Danish FreeBSD Dev. Sues Lenovo Over "Microsoft Tax"

Handbrewer writes "The FreeBSD developer Poul-Henning Kamp (phk) has sued Lenovo in Denmark (Google translation, original here) over their refusal to refund the Windows Vista Business license, even though he declined the EULA during installation. Lenovo argues that they sell the computer as a full product, and that they cannot refund it partially, such as the power supply or the OS even if people intend to use a different one. This seems to be contrary to previous rulings in the EU where Acer and HP has been forced to refund the 'Microsoft tax.'"

Comments

Full refund

[sakdoctor]

Better have a full refund and buy from someone else.
Case closed

Re:Full refund

[Maxo-Texas]

Nah.
Much better to push a microsoft tax onto the company via lawsuits.
Then they will feel the pain and make refunds a standard policy.
Lots and lots of lawsuits even better.

Re:Full refund

[FudRucker]

find enough people and make it a class action...

Re:Full refund

[kc8tbe]

Indeed, Lenovo has made it abundantly clear that they want to Microsoft whores. That's why, although I love my T61, I recently bought a Dell Latitude E6500 when I needed a new computer. Dell couldn't sell it in the configuration I wanted without Windows, but they gave me an $80 discount when I told them I'd be using Linux! It's a solid laptop, metal hinges and all -- good riddance, Lenovo!

Re:Full refund

[Desler]

If you read the article then you will notice that it is not possible for him to buy a computer that can what he needs without windows on it.

Boohoo. The computer manufacturers aren't obligated to sell him a computer in the way he wants it.

Re:Full refund

[FudRucker]

you can buy a car without a radio, or without air conditioning, but this is not a car so it is not the perfect analogy, PC makers should give customers what they want and if that includes selling desktops & laptops without windows or without any OS whatsoever on it then that is what they should do, microsoft does not own the OEMs (or do they?)...

Re:Full refund

[IdleTime]

Du er sikkert ikke dansk men en Amerikaner!

Why is it that you think class action lawsuits are something found all over the world? Why is it you think that the world follow the US judicial system? Are you really so totally uninformed about the world outside your own country?

Btw, the US do not have a justice system, it only has a punishment system.

Re:Full refund

[Sloppy]

Or even better to make them offer Windows as a totally separate product, not automatically part of every computer purchase.

Let's not lose sight of who is to blame, though. (I take that back: let's lose sight after all, because it's more complicated than most people suspect.) Microsoft sells a product to Lenovo. Lenovo resells it. Microsoft puts wording on a paper or the screen, saying that if you don't want their stuff, Lenovo will give you your money back. WTF? How can Microsoft speak for Lenovo? Pretty damn arrogant. Did Lenovo agree to that?

Actually, that's a very serious question: Does Lenovo become bound to the EULA? Are they re-selling Windows or re-licensing it?

The Blizzard case's judge asserted that "title transfers" don't ever happen with software. Nothing is ever sold. Ergo, if you walk into a retail store and pay cash for a Blizzard game just like you would for a loaf of bread, you're not actually buying it. That means the retailer never bought it either. Ergo, the retailer must have licensed it as well (though they never even opened the package so never even implicitly agreed to the EULA -- ah, the mystical magic of EULAs, the only kind of contract of its kind!).

The Blizzard judge would say that Lenovo signed a contract in blood with both Microsoft and the computer purchaser, and therefore Lenovo agreed to every term Microsoft put in the license: Lenovo must pay the refund that Microsoft offered. Any layman would say Lenovo is just a reseller and has no obligation to Microsoft to pay refunds on their behalf; the EULA is between Microsoft and whoever reads it -- but that layman also wants his money back and damn well knows Microsoft ain't gonna pay it.

Re:Full refund

[Anonymous Coward]

Not really.

The EULA he declined specifically states: By using the software, you accept these terms. If you do not accept them, do not use the software. Instead, return it to the retailer for a refund or credit.

Re:Full refund

[Jiro]

If the car came with an EULA saying that I could return the radio for a refund, I certainly would expect to be able to get a refund for the radio.

Re:Full refund

[TheDarkMaster]

You don't need to pay the cost of air-conditioning if you choose to buy your car without then.

But with a new PC, you pay the Windows licence cost even you choose to not get the PC with then.

Re:Full refund

[DaMattster]

No, not at all. Industry hasn't colluded with the car manufacturers to force you into paying a higher price for a car without a radio. In the USA, some manufacturers charge extra for the "naked" PC. I've seen this with Dell, where the so-called open source version of their PC is actually priced higher thereby discouraging its purchase.

Re:Full refund

[Chyeld]

Au Contraire, if you sell a product which has undisclosed terms refusing those terms should result in a refund. In order to use Microsoft Windows, you must accept their EULA. Unless you are claiming the Lenovo forced him to agree to the EULA prior to purchasing the computer, then those terms were undisclosed up to the point where he booted the computer and was presented with them.

Re:Full refund

[Sloppy]

The computer manufacturers aren't obligated to sell him a computer in the way he wants it.

And the author of the EULA isn't obligated to offer a refund in the EULA. Lenovo isn't obligated to bundle that refund offer with their computer. But Microsoft and Lenovo did that. Somebody (whether you think it's Lenovo or Microsoft) TOLD the user, in writing, they can have their money back if they don't want Microsoft's crap.

They weren't obligated to sell him a computer the way he wants it, but then they said, "Ok, you can have it the way you want it, and here's our offer written in legalese." So, dude, are you really sure they're still not obligated to sell him a computer the way he wants it? He has a piece of paper that says they are, and he didn't write the words on that paper.

Re:Full refund

[T-Bone-T]

Of course Lenovo is not bound to the EULA. Lenovo is not the EU, End User. They have a different agreement/license/contract.

Re:Full refund

[Anonymous Coward]

Btw, the US do not have a justice system, it only has a punishment system.

This statement alone should be marked +5 insightful (and that's coming from US citizen).

Re:Full refund

[Desler]

The EULA doesn't obligate Lenovo to refund him the money. The EULA even says that if the retailer doesn't give you a refund to conteact Microsoft or a regional Microsoft associate to see their refund terms.

Re:Full refund

[bws111]

And if he doesn't like the product he purchased, he can return it for a full refund. But that is not what he is doing - he is trying to force the manufacturer to change the product to his liking, which they have no obligation to do.

Re:Full refund

[Chyeld]

Actually it's more like purchasing a car and upon putting the key in the ignition and attempting to start the car, you are presented with a legal document requiring you sign away a number of your rights concerning the car.

You can, if you have the know-how, remove the manufacturer provided starter and ignition system, and replace it with your own, and thus get it running without agreeing, but are then stuck with the cost of doing that along with the cost of the original system.

This of course, ignores the fact that in our analogy, the car is being made and sold by the same company and thus cost of the ignition system would be hard to separate from the cost of the rest of the car, where in reality the car is being assembled from off the shelf parts and the cost of the starter system they've chosen is simply being passed along to the consumer.

Re:Full refund

[Desler]

Au Contraire, if you sell a product which has undisclosed terms refusing those terms should result in a refund.

For the whole product, yes. Not piecemeal parts.

In order to use Microsoft Windows, you must accept their EULA. Unless you are claiming the Lenovo forced him to agree to the EULA prior to purchasing the computer, then those terms were undisclosed up to the point where he booted the computer and was presented with them.

Oh bullshit. He knew the terms before buying the product. To claim otherwise is just disingenuous. Secondly, the EULA doesn't state that the retailer of the product is obligated to refund the user's money for the Microsoft license.

Re:Full refund

[Desler]

Yes, but it also says that if that retailer doesn't give you a refund to contact Microsoft or a Microsoft affiliate in the region to get their refund terms. The EULA only obligates Microsoft to refund the user's money not Lenovo.

Re:Full refund

[ILongForDarkness]

No they don't promise to refund, the OEM license says: "However you may compensate end users for Software or Hardware returned to you under the License Terms." (http://www.microsoft.com/oem/sblicense/default.mspx) . Note the may. Also, OEM licensing involves buying the licenses in bulk for a large discount. In that sense the OEM is a reseller because they are using multiple customers' purchases to qualify for the bulk discounts.

They aren't just buying a copy of Windows off the shelf and installing it on the system for you. They are saying: "we will sell 20k computers this month so we'll buy 20k licenses and hand them out as we move computers". The OEM licenses are special in my understanding in that they are not transferable. In the mean time the OEM owns the licenses or at least the rights to a license. Similarly a store with 20k boxed copies of Windows that has a fire "owns" them as far as inventory/insurance goes.

Re:Full refund

[Chyeld]

Secondly, the EULA doesn't state that the retailer of the product is obligated to refund the user's money for the Microsoft license.

As you say, bullshit.

By using the software, you accept these terms. If you do not accept them, do not
use the software. Instead, contact the manufacturer or installer to determine their
return policy for a refund or credit.

Re:Full refund

[mcgrew]

Class action suits don't help anyone but the lawyers. I've been contacted by lawyers pressing class action suits against various companies, but I never reply any more. Gyped out of a hundred buck by some ratty product, and you get maye five bucks out of the deal while the lawyers get millions. It's not even worth sending the card back in.

Re:Full refund

[Darth Sdlavrot]

Manufacturers change products to match up with what their customers want all the time. When that happens we call that a "free market." It's not always fast though. Sometimes you have to not buy what they're selling -- maybe for a long time -- before they come around.

Re:Full refund

[KevinKnSC]

Your analogy would work if there was a note in the car saying that you either agree to an additional contract regarding your use of the tires, or the dealer will refund the price of the tires and take them back.

Re:Full refund

[russotto]

The Blizzard case's judge asserted that "title transfers" don't ever happen with software. Nothing is ever sold.

Which means the Uniform Commercial Code doesn't apply. I doubt he considered the implications of that, though; he just wanted to rule for Blizzard. However, that was a US case and this is in Denmark...

Re:Full refund

[Anonymous Coward]

No, He would have been a troll if he just called people names. You know, like you just did.

Re:Full refund

[kevinNCSU]

Are you really so uninformed as to believe the majority of the people in this world have a deep understandings of the workings of their own legal systems let alone all the particulars of the legal systems of all the other countries of the world?

Or did it just seem like a convenient time to bash the ignorant Americans and get modded up for it?

Re:Full refund

[Dishevel]

When buying a new car you can in fact let the dealer know that you do not want the stock tires and wheels. You can then work a deal with the dealer to pay less for the car. Or. You can sell the stock tires and wheels as you paid for them and now own them. The same is not true for a software license.If the car dealership sells you the car. Offers no way to not pay for certain parts and then makes it illegal to sell any of the parts you bought and no longer want then you would be correct. Another horrible /. car analogy.

Re:Full refund

[British]

Then what is the difference between someone selling a full pc(with or without windows) and a pre-assembled set of hardware(mobo, case, video card, etc)? You don't have to buy Windows if you buy just one component, but why for all of them?

I wonder if there's some loophole where a PC maker sells you a whole PC minus the video card insatlled, you install the video card and avoid the MS tax. I know there's some tax loophole automakers(USA automakers selling to foreign countries) had where they ship almost-assembled vehicles & do the final assembly there.

Re:Full refund

[gabebear]

Car analogies break down pretty fast here...

• Can you sell the tires if you want to? You can't with OEM Windows.
• Did you technically buy tires? Windows is licensed to you, you own nothing.
• Did your tires' license have a provision saying that, if you don't agree with the terms of the license, the company would give you a refund?
• The rest of the car was sold to you and is now legally your property(and is not mentioned in the license for your tires)

I think it's pretty clear that Windows' licenses require a refund that is separate from the computer.

Re:Full refund

[scoof]

Why is it that you think class action lawsuits are something found all over the world?

At least they're found in Denmark (Retsplejeloven chapter 23 a), so in this case, they may be entirely appropriate. Unlike your comment.

Re:Full refund

[tepples]

Of course Lenovo is not bound to the EULA. Lenovo is not the EU, End User. They have a different agreement/license/contract.

The EULA specifies that the user may decline by returning the purchased copy and destroying all backup copies. But if the OEM is not bound, then the user has no way to decline. In this case, the consideration on the user's part is dubious, and the user is likely not bound by anything but the same laws that apply to someone who buys a book: sale of goods law and copyright law. I don't know about Denmark, but in at least the United States, it is not an infringement for the owner of a copy of a computer program (where state law defines "owner") to copy the program into a computer to use it (17 USC 117).

