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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.'"
Better have a full refund and buy from someone else.
Case closed
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?
I wish him well on the lawsuit, but I won't hold my breath...
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.
AccountKiller
heh, so he never tried to contact microsoft or the microsoft affiliate? This is gonna be a short case.
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.
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.
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.
They are to Microsoft. And MS may have a contract with Lenovo that Lenovo has to honour that clause too.
AccountKiller
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'.
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...
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".
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.
Is it sad that I am more likely to recognize you and your posts by your sig than your name or UID?
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.
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...
No one ever went broke underestimating the intelligence of the American public.
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.
Mike O, KT2T
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.
As copyright owner of this comment, I authorize everyone to defeat any technological measure which limits access to it.
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.
Free Martian Whores!
for Apple to offer a refund for the copy of OS X sold with their hardware. I'd rather use FreeBSD.
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.
Give me Classic Slashdot or give me death!
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.
"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.
Don't take life so seriously. No one makes it out alive.
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.
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.
Don't fight for your country, if your country does not fight for you.
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.
Emacs: for people who just never know when to
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.
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?
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.
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.
"Good news, everyone!"
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.
Religion is regarded by the common people as true, by the wise as false, and by rulers as useful.
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.
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.
and you usaully build your own laptop too?