britain than in America? A weaker dollar could cause a big migration of skilled workers from the USA for the first time in american history.

RE: MS Tax

[maestroX]

90 euros for XP, $130

50 Euros for Works, $70.

MS Works is shareware, i.e. you get the fully functional version after payment.

Telling Microsoft to take their software to the dumpster: Priceless.

Telling Microsoft to pay their own shareware: chairless.

Re:MS Tax

[canuck57]

Canadian dollars, right? So in American that guy just got back $10k, right? Payday!

Never heard of a Canadian getting a XP or Vista refund have you?

So in Canada is is worth less than $0. Remember you had to pay non refundable GST/PST on that too.

Re:MS Tax

[Splab]

Your point being what? GP made a joke about the US dollar being less worth than the Canadian dollar and it seems to hold.

Re:MS Tax

[Registered Coward v2]

I'm not supporting granparent's exaggerations, but there's a big difference between the chinese economy and the american economy: the chinese are exporters and a weak Yuan makes them more competitive, and the USA is, relatively to the size of the economy, a smaller exporter. America benefits from a weak dollar as it makes debt smaller and exports bigger, but at the same time it means America is losing international weight and buying power.

The USA can't afford a very weak dollar, because many things aren't even made in the USA anymore. Inflation would sky-rocket and the economy would collapse.

A couple of points:

Inflation is a money supply issue; currency exchange rates alone are not inflationary. As import prices rise consumers can either buy less (or delay buying) imported products or replace them with US made products where they are available. Raising prices would result in fewer sales of foreign goods, resulting in contraction of their economies. The US economy would experience pain as well, as oil prices rise and force us to make choices about how we consume energy.

A very weak dollar would have global impact beyond the US (just as a very weak Euro would have beyond the EU - 1).

>I>Do you know that the average programmer already makes more in Britain than in America? A weaker dollar could cause a big migration of skilled workers from the USA for the first time in american history.

Salaries alone are a poor indicator of standard of living - the cost of living must be factored in as well. If salaries alone drove migration places like Omaha Neb and Boise Id would be empty while NYC and SF would be bursting at the seems with people moving in from those places.

The last time I was in London prices were the same numerically as in the US; except the denomination was Pounds not Dollars.

Tube Ride - 2.40 (or about 1.30 with the card) vs 1.35 in DC.
Beer in pub - 3 pounds vs 3 dollars.

Even though you might make more in Britain unless it is significantly more your standard of living would go down.

Then there is is the issue of getting work authorization in the EU.

Re:MS Tax

[Krozy]

Maybe around $10 is all the vendor paid Microsoft for that license to begin with? I know there once was a time that the price charged was in that neighborhood, but this was a few years ago. More recently, the only evidence I have of this is some student licenses for software I got last year. - I think they were running between $7 and $10 per title for OSs, Office Suites, MS Project and Visio. Microsoft gives the vendor a massive deal. If you were paying the MSRP on the software, then the computers at the store would easily cost a few hundred more.

Any other attempts at this?

[cygtoad]

Assuming the EULA is the same in the US and elsewhere, I wonder why this has not been tried before, and if it has, does anyone know the outcome? This has far reaching implications beyond HP. Any computer manufacturer would be affected, but the EULA seems to point heavily to the refunding procedure, not of Microsoft, but of the reseller. It should be interesting to see how HP responds.

Re:Any other attempts at this?

[falconwolf]

Assuming the EULA is the same in the US and elsewhere, I wonder why this has not been tried before, and if it has, does anyone know the outcome?

It may be a hassle but people in the US have been getting refunds for years. Here's an article, "Windows license opens door for Linux refund" on how people in the late '90s were requesting refunds. It mentions /. and how /.ers got involved.

Falcon

Re:Any other attempts at this?

[JohnBailey]

Assuming the EULA is the same in the US and elsewhere, I wonder why this has not been tried before, and if it has, does anyone know the outcome? This has far reaching implications beyond HP. Any computer manufacturer would be affected, but the EULA seems to point heavily to the refunding procedure, not of Microsoft, but of the reseller. It should be interesting to see how HP responds. It is and it has. There was a case recently in I think a French court where one of the big names was being awkward, and the court awarded the customer the full retail cost of all the software they rejected instead of just the OEM price. This was obviously a penalty for the company being difficult about obeying the EULA. And there have been a few others where people have demanded a refund as specified in the EULA, and reported their adventures in getting satisfaction.

Its a case of "don't like it.. Don't buy it", so he didn't. This could be something that will get more popular as time goes by. If someone wants to install their own copy of Windows to get rid of all the crapplets, then they should be given a refund of the unused license, If they choose to use another OS, then that is also a perfectly legitimate reason to reject the EULA and have the price of Windows and any other software refunded. The conditions of the EULA are enforced when it goes against the user, so there is no real justification to not enforce the other bits.

Re:Any other attempts at this?

[complete loony]

One of the first refunds I ever heard about was in 1998, by a friend of mine in Adelaide, Australia.

Re:Any other attempts at this?

[morgan_greywolf]

. This could be something that will get more popular as time goes by.

While I hope and pray that you're right, I'm afraid that probably won't ever be the case. There are a lot of people who don't even know what Windows is never mind that there is something else you can use. And most people wouldn't dream of installing their own copy of Windows, even if they knew what it was. Why do that? It comes with the machine, it's already there.

The unfortunate fact is that while there are those of us who know what we're doing, we are very much in the minority. Most people don't even think about the computer works, what software is on it, etc. They just know they have to click on the little "W" to get to Microsoft Word, which is what they use to write letters, or click on the blue 'E' to get to the Internet.

Re:Any other attempts at this?

[JohnBailey]

Don't be so sure. The effect of having so many people with computers in their homes is that there are growing numbers of computer literate users. It may be a minority, but there are more every day who are clued in enough to make informed choices, and it doesn't take much to change the direction of the market.

Approximately?

[Frosty Piss]

EULA agreement which states, approximately: '[I]f the end user is not willing to abide by this EULA... he shall immediately contact the producer to get info for giving back the product and obtaining refunds.'

States approximately? I'd prefer to know exactly before I made any conclusions.

Re:Approximately?

[joerisamson]

Well, this is probably a translation, so most of us are helped more with the translation, even if a translation has no binding value and is therefore only approximately correct.

Re:Approximately?

[falconwolf]

EULA agreement which states, approximately: '[I]f the end user is not willing to abide by this EULA... he shall immediately contact the producer to get info for giving back the product and obtaining refunds.'

States approximately? I'd prefer to know exactly before I made any conclusions.