Re:Full refund

[Thansal]

By using the software, you accept these terms. If you do not accept them, do not
use the software. Instead, contact the manufacturer or installer to determine their
return policy for a refund or credit.

And if their policy is "no partial returns, if you don't like the package we sold you then return it (yes, all of it)." then everything seems legally fine and dandy to me. They accept that you do not want what they sold you and will now take the product back in exchange for some/all of your money back.

Re:Full refund

[rhsanborn]

If the above posts are correct, it doesn't say you can return the radio itself for a refund, but to speak with the manufacturer about their refund policies. These may very well include you returning the car because you don't want the radio. It's up to you.

Re:Full refund

[Dishevel]

Not only that but if you do not want the A/C or Radio and the only car you can get has them you can take them out and sell them. You can not do that with a Microsoft OEM license.

Re:Full refund

[maino82]

I just spent 3 weeks on jury duty, and while I would have probably agreed with you before that, I have to disagree. We have a fantastic justice system, and while it may not be perfect, it does work.

Re:Full refund

[Anonymous Coward]

Really? The last time I was on jury duty, nobody cared about the guy's guilt or innocence. They just wanted to reach a consensus so they could go home and watch NASCAR.

Re:Full refund

[DarkDespair5]

Perhaps in its execution, but not in its intent. According to my studies, criminal law is intended to prevent crime and civil law to correct damage done. There is no mention of "punishment" in either.

Re:Full refund

[sumdumass]

Are you sure? OEM software is typically passed to the manufacturers of the computer. MS has a credit system that passes the OEM crap back in the form of a credit for a new purchase. However, the retail software does mention MS directly. Could you be confusing the two?

Re:Full refund

[jim_v2000]

"Are you really so totally uninformed about the world outside your own country? "

Because understanding every nuance of the court systems of other countries is obviously the indicator of how informed someone is. Keep the dickish outrage to yourself.

Re:Full refund

[bcong]

Denmark does have a similar class action lawsuit type civil case. It's called Gruppesogsmal (sic)

Re:Full refund

[zzyzyx]

The end user does not need to know who built the power supply, or who made the case, or who licensed the software. The customer bought the product from Lenovo, not Microsoft, so refunds should come from Lenovo. It's the same for every other industry.

In this specific case Lenovo may not be bound by the EULA, but is by the EU law which limits the sale of product bundles. You can sell a bundle or product A+B, but only if products A and B are available separately. Apparently Lenovo sold laptop+software, but refused to sell the laptop alone.

Re:Full refund

[jim_v2000]

Except there's nothing in the Windows license that says that you will get a refund:

"By using the software, you accept these terms. If you do not accept them, do not use the software. Instead, contact the manufacturer or installer to determine their return policy for a refund or credit."

Seems to me like the manufacturer could tell you that it is not their policy to give refunds, and that would be just fine under the license.

Re:Full refund

[sjames]

No, it wouldn't.

It would be like the dealer willingly making a deal with the devil to get cheap wheels for it's cars, then objecting when the buyer accepts the devil's offer that he can return them for a refund if he doesn't want to honor the special restrictions.

The alternative interpretation is that the EULA is null and void because the MS end of it was dishonored. If MS had an agreement with the vendor that was also broken, they (MS) may then sue them for any resulting damages. If they did not, then it's their own fault and they may eat the damages that naturally flow from making an agreement with the end user that they have no intention of honoring (or contracting someone else to honor on their behalf).

More specifically, either MS has offered a contract in bad faith or Lenovo has. The end user bought the product with knowledge that the terms included a refund offer on the OS installed if he preferred. He DID prefer. He attempted to exercise his granted right to return the OS for a refund. The terms of that offer are now being violated, either by Microsoft (by not having an appropriate agreement with Lenovo before offering the terms) or by Lenovo (for not fulfilling that agreement).

Re:Full refund

[sjames]

But they ARE obligated to fulfill all terms of sale and use, including a refund on Windows if that's in the EULA.

MS can't simply remove the refund offer since then they would be in monopoly trouble again or possibly render the EULA unenforceable.

Re:Full refund

[sjames]

He is trying to force the manufacturer to live up to their obligation under the terms of the EULA. It will then be up to a judge to decide if Lenovo made itse;lf a party to the agreement either by installing the OS or by contract w/ MS OR that MS itself is acting in bad faith.

Re:Full refund

[sjames]

In some jurisdictions, the law supersedes that and makes the seller responsible for such terms. If Lenovo is unhappy with that, they could always refuse to sell there.

Re:Full refund

[The Moof]

Not really the same thing, unless the radio comes in its own factory sealed packaged and it's my responsibility to install it. And the refund requires the radio in the original sealed package (as proof it was never installed).

Re:Full refund

[Anonymous Coward]

Why is it that you think class action lawsuits are something found all over the world? Why is it you think that the world follow the US judicial system? Are you really so totally uninformed about the world outside your own country?

No but it seems you are. Here's a nice "fuck you" list for the ignorant US-basher.

Austria
The Austrian Code of Civil Procedure (Zivilprozessordnung â" ZPO) does not provide for a special proceeding for complex class action litigation.

Canada
Provincial laws in Canada allow class actions. All provinces permit plaintiff classes and some permit defendant classes. Quebec was the first province to enact U.S.-style class proceedings legislation in 1978. Ontario was next with the Class Proceedings Act, 1992. As of 2008, 9 of 10 provinces have enacted comprehensive class actions legislation.

France
Under French law, an association can represent the collective interests of consumers; however, each claimant must be individually named in the lawsuit.

Germany
On November 1, 2005, Germany enacted the âoeAct on Model Case Proceedings in Disputes under Capital Markets Law (Capital Markets Model Case Act)â allowing sample proceedings to be brought before the courts in litigation arising from mass capital markets transactions.

Italy
Italy has class action legislation now. Consumer associations can file claims on behalf of groups of consumers to obtain judicial orders against corporations that cause injury or damage to consumers.

India
In India class action lawsuits are called Public interest litigation and can be initiated by individuals or groups of individuals.

Netherlands
Dutch law allows collective actions brought by associations on behalf of injured parties seeking a judicial declaration that the company is liable for the damage it has caused.

Spain
Spanish law allows nominated consumer associations to take action to protect the interests of consumers. A number of groups already have the power to bring collective or class actions: certain consumer associations, bodies legally constituted to defend the âcollective interestâ(TM) and groups of injured parties.

Re:Full refund

[bendodge]

I find it interesting that you posted as an AC.

Re:Full refund

[bws111]

That is true, and I did not say anything contrary to that. What I am objecting to is the notion that somehow you have a right to FORCE a manufacturer to make a product by suing him. If you don't want the product as offered, don't buy it. If you want to make a point, buy it and return it saying 'I don't agree with the EULA, so you lost a sale'. Suing someone for not offering a product you want to buy is just asinine.

Re:Full refund

[_avs_007]

So does that mean when you buy a processor or other such chips, Intel/AMD/etc can't sell it with the firmware/microcode installed on the chip package, because the firmware/microcode is not sold separately? This is ridiculous... Tell the judge to go buy a car, and ask the manufacturer to refund the cost of the seats, because you don't want the seats because you are going to install your own....

Re:Full refund

[Zumbs]

The wording in the Danish version of the EULA is slightly different. Translated to English it reads

By using the software, you accept these terms. If you do not accept the terms, you do not have the right to use the software. Instead, contact the manufacturer or installer to get information on how you get a refund for the purchase or credit nota.

This can interpreted as giving the user the right to return Windows, without returning the entire computer. Similar cases have been taken to court in Italy and France (against HP and Acer, respectively), where both vendors were ordered to pay a refund for Windows.

Re:Full refund

[DinkyDogg]

It's even worse than that. The Windows EULA says that if you don't agree, to "contact the computer seller to enquire about their refund policy" (or something to that effect). I did exactly this, and Lenovo's refund policy is that you can return the entire computer but not the operating system itself, and they charge a 15% restocking fee. I tried to tell them about the Czech man who got a refund from them but I couldn't pronounce the guy's name. On a related note, anyone want to buy an OEM copy of Windows Vista Basic? Never been used!

Re:Full refund

[tjstork]

This statement alone should be marked +5 insightful (and that's coming from US citizen)

The United States is the only system that guarantees a trial by your peers, and has no double jeopardy.

Re:Full refund

[HeronBlademaster]

Even better, don't purchase a laptop with Windows pre-installed if you have no intention of using it.

The choice is often "a much crappier laptop without Windows" or "the same laptop, but more expensive, without Windows".

Why should I be forced to pay more for the same hardware just because I don't want Windows?

Re:Full refund

[StayFrosty]

Actually, that part is left out for OEM versions of Windows. The part of the EULA regarding returning it is exactly:

By using the software, you accept these terms. If you do not accept them, do not use the software. Instead, contact the manufacturer or installer to determine their return policy for a refund or credit./quote

Re:Full refund

[pentalive]

When I bought my last car, I had them take out the stock radio and replace it with an aftermarket unit that I liked better

Cost of car = price of car - price of stock radio + shop fee for installing custom radio

Re:Full refund

[euxneks]

Denmark does have a similar class action lawsuit type civil case. It's called Gruppesogsmal (sic)

Gesundheit.

Re:Full refund

[AmiMoJo]

This raises a couple of issues with the law that I have often wondered about.

Under UK law, and I imagine most EU country's law, a contract has to confer some benefit to both parties. The contract can't just be "give me money", you have to give something (like a service or goods) in return. If you decline the EULA, you could argue that either the computer is now useless to you and so you receive no benefit from it (it doesn't do anything without an OS). Of course you could install Linux but the agreement was for a working computer so even if contract law does not apply, unless Lenovo installed it for you it would be possible to argue that it is not "fit for purpose" under sales law.

Another related issue is the requirement for all contracts to be negotiable. I don't know about Denmark specifically, but I imagine most EU countries have something similar to the contract law here in the UK which requires that both parties must have an opportunity to edit a contract before agreeing to it. One party can just refuse to agree to any changes the other one makes, but there does at least have to be that possibility of making counter-offers. Since you often cannot edit the EULA (sometimes it's just a text file you can edit before installing) it might be possible to argue that it is unenforceable as a contract.

Re:Full refund

[bws111]

No, he isn't. Nowhere have I seen it claimed that Lenovo wouldn't live up to the obligation. The obligation says if you don't agree to the terms, return the software. If he returns what Lenovo sold him (the laptop), they will refund his money, and the obligation is satisfied. What he wants to do is unilaterally redefine the terms of the sale (to say it was hardware only, not hardware+OS), which Lenovo is under no obligation to honor.

Re:Full refund

[noundi]

He wanted to google "$USER jury". Some people take it too far.

Re:Full refund

[nosferatu1001]

The EULA stastes you can return it to the manufacturer - if you cannot do so then the EULA is even more likely to be void than before.

Given Lenovo know these terms are there 2no action" isn't acceptable

Re:Full refund

[EsbenMoseHansen]

Why is it that you think class action lawsuits are something found all over the world?

At least they're found in Denmark (Retsplejeloven chapter 23 a), so in this case, they may be entirely appropriate. Unlike your comment.

as of 1st of January, 2008.

Do note that the amount sought for is dkk 1000 (about 130 euro)+ the costs of justice, so Lenova is probably not going bankrupt over this.

Re:Full refund

[Actually, I do RTFA]

you can buy a car without a radio, or without air conditioning, but this is not a car so it is not the perfect analogy,

Also, I don't believe you can buy a car without a radio or air conditioning anymore.

PC makers should give customers what they want and if that includes selling desktops & laptops without windows or without any OS whatsoever on it then that is what they should do

Except people want their computer to work out of the box. So OEMs install an OS. Most people want Windows (judge their motivations however you like).

Personally, I hate tomatos. Tomatos are actually quite expensive. I'm sick of having to pay for tomatos when I order a hamburger. Why is there a built in tomato tax? Evil tomato producers.

Re:Full refund

[Anonymous Coward]

I would argue that that is not true. In principle all citizens are your peers. In reality, that's not true. Tell the poor, black guy that gets convicted by an all white, middle-class jury when he was innocent, that he was convicted by his peers.

No double jeopardy? Well technically you are right, but tell that to OJ. Whether or not you think he was guilty, he still got "punished" in a civil trial after winning the criminal one. The guy doesn't get convicted for murdering your relative? No problem, just file a wrongful death suit in civil court where the burden of proof is less.

