No More Fair-Price Refund For Declining XP EULA

mark0 writes "Getting a fair-price refund from Amazon or Asus after declining the Windows XP EULA appears to be a thing of the past. In contrast to reports from the US and the UK from earlier in the year, Amazon simply refuses and provides information to contact Microsoft. Asus is offering US$6. Despite being confronted with publicly available information about the real OEM price of Windows XP Home Edition being $US25-US$30, Asus replies, 'The refund price for the decline of the EULA is correct in it being US$6. This price unfortunately is not negotiable. I do apologize for any inconvenience this may have caused. Please be assured that it is not ASUS intentions to steer you away in any which way.'"

Comments

Old OS

[sopssa]

What, we are talking about XP here? It was released in 2001, 8 years ago. As much as I'd like to join for a good bash, 8 year old software that since then has got several new versions will lose its value over time. And you also have to remember that major manufacturers who sell millions of Windowses have got the licenses cheaper, hence the actual cost and the refund being a lot less than if you bought it yourself.

I dont except to get a same kind of refund value for my 15 year old SDTV either than I would get for my new HDTV.

Re:Old OS

[caseih]

Flawed analogy. And a very different issue. Your vehicle physically wears out, even just sitting there. Rubber gets brittle, hoses and belts crack, rust appears on all exposed metal parts. Normal use wears bearings, shafts, gears, cylinders, valves. Thus its value declines physically. Software is not like that at all. In fact, ASUS just sticks a sticker on and loads the software from a master. It's not like they take back your windows license and resell it as a "pre-owned" license. Rather they give you your $6 and then turn around and put a nice new version on a new computer and charge the full $45.

Re:Old OS

[sopssa]

Even if it's just that sticker and license you hold, it still contains the value. If you decline it, you are not legally allowed to use the software.

Also to begin with you are not required to buy a computer that comes with Windows. Or you can read the EULA online before buying it. Or ask to read it in store.

Windows XP has started to lose its value because the support is discontinued, so the "software doesn't get old during time" doesn't fully hold.

Re:Old OS

[value_added]

It was released in 2001, 8 years ago.

A fairer and more broadly accpeptable calculation of how old XP is would be to determine the date large OEMs stopped shipping PCs with XP installed.

Put another way, from a consumer's perspective, XP is as old as his new computer. From a corporate perspective (both the cubicle-worker and the IT folks), XP is as old as the date testing was finished and deployment was given the go ahead.

Re:Old OS

[Lord Byron II]

The problem isn't that the license isn't available pre-purchase, but that it isn't mentioned pre-purchase. A lot of this could be avoided if the laptops at Best Buy had little stickers on them that stated "The software on this computer is subject to an EULA that limits your rights. Ask a sales associate for a copy of the EULA prior to purchase."

Re:Old OS

[Anonymous Coward]

So what happens when its advertised as coming with $200 worth of software?
The MS EULA says you get a full refund and I bet the other software does too.

If they offer you $6 it would be false advertising.

Re:Old OS

[drinkypoo]

So, you think that if you were to buy something today (a couch, a table, a pair of pants) that was first marketed 15 years ago, that you should get a depreciated refund if you returned it?

Spam was first marketed more than fifteen years ago, and the price has gone up. I do not think that word means what you think it means. Either you want the word "sold" or you're way the hell off in left field. They're still shipping XP, so clearly it's a current product, and you should get the full value for it.

Re:Old OS

[MightyYar]

"The software on this computer is subject to an EULA that limits your rights. Ask a sales associate for a copy of the EULA prior to purchase."

I'd go a step further - I should not be able to complete the purchase without explicitly agreeing to the contract. If they sell me something without me first agreeing to additional terms, then I should just be constrained by the statutory license.

Re:Old OS

[BenoitRen]

You're talking about an OS that has gotten its third Service Pack only about a year ago and that still gets patches. To say it's 8 years old based on the release date of the release of its first iteration is misleading.

Re:Old OS

[mdwh2]

Putting the EULA on a website is irrelevant - it's still only presented to people after purchase.

By your logic, MS owe me a million dollars, because the EULA on my website says that's what MS agree to do if they sell me any software. It's no good telling me they weren't aware of the EULA, they should've read my website, or asked to read it when I bought it in the store...

Re:Old OS

[Grimbleton]

"What works for me had better work for all of you!"

Re:Old OS

[WCguru42]

Flawed analogy. And a very different issue. Your vehicle physically wears out, even just sitting there. Rubber gets brittle, hoses and belts crack, rust appears on all exposed metal parts. Normal use wears bearings, shafts, gears, cylinders, valves. Thus its value declines physically. Software is not like that at all. In fact, ASUS just sticks a sticker on and loads the software from a master. It's not like they take back your windows license and resell it as a "pre-owned" license. Rather they give you your $6 and then turn around and put a nice new version on a new computer and charge the full $45.