If you're in the US you want the version of the EULA for the US, the Italian version is only good in Italy. It's been years but when I had to agree after getting a new PC, in the US, it basically said if I didn't agree I had to contact the OEM to get a refund.

Falcon

Re:Approximately?

[JohnBailey]

After a few seconds to get to the Google page, the EULA states exactly in the first paragraph.. http://www.microsoft.com/windowsxp/sp2/proeula.mspx

"IMPORTANT--READ CAREFULLY: This End-User License Agreement ("EULA") is a legal agreement between you (either an individual or a single entity) and Microsoft Corporation or one of its affiliates ("Microsoft") for the Microsoft software that accompanies this EULA, which includes computer software and may include associated media, printed materials, "online" or electronic documentation, and Internet-based services ("Software"). An amendment or addendum to this EULA may accompany the Software. YOU AGREE TO BE BOUND BY THE TERMS OF THIS EULA BY INSTALLING, COPYING, OR OTHERWISE USING THE SOFTWARE. IF YOU DO NOT AGREE, DO NOT INSTALL, COPY, OR USE THE SOFTWARE; YOU MAY RETURN IT TO YOUR PLACE OF PURCHASE FOR A FULL REFUND, IF APPLICABLE."

Rejecting the contract at this stage means you have no need to read the rest of the EULA,and states explicitly that you are entitled to a refund, who you are entitled to a refund from, and as the court cases have shown, the refund is in fact applicable. So basically, if they don't give a refund, you are entitled to take them to court and enter a case where you as the end user will win.

Re:WTF?!

[Anonymous Coward]

This guy bought a computer with XP installed and he's griping about it? Perhaps he would have preferred a computer with no OS?

We buy machines with no OS all the time (actually Dell ships FreeDOS but it's not installed). Perhaps the user in question was wanting to install a free OS on it?

Italian Day at /.?

[moosesocks]

• 11:02AM: Italy Starts Censoring Internet. Score: -1
  
• 8:29PM: Italian-made module for the ISS is installed, and unlike their cars, it appears to have been designed and constructed properly. Score: 0
  
• 10:24PM: Italy stands up to evil software corporation. Score: +1
  

Well, kudos to Italy for making the front page of slashdot 3 times in one day, finally constructing a mechanical device that didn't break down immediately, and ending up with a score in the green.

Ciao!

Re:Italian Day at /.?

[eaman]

Hey mate, Italy has never got into censoring: it was a proposal and not a law.
I've seen a lot of cars made in my town (Modena) working quite well, check the farm 'round here in Maranello or those bikes made ~50km on the way to Bologna (Ducati).

BTW: we also have open standards and open software as a priority for any public/government work.

Cheers !

Re:Italian Day at /.?

[Nadir]

Yes, and McCarthy too.

Re:Italian Day at /.?

[mennucc1]

finally constructing a mechanical device that didn't break down immediately

you probably missed two other Italian mechanical devices around:

• Ferrari wins both driver's and constructor's 2007 Formula 1 championship
• Ducati wins both driver's constructor's 2007 championship

So what were you saying about Italian mechanical devices again?

Re:Italian Day at /.?

[mattr]

Italy ought to be a fabulous space construction country given their amazing creativity and success with high performance machines (of which race cars are the most obvious). Heck I had an Alfa Romeo (you know the poor man's ferrari) when I was in high school and always kept a magazine page on my wall that said Victories in Series. They just kept winning. Sure the electrical system absolutely sucked but the rest of the car was amazing, far better than the price I paid at the Oldsmobile dealer. If you want to put down Italy you will have to fight all the Italian food and car lovers and if you still can't believe it then just ride on a city bus in Italy. Those things have more pick-up than a U.S. police car. As Italian craftsmanship seems to just shine brighter and brighter the more money you throw at it, which is more than I can say for most countries, I'd imagine they could definitely do some awesome stuff with a little space budget. Which indeed, they have.

Re:Italian Day at /.?

[moosesocks]

Oh, I know that Italian sportscars can be fun (albeit impractical) if you're willing to throw enough money at them. I was more poking fun at the notorious unreliability of the low-cost Italian cars that made it over to the US (ie. Fiat).

Re:Italian Day at /.?

[myrrdyn]

So, you are not considering Ferrari, Ducati and other "mechanical devices" builders... Maybe you are more familiar with space, so you already know things like the main antenna of Cassini spaceprobe, or the logistic modules for ISS, or like anyone of the italian contribution to space exploration (but you are not remembering these now). Maybe you just aimed at getting a straight "Funny" using some readly available stereotypes...

Re:Italian Day at /.?

[mattr]

No sweat, in the winter time my alfa's driver side door would freeze *open*. I had to drive around holding the door closed until the latch unfroze, more than once. That said, those buses with alfa engines in them created an impression that stuck with me a long time. And of course alfa failed in the U.S., twice I think. Just issued a new car in Japan though, they seem to have gotten out of their troubles mostly.

Work still has to be done

[bogaboga]

It appears work still has to be done in getting the word out that in some cases, a Windows refund is still possible. I remember reading right here on Slashdot that a refund was possible. In fact there is s a website having info in this very topic. It went off-line long ago! It was www.wondowsrefund.net.

Re:Work still has to be done

[udippel]

It went off-line long ago! It was www.wondowsrefund.net

No winder it went off-line !

Plenty of other (successful) attempts at this...

[Aehgts]

As a quick google search's first few results show: this has been done in the US and Australia in the past with at least Dell and Toshiba and has been followed on slashdot before.

Don't get it

[khallow]

I think the EULA was clearly refering to the entire computer not to this software. My guess is that the reason this never happened before is because the entire computer is normally returned not just the software. My guess is that that HP ran afoul of some EU or Italian law governing bundled products. If that is indeed true, I will probably characterize such a law as "lame".

Re:Don't get it

[cygtoad]

"My guess is that the reason this never happened before is because the entire computer is normally returned not just the software."

Yeah, I thought this too. The only trouble with this is how can a third party software vendor dictate any agreement between a hardware manufacturer and a buyer. You wouldn't return an entire car if you did not agree to enter into a legal agreement about the use of the installed stereo.

Microsoft has been very good at getting people to think the OS and the computer are inseparable. It has been able to do this because for a long time, there was no other viable mainstream alternative. That is changing, and so are consumer's thoughts about the computers they purchase.

Re:Don't get it

[khallow]

The only trouble with this is how can a third party software vendor dictate any agreement between a hardware manufacturer and a buyer.