Re:Full refund

[zzyzyx]

I agree that there is some interpretation of the law in regard of what is considered a bundle of two independent products and what is considered a whole. The jurisprudence in this matters tends to say that software is not indispensable to a computer system, since you may provide your own, and as such it should be allowed not to buy it.

Re:Full refund

[EsbenMoseHansen]

Also, I don't believe you can buy a car without a radio or air conditioning anymore.

Four years ago, the "standard" model of our car came with a casette player only. I was pretty amazed myself at that :) No air condition either.

Re:Full refund

[tjstork]

Tell the poor, black guy that gets convicted by an all white, middle-class jury when he was innocent, that he was convicted by his peers.

Do you realize how racist that is? So, does that mean that we should have juries by race then?

Re:Full refund

[bws111]

No, the EULA states to you must ask the manufacturer what the return or credit policy is. Lenovo says the policy is return the laptop. That fulfills the EULA, and makes the guy whole (he is not out anything). If Lenovo said the policy was 'too bad, you bought it, no refunds' then the guy would have a claim. What the guy wants to do is unilaterally redefine the terms of the sale, from hardware+OS to hardware only, and Lenovo is under no obligation to honor a one-sided deal like that.

Re:Full refund

[Teun]

The United States is the only system that guarantees a trial by your peers, and has no double jeopardy.

Your statement is shallow and scary for this believe is widespread.

A trial by peers would be OK when the laws they had to use were written by the same class of peers but they are not.

Not alone for this reason I would decline the offer of a jury.

We all know double jeopardy is often seen in a very narrow light and the professional prosecutors are not above using a slight deviation of the original case to continue prosecution, ANY prosecution.

Re:Full refund

[Lulfas]

You misquoted it. "By using the software, you accept these terms. If you do not accept them, do not use the software. Instead, contact the manufacturer or installer to determine their return policy for a refund or credit." If Lenovo says their policy is not to do returns on the software, they've honored their part of the contract.

Re:Full refund

[Runaway1956]

Well - who DOES understand our system? Certainly not the lawyers, or the liberals who like to tamper with the system.

We imprison more people per capita than countries such as the Evil Iranian Empire, or the Evil Communists of China, or a lot of other nations that might surprise you. We may even compete with the DemiGod of North Korea, but statistics on North Korea are hard to get, and harder to substantiate.

Seems obvious to me that NO ONE understands our system. We sure as hell don't rehabilitate very many real criminals. Worse, we have a dozen new laws every year that creates yet another sub-class of the criminal class.

Re:Full refund

[Brandybuck]

Absolutely. That's how it works out in the real world.

I've got a flat screen monitor that came with DVI cable that I don't use (for a variety of reasons), but I can't return the cable for a partial refund. I've got a KVM switch that has audio cables that I don't use, but I can't return those cables for partial refund. Hell, I've got an entire drawer full of cables and adaptors and crap that I don't use but which no one will accept a partial refund for.

I know tons of FreeBSD developers who have MacBooks, but none of them have demanded partial refunds from Apple. PHK is doing this SOLELY because it's Microsoft.

p.s. I helped fund PHK a few years back. Can I get a partial refund for the featurettes I don't want?

Re:Full refund

[sjames]

It says that he may return the software. So, he is attempting to return the software.

Re:Full refund

[hairyfeet]

Sadly I can vouch for that. My mom was selected for jury duty a couple of years back in an Arson case. She ended up hanging the jury 11 to 1 and causing a mistrial. Why? Because the other 11 said "the defendant is Italian and haven't you ever seen Goodfellas? He is probably in the mob and must have done it"

It didn't matter that there wasn't any actual...oh what is the word? oh yeah, EVIDENCE, or that the guy had to file bankruptcy because he didn't have enough insurance to actually cover his losses, or that even the fire investigator admitted on the stand he couldn't say for sure WHAT had actually caused the fire, they had seen Italians on TV are mobsters and therefor he did it.

Sadly when hearing this I was reminded of that old saying that 'juries are 12 people too stupid to get out of jury duty". If mom hadn't been civic minded and actually went that guy would be doing 3 to 5 for being Italian and having a jury who had seen Goodfellas. Sad but true.

Re:Full refund

[drxenos]

Ain't that the true! The last time I was contacted was for a defect in certain brand of TV. The TV cost $1000. The lawyers got something like $10 million. Each person in the class action of a $30 coupon to be another crappy TV from the same company.

Re:Full refund

[icebraining]

"Racism is the belief that race is the primary determinant of human traits and capacities and that racial differences produce an inherent superiority of a particular race."

He's not being racist, he's saying that many people have prejudices against different groups, even if they're not conscious, and that reflects in it's decisions, even in jury duty, especially if they "common" people without great experience in logic reasoning. That's why many countries in Europe don't have jurors, only judges (which has different problems, it's not by any way a perfect system).

Anthony: That waitress sized us up in two seconds. We're black and black people don't tip. So she wasn't gonna waste her time. Now somebody like that? Nothing you can do to change their mind.
Peter: So, uh... how much did you leave?
Anthony: You expect me to pay for that kind of service?

Re:Full refund

[BlueStrat]

Why should I be forced to pay more for the same hardware just because I don't want Windows?

If you buy hardware without Windows, then you are shortchanging MS where Bill Gates gets his money. Bill Gates is the founder of the Gates Foundation that donates money towards charitable causes in Africa.

Obviously, you're being charged more because you hate poor, sick, starving Africans you insensitive, non-compassionate clod!

Besides, people who want to buy a computer with no OS are just using linux/other OS's as an excuse to get a clean computer to install a pirate copy of Windows they all bought from either Osama Bin Laden, Ahmadinejad, or Kim Jong Il.

Why do you hate the USA and freedom?

Don't think of it as the "Microsoft Tax", think of it as the "Clubbing Baby Seals Tax", as everyone knows that every lost MS sale causes a baby seal to die.

"-1 Flamebait"

You know, I thought about adding [sarcasm][/sarcasm] tags to that post but thought; "Nah, nobody could possibly think that's anything but a joke! This is *Slashdot*!!".

I forgot one thing, though.

This *is* Slashdot!

D'OHH!!

Strat

Re:Full refund

[bws111]

Please post the text of the OEM version of the EULA (ie. the one that Lenovo sells) where it says you can return the software. The version I have seen says:

By using the software, you accept these terms. If you do not accept them, do not use the software. Instead, contact the manufacturer or installer to determine their return policy for a refund or credit.

"Contact the manufacturer to determine their policy" in no way equates to "you are entitled to get a refund for a portion of your purchase price". Is that really so hard to understand?

Re:Full refund

[Atario]

Class action suits are not intended to make you rich. They're intended to punish the target of the suit. And what lawyer would pursue such a thing if there were nothing in it for her?

Re:Full refund

[Tubal-Cain]

We imprison more people per capita...

Because nobody bothers to imprison dead people?

Re:Full refund

[Runaway1956]

Errr, I'm not comparing the US only to genocidal dictatorships. Check out some links, then draw your own conclusions:

http://www.nytimes.com/2008/04/23/world/americas/23iht-23prison.12253738.html
http://en.wikipedia.org/wiki/Prison
Prison population per 100,000 inhabitants:
US - 756
Russia - 611
New Zealand - 186
UK - 148
Netherlands - 128
Australia - 157
Canada - 107

There is something wrong with the SYSTEM. One of the biggest problems, of course, is the "war on drugs". There are, literally, millions of non-dangerous people imprisoned each and every year, for violating drug laws. Our rates should be near those of Canada and Australia - we are similar peole, with similar histories, after all, with slavery being the biggest single difference in our histories.

Re:Full refund

[Bender Unit 22]

Yes, but is the DVI cable EVIL??????

Re:Full refund

[Brandybuck]

Well maybe not. But what about that Satan-spawned HDMI adaptor?!?!?!

Re:Full refund

[hawk]

The Iomega Zip drive suit actually got the users everything they were supposed to have received (gee, plus an extra disk. whoopee!).

But that's the only class action I've heaver heard of that I can say that about . . .

hawk, esq

Re:Full refund

[zombie_monkey]

Gyped out of a hundred buck by some ratty product, and you get maye five bucks out of the deal while the lawyers get millions.

Yeah, screw those kike lawers.

Re:Full refund

[catman]

Let me translate from Danish the actual wording from P-H Kamp's screenshot: "By taking the software in use you accept these conditions. If you cannot accept the conditions, you do not have the right to use the software. Instead, contact the supplier or who installed the software for information about how to get a refund for the paid amount or a credit note." The whole EULA is attached to P-H's article as a 12-page PDF and is about the software, not the combination of software and hardware. I myself have been lucky enough to find netshops willing to sell laptops with Norwegian keyboards WITHOUT an OS, laptops that are OK for my use. As a developer, Poul-Henning Kamp probably has other requirements beyond a national keyboard - that can't be met by those few vendors that dare sell 'naked' laptops.

Re:Full refund

[initialE]

I thought it was about punishing the people who took your hundred bucks anyway. You know, so they and anybody else would think twice before they did it again?

Re:Full refund

[zdd]

As a successful refundee, I must agree. Naturally, the money wasn't an issue (I've actually donated the refund money to the FOSS community in Israel), and Dell would have given me the money more easily if I have agreed to sign a NDA. But I placed the lawsuit against Dell because I wanted to force them a policy change, which wouldn't have happened if no one knows.

Lenovo and the other manufacturers are more afraid of possible precedences than the money, and I'm sure they would have payed phk his 1000kr if he was willing to sign some kind of NDA. Luckily, we are ideological nuts, which make us a huge headache to the manufacturers :)

Re:Full refund

[badpazzword]

However, the EULA most likely claims that if the localized version and the English version differ, the English version rules.

How valid such a clause is -- if you do not know English you cannot determine what you are agreeing to -- I do not know, however.

Re:Full refund

[Ciggy]

Of course you could install Linux but the agreement was for a working computer so even if contract law does not apply, unless Lenovo installed it for you it would be possible to argue that it is not "fit for purpose" under sales law.

Not forgetting that a few years ago, when Windows came pre-installed it was declared not "fit for purpose" by Microsoft itself! - you had to install further software to make it so fit.

The problem comes that you don't buy Windows (which can be argued is not fit for purpose), but a licence to USE Windows (which IS fit for it's purpose...just).

Re:Full refund

[AmiMoJo]

In the eyes of the law the computer would be seen as a complete package, not an individual collection of licenses. The whole thing would have to work to a reasonably expected standard, i.e. as well as other typical consumer PCs.

Re:Full refund

[mcgrew]

Screw political correctness. I was taken to task for using the word "Chinaman" on a forum, despite the fact that Irismen and Scotsmen are PROUD to be Irishmen and Scotsmen. And the Gypsies, well, they earned their reputation long ago. If you don't want to be associated with thievery, don't steal.

Re:Full refund

[Demonantis]

Your analogy is bunk. What if I wanted to install the radio in another car. You can't do that with Windows they won't let you. I am all for copyright law as long as it objectifies the product. I have bought my "little box" of OS stop telling me when I can and can't sell what I have purchased. I would completely understand how copyright works then. Telling me that I don't own what I bought is just stupid or that I can only sell it a certain way. Informing me that my claim to it is invalidated by how I use it and not offer a refund. Then you have the EULA's with legal language that is not in laymans terms. How is the agreement in anyway valid. No one witnessed the agreement. I also hate how courts have been side stepping the issue and not testing the legitimacy of the EULA. I hope we as a people can get ourselves organized and come to a consensus.

It might be bad in denmark

[Vovk]

It's even worse in the US, where microsoft's influence runs deep. How did we ever get in this situation? Any history buffs wanna recount?

Re:It might be bad in denmark

[onefriedrice]

I believe Microsoft invented the idea of "licensing" software. They licensed DOS, which they bought from some other guy, to IBM and made bank. Such deals with IBM et al. allowed them to quickly dominate the relatively infant "PC" market, and the rest is history. They've been delivering abuse ever since.

Re:It might be bad in denmark

[LMacG]

I'm pretty sure IBM was licensing software long before Microsoft existed, probably before Bill Gates existed. They also got in trouble with the government for bundling hardware and software, and were subject to a consent decree until 2001. Current PC manufacturers probably can get away with bundling because they're not producing both the hardware and software.

Re:It might be bad in denmark

[Gouru]

Software has been licensed looooong before Microsoft. Back to the earliest mainframes, you purchased licenses to use business software and development tools. The Operating systems were created by the computer manufacturers and bundled with the hardware, there was no choice as to which OS you can use. What Microsoft 'might' be blamed for is selling an OS that can run on hardware from a wide variety of manufacturers, I think the first company to become commercially viable selling 'just' an OS. They used the same licensing model that had been used for decades before that.

Re:It might be bad in denmark

[Sloppy]

I'm pretty sure IBM was licensing software long before Microsoft existed, probably before Bill Gates existed.

IBM directly dealt with their customers. IBM had salesmen who talked to end users. For their type of transactions, licensing wasn't novel. Two parties come together, a contract is signed, and the software maker hands over the software. That's pretty traditional and deals like that exist all throughout the whole business world; it's not a software industry thing.

It was much later (and yeah, it might have been Microsoft) that the truly novel idea of indirect and shrink-wrap licensing happened. Software maker sells(?) to a retailer, customer walks into a retail store and instead of signing a contract, appears to buy something from the retailer, gets home, opens a box, and suddenly the transaction between him and the retailer retroactively changes (he doesn't actually own the contents of the box after all), and he and the software maker (who he never met or negotiated with) have a contract.

I've never heard of IBM doing anything so mind-bogglingly twisted (prior to the 1980s).

Re:It might be bad in denmark

[JasterBobaMereel]

The big difference is that you don't buy the system and the software from Microsoft, you buy the system from the manufacturer, and the software from them as well, you never buy anything directly from Microsoft

IBM sold everything, directly, as a package - this was a problem because it discouraged competition

Microsoft are doing the same thing, but are getting other people to make the hardware, sell it, and have all the interactions with the customer...!

Re:It might be bad in denmark

[Blakey Rat]

I'm no history buff, but the way I see it:

1) Microsoft basically invented the concept of software licensing in the first place, and so got a good head-start
2) Microsoft began as a software (only) company, therefore they were able to sell their OS to dozens of OEMs, and not only on their own machines (as opposed to, say, Commodore or Apple.)
3) Europe/Asia/the rest of the world, for some reason, was *waaay* behind on the whole affair. What I don't get is why Japan buy Windows-- Japan was building computers for decades, it never occurred to anybody there to make a home-grown OS? Why didn't France make one? What's the UK's version of Microsoft? In fact, why is every non-English-speaking country running an OS created by the whitest of the white Americans in Redmond, WA?

Re:It might be bad in denmark

[kamatsu]

Microsoft struck a deal with a Japanese software company and ensured that Windows had perfectly localized versions available in the Japanese market. It took off rapidly and the Japanese market is still more MS dominated than most of the rest of the world.

Europe did have numerous home-grown systems but they were all gradually eclipsed by the cheap and extensible IBM PC which naturally had MS-DOS so Microsoft got a foothold.

Re:It might be bad in denmark

[HiThere]

Digital Research & CP/M.

But I think you bought your copies.

Good luck with that...

[onionman]

I wish him well on the lawsuit, but I won't hold my breath...

Re:Good luck with that...

[JohnBailey]

I wish him well on the lawsuit, but I won't hold my breath...

Well.. there are plenty of precedents, and they all seem to find on behalf of the buyer. Not to mention other companies providing the refund as a matter of course on application. So I don't fancy Lenovo's chances much. Or at all really. In fact, I'd be surprised if they didn't reconsider all of a sudden.

Whole product...

[Anonymous Cowar]

While i applaud companies that refund the microsoft tax, i do sort of see where lenovo is coming from. If i buy a car, i can't yank out the back seats and require a refund from the car dealer. It is true i could sell those seats for a profit on ebay, the original dealer would not be required to refund me the cost of the seats. In fact, it could be assumed that you pay $2000 for the laptop hardware and they throw in windows for free.

Should you be able to sue for not being able to arbitrarily get a refund on a part of a computer? What if you want to run thin clients that never touch the hard drive? Should you be able to refund the hard drive? Just because what you're trying to get rid of has no legal resale value doesn't mean you should be able to refund it, especially if Lenovo never included an itemized list.

You know what? I'm gonna sue the next laptop company i buy from because they won't refund the cost of the touch pad, I hate those things! More than most linux people hate microsoft, i'm talking like a seething, infuriating hatred. /sarcasm

What if you wrote software that included printer capabilities or SQL database access, would you refund someone who didn't want printer capabilities or SQL database access? Too bad lenovo isn't doing what sane people would do and try to work with the customer to come to something that works, but, if you don't like the back seats, either buy the whole care and remove em yourself, or don't buy the car.

Reason people! While microsoft's monopoly is bad, you shouldn't be sueing for a refund, sue for variety! And NO I didn't RTFA, so for all i know, the terms of the settlement may be "Sell blank slate laptops".

Re:Whole product...

[Galestar]

The Vista EULA specifically states: By using the software, you accept these terms. If you do not accept them, do not use the software. Instead, return it to the retailer for a refund or credit. If you cannot obtain a refund there, contact Microsoft or the Microsoft affiliate serving your country for information about Microsoftâ(TM)s refund policies. He chose to not accept them.

Re:Whole product...

[Anonymous Cowar]

heh, so he never tried to contact microsoft or the microsoft affiliate? This is gonna be a short case.

Re:Whole product...

[onefriedrice]

I think you are generally right, however I agree with the exception in this case only because Microsoft is a proven monopoly, and we need things like this to put them on a more even playing field.

Re:Whole product...

[Anonymous Coward]

If i buy a car, i can't yank out the back seats and require a refund from the car dealer.

Of course not, but by the same token you won't find a sticker on the back seats saying "even though you supposedly own this car, you're not allowed to use these seats unless you agere to the following conditions...".

The right to refuse and get a refund is the only vestige of any pretense that the EULA is a contract. Without that it should be cut and dried non-enforceable. If you own the machine, including the software (and the back seats) then you can go ahead and do with it whatever you please.

Re:Whole product...

[TheLink]

But are EULAs binding?

Re:Whole product...

[fuzzyfuzzyfungus]

Your analogies are missing something:

Your car seats are either produced by the company that made your car, or purchased and integrated by them. Windows is resold by the guys who sell you your laptop; but it requires you to agree to a EULA, between you and Microsoft, in order to use it(compare this to your BIOS, which is almost certainly made by Phoenix or Award, not Lenovo; but is integrated by Lenovo and not licenced separately). If your car seat required a separate licence in order for it to be used, you should be able to treat it as a separate part.

Same with your other examples. As long as MS insists on having a separate EULA between it and you, its product can't be considered an intrinsic part of Lenovo, or anybody else's machines. If they started licencing it the way BIOSes, firmware, and drivers are typically licenced, I'd give the notion that it was an intrinsic component more weight.

Re:Whole product...

[Desler]

But that EULA doesn't obligate Lenovo to give him a refund.

Re:Whole product...

[Maxo-Texas]

I can see the car thing-- it's also like buying a house and being required to accept the "standard" tile floors.

The builder will usually let you say, "I don't want you to put in a tile floor" and give you a credit for a few hundred bucks.

But the government doesn't usually get involved and force the builder to do this.

While I would like to see the lenovo get stuck emotionally, I'd say on principle that the best option is to leave them alone and let the market decide by buying from vendors who support blank hardware / alternate O/S options.

Re:Whole product...

[TheDarkMaster]

Is because a Windows licence costs a reasonable amount of money... Why you will pay $50 for one system you will not use? And on my country, you need to pay at least $100 ,or more, for the "onboard" Vista (more or less R$200 reais), is a lot of money.

Re:Whole product...

[Galestar]

They are to Microsoft. And MS may have a contract with Lenovo that Lenovo has to honour that clause too.

Re:Whole product...

[Venkata Prasad]

I know that a car dealer would not do that to me, but at the same time, he would not ask me to accept a EULA to use the steering wheel. Let Lenovo ask the user to accept the EULA before purchasing the computer and then I see your argument logical.

Re:Whole product...

[rehtonAesoohC]

While microsoft's monopoly is bad, you shouldn't be sueing for a refund, sue for variety!

Ok!! I'll sue so that we can have:
Vista Home Basic
Vista Home Premium
Vista Business
Vista Enterprise
Vista Ultimate
Vista Super Ultimate
Vista Bloodsport
Vista: Ballmer vs. Gates
Vista: Is Windows

Wait a second...

Re:Whole product...

[Galestar]

Quite correct. He may not win in court against Lenovo, and then will have to go against MS, but at least it brings into the public light the fact that people are legally entitled to a refund, no matter who it comes from. I would be curious to read the Windows 7 EULA to see what MS wrote this time around for when you don't want to accept the EULA.

Re:Whole product...

[iCEBaLM]

While i applaud companies that refund the microsoft tax, i do sort of see where lenovo is coming from. If i buy a car, i can't yank out the back seats and require a refund from the car dealer.

Unless they sell you the car, but stipulate that only persons aged between 19 and 20 can use the back seats, and only for approved uses. They inform you that use of the back seats is monitored and non-personally identifiable data may be sold, in aggregate to third parties. Ownership of the back seats may not be transferred so that when you sell the car the new owner must install his own back seats. Even though there are two seats, only one person may use the seats at one time. The seats will from time to time check with the manufacturer to make sure they are installed in the same car as you purchased, and if a discrepancy is found, they will not allow anyone to sit in them. They then inform you that if you don't like these terms, you can CHOOSE TO RETURN THE BACK SEATS FOR A REFUND.

The license agreement specifically states that if you do not agree with the EULA you can return it for a refund. Computer makers know this. Computer makers license it from Microsoft that way. Computer makers have to abide by it.

Re:Whole product...

[mea37]

While I personally find the basis for EULA to be questionable, my lawyer friends tell me that US courts have indeed held them to be binding.

The double-edged nature of this is exactly why Lenovo should give the guy a refund. The fact that the software trades under the EULA makes the claim that it's "part of the computer" or even "part of the same sale as the computer" suspect to me. The software industry has changed the nature of the "sale" for the software, and the courts (at least in the US) have let them get by with it; so retailers should have to live with the inconvenience of those terms just like end users (as they're a party to the modified "sale" as well).

That said, the EULA also acknowledges that you may be unable to get your refund from the retailer and gives you instructions to follow in that event. So while I think Lenovo should give the refund, I don't think they have to.

As another poster alluded, my other question is whether they offered him a full refund for the entire computer. If so, I'd say they're in the clear (but rather foolish) and that he'd do himself a favor to take the money and buy something else.

Re:Whole product...

[mcgrew]

i buy a car, i can't yank out the back seats and require a refund from the car dealer. It is true i could sell those seats for a profit on ebay

Try to sell your copy of Windows on eBay.

it could be assumed that you pay $2000 for the laptop hardware and they throw in windows for free.

That's like saying Ford throws the steering wheel in for free. The OS has a cost, which is factored into the price of the computer. When the TV pitchman says "...and we'll throw in this other gizmo for FREE!" it's simply marketing bullshit.

I agree that there should be some choice in a computer's OS, including no OS at all.

Re:Whole product...

[Sloppy]

But that EULA doesn't obligate Lenovo to give him a refund.

That's a very common sense way of looking at it. And maybe it's even true, in Denmark.

Some people (and I hate them) think that users license software, instead of buying authorized copies, like they would buy a book. They say that title to the software never leaves the publisher. Ergo, when the computer was at Lenovo and Lenovo installed Windows on it, Lenovo didn't own a copy of that software either (Microsoft still owned it). So how did Lenovo legally do that? Why didn't Microsoft sue them for piracy? Maybe it's because there's a contract between Lenovo and Microsoft. And that contract says: if the end user doesn't want Windows, he gets a refund from Lenovo.

I think it's all bullshit, but such absurdities are the inevitable consequence of taking EULAs seriously. Microsoft and this user never met or did business in any way, so if there's somehow magically a contract between them, then something weird has to happen. Given that there's already something para-normal going on, it isn't any more of a stretch or leap of logic that Lenovo is involved too, especially since they did do business with both parties.

Re:Whole product...

[bws111]

And since he bought 'the software' in the form of an image on a disk in a laptop, that is how he should return it to the retailer, and they will refund his money.

Re:Whole product...

[Hurricane78]

Not it Germany at least. Here, all click-trough-licenses, or package-seal-licenses are without legal meaning and can be ignored.

Re:Whole product...