Actually this is pretty easy in practice. Microsoft makes a deal with the hardware vendor to bundle their software on the machine. Part of the agreement involves conditions on the agreement bewteen manufacturer and buyer. Even most open source involves minor constraints: a manufacturer cannot provide most open source software without including copies of the agreement and sometimes other constraints (like a guarantee that the software will not be used for military purposes to name an extreme licensing condition that occasionally shows up).

Re:Don't get it

[eaman]

Well in Italy a manufacturer can't dictate the buyer how he is supposed to use the item, as long as the use is not against the law or dangerous to someone else.
So they Dell can't tell me: "This is made for windoze, if you don't want the software give me the hardware back as well". Yes, this goes for DRM (user has the right to make a personal backup copy) and reverse engineering: no DMCA here (you can buy a modded console or mod chip in a shop).

But actually main point is that Microsoft is just a foreign company in Europe, so we don't fell the urge to sustain their monopolistic strategies (as forcing the user to use a OS looks to me).

But don't think it's all sun and nice, we got our problems of course ;) .

Re:Don't get it

[Dr. Donuts]

Read the article. The judge made the decision not based off bundling laws, but contractual.

As far as the EULA clearly referring to the entire computer, I'd disagree. The EULA in question is Microsoft's EULA, not the manufacturers. If you go and buy XP off the shelf, you get the same EULA. You wouldn't go and return your computer just because you tried to install XP on it, now would you?

"If you do not accept the conditions of this contract, you may not use or copy the software and should promptly contact the manufacturer for information on returning the product or products and the conditions for reimbursement in accordance with the provisions established by the producer himself."

The judge basically ruled the Microsoft EULA was a separate contract apart from the purchase of the computer. As Microsoft is the manufacturer of that product and HP merely a reseller, HP was obligated to refund that portion of the purchase according the instructions within the EULA itself.

Re:Don't get it

[cheater512]

If I couldnt build a cheaper computer myself, I'd buy a HP computer and if I couldnt get a XP refund I'd return the whole computer for the fun of it.

It would seriously screw with their minds. :D

Re:Don't get it

[davester666]

>I think the EULA was clearly refering to the entire computer not to this software.

I'm not a lawyer, but I don't see how your interpretation can be applied. The EULA explicitly states [in part]: "computer software and may include associated media, printed materials, "online" or electronic documentation, and Internet-based services ("Software")." I don't see where in this list of items you could interpret to include computer hardware. MS or the vendor might be able to slip it into an addendum, but I don't think they regularly include one.

From another post:

"IMPORTANT--READ CAREFULLY: This End-User License Agreement ("EULA") is a legal agreement between you (either an individual or a single entity) and Microsoft Corporation or one of its affiliates ("Microsoft") for the Microsoft software that accompanies this EULA, which includes computer software and may include associated media, printed materials, "online" or electronic documentation, and Internet-based services ("Software"). An amendment or addendum to this EULA may accompany the Software. YOU AGREE TO BE BOUND BY THE TERMS OF THIS EULA BY INSTALLING, COPYING, OR OTHERWISE USING THE SOFTWARE. IF YOU DO NOT AGREE, DO NOT INSTALL, COPY, OR USE THE SOFTWARE; YOU MAY RETURN IT TO YOUR PLACE OF PURCHASE FOR A FULL REFUND, IF APPLICABLE."

Re:Don't get it

[pjt33]

What you say about OSS is true but entirely irrelevant. It's one thing to restrict the way in which your product may be used, but entirely another to say that if your product is to be used to fulfil one contract with a third party then it must be used to fulfil all such contracts. That's abuse of a dominant market position, and it's astonishing that anyone should get away with it.

Re:Don't get it

[koma77]

I tried this with Dell. Didn't work. I tried to return XP Home (OEM), but they refused and said that I would have to send back the whole computer. That's fair I guess, since it was an OEM version of XP. But they refused to refund Works because they claimed I got it for free, at no extra cost! WTF?

Re:Don't get it

[Just Some Guy]

Even most open source involves minor constraints: a manufacturer cannot provide most open source software without including copies of the agreement and sometimes other constraints (like a guarantee that the software will not be used for military purposes to name an extreme licensing condition that occasionally shows up).

Nitpick: software with such restrictions is not Open Source ("The license must not restrict anyone from making use of the program in a specific field of endeavor.") or Free Software ("The freedom to run the program, for any purpose (freedom 0)."). You might be able to look at the source code and even modify it under certain restrictions, but it definitely would not be FOSS. Don't refer to it as such because it's factually incorrect and it confuses people unnecessarily.

Re:Don't get it

[khallow]

Eh, I think it would be wise to seperate the definition from the branding here. As I understand it, several if not most of the licenses allow you to impose additional conditions, for example, that you cannot make money with the software (Ghostscript, for example, is released under both a GPL license recognized by the OSI as "open source" and a commercial license). Second, sometimes the double speak is misleading. For example, "free software" may mean free to run, but it doesnt' mean free to use. For example, I can't incorporate GPL 3 licensed code into my proprietary code without consequence.

Re:Don't get it

[sgtrock]

For example, I can't incorporate GPL 3 licensed code into my proprietary code without consequence.

Sigh. I am so tired of this particular whine from lazy sods who just want to take someone else's work without compensation.

Tell you what: When you can re-use code from Microsoft, Apple, Computer Associates, IBM, Oracle, or Joe's Bait Shop and Software Company that is only available under a standard commercial license in your proprietary code without consequence, then and only then can you complain about not being able to use GPL 3 licensed code in your proprietary code without consequence. Until then, why don't you go study a little copyright law and a little history? Maybe you'll figure out why misappropriating anyone's work is illegal, unethical, and downright immoral.

Re:Don't get it

[Just Some Guy]

As I understand it, several if not most of the licenses allow you to impose additional conditions, for example, that you cannot make money with the software (Ghostscript, for example, is released under both a GPL license recognized by the OSI as "open source" and a commercial license).

That is incorrect. Read the links I posted, particularly the Free Software Definition, which says:

You may have paid money to get copies of free software, or you may have obtained copies at no charge. But regardless of how you got your copies, you always have the freedom to copy and change the software, even to sell copies.

No GPL software can prevent you from selling copies of it or otherwise profiting off it.

Re:Don't get it

[khallow]

Just to make it clear. I'm familiar with copyright law and some of the history. I'm also aware that your post does little to address my complaint about the elaborate, biased definitions that were brought up earlier. Your comments about lazy sods and such are irrelevant in my view since no such beast posted in this thread.