[Rocketship Underpant]

In my opinion, EULAs are BS. (I have too many reasons to list here.)

However, Microsoft and Lenovo are in the position of either admitting their EULA is false and non-binding, or else abiding by its terms and refunding the customer his money.

Re:Whole product...

[wigaloo]

I think that Lenovo is using an argument similar to what Apple uses to prevent Mac clones. Apple requires acceptance of a software EULA when you "install the software or set up the product". Apple sued clone-maker Psystar, who are now bankrupt. We discussed Open Tech's approach last year, but their Web site is now vacant. Maybe they moved it here, but this site does not have anything to say about OS X. So, it is not entirely clear to me that Lenovo can't win this argument -- Apple has been very successful with it -- even given that "...MS insists on having a separate EULA between it and you, [and] its product can't be considered an intrinsic part of Lenovo".

Re:Whole product...

[Hurricane78]

Or to be more exact: The contract on the Laptop is with you an Lenovo. The contract on Windows in between you an Microsoft. They are two different contracts. It's just that you pay for the Windows contract in advance to a third party. But the contract is still between *Microsoft* and you. And in this case, there is no contract at all. So Lenovo won't have to give any money to Microsoft, because logically, they would have to give it back to you. It was just a advance money *in case you take Windows*. Which he didn't.

So what it essentially means, is that it's like going to an ice cream stand asking for a ball of chocolate in a cone, you lay the money on the counter, he puts a ball of shit onto a cone, and wants to give it to you. You refuse. But he does refuse to give you the money back anyway.
Which is, as we now clearly see, nothing else than thievery trough a scam scheme, and perfectly illegal.

Re:Whole product...

[Phred T. Magnificent]

Exactly. If Microsoft makes that statement in the EULA for the OEM version of Vista, it stands to reason that there's a corresponding clause in the OEM contract that allowed Lenovo to distribute that version of Vista in the first place.

Re:Whole product...

[Frosty Piss]

If you do not accept them, do not use the software. Instead, return it to the retailer for a refund or credit. If you cannot obtain a refund there, contact Microsoft or the Microsoft affiliate serving your country for information about Microsofts(TM)s refund policies.

Two thoughts: Did he contact Microsoft as the instruction says to do if the retailer has an issue with the refund? As well, since the softare is installed, doesn't the stated policy require the return of the entire unit?

Re:Whole product...

[LordNimon]

If i buy a car, i can't yank out the back seats and require a refund from the car dealer.

If the back seats of the car are installed separately by the dealer, and there is a line item in the bill that lists a separate cost for the back seats, then you should expect the dealer to remove the car seats and lower your price if you ask.

Re:Whole product...

[tlhIngan]

While i applaud companies that refund the microsoft tax, i do sort of see where lenovo is coming from. If i buy a car, i can't yank out the back seats and require a refund from the car dealer. It is true i could sell those seats for a profit on ebay, the original dealer would not be required to refund me the cost of the seats. In fact, it could be assumed that you pay $2000 for the laptop hardware and they throw in windows for free.

Except, the car seats you're free to sell them on eBay, if the dealer refuses to take them back. Which is probably why the dealer may refuse, because any reasonable person would go and sell them.

With OEM versions of Windows, you cannot resell it. In fact, the OEM versions are tied to the hardware and cannot be installed on any other machine, even the same model. The license is only good for that one PC. That sticker on the case with the CD Key is a fake, too. If you try to activate Windows with it, you'll have to call Microsoft.

Re:Whole product...

[yodajones]

Agree. What is really necessary is a class action lawsuit that forces the computer manufacturers to "un-bundle" the operating system from the computer. At the very least they MUST offer an option, or set of options, in regards to the operating system during the purchase. Apple could be excluded from this since in fact they do make both the computer and operating system. Apple more fits your "car and seats" analogy. I believe that most major computer manufacturers could be held as accessories in Microsoft's monopoly anti-trust case since they are collaborating the situation by not offering a operating system choice to the buyer. Additionally, I have read reports of wide differences in the amount when in fact computer makers (Dell) do make a refund. Forcing the computer manufacturers to offer the consumer a choice of operating systems would expose the difference between the bundled cost and the retail cost. I am quite sure this would cause some serious concern. All computer manufacturers, and sellers, should offer three options: Windows, Linux and no operating system.

Re:Whole product...

[Just Some Guy]

But are EULAs binding?

In this case, they darn well should be. Microsoft is offering specific remedies if you are dissatisfied with their software. I can't imagine a judge would allow them to renege on their freely-made offer. That doesn't seem nearly as dubious as the idea that they can add extra restrictions to the purchaser after the sale.

Re:Whole product...

[jim_v2000]

You (conveniently?) left out part of the agreement:

"By using the software, you accept these terms. If you do not accept them, do not
use the software. Instead, contact the manufacturer or installer to determine their
return policy for a refund or credit."Link

It seems to me like the manufacturer could just say that their policy is no returns, like Lenovo is doing.

Re:Whole product...

[StormReaver]

Part of my CIS degree program required two semesters of business law, and I remember the liability lectures well. In the US, there is a chain of product liability that goes like this:

Company A make car windshields.
Company B makes cars, and buys its windshields from Company A.
Customer buys a car from Company B.

For whatever reason, a defect in the windshield causes Customer to incur a loss that can be recovered in court, so Customer wants to sue. Who does Customer sue?

A) Company A
B) Company B
C) No-one, as US law has left Customer to hang by the neck until dead.

Although most of you have instinctively chosen C, you're wrong. As are those of you who chose A. Customer did not buy from Company A, and so does not have standing to sue. Since Company B resells Company A's product, Company B assumes liability for defects. Company B has standing to sue Company A, and can do so to recover its losses for being sued over defects in the products it bought from Company A.

Obviously, this doesn't necessarily apply to this case since it's not in the US, but I suspect something similar to be true.

Re:Whole product...

[jim_v2000]

"Windows is resold by the guys who sell you your laptop; but it requires you to agree to a EULA, between you and Microsoft"

That's actually not true at all. The license is NOT between you and Microsoft. Here's the relevant snippet from the Vista Home Premium OEM license:

"These license terms are an agreement between you andÂthe device manufacturer that distributes the software with the device, or the software installer that distributes the software with the device."

Next time actually read the agreement instead of assuming that you know what it says.

Re:Whole product...

[jim_v2000]

"They then inform you that if you don't like these terms, you can CHOOSE TO RETURN THE BACK SEATS FOR A REFUND."

That's not actually in the OEM Windows agreement. It says that you can see what the manufacturer's return policy is, but nothing says that you will get a refund. That's up to the manufacturer. Take a look.

Re:Whole product...

[KingMotley]

The problem is that it isn't cost efficient to offer three options. At the very least, what should happen is that buyers of custom made computers should be forced to pay the full additional costs involved with handling, maintaining and supporting those custom machines (plus a sizable margin). Of course, even that wouldn't be enough because it diverts attention and energy away from the actual core of the business, so the margin would have to be significant enough to warrant diverting focus, and by the time all that is done and calculated, your "No OS"/"Linux" machine now costs $150 more per machine than the one mass produced with windows on it.

Demanding a choice is awesome, but it that doesn't mean it should be free. Pay the costs and incentives to get it, and manufacturers will be happy to oblige. Problem is you are demanding choice which costs manufacturers time, money, and focus and demanding a reduction in price (when the actual costs go way up).

Re:Whole product...

[cez]

You (conveniently?) left out part of the agreement: "By using the software, you accept these terms. If you do not accept them, do not use the software. Instead, contact the manufacturer or installer to determine their return policy for a refund or credit."

I think you are conveniently leaving out a part of the agreement... as in you will get a refund or a credit depending on their return policy, not that they do not have a return policy because as the EULA states you must return the software if you do not agree to it.

Re:Whole product...

[ArsonSmith]

sounds like lawyers getting together and writing law to require the most lawyers.

You could have 1 court case if you let the customer sue company A directly, but instead the customer has to sue company B and Company B then sues company A. In the end the lawyers win.

Re:Whole product...

[pentalive]

There are places to buy laptops without OS or with Linux pre-installed.

Re:Whole product...

[jopsen]

heh, so he never tried to contact microsoft or the microsoft affiliate? This is gonna be a short case.

I think the "microsoft affiliate" is Lenovo, which he did contact prior to suing them.

Re:Whole product...

[TheGratefulNet]

If i buy a car, i can't yank out the back seats and require a refund from the car dealer.

its MS who GIVES you that option, though! they FORCE a license on you and give you the option to decline.

this isn't an option at a car dealer. you have the legal right to buy pc hardware and NOT be bundle-forced to accept a buggy o/s that you never wanted or planned to use.

not at all the backseat or glovebox analogy. unless the car dealer also gives you options to delete X or Y for credit (they used to; too; you could 'delete the radio for credit' in the old days.)

Re:Whole product...

[jim_v2000]

It doesn't that you "will" get anything. It simply says to contact the manufacturer to see what they want to do. "No returns" is a valid return policy, and so is a policy that says "Return the whole computer".

Also, it doesn't say that you "must return the software", it says "do not use the software". You can install a different OS or use the machine as a paper weight as long as you aren't using Windows. There's nothing in the agreement that says you must return it.

Re:Whole product...

[iamwahoo2]

The way that the whole EULA thing has shaped up does not exactly present the US Law Schools in a positive light. I am not sure how anybody could come to the decision that it would be wise to allow for parties to retroactively apply contract terms that were not previously disclosed. How did this happen? How could the very simple idea of contracts that describe mutual agreement between parties get mutilated into a tool that mainly serves to enable dishonest sales practices? My guess is that many judges rule in favor of shrink-wrapped EULAs because they are so widely used, not because the law actually supports the way in which they are distributed.

My hope is that this MS license fiasco will serve as a lesson learned and demonstrate the pitfalls of non-disclosed contract terms to judges in the future. Maybe after seeing how this creates a three-way dispute where nobody can determine what was actually agreed upon some future judge will have a light come on upstairs.

Re:Whole product...

[mea37]

"Ship the PC back to us on your own dime, include a self-addressed stamped envelope for the paper refund check, allow six to eight weeks for the refund to arrive"

If the consumer protection laws in your area don't prohibit that behavior, and the company's normal return policy puts you on the hook for shipping and providing an SASE for them to send you a check, yes.

Of cousre, nobody actually does business that way, and if they did their only customers would be people who didn't read the return policy (which is frnakly their own fault IMO, but since opininos on that vary, that's why there are consumer protection laws).

"and pay your bank's check cashing fee"

Your bank charges you a fee to cash a check? You should get a better bank. Your failure to do so is not the fault of anyone trying to send you money.

"Then buy another of our PCs"

And why would the PC you purchase as a replacement come from them? Mine sure as hell wouldn't.

In short, you're trying to pretend that a company refunding your purchase price in some way wouldn't be sufficient remedy for a transaction in which you were not harmed but simply didn't like the product. Grow up.

Re:Whole product...

[Darby]

I'd say on principle that the best option is to leave them alone and let the market decide

This can't possibly work, or even be a sane suggestion under any circumstances.
We do not have anything even remotely approximating a free market, so that can not possibly work. It's not even anywhere within the bounds of sanity to make such an obviously worthless suggestion. Please take a look at the real world every once in a while and make a note of where your assumptions completely fail to reflect anything that could ever actually exist in the real world. It's the recipe for sanity.

We have a market whose rules were written by the major corporations Microsoft included, with the express intent of ensuring that our markets are incapable of functioning properly as we clearly see everywhere around us today.

Now, given the obvious fact that we do not have a functioning market and given that one of the major drivers behind this betrayal is the company under discussion how in the hell can you bring yourself to make such an obviously worthless, and rabidly, delusionally pro-corporate and anti-citizen statement. Do you really hate every other person in the world with such rabid intensity? Why? You couldn't actually mean what you said if that wasn't the case though.

It's a serious question. Assuming that you're not intentionally lying, how is it possible that you are capable of such incredibly naivety? It's like you've never in your life ever been on the planet Earth before. How else could you possibly be so out of touch with reality.

I mean do you have an explanation for how you could be so far out of touch with reality yet have thus far avoided drowning on your own spit? I mean, free markets can't ever possibly exist in the best of circumstances. That's an obvious fact. Approximating one will always be the best we could ever possibly do and our laws were written specifically for the purpose of keeping us as far as possible away from that theoretical ideal in order to tilt the playing field in the favor of Microsoft and other similar criminal organizations who despise free markets more than anything else in the world.