For example, the OSI has a ten point definition of "open source", which more accurately is "open source licenses that can be approved by OSI". Of those ten points, only the first three actually define open source as far as I'm concerned. In a similar fashion, I see only two legit definitions for "free software" both working off of the "free as in beer" definition of free, "free to run" or "free to use, including code". "free" means appropriating in some way someone's service or good without compensation. The "free as in speech" makes even less sense since fair use for free speech means you can legally appropriate someone's else speech for free without even having to credit them for it. Clearly, that's not the model that the "free software" people in the FSF are using.

I guess I get tired of the pointless corrections. Sure it's nice to see OSI's and FSF's opinions on what terms should be. But in the end, they do have an axe to grind and a niche to occupy. We can't go around accepting their propaganda uncritically any more than we could a corporation.

Re:Don't get it

[Devistater]

Nope, its been done in the USA too, and in regards to windows.
The EULA of microsoft products (and most others) typically says something similar, along the lines that if you don't agree you can return the software for a refund.

He got costs, too

[belmolis]

Not only was the buyer reimbursed 140 euros for the unwanted software, he was awarded 2,300 euros in legal costs. Refusing to abide by the EULA could get expensive for vendors.

Re:He got costs, too

[Gertlex]

Oh no, a bit of legal costs!

What I love about this case is that the reimbursement was completely in line with damages. None of that hundreds of thousands of dollars (euros) crap.

Re:He got costs, too

[pipatron]

That's usually how it works in Europe. Suing some company isn't like playing the lottery. If a company cause you damages, they will usually be forced to pay for the damages, legal costs, and possibly some small bonus on top of that, to compensate for the "discomfort" (can't find a good word here, I'm sure you get my point).

Re:He got costs, too

[fbartho]

That's convenient, I consider hundreds of thousands of dollars to be small for these mega corporations, and just about enough to cover the discomfort of refusing to refund my pre-installed XP. :D

Re:He got costs, too

[justinlee37]

to compensate for the "discomfort" (can't find a good word here, I'm sure you get my point).

The legal term would be "tort."

IANAL.

Re:He got costs, too

[mr_matticus]

No, it wouldn't. The whole case is a tort. The legal term would be damages, punitive damages in particular, and they're not awarded here because it's a contract issue.

You wouldn't get a windfall from this case in the US, either. I assume the reference in this thread is to the filesharing fine, but that is a case involving statutory damages--the law itself specifies a minimum and a maximum award simply for breaking the condition precedent. Thus copyright holders are entitled to large sums of money simply for the act of violating it. These damages are a result of a time when most copyright infringement cases were large-scale, direct operations. In modern times, those big-scale cases still exist, but we also have smaller scale infringement and large scale (but indirect) infringement. Those two different modes should be codified with different and lesser statutory damages.

This wouldn't be too hard to accomplish, except for the adversarial nature of copyright infringers. Just perusing Slashdot will show people determined to cause intentional harm and to refuse to abide by the law no matter what. In such a condition, the other side has a clear legal superiority to have their interests protected against a hostile public, and so the astronomical damages will stay without modification. The law will not and cannot distinguish the hostility as a result of the big labels being bastards. Slashdot does absolutely nothing to help the situation and provides the industry with most of the fodder it needs to prevent reform.

Re:He got costs, too

[justinlee37]

No, it wouldn't. The whole case is a tort. The legal term would be damages, punitive damages in particular, and they're not awarded here because it's a contract issue.

Damages are what one is awarded to compensate for the harm caused by a Tort.

Please consider the quotation I was responding to: to compensate for the "discomfort" (can't find a good word here, I'm sure you get my point).

I was NOT responding to this: and possibly some small bonus on top of that

Yes, the "small bonus" would be punitive damages. The negligence itself, leading to the "discomfort," is a Tort. The entire case is a civil suit.

Re:He got costs, too

[mr_matticus]

Dear Mr. Wikipedia (who should look up negligence next time),
The word is still damages, not a tort. The tort is breach of contract; it is not discomfort, or emotional distress, or pain and suffering, or, good grief, negligence. Please DO consider what you were responding to:

"If a company cause you damages, they will usually be forced to pay for the damages" There's the tort, except OP should have said "harm" instead of "damages" in both instances, but doesn't seem to be a native English speaker, so no foul there.

The rest of the sentence, from reimbursement for legal fees to compensatory damages for actual losses to punitive damages for causing the tortious injury all refers to the restitution (here, remuneration) offered by civil litigation: the award of damages.

The "discomfort" here is not a separate tort, but a result of the burden of having to litigate one's rights, and the company is forced to pay punitive damages to dissuade it from not resolving these situations under its contract terms. It is not a "pain and suffering" or "emotional distress" award because the defendant had to go to court--in fact, it has nothing to do with the plaintiff at all, which is why OP couldn't find the appropriate word. "Discomfort" is not a tort.

You are most definitely not a lawyer.

Re:He got costs, too

[RzUpAnmsCwrds]

In such a condition, the other side has a clear legal superiority to have their interests protected against a hostile public, and so the astronomical damages will stay without modification.

Ahh, see, this is where you're wrong. People have realized how easy it is to commit copyright infringement. They don't see it as wrong, and I'm not sure that I see it as wrong.

Enforcing laws that people don't believe in doesn't work. We have spent billions and billions of dollars pursuing drug prohibition, and look how that has worked out. The RIAA/MPAA/whoever doesn't have that much money. Pursuing these cases is expensive.

So, RIAA/MPAA/whoever, keep being bastards. Something like 2/3rds of the US has downloaded music illegally at some point in time. The more we hate you and the more you make it difficult for us to enjoy your content legally, the more incentive we have to ignore your copyrights.

Re:He got costs, too

[justinlee37]

The tort is breach of contract; it is not discomfort, or emotional distress, or pain and suffering, or, good grief, negligence.

You know, I only used the word "negligence" there because I'm so used to using it in regard to civil cases. I didn't mean to imply that this particular case was an act of negligence -- it was clearly intentional. However, negligence can be a tort.

I took a second look at the definitions and the wording of the sentence I was responding to, and you're correct. My analysis was superficial -- I saw reference to harm in a civil case, and my go-to word was "Tort." I had never considered that the word may not apply to the rationale for punitive damages.

You are most definitely not a lawyer.

I think I cleared that up already. No need to be a snide prick.

Re:He got costs, too

[mr_matticus]

I think I cleared that up already. No need to be a snide prick. Then perhaps you should think twice about trying to correct someone on an issue you clearly are not qualified to discuss. Your first comment was an attempt to be helpful, but your subsequent attempt to correct a superior elaboration was an ill-advised move. I submit the following:

I saw reference to harm in a civil case, and my go-to word was "Tort." I had never considered that the word may not apply to the rationale for punitive damages. The world would be a better place if people just let other people who know what they're talking about answer questions. Wikipedia links and a less than half-baked understanding of terms and issues rarely goes over well.