So, how is it that you think laws specifically written in order to prevent something somehow magically created exactly the thing they were designed to prevent and in fact isn't even possible anyhow?

Do you see how "free market" believers seem totally insane to anybody with any sense or knowledge or even basic common sense?

The fact that you get fucked as hard as everyone else by these sleazy criminal policies yet keep begging for more really makes demonstrates your unfitness to make any decisions that can possibly have any affect on another person ever. Please don't ever vote. You've proven that you are incapable or *really* unwilling to handle that responsibility and so your decisions premised totally on delusions you hold which aren't reflected in reality cause real harm to real people around you. Maybe one day you will actually wake up, grow up, and think through things at least a tiny bit before mindlessly repeating obviously false corporate propaganda. You'll be one hell of a lot less of a liability to decent people everywhere.

Re:Whole product...

[HiThere]

I see. And because he didn't choose to accept MS' EULA, he's bound by it??

Somehow that seems a bit of strange reasoning.

Re:Whole product...

[mvdwege]

The problem is that it isn't cost efficient to offer three options.

Neither is caring for the elderly. Yet we don't let them die in the streets.

Stupid analogy? Yes. But so is the argument of cost efficiency. Doing things right may cost more money, but that shouldn't give anyone a free pass to misbehave.

Mart

Re:Whole product...

[tepples]

Your bank charges you a fee to cash a check?

Mine doesn't. But this comment to a recent Slashdot story implied that in some European countries, checks are rare enough to impose a ridiculous processing fee.

Re:Whole product...

[Jim Hall]

What is it with almost every discussion about licenses and computers somehow has to come to a car analogy?

I think we need a "law" like Godwin's: first person to give a car analogy (in a thread having nothing do with cars) "loses" the discussion thread - no matter how artful your argument.

Re:Whole product...

[Maxo-Texas]

No.

It's the difference between reason and emotion.

Emotionally, I agree with you.

However, logic lead me to the conclusion in my post after my first emotional post.

America was founded on reason and did quite well with it for a long time. Mob Rule would not have done nearly so well.

I agree that the market isn't fair and corporations have probably passed the point where they benefit society however.

Re:Whole product...

[KingMotley]

Cost efficiency is part of running a business. Always doing the right thing is part of running a religion.

Re:Whole product...

[metaforest]

He who lights his taper at mine, receives light without darkening me.

Only if he is competent at lighting his taper!

Re:Whole product...

[metaforest]

You (conveniently?) left out part of the agreement:

"By using the software, you accept these terms. If you do not accept them, do not
use the software. Instead, contact the manufacturer or installer to determine their
return policy for a refund or credit."

I think you are conveniently leaving out a part of the agreement... as in you will get a refund or a credit depending on their return policy, not that they do not have a return policy because as the EULA states you must return the software if you do not agree to it.

You are conveniently misquoting the agreement.
It says nothing about returning the software. It tells you that if you do not accept the EULA, do not use the software.

It then redirects you to the manufacturer to work something out. Microsoft at that point conveniently washes their hands of the issue at that point.

Look this moron knew that the deal included a EULA for Windows. Was probably told he couldn't buy it without Windows. This is a tough deal, but you don't hand someone your money for a deal you don't want. You go make a deal you do want. Is he honestly going to stand up in court and say he was unaware that the EULA has terms he would refuse to accept? Did he not attempt to negotiate with Levenov for a OS free version of the machine? If he did and they refused his offer, then he should not have traded with them. Chasing this refund is stupid, since the refund value for a bulk license is probably pennies on the dollar. It's not itemized in the bill of sale. Levenov could simply say that the OS is complementary, and has no value in the sale.

Re:Whole product...

[metaforest]

You forgot the pr0n crowd:

Vista Watersport

Re:Whole product...

[Zumbs]

In Denmark, there is AFAIK exactly one place to buy a laptop without an OS installed, and that manufacturer has had significant problems with delivery of purchased laptops. And the feature is easily missed, if you don't know that the option is there.

Yeah, but not sure it's the same ....

[King_TJ]

Your car analogy works just fine, up to the point where I'm arguing that I'm owed a refund on parts of the computer HARDWARE I don't like or want to keep/use. (A refund because I dislike and don't use the touchpad? Same as complaining about back seats in a new car purchase, really.)

But THIS dispute pertains to the whole idea that a system manufacturer can pre-load another company's operating system SOFTWARE onto the computer (complete with legal agreements the end user has to click to accept as binding), and then tell you it was all really "one piece of equipment".

I don't think there's a fair comparison in the world of cars? But I guess if you wanted to force a car analogy to fit here, you'd be talking about something like buying a new Chevy, and the dealer including the "Complete Chevrolet Maintenance and Repair Guide" in the glovebox, and billing you an extra $125 or so for it on your invoice, as one of the line-item "features" on the vehicle. Would you think it was still reasonable to tell everyone to "Skip buying this Chevrolet, because it comes with this unnecessary repair guide!"? Or would you haggle with your salesperson to see if he/she could sell you the car without that book included?

Terrible analogy

[Anonymous Coward]

This is like buying a family sedan and saying you don't want the family they provided, as you've got your own.

It's a major part of the problem that Lenovo thinks they are selling me an operating system, and an even bigger problem that they think this is their "IP" and a value-add thing rather than just corrupt bundling.

Re:Terrible analogy

[Weeksauce]

I would say this is more like buying a family sedan and saying that you don't want the engine they provide. Essentailly your saying, I have my own engine I'm going to use, just ship me the shell with everything else.
The only part I agree with is the part in this specific contract where it say's if you want it, they will refund you the value. Other than that people need to stop complaning they can't get a large manufacturer's PC without paying for windows. The BUYER has the choice whether they want to buy a product or not, just as the seller has the right to decide whether they want to sell you a computer with an OS or not. Don't complain when you go to Ford demanding a car without an engine and expecting them to bow down to your needs, there's always kit cars.

not quite...

[Anonymous Coward]

There is not a EULA when starting OS X on a new machine which says 'if you do not agree, you may get a refund of OS X'.

Re:not quite...

[PitaBred]

Apple doesn't operate as a monopoly.

Re:apple tax ?

[onefriedrice]

It goes back to the whole "Microsoft is a monopoly" thing. Apple certainly is not a monopoly in the PC industry. Different rules apply.

EULA

[abigsmurf]

I know the EULA states you can get a refund if you don't agree to the terms however, that still doesn't mean Lenevo have to give you the laptop sans windows at a cheaper rate. They can simply say "you don't won't to pay for windows? Fine, send us the laptop and we'll refund what you paid for it".

Re:EULA

[DaMattster]

That would be a piss poor business decision on Lenovo's part to demand a refund for the entire unit. In doing so, they lose the entire sale. Wouldn't they be better off by simply refunding something like 100.00 and not losing the sale entirely? It's not like a car and an engine where the car company would endure a cost hardship by removing the engine. In this case the OS "engine," is being removed and replaced at the consumer's expense.

Re:EULA

[abigsmurf]

Laptops are an incredibly competitive market. May be better for them to take a handful of lost sales on the chin than risk a few thousand people asking for this kind of refund.

It's also possible that not installing the OS messes around with their production line but I suppose it depends on if Lenevo laptops are built to order or not.

Re:EULA

[ausekilis]

To me, even the pre-installation of Windows (or Mac, or Linux) for a flat charge on the laptop doesn't really make much sense. It isn't as though a Dell Inspiron Model X with Windows has inheritly different hardware then Dell Inspiron Model X with *nix. I consider purchasing a computer as purchasing the hardware itself + some assembly cost, much like buying a car. The only difference is that a computer isn't "usable" without an OS, that choice should be much like selecting custom paint for the car. If you want Windows version Y, then you pay some extra charge like "premium paint". If you want Linux, then you pay some smaller cost for some Dell monkey somewhere to create/install a Dell configured Ubuntu/RHEL/*BSD/whatever. The catch is they leave the choice to the consumer, and many computer manufacturers already do this. Why should an OS choice be any different than selecting a HD size or amount of RAM? Isn't that akin to a premium stereo or custom rims?

Then you have a base-price for just the hardware, and you can do whatever you want with it. If you have another Windows license lying around, then you can use that. If you want to install your own custom Linux, you're free to do that too.

Re:EULA

[aztektum]

Minus a 15% restock fee.

Re:EULA

[jopsen]

No, they can't... A this EULA is written by Microsoft and approved by the EU. When distributing Windows Lenovo is also subject to this EULA... At least that what he argues... Read the entire post... phk has got a pretty good point.

Re:EULA

[HeronBlademaster]

That's exactly how it should be - but as long as MS is giving discounts on OEM licenses for OEMs to avoid that, it's not going to happen. (Dell took a step in that direction, but not nearly close enough for it to matter.)

Re:EULA

[Carewolf]

No, they can't... A this EULA is written by Microsoft and approved by the EU

Nope. I don't know of any place in the EU where EULA are legal. It is only a few states in the US, and possible a few other countries that has sufficiently messed up contract law where EULAs mean anything.

Re:EULA

[jopsen]

Nope. I don't know of any place in the EU where EULA are legal. It is only a few states in the US, and possible a few other countries that has sufficiently messed up contract law where EULAs mean anything.

I'd agree that it's very questionable whether a lawsuit for breaking an EULA is valid... However, if you write an EULA or asks people to accept an EULA, and you then break the EULA, you won't look too bright... :)

Re:EULA

[Carewolf]

I'd agree that it's very questionable whether a lawsuit for breaking an EULA is valid... However, if you write an EULA or asks people to accept an EULA, and you then break the EULA, you won't look too bright... :)

True, but I don't think we really need more reasons to laugh Microsoft. The OEMs doesn't have a choice.

Btw, the default install of Windows in Lenova is pretty broken. I have the same machine and Vista Business as in this article. Several icons in the default installation doesn't work, and the second time the machine booted (the first was self-installation) the first thing I saw was a crash dialog for some third party application. So I don't need any more reasons to laugh at Lenovo either ;) The leftover they have from IBM is the still best hardware on the market, but it seems they are covering it in software poo.

True cost of windows?

[TinBromide]

I wouldn't be surprised if lenovo paid something low as in $5 per license of windows when everything was said and done, and then recouped the cost of the license with bloatware. This guy would be miffed to get a $5 check and microsoft would be miffed to have their B2B cost revealed to be a tiny tiny fraction of what they gut consumers for.

Re:True cost of windows?

[Rou7_beh]

This case has already been judged in France. You are acually entitled to the full retail price of all programs installed on your pc. Of course the refund policies never refund this much. You have to go to court to get it.

Re:True cost of windows?

[CodeBuster]

Microsoft would be miffed to have their B2B cost revealed to be a tiny tiny fraction of what they gut consumers for.

Except that almost nobody purchases Windows separately at full retail box price; They get it bundled with their new computer purchase instead. If the laptop was purchased at a retail outlet and not directly from the manufacturer then the consumer may never see an itemized list of components and their respective prices. So does it really matter if consumers find out how much Lenovo pays Microsoft for Windows? Perhaps it would if they offered the same laptops with a Linux variant installed, but does Lenovo even offer that from the factory? I think the answer must be "no" or else why wouldn't our intrepid dutchman have simply bought the Linux version instead?

Re:True cost of windows?

[Anonymous Coward]

I wouldn't be surprised if lenovo paid something low as in $5 per license of windows when everything was said and done, and then recouped the cost of the license with bloatware. This guy would be miffed to get a $5 check and microsoft would be miffed to have their B2B cost revealed to be a tiny tiny fraction of what they gut consumers for.

a don't think so!

The total of 311.85 euros of the overall purchase price of the notebook of 599 euros that Acer was forced to pay back was made up of 135.20 euros for Windows XP Home, 60 euros for Microsoft Works, 40.99 euros for PowerDVD, 38.66 euros for Norton Antivirus and 37 euros for NTI CD Maker. On top of that Acer had to pay a further 650 euros in, among other things, legal costs.
http://www.heise.de/english/newsticker/news/96581

Re:True cost of windows?

[abigsmurf]

I do have to wonder sometimes if judges sit back and look at their rulings and think, "wait... this is a bit stupid isn't it?". They're clearly being forced to make a massive loss on something priced like that.

Re:True cost of windows?

[jim_v2000]

You know where case precedent in France is good for? France. This wasn't in France.