Re:He got costs, too

[justinlee37]

a superior elaboration

Saying that the "entire case" is a tort is definitely not literally accurate, and someone could easily misinterpret it.

Re:He got costs, too

[mr_matticus]

How?

Re:He got costs, too

[justinlee37]

It's a component of the lawsuit, as opposed to being a synonym for lawsuit?

Re:He got costs, too

[mr_matticus]

No, it's the cause of action. It *is* the lawsuit. The suit is a tort. Nice try, though.

Re:He got costs, too

[mr_matticus]

And before you even bother trying to respond, please think critically about the quote you simply made up. And then just walk away and save yourself further embarrassment.

Re:He got costs, too

[justinlee37]

and save yourself further embarrassment.

There you go again ...

Re:He got costs, too

[justinlee37]

P.S. The action is the lawsuit. The tort is the cause of the action.

Re:He got costs, too

[mr_matticus]

Yes. You're failing to make a distinction. If you can't be relied upon to exercise any degree of precision in selecting your quotes, can't be relied upon for any of your analysis or even basic working definitions, it shouldn't be surprising that you can't parse sentences, either.

The case is a tort. The lawsuit is a tort, i.e. the car is a sedan.

Thanks for playing.

Re:He got costs, too

[mr_matticus]

Enforcing laws that people don't believe in doesn't work Curiously, the people do believe in the laws. There's little controversial about copyright outside of Slashdot. The only thing that even raises eyebrows is the severity of the penalty, which, again, is something that would be easily addressed if people like you didn't exist in sizeable quantity.

The "people" aren't you.

Something like 2/3rds of the US has downloaded music illegally at some point in time. So? Something like 99% of the US has technically infringed on copyright, just like the same number have violated traffic laws. They didn't suddenly start caring about every one-off music download on the face of the earth, contrary to popular groupthink here. The RIAA has chosen some crappy targets, but to think that harmful infringement is not occurring by P2P users is equally false in comparison to the argument that P2P is killing the music industry.

Re:He got costs, too

[Pofy]

>That's usually how it works in Europe. Suing some company
>isn't like playing the lottery. If a company cause you damages,
>they will usually be forced to pay for the damages, legal costs,
>and possibly some small bonus on top of that, to compensate for
>the "discomfort" (can't find a good word here, I'm sure you get
>my point).

But the lottery is still there in that if you lose, you can end up having to pay all the costs including that of all the lawyers of the company and so on which might end up being quite a lot of money for you. So the lottery part is still there.

Re:He got costs, too

[justinlee37]

Where do you get off on saying that the cause is synonymous with the effect? The lawsuit isn't a tort. The tort is what brought on the lawsuit.

Re:He got costs, too

[mr_matticus]

Add "is" to the list of words you should look up, buddy.

The suit is a tort. The car is a sedan. The shelf is red. All shelves are not red, all cars are not sedans, and all suits are not torts.

Cause and effect has nothing to do with it. What would be the point of a tautological sentence? It's quite clear, and you continue to attempt in vain to correct something just so you can be right SOMEWHERE. It just isn't working for you, no matter how hard it is for you to accept. You don't know what negligence means, or tort, or damages, or "is"--and you can't be bothered to read a post before you errantly respond to it and can't be bothered to get an actual quote to put in your quotation marks. Your ship has gone far beyond taking water; you're sunk.

Clearly, you're either a child or a moron.

Re:He got costs, too

[justinlee37]

If the suit were a tort, then it would seem to follow that, given the definition of tort, I could sue you for your tortious act of filing suit.

A tort is not a classification of lawsuit. It is a civil wrong. A lawsuit is not a civil wrong.

So where's my epic logical flaw here? Is there some alternative usage of the word "tort" that I am simply ignorant of?

The "cause and effect" rhetoric was an attempt to illustrate the difference using another set of terms, since we're clearly not communicating efficiently.

And no, I'm not obsessed with being right somewhere, I'm just pointing out the statement you made that prompted me to get off on defining tort, as I read "the entire case is a tort" to mean that "these legal proceedings may be referred to as a tort," which I knew not to be correct.

You should try to keep your blood pressure down, it'd be tragic if you got so pissed at the internet that it caused you to go into cardiac arrest.

Re:He got costs, too

[mr_matticus]

My blood pressure is perfectly normal. Your attempt to define tort was an ill-fated attempt for your original comment to be correct, when in fact you had neither read nor understood the post to which you were responding. You then further alleged that the cause of action was negligence. You were then, and continue to be, incorrect. My statement is not what prompted you to define tort--you're the one who brought the word up incorrectly.

I think it's just precious that you're still scrambling for any footing at all. You've got none. Your "epic flaw" is that you just can't read or comprehend either English or law.

The suit is a tort. NP VP NP(obj).

You're the only person on the face of the earth struggling to find a construction where an alternative analysis has merit. It's not working, even a little. If I had said "the tort is the suit" you'd have a point. But alas. No such luck for you.

Thanks for playing!

Re:He got costs, too

[justinlee37]

I'm not scrambling for footing. This is not a pissing contest, stop treating it like one. I'm scrambling to point out the source of our miscommunication.

I attempted to define the "discomfort" as a tort -- I.E., a tort is what would bring on punitive damages. You responded by saying that the case itself was a tort, and that "discomfort" was defined as punitive damages. Now, my interpretation of this lead me to believe that you were mislead about the definition of a tort. Hence, I provided the link to the definition, because of your obfuscating response. Now, this did lead to your further explication, which after reading, caused me to admit fault.

Of course, that wasn't enough for you, you felt compelled to continue making derisive remarks. This is what prompted my desire to clear up our miscommunication, by telling you exactly what you had said that confused me.

Now, instead of gracefully admitting that it was initially poorly worded, or going on to further explain yourself, you just keep repeating "the suit is a tort," and thinking of new and clever ways to insult me. That doesn't seem very productive. I'd rather like to know why the suit is a civil wrong.

I'm not trying to debunk your analysis. That should be pretty obvious, considering that I've already retracted my statements.