Re:True cost of windows?

[zzsmirkzz]

Except that you aren't asking for a refund of what Lenovo paid microsoft for the license, you are asking for a refund of what you paid Lenovo for reselling the license. If you think for a minute that they aren't making a profit on every single piece of the machine, then I daresay you know not of how businesses are run.

Re:True cost of windows?

[Christian Smith]

$5 per license? You reckon? 20 years ago, when they were touting DOS for $5 per machine sold (whether it ran DOS or not) perhaps, but not now.

Vista Home Basic is $99 for the OEM version. You think the system builder has a 2000% markup? Probably not. Lenovo probably get a big discount on that $99, but not a >90% discount.

Re:True cost of windows?

[TheGratefulNet]

you are probably right that oem's pay a TINY fraction of the windows cost.

and neither party wants this info revealed.

hey lenovo, what's that info 'worth to you' ? you want to keep that secret, fine; pay the man retail cost of windows, then and stop complaining. you want to keep the price fixin' to yourself? pay the man 'that other number' that MS wants us to believe is the trust purchase price of windows. eat the diff. at least you keep your secret deals secret.

or, blow the secret once and for all. it will save us all time and wikileaks the effort ;)

Re:True cost of windows?

[Luminous Coward]

This case has already been judged in France. You are acually entitled to the full retail price of all programs installed on your pc. Of course the refund policies never refund this much. You have to go to court to get it.

Could you please provide a reference?

Re:True cost of windows?

[Ciggy]

I presume you've never heard of a loss leader then?

Re:Go PHK!

[ILongForDarkness]

First: the dude has to contact MS, if the retailer doesn't refund then they are supposed to work it out with MS directly. Not sure what MS does in that case, I'm guessing they have policies with the OEM and it becomes more of a "you honor the refund policy or we jack your license cost/stop selling to you".

Second: he probably will be upset when he gets the refund. The amount the suit is for (1000K ~ $140US) I was able to find a license of Vista Premium retail. OEM version would be more like $20-30 I'd expect: especially for a large customer like Lenovo. It kind of reminds me back in the day asking to remove a floppy drive from a computer as I already had a CD writer and secondary CD player in the system. The vendor offered a $5 discount for the system without the floppy. I said to hell with it I probably can get $5 worth of use out of the sucker (this was 98). The combination of the fact that the vendor gets stuff really cheaply and the hassle factor of doing custom systems means that you don't get much when you go non-standard.

Re:Go PHK!

[gr8_phk]

This is just fun.

Re:apple tax ?

[rainer_d]

This is true, but I guess Apple doesn't offer a refund in the EULA.
Is it just an urban legend that the EULA states that basically Windows can be given back for a refund?
Apple will surely not make that mistake.
If Lenovo would have wanted to sell their laptops as "systems" they would have had to ask MSFT for a Windows OEM version without that specific clause. Than, such a complaint as PHKs would be much more difficult to make in the first place.
I'm sure that's all legal somehow - but I'm equally sure it's not legal to declare one thing somewhere in a "contract" and later on say "oh, you know, we didn't really mean it to work like that".
PHK probably *did* print out the EULA and gave it to his lawyer before going to court with it. Something I doubt anybody from Lenovo has actually done.

Re:Why are company even doing this at all?

[Jiro]

Again: the reason that you can't demand a refund for the Goodyear tires on your car is that the car doesn't come with a piece of paper saying that you can return the Goodyear tires for a refund. If the car came with a statement that you could return the Goodyear tires for a refund, then it would be completely legitimate to demand one. It says you're entitled to the refund.

In Germany, Lenovo does refund... maybe

[Conley Index]

According to some story circulating the net ( http://forum.ubuntuusers.de/topic/wo-kaufe-ich-ein-notebook-mit-linux-13-herste/2/ ), the Lenovo hotline in Germany denies that it is possible, but if you talk to a certain person at Lenovo, you will get a refund of 30 Euros for your Windows license.

I have not tried myself, maybe for my next laptop...

P.T.Barnum had it right

[Brett Buck]

How did we ever get in this situation? Any history buffs wanna recount?

    No one ever went broke underestimating the intelligence of the American public.

Re:P.T.Barnum had it right

[qmaqdk]

    No one ever went broke underestimating the intelligence of the American public.

No, but it has been misunderestimated before.

Re:apple tax ?

[DaMattster]

[quote]By the same logic I could sue apple for the apple tax on the G5, the iMac, my iphone, ... it doesn't make sense at all and only in the EU could you see something like that :)[\quote]

That is quite a bit different. With Apple, the MacOS is essentially the engine that drives the platform. People purchase the Macintosh for the MacOS. Not everyone buys a PC for Windows. People buy it to run Linux, BSD, or Solaris.

Re:Why are company even doing this at all?

[guruevi]

With tires you can indeed do that. If you prefer eg. Yokohama tires instead of Goodyear and your Goodyear tires are new or have a certain amount of thread remaining they will refund you an amount of money depending on the amount of thread you have left.

To go with your car analogy, Windows is like an option you didn't ask for on a new car. If the dealer puts the option on and charges you for it anyway by either burying it under some other charges, increasing the price of the car or putting in a part that requires a lot of maintenance for 'free' (some chummy dealers actually do any or all of the above), you can still ask for a refund for that particular option since you a) didn't order it and b) don't want to be paying maintenance on that option.

Windows is an options that costs money and costs maintenance (malware, virus scanners and reinstalls), the laptop manufacturer doesn't get it for free nor does Windows come standard with the computer (since you have to agree to a separate EULA). However the manufacturers just bury it in the rest of the costs and give it for 'free'.

Choices

[mwoliver]

Guys, I have used FreeBSD for a decade on multiple machines, some running CURRENT, and thus have had the privilege of not only listening to PHK's reasoned discussions, but also engaging in such discussions with him. I also supported his paid development project a few years ago, so you can be sure that I am *not* an unbiased contributor to this article.

That said, I am pretty sure that PHK didn't just decide over coffee or beer to sue Lenovo without giving the matter serious thought, research and consideration. Certainly, what MS charges OEMs and distributors for licenses is far less than the retail price you or I would pay, so I don't personally think that money is the issue at all. I haven't asked him personally so can't say with authority, but I would imagine that this is more about OS choice (or none) during the configure/customize process when shopping online and opting out of a MS OS up-front rather than any monetary settlement. It's the principle of the issue, not the money. At least that's how I see it and how I would like to see the outcome. Give consumers a choice to opt out of a forced MS OS, even if there is no financial benefit.

Re:Choices

[Ruud Althuizen]

That should be an interesting one. Buy the laptop, get the software for free (in that respect). Return the laptop but keep the license for free because it didn't cost you anything when you bought the laptop. You can return the OS separately but not the laptop you say?

Re:apple tax ?

[po134]

well the thing is Microsoft doesn't distinguish between an OS bought retail in a shop and the one already on your computer, they both have the same EULA, apple should do the same, in fact they do:

IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE, DO NOT USE THE SOFTWARE. IF YOU DO NOT AGREE TO THE TERMS OF THE LICENSE, YOU MAY RETURN THE APPLE SOFTWARE TO THE PLACE WHERE YOU OBTAINED IT FOR A REFUND. IF THE APPLE SOFTWARE WAS ACCESSED ELECTRONICALLY, CLICK "DISAGREE/DECLINE". FOR APPLE SOFTWARE INCLUDED WITH YOUR PURCHASE OF HARDWARE, YOU MUST RETURN THE ENTIRE HARDWARE/SOFTWARE PACKAGE IN ORDER TO OBTAIN A REFUND.

I don't see the logic that "I don't want a part of what I bought" applied to microsoft just because it's a monopoly especially when the choice is not the problem, but the lack of refund (which the constructor choose to charge you for, it's part of the deal !).

I don't want to see this case become jurisprudence as it will only lead to lots of trouble in the computer industry when both big companies have policies in place to refund if needed :/

Especially...

[Rocketship Underpant]

Especially if the radio had an EULA you were presented with *after* you bought the car, and the car wouldn't drive unless the radio was working.

Re:Why are company even doing this at all?

[mcgrew]

The people with Ford SUVs with the Firestone tires that caused the SUVs to roll over were given refunds; actually, recalled for replacement. BSOD for real there, and the same reason people want BSD or Linux on their PC instead of Windows -- they consider Windows to be defective.

If I discover a loose knob on a TV set, I'm taking the TV back to the store for a refund.

Re:How Much?

[mcgrew]

I don't know, but I remember a slashdot story about Dell selling PCs with Linux installed, and iirc the otherwise identical machine cost MORE with Linux than the Windows version did.

Re:How Much?

[lordandmaker]

At our discount the Linux box was about £10 more than the Windows one on the same spec for a matter of weeks. Last time I looked they were identical in price.

Mod Parent Down

[mpapet]

The car analogy is awful and doesn't apply at all to the situation. This specific weakness (among a host of stupid assumptions) is a pet peeve of mine;

It is true i could sell those seats for a profit on ebay

1. Clearly the author doesn't know the ridiculous intricacies of reselling a Microsoft OS license on ebay.
2. Clearly the author doesn't understand the fundamental limits of the OS installer he would attempt to resell thus rendering it practically worthless.

I'll leave the blatant misuse of the term "profit" to another post.

Empty set

[tepples]

If the person is so gung-ho about not having to pay for Windows then he/she should have done ten minutes of research to find a manufacturer that isn't contractually obligated by Microsoft to include a Windows license.

Such research would consist of calling all PC retailers in town and determining that such manufacturers whose goods are sold in town are members of the empty set.

I'm still waiting

[silmarilwest]

for Apple to offer a refund for the copy of OS X sold with their hardware. I'd rather use FreeBSD.

Linux hardware can be more expensive

[tepples]

In the USA, some manufacturers charge extra for the "naked" PC. I've seen this with Dell, where the so-called open source version of their PC is actually priced higher thereby discouraging its purchase.

That's because ReactOS isn't ready for prime time, and other operating systems can't run drivers made for Windows. So a manufacturer of PCs designed to run Ubuntu has to include a more expensive network card that has a Linux driver, a more expensive video card that has a Linux driver, a more expensive printer that has a Linux driver, etc.

Re:Linux hardware can be more expensive

[Dog-Cow]

That's not really true at all. There is almost no hardware in a typical Dell that is not supported by Linux. I can't speak for BSD, but Dell doesn't bundle any version of BSD.

What drives down the cost for the Windows bundle is all the extra software included with the OEM image, such as trials for McAfee or Symantec AV products. Software publishers pay Dell to include those, so Dell charges consumers less in order to attract more business.

Re:Linux hardware can be more expensive

[tepples]

There is almost no hardware in a typical Dell that is not supported by Linux.

It used to be the winmodem; now it's the Wi-Fi card. Ndiswrapper works only with XP 32 drivers in 32-bit Linux and XP 64 drivers in 64-bit Linux. So if you have 64-bit Linux, and your Wi-Fi card maker provides drivers for only XP 32, Vista 32, and Vista 64, you're out of luck.

What drives down the cost for the Windows bundle is all the extra software included with the OEM image, such as trials for McAfee or Symantec AV products.

Then why can't Dell include trialware ported to Linux?

Re:Linux hardware can be more expensive

[HeronBlademaster]

Your argument would make sense, except that the Windows equivalent of the Linux laptop works just fine under Ubuntu, so obviously they don't need to change the hardware. (At least, that's the case with most every Dell I've ever used.)

Re:How Much?

[mountaineer76]

Not always true, I bought a Dell Mini 9 with Ubuntu from Dell in the UK a few months ago and it was £40 CHEAPER than the Windows version - plus I could spec it with 2GB memory which Microsofts licensing prevents Dell from doing with the Windows version (If I recall correctly).

Re:Why are company even doing this at all?

[Holistic Missile]

If I discover a loose knob on a TV set, I'm taking the TV back to the store for a refund.

It's been a little while since you bought a TV, hasn't it?

;-)

Re:Lenovo needs reality check

[Dog-Cow]

You don't have to agree to a EULA before using the stereo.

Removing Microsoft Tax doesn't just apply to Linux

[Ex-Linux-Fanboy]

As someone who uses Microsoft Windows as my primary OS, the issue of removing the "Microsoft Tax" just doesn't apply to people putting Linux on their laptop. It also applies to people, like myself, who prefer Windows XP over Vista, or people who want to make a "hackintosh" laptop.

The problem the Microsoft Tax is that Microsoft and computer companies choose which OS gets on people's computers, as opposed to consumers making this choice. I know a lot of people who think Linux is a type of tableware who were unhappy they had to get a new computer with Vista, even though XP has worked well enough for them and Vista ran like a slow pig on their computer.

Indeed, I'm glad I got a Linux laptop, because, while Linux didn't work for me, I was able to choose to put XP on the computer without having to pay for a copy of Vista I would never use.

Re:Lenovo needs reality check

[Hatta]

If you don't want Microsoft Windows then do not buy a computer that comes with Microsoft Windows pre-installed, it is as simple as that.

If you don't want to provide Microsoft refunds, do not sell a computer that contains a EULA saying you will provide refunds if the EULA is unacceptable.

Re:Lenovo needs reality check

[HeronBlademaster]

I understand your point, but you often don't have a choice when you're buying a laptop.

For example, when I bought my laptop, I chose some specs, and then looked at various manufacturers to find the cheapest price. No manufacturer sold a model with those specs without Windows preinstalled.

Dell was cheapest by a few hundred dollars, so I called them up to see if they'd sell me the model I wanted without an OS. Of course, I got some CSR in India who couldn't understand why in the world I'd want a computer with no operating system, no matter how simply I tried to explain it (even saying just "I already have one" didn't work).

I ended up just getting XP Home and living with it.

But you would have me "go buy from someone else", despite the fact that nobody else was selling a comparable laptop without an OS for that price?

It's not about "growing up", it's about being annoyed that in order to get the hardware I wanted, I had to get software I didn't want, and I didn't really have a choice.

I'm talking about laptops, here. I build my own desktops, and I obviously don't pay for Windows for those if I don't need to.

Re:How Much?

[houghi]

Pre-installed software is often the reason. e.g. if you get a "free" anti virus program, most likely the anti-virus company has payed the hardware manufacturer to put it on there. If e.g. Opera would pay money to get their browser on it, the price would be more even.

A second reason might be that no matter what, they still have to pay Microsoft and even more if they DON'T install it.

The first I know is true, the second is pure guessing.

What happens when you click "No, I do not agree"?

[HoldmyCauls]

If the computer ceases to function at that point, then Lenovo sold him a broken computer when once the EULA was declined.

I've never seen an answer to this, and halfway through the posts I still don't. Writing this from work, so I may COTFA later.

Re:What happens when you click "No, I do not agree

[otakuj462]

The option to turn down the EULA is not exposed through the UI at all. The only way to avoid agreeing to the EULA is to turn off the computer.

With Vista it's even better

[chainsaw1]

Certain OEM Vista versions includes a new clause in the EULA requiring the entire product (computer, etc.) to be returned. You cannot simply disagree with the EULA and ask to return the software. This is different from the EULA MS shows on their website, which is for off-the-shelf (unbundled) Vista. My gateway laptop came as such, discovered after about 60 minuets of discussion with Best Buy staff.

Re:With Vista it's even better

[david_thornley]

Which may not be legal in some jurisdictions. Apparently, Denmark has a law that says you can't force-bundle different products under certain circumstances. There's something to be said for that law.

Apple and MacOS

[_avs_007]

I wonder if the EU will force Apple to stop bundling OSX with Macs, similarly to how MS cannot bundle IE with the OS... What if I want to buy a cool Macbook Air, but don't want to pay for OSX, lol?

Why can't you sell it if not refunded

[schwit1]

It seems whatever law or license prohibits reselling it is void if Lenova/MS refuse to do a refund.

MSFT investor but I cheer PHK

[cbraescu1]

1.3% of my stock investment is in MSFT yet I cheer Poul-Henning Kamp and wish him to win. I believe Lenovo is screwing their customers with such tactics. As for Microsoft, the sooner they stop being predatory about their customer base (either directly or indirectly through their manufacturers such as Lenovo), the earlier they can concentrate on their software and SaaS. A win-win for everybody, in my opinion.

Re:Lenovo needs reality check

[KlaymenDK]

If you don't want Microsoft Windows then do not buy a computer that comes with Microsoft Windows pre-installed, it is as simple as that.

I understand your point, but you often don't have a choice when you're buying a laptop.

For example, when I bought my laptop, I chose some specs, and then looked at various manufacturers to find the cheapest price. No manufacturer sold a model with those specs without Windows preinstalled.

This is basically the exact thinking behind phk's actions, from before the purchase and up to the law suit. You can't get a high-powered computer without also paying for a Windows license, and in his case, being a FreeBSD developer, that amounts to a forced purchase from the main competitor.

Further, the Windows EULA is odd in that *Microsoft* is setting up an agreement between two *other* parties. One party has the right to decline the EULA, and the other party is legally bound to accept that.

Re:Shut up, you backward European...

[EsbenMoseHansen]

Are you really so totally uninformed about the world outside your own country?

Why the heck should any American care about Europe? You seem to think that the world should be interested in Europe like it is self evident, and honestly I see no reason to care at all. The Japanese make better stuff than you, the Chinese are cheaper than you, Israelis and Indians are smarter and the Mexicans make better food.

There's just no point to the old continent these days.

I'd say we should withdraw from NATO.

PS. Europe has a punishment system too. It's your bad TV and lousy music.

I disagree. Mexican food is not that great.

Re:Lenovo needs reality check

[jimicus]

If you don't want to provide Microsoft refunds, do not sell a computer that contains a EULA saying you will provide refunds if the EULA is unacceptable.

ICBW, but the last time I checked it just said "Contact your OEM for a refund". Didn't say anything about how the OEM is obliged to offer one.

Re:Lenovo needs reality check

[IRWolfie-]

and you usaully build your own laptop too?

Re:Lenovo needs reality check

[lintux]

Another difference is that the stereo wouldn't be even 1% of the price of the car instead of sometimes more than 10%.

Re:Lenovo needs reality check

[crbowman]

No, you miss the issue. If I buy a computer then I bought it and everything that comes on it. If Microsoft wants to impose conditions after the sale that's bullshit. However, for the sake of argument, lets assume that I agree to do things their way. *By their own terms* if I don't agree to the EULA I am entitled to a refund and I need only tell the original manufacturer. If the Manufacturer doesn't like that then they should take that up with Microsoft or stop selling the bundle. The people who need to grow up are the manufacturers. They knew the terms are there and if they thought it was going to be a problem or didn't like it they could have done something about it. It's too late for them to cry now and not follow through.

They'll come to their senses ...

[unity100]

when eu starts to fine them 500 k euro a day for not complying, like they did to microsoft.

Racism is a sin, and more...

[tjstork]

He's not being racist,

Ok. Let me first apologize if you are not a "God" type. I'm a right wing "God" guy and that's how I frame my universe. In doing so I say that however you frame your universe is your own damn business. I only give the warning because the framing that I communicate is useful to where I am coming from.

I do not see racism as some sort of a thing that a government program can cure or a generation or two from now will outgrow. The way I say things, racism is another tool of the evil to inspire the hearts of men to do terrible things and so I think that racism is a sort of temptation that that everyone has, or is. Humans have been racist since the beginning of time, and they always will be. Racism is simply a part of the human condition, like lust, or greed. It's not going to go away and the only socially realistic way to deal with it is not to approach it as something to be solved, like providing water to a village, but by giving people tools to deal with it when it occurs. It's almost like you have to say to yourself, every time, that you are not going to condemn or judge an entire people because of the actions of one man, generalize some because the actions of a few, and so on. You have to take each and every person for what they are, and actively hope that they can contribute, and furthermore, there is a certain amount of social spoils that must take place along racial lines, simply to check yourself. I've worked with plenty of liberal firms, that say they are not racist, but never employ a black guy, because, there is no one of skill to fit the bill, but then can turn around and send those jobs overseas.

Sure, white people were bad to blacks. But blacks were bad to blacks, and now are sometimes bad to whites. You could go in endless circles pointing fingers and generalities and the only thing that can really work, at least from my own dumb white christian perspective, is to take a deep breath, have some patience, and check your own hate, and probably should listen to local sports radio.

There's just way too much hate out there, and being angry because you are white and pissed off, or black and pissed off, that's not God talking, that's the Devil talking.

It may not be the Flying Spaghetti Monsters, or some sort of new age thing or some other thing like that, but that vision works for me. If something else works for you, that's cool too, but regardless of deity, you are going to have the impulse, emotionally, to hate and categorize based on race and if you don't admit that you have that capacity, you are doomed to do it.

Combating racism is not a government program or a capitalist product, but a personal discipline.

A misconception....

[janrinok]

Having read this and other posts in this thread I am amazed that some posters cannot understand the following:

The EULA is worded differently in different countries. It is no use quoting what is written in the American, Italian or Chinese version of the EULA - what is relevant is the Danish version.

Laws differ from country to country. Again, it is pointless to quote the law a country other than Denmark in trying to decide the most appropriate outcome for this case.

You can see this. I can see this. Why do some people believe that their little world is the only world that exists?

Different EULA

[catman]

The EULA for the Danish version of Vista Business says, " ... contact the supplier or installer for information about how to get a refund or a credit note. Could it be clearer?

Re:Lenovo needs reality check

[RockDoctor]

For example, when I bought my laptop, I chose some specs, and then looked at various manufacturers to find the cheapest price. No manufacturer sold a model with those specs without Windows preinstalled.

You obviously need to move to Serbia. A colleague was telling me last month that it's barely possible to buy a laptop there with an OS installed other than FreeDOS. As an additional service, most computing shops will provide you with a back-up copy of some other OS install disc for a nominal fee. . (I didn't bother to enquire what brand his laptop was - they're all identikits made in the same Chinese and Taiwanese factories.)
You don't want to move to Serbia? (Or Serbia won't allow you in.) Well, you're short of luck then.

Why include such term in the first place?

[Sunnz]

I always have wondered, why MS have included such term in their EULA in the first place? What good does it do to them? I don't think any other OS or software have anything like this.

Re:Lenovo needs reality check

[Carewolf]

Further, the Windows EULA is odd in that *Microsoft* is setting up an agreement between two *other* parties. One party has the right to decline the EULA, and the other party is legally bound to accept that.

Well, EULA's are invalid in Denmark, you are allowed to press accept without accepting it. It has been established in supreme court that you are allowed to do anything necessary to make your purchased product work without agreeing to anything more than what you agreed to before purchase, and that clicking a button on a screen is not legally binding. I guess it works the other way too, nothing you do with the EULA has any legal relevance what so ever. The EULA is fiction.

Re:What happens when you click "No, I do not agree

[sciencewhiz]

On my asus, when you decline the EULA, the computer turns off.

Re:Lenovo needs reality check

[rant64]

The OEM agreement that the PC and laptop manufacturers have with MS, otoh, is very real. As it stands now, they are simply required to ship their products with the OS installed and, not in the least, the manufacturer must also support the OS upto a period of 90 days. In return they receive the OEM discount.
That means that if the manufacturer decides to stick with Windows, then it will tailor the product so that it works with Windows. The development and testing that goes with creating a decent product that works with a specific OS is a major part of the business that must somehow be paid for. If a large part of Lenovo's customer base were refunded on the OS, they'd not only lose a lot of revenue but also incur the support issues, negative side-effects of hard/software incompatibily as well as risk losing Microsoft OEM status. Either way, the price of hardware would just go up.

That said, I reckon that going with an ever-evolving OS with a gazillion different flavors (maybe not BSD but Linux in general) would require quite a spine, not to mention love for human kind and a matching bank account.

Re:Lenovo needs reality check

[rant64]

Hell yeah.

Re:Lenovo needs reality check

[HeronBlademaster]

I think a move to Serbia would cost me more than just buying Windows licenses on the laptops I'm going to buy over the rest of my lifetime.

Re:Why are company even doing this at all?

[mcgrew]

Well, the TV I have now doesn't have any knobs, but most of the TVs I've bought had. Don't touch that dial! "I can't, there isn't any dial".

Re:Why are company even doing this at all?

[mcgrew]

I've had blowouts in previous cars at highway speed, and it was indeed frightening. In the car I have now I had a left front tire blow at 70 mph and it was no problem at all.

As to the Fords, in a lot of cases the tire would snag something, stopping the wheel's rotation entirely. At highway speeds it would be hard to impossible to prevent a spinout under those conditions. Combine a top heavy vehicle with the poor handling of an SUV and a rollover is almost guranteed if one wheel stops spinnning.