Re:He got costs, too

[mr_matticus]

I attempted to define the "discomfort" as a tort -- I.E., a tort is what would bring on punitive damages. You responded by saying that the case itself was a tort, and that "discomfort" was defined as punitive damages. Now, my interpretation of this lead me to believe that you were mislead about the definition of a tort O reviser of history! You already admitted my correct analysis about the term in question being damages. "Discomfort" IS NOT A TORT. The matter of the "tort being the lawsuit" (which can only occur if you invert my sentence) is not, nor has it ever been, at issue. Again, you continue trying to correct an elaboration that was accurate at square one and just won't shut up about it. You are not a lawyer. You did not respond properly to the OP. You lack a fundamental understanting of the terminology (based on your incorrect response of "tort" when the word is "damages"; your assessment of the cause of action being negligence; your lack of precision evidence by your utter fabrication of a quote to respond to; your ongoing failure to parse a basic English sentence). You are wrong and trying to create a distinction (and thus an issue) where there is none. It really is not difficult to figure out.

I'd rather like to know why the suit is a civil wrong. Just as in the three preceding posts, your tenuous grasp of syntax has led you astray. This case is a tort does not mean that the tort is the lawsuit. Even if that were syntactically valid (and it's not), it would not be semantically possible--a document cannot be a tort. That should be your very first clue that you're parsing the sentence incorrectly.

One final time:
NP VP NP(Obj.)
The case is a tort (expanded to a senseless degree: the classification of the case is a tortious injury arising under a breach of K; this one case is of class "tort")
The car is a sedan (this one car in question is of class "sedan")
The shelf is red (this one shelf is of class "red")
The frame is a rectangle (this frame is of class "rectangle")

It is not, as you continue trying to insist without reason, logic, or linguistic justification:
*The tort is a lawsuit (this one tort is of type "lawsuit")

telling you exactly what you had said that confused me. No, that's not what you did. Like a jackass armchair lawyer, you ONCE AGAIN tried to restate and correct something you do not fully understand. You did not indicate that you were confused. You did not ask for an elaboration. You substituted (AGAIN) a faulty analysis unilaterally, representing it as correct, where it was not. You are not qualified to make such a correction, particularly since you can't back it up semantically, syntactically, or rationally.

Soon have to sign an agreement to get the product

[SuurMyy]

I wouldn't be surprised if this issue ending up being so that nobody would sell you a computer before you have signed an agreement stating that you agree w/having Windows etc. in there. Then, if someone took this to court, it would probably end up so that you could get some other OS pre-installed, but w/extra cost, and they could justify this by saying that it causes them extra costs to serve a small group of users having e.g. Linux in there. So, you'd still end up paying the M$ tax in one form or the other. Of course they could sell the computers w/o any OS, but I don't think this is the way it's gonna be, because M$ will use a lot of money and will put a lot of pressure on the hw companies to make it otherwise.

i've tried it in Japan a couple of times,

[siddesu]

but so far all I got is an offer to get a refund for the whole unit, not just the OS. i suppose the reasoning goes that the PC is not a product by itself without the OS or something. since i buy notebooks, and there is practically no choice of cool notebooks without Windows, in the end i had to swallow it.

has anyone got any other experience in Japan?

Re:i've tried it in Japan a couple of times,

[Mukunda_NZ]

Please push your rights, check the Windows EULA. In order for any computer company to be able to sell computers that come with Windows, they have to sign a whole lot of legal agreements with Microsoft, and one of those things they have to sign says that if you reject the software licence, you should return it for a refund on the software. Push it!!

Re:i've tried it in Japan a couple of times,

[VGPowerlord]

They don't sell Macbooks or Macbook Pros in Japan?

Re:i've tried it in Japan a couple of times,

[siddesu]

Not without the OS, I suppose. Besides, I am not sure why I would want one -- they are vastly inferior to many of the Windows models available in Japan.

slashdot effect to hit Italy?

[wikinerd]

3 Italian stories on slashdot frontpage at short intervals... Who bets that Italian Internet will slow down to sub-28.8 speeds as Italy feels the slashdot effect?

It would be fun (maybe not for the sysadmins though) to have organised country TLDs slashdottings, eg agree for one day to surf only pages ending in a particular country's TLD.

It would then become more apparent that the modern Internet does not share the intended reliability and high-availability of arpanet. There are too many SPOFs in modern Internet.

Re:Soon have to sign an agreement to get the

[citizenr]

>I wouldn't be surprised if this issue ending up being so that nobody would sell you a computer before you have signed an agreement
>stating that you agree w/having Windows etc. in there.

illegal in EU

This is what I've been saying!!

[mlwmohawk]

Regardless of how you feel about Microsoft, it is inarguable that consumers have little actual choice in the market place. Go to a store in the U.S.A. to buy a P.C. it will have Windows on it. You have go out of your way to get a computer WITHOUT windows, don't even talk to me about laptops.

EVERYONE who has issues with having the only choice being Vista or mail-order bare bones should buy their computer at a store and return it because you don't agree with the EULA or that you think Windows is unusable, or that Windows is defective thus the computer is defective.

This is the ONLY way we will get real choice and real competition, when not having he choice costs those denying us choice money.

Re:This is what I've been saying!!

[dnahelix1]

So, besides having to pay for it the first time, we should have to pay the restocking fee for it, too?

Re:This is what I've been saying!!

[mlwmohawk]

So, besides having to pay for it the first time, we should have to pay the restocking fee for it, too?

ME, ME, ME, ME, ME. Yes, I'm sorry, but nothing changes unless people do something, and most of the time "doing something" may be a tad inconvenient.

Re:This is what I've been saying!!

[Teun]

No, a restocking fee should not be payable for a returned defective product.

Re:This is what I've been saying!!

[jonthomson]

Your average joe won't really care as they'll likely want to use Windows anyway, those that don't probably have the knowhow to build their own anyway.

Re:This is what I've been saying!!

[mlwmohawk]

Please!! People wake up, stop being so defeatist. Jeez, why the hell do anything? its probably a lot of work and no guarantee of success, so it isn't worth it! Where would we be with that attitude and apathy?

Give me a break. It doesn't require everyone, and it doesn't depend on "average joe," it only depends on the very small profit margin on computer hardware being sold to become out of balance with slightly elevated unhappy customer returns.

If a small but measurable percentage of people buy a computer, open the box, set the thing up (open all the plastic and manuals, etc.) and return the computer because of the EULA or inherently defective nature of Windows, that machine does not get re-sold at the retail price. The retailers get mad. Retailers demand change from suppliers, and suppliers demand change from OEMs. Downstream OEMs demand change from upstream OEMs. There will be change because it isn't whiny people wanting something, it is bottom line profitability!!!

Re:This is what I've been saying!!

[dnahelix1]

Tad inconvient? A 10% restocking fee on a $2000 laptop at Best Buy is going to cost me $200. I don't understand how me losting $200 is smart just to make a point. While I understand the point of returning it to make the point that, as consumers, we want a choice, I don't think flat out giving money to the corporations you're trying to make a point to is smart. And if you say it's defective, they usually will replace it with the same product. So you can spend your time going around in circles with BB or CC.

Re:This is what I've been saying!!

[mlwmohawk]

Tad inconvient? A 10% restocking fee on a $2000 laptop at Best Buy is going to cost me $200

Why would you get charged a restocking fee? It isn't because you are returning it for no reason. You are returning it for cause and most consumer laws forbid these fees within a reasonable amount of time, I think in A it is 7 days.

I have returned lots of things to Best Buy and the "re-stocking" fee is only if there are no problems with it. The EULA, which you did not know the contents of prior to purchase, is a perfect example of where consumer laws protect you. They can not "force" you to accept a binding agreement or force you to pay a restocking fee. You were not made aware and agree to the EULA PRIOR to purchase. You only become aware AFTER purchase. If you do not agree to the EULA, which is a condition of using the product, you have the right to a full refund.

the obvious reason

[soldoutactivist]

I can't believe no one commented on the fact he might already have a copy of XP and used the EULA policy to get a refund for the retail amount of the OS he paid for at a subsidized cost. Essentially, he got more back than he actually paid in for the OS and software. Brilliant.

time vs money

[meeya]

I wonder how much time he had to be online with HP customer care people in Bangalore.like i wasted more than 4 hours listening and giving my details to everybody who is connecting( and one of them openly mocked and laughed at me) about my laptop.

What...?

[Anonymous Coward]

He asked for a refund... And they had to go to *court* to get it?

Why wasn't it automatic?!

Re:What...?

[Hymer]

Probably because it is quite hard to get the refund:
The salesperson tells you that you can't buy it without Windows and you may return it if you do not want it with Windows.

Google pagerank != good source

[weighn]

it even has top pagerank on Google. I can detect your sarcasm, but everyone knows that Google's pagerank is levered towards advertising revenue rather than good sources of info.

Re:Google pagerank != good source

[MadnessASAP]

Regardless of the inner workings of the system, 99 time out of 100 Google returns what I am looking for on the first page. If that ever changes then I will go find some other search engine to use. The article you linked there says that Google is the dictator of the internet, the only reason Google is this so called dictator is becuase it gives what they want, if they ever changed this and decided to actually wield this power against the consumer then I gurantee you they would collapse almost immediately.

Well, that's one down ...

[ScrewMaster]

only another hundred million left to go.

Re:Well, that's one down ...

[Hymer]

Yeah... and a judgment in one EU country is valid in all other EU countries (at least as a precedent) and so are the price tags set by the court.
The Italian "job" is almost the same (and so are the price tags) as the French judgment from a couple of weeks ago.

So he can't use XP at all now?

[fluffy99]

If he's saying he won't or can't abide by the EULAs, doesn't that mean he can't use any computers that have XP or MS Word installed?

Italy is going to go down hard

[Vainglorious Coward]

Three stories on Italy so far is nothing. We need to get posting submissions about the 16 billion pixel image of da Vinci's Last Supper. This one could be the big one

Contract of adhesion

[QuietLagoon]

It is looking more and more that the court systems of the world are looking to EULA click-through "agreements" as contracts of adhesion.

Re:WTF?!

[pipatron]

I'm sure the poor guy was just trying to replace his old Amiga.

Why on earth would anyone want to do such a thing?!

Re:Soon have to sign an agreement to get the

[drsmithy]

illegal in EU

I find it exceptionally difficult to believe signing a contract to say you're happy to buy product X with feature Y is illegal in the EU.

Pc Ok in the Netherlands

[slashbart]

I recently went to this local store to get a new pc. I don't use Windows, and was expecting to have to haggle about not paying for it, but ... We configured my pc, tallied up the components, and then the guy says: "that price is without Windows, which Windows do you want on it?" Awesome!! So I tell him it's fine like it is. I'm very happy with the pc, and the price is great too.

I think people should go to those stores that sell bare pc's, instead of just complaining about the companies that won't give you a pc without Windoze.

Big in Japan

[the grace of R'hllor]

I was going to make some smart-ass comment about how they're not inferior at all, that's FUD, etc. But then you mentioned "in Japan".

I occasionally skim product releases there. It seems we get about 20% of all cool computing and phone products released there, if that. What's the deal?

Re:Big in Japan

[siddesu]

i suppose it is the cut-throat competition. the market is big, so a popular product is guaranteed to make a killing, but it has to be very good; wow-good is not good enough most of the time, and gadgets age very quickly.

i got a new mobile phone some weeks ago. it has brilliant 800x480 screen, can take better video than my 4-year old camcorder, make better pictures than a 2 year old digital camera and has a ton of other features -- like tv reception, gps, blah blah blah -- but it was a "2007 summer" model (i.e. very old marketing-wise ;)), so i got it for free with the service contract.

regretfully, the quality of the marketing is orthogonal to the quality of the gadgets, and generally very poor, so few of them ever get out of the country. this is especially true for mobile phones. this is very surprising, because some of the makers (say toshiba, panasonic, etc.) have success with other gadgets abroad.

Re:Big in Japan

[the grace of R'hllor]

I keep having that feeling that I want to go to Japan at some point in my life, just for the weirdness of it.

I do not know Toshiba or Panasonic as cell phone makers. At all. I think I may have once heard of a Panasonic cell a long time ago. Part of this may be rebranding, but a lot of the phones just don't ever make it out of Japan.

If you want a feature laden phone here (Netherlands), Nokia is where it's at, and somehow I think they do poorly in Japan. I now have an N95, which is a fairly decent 5MP camera (with autofocus and a functional flash), built-in 3G networking, bluetooth, wifi, and GPS. How *does* Nokia do in Japan?

Re:Big in Japan

[siddesu]

The Japanese phones have most of the share. The most popular seem to be sharp, panasonic, NEC and toshiba. Nokia isn't even in the top 10, and I rarely see a non-Japanese phone for sale except in catalogs. I have seen some samsung phones in a shop recently, but that's about it.

Since all Japanese phones are locked to the service provider (and are not GSM), i need a separate phone for Europe (i visit often, and even a prepaid card is cheaper than a Japanese roaming plan ;)). I've noticed that if you compare a Japanese and a non-Japanese phone feature for feature, you can find a match easily.

If you compare them side by side it is a different story. Usually the camera of the jp phone makes better pictures, the pixels on the LCD are smaller, the sound quality is much better, the battery lasts longer, etc. In general I find that European phones are bigger and clunkier -- but that may be partly because Europeans are in general larger, and too small a phone could be a pain to use. Besides, I am not much of a cellphone maniac, and rarely go for the newest model anyway; I guess top of the line models would be comparable.

Unfortunately, because of the lock-in with providers it is not all cream and honey. There are almost no phones with wi-fi, bluetooth was a relatively new 'discovery' (still lot of phones here without), and development for the phones is either closed (and you need a contract with the service provider), or java with lots of limitations.

I look forward to the SP lock-in phase-out in two years -- it promises interesting developments.

Re:Canadian dollar is not *that* strong

[mgblst]

Thanks Captain Obvious, I don't know what we would have done without you. You truely have made the world a better place.

some highlights from the original news source

[mennucc1]

the Google translation is not very readable; when I proposed this submission, I did summarize as follows:
HP defended , claiming the terms of their contract with Microsoft; the judge ruled that the end user request may not be dismissed based on a contract between HP and Microsoft, since this latter is unknown to the end user. The end user, a member of ADUC (a consumer organization) was given 90euro for Windows and 50euro for Works; this is just a small symbolical amount, but it is a huge signal to HP and all other major vendor; in defending, HP claimed that the license and contract to Microsoft is unilaterally written by Microsoft; the judge ruled that nonetheless, HP is to be held accountable by the EULA; the ruling seem to suggest that it may be time for vendors to address this situation.

Re:Soon have to sign an agreement to get the produ

[kasperd]

I wouldn't be surprised if this issue ending up being so that nobody would sell you a computer before you have signed an agreement stating that you agree w/having Windows etc. in there.

That would be awesome. I'm sure that would make some customers actually think before they buy the thing. And there would be shops that decide to grab those customers that don't want to be bothered with signing stupid contracts. (Of course I don't know how large a part of the population think before they sign a contract, I certainly hope it is more than 50%).

Re:Soon have to sign an agreement to get the produ

[Sique]

I wouldn't be surprised if this issue ending up being so that nobody would sell you a computer before you have signed an agreement stating that you agree w/having Windows etc. in there. But that's actually the point! You can't read the EULA before you fire up the computer for the first time, and that's after the actual sale has happened. And the EULA explicitely states that it only covers software, documentation and services, but doesn't mention the hardware.

That's why the court says: This little piece of text doesn't affect the transfer of hardware for money.

If the EULA was printed out before the actual sale and had to be agreed upon as part of the sale, we had a completely different case.

Re:Now, if I only could get a refound for McOS

[Hymer]

Sorry dude:

1. Apple manufactures both products and they may sell them bundled
2. Apple is not a monopolist
3. Apple do not sell OS X for non-Apple computers

Re:Soon have to sign an agreement to get the produ

[dangitman]

But that's actually the point! You can't read the EULA before you fire up the computer for the first time, and that's after the actual sale has happened.

Can't you read the EULA on the company's website? And isn't it usually printed on paper that comes with the software?

Re:Soon have to sign an agreement to get the produ

[SuiteSisterMary]

Can't you read the EULA on the company's website?

If you could, it would be a 'sample' or 'example' contract. But if you can't discuss it with somebody, it is *not*, legally speaking, a contract. No 'meeting of the minds' and all that.

And isn't it usually printed on paper that comes with the software?

Nope. It's almost invariably a text document that pops up as part of the install.

Re:Soon have to sign an agreement to get the

[Teun]

Bundling is generally illegal, that's largely what the Microsoft case was about.

Windows Refund Day

[magpi3]

Brings back memories. http://marc.merlins.org/linux/refundday/

Re:Windows Refund Day

[jak10900]

No wonder people don't wanna jump on the linux bandwagon... :P

Re:I seriously needed this

[mikelieman]

Helpful Hint: When someone gives you one of them "Direct Numbers", tell 'em to hold on a sec, whip out your cellphone, and dial it WHILE THE SUCKER IS STILL ON THE LINE.

That way, you can call "Bullshit" to his face.

Re:Soon have to sign an agreement to get the

[Dion]

Well, not exactly that, but consumer protection laws are very strict around here and one part of the protection is that any contract with worse terms than what the law provides is void.

That means that we have 2 year mandatory warranty on everything we buy and that it's impossible for stores to offer less than 2 years warranty.

Re:Now, if I only could get a refound for McOS

[Waffle Iron]

I run Linux on my Mac. Should this be posible or must I pay the Apple tax?

Why don't you check the EULA that came with your copy of OSX. Does it say that you can return it for a refund?

Informative?

[8472]

Wow, you weren't prepared to just let jollyreaper have that joke?

Parent has excellent summary of legalities...

[bagofbeans]

...so mod 'im up, please, someone!

You're just not seeing the big picture!

[TheVelvetFlamebait]

Why after factoring in the settlement, lawyers fees, court fees, missed income, inflation, risk hedging, emotional damage (because they're... y'know... priceless), instrument imprecision and error, the Earth's magnetism, and a little voodoo economics thrown in, the damages can easily soar past the 100,000 euro mark! You're obviously not a very good lawyer, if one at all.

Complete System for $150

[riegel]

Wow,

If I buy a $350 Office Depot, Circuit City, Best Buy, etc. Computer and return the Microsoft stuff then...

$350-$130-70=$150

That is a great price for a computer.

Just that?

[garompeta]

This Italian guy must be an amateur... he should have requested 10,000,000 in compensation for the moral damage!
bargaining over a little he could have got maybe say 500k? but at least 100k...

hehe...

"I became alcoholic because of the instability of Windows. I didn't want to, I didn't want to, but, but the Windows logo was there glowing at me in the darkness of the room, taking over the monitor, I couldn't bear it. I also lost my kids because of Clippo... tick, tick, tick, 'STOP IT!' I said but it continued with his tick, tick, tick... I don't want it, I don't want your help, leave me alone! Hello? mommy are you there?"
"No more questions, your honor. Thank you Mr. Pieraccioli, now you can get off the stand"
"tick, tick, tick..." (eyes blank and balancing)

foreign exchange

[falconwolf]

Come on everyone knows http://www.xe.com/ is the place to go for currency info, it even has top pagerank on Google.

Wheree do you think I got X-Rates? From Google! Googling dollar euro "foreign exchange" returns X-rates in the top spot.

Falcon

Your point being what?

[falconwolf]

GP made a joke about the US dollar being less worth than the Canadian dollar and it seems to hold.

SORRY! I didn't see it as a joke.

Falcon

Re:WTF?!

[Pofy]

>Perhaps he would have preferred a computer with no OS?
>That would have been really useful.

Perhaps he allready had some OS (including the possibility of a copy of XP) to install on it.