I'm sorry, but software does lose value over time. The value of Photoshop 2.0 is not equal to the value of photoshop CS3. Photoshop 2.0 isn't even worth it's original MSRP because more advanced packages have been developed. Going back to car analogies, if I maintain a 2000 Ford taurus to be at the exact condition it was when I bought it new it still won't be worth the price I paid for it back in 2000. Newer technology makes older technology less valuable.

Re:Old OS

[Anonymous Coward]

One small advantage to British / Australian law :- You can't "sign away" your rights. Thus the default consumer protection rights still bind the vendor - things like "fitness for purpose" etc.

EULA's are a joke, they're equivalent to a post-sale condition on the contract of sale - and if tested they would be found to be in breech of contact law - namely that you can't add clauses to a contract after the fact.
Put another way, they're an entrapment - they threaten to prevent you from using *your* legitimately purchased item if you do not agree to their terms - this is called coercion, and is another reason for EULA's to be invalid - that a contract agreed to under coercion is invalid.

If you read the EULA's closely, what they are asking you to agree to is to waive the default consumer protections enshrined in law. Along the lines of "don't expect this product to do anything useful, you're agreeing not to hold us responsible when it wastes your time repeatedly and/or breaks your hardware and/or deletes your data. Your license to run this software simply means we won't prosecute you for having it - you agree that you have paid for this and not an item fit for any particular purpose. We have your money now, in return for a promise and about $5 worth of plastic/paper. ha ha ha."

I believe that if software is a product, it should be held to the same standards as *everything* else that money can buy. Otherwise it's much more fair to pay for programming as a service, a model that OSS encourages. If you paid for it, then whoever you paid has an obligation to *have done* a competent job to construct what you paid for. MicroSoft to date has not done this - they have been the example of an apparently successful software engineering company that ignores all engineering practice and standards, and have largely succeeded by not having been called up on this. *Engineering* is, after all, much more expensive than getting technician-level people to just throw together something that sometimes works.

Markups

[Jiro]

Why should they be given the wholesale price anyway? The markup the consumer pays is evenly divided among all parts of the computer; if the consumer gets a refund on any particular part, he should get a refund with the post-markup price.

Re:Markups

[PhunkySchtuff]

Obviously he should get what he paid for it. Returning a component of the computer should work similarly.

Sorry, but your analogy does not hold water.

Say I purchase a laptop that's got an external optical drive bundled, it's part of the package and not a separate configure-to-order option. If this optical drive sells for $150 separately, then there's no way I can purchase this laptop and say "I don't need this drive, I want a refund on it" and get $150 back. It simply doesn't work like that.

Re:Markups

[baudbarf]

Imagine that, after buying the car, you turned the key to start the car and instead a lawyer popped out of the glove box holding out a contract insisting that you were not allowed to start the engine unless you signed it. That's not fair. You have to be permitted to decline that contract, and if the engine manufacturer refuses to let you use that engine as a result, they should buy it back from you.

Re:Markups

[darthflo]

Tying refers to bundling unrelated goods. You cannot use a modern computer without an operating system except perhaps as a space warmer. Most OEMs realize this and find bundling Windows exclusively gives them the best returns, so they stick to Windows. Let's not get into how Microsoft sweetens exclusivity with discounts, PR money and whatnot; fact is you need an operating system and most vendors stick to Windows as their only choice.

An engine is just as integral as an OS. Without it, both car and computer are mostly useless, but will still serve well as decorations or as places to store stuff in. The OS can be replaced by either different versions of the same family (e.g. Windows XP/Vista/7); the engine can relatively easily be replaced with a larger or smaller one from the same manufacturer. With some extra work (you might run into missing drivers, will require a new set of applications), the computer can run an entirely different OS (e.g. Linux, Mac OS). Same goes for the car -- go crazy with wheel-integrated electric motors or throw in actual foot pedals for each seat.

So we have that down to one response, and I don't know the answer. I'm guessing "Yes", even if it's only for accounting reasons or similar. Also, buying a car, the engine has extremely probably been used at least to drive it onto the lot, so some value would already be lost.

Re:Markups

[mysidia]

The logic that you can pick the price of an item out of a package is wrong. Do you think you should be able to buy a bundled package.. a complete computer from a vendor that was sold to you for $X price.. and return the Monitor or Keyboard, in exchange for a percentage of the price equivalent to the FMV of a monitor? (Even though the 'monitor' wasn't an option, and its price is built into the bundle)

The manufacturer doesn't have to allow return of only one piece of a bundled package for its fair value. In fact... the fair market value of each item in the package when all the items are added together, may meet or exceed the price you were charged for the package.

You can no more rent a hotel room, and after you check into your room... demand to return the kitchen (i.e. have them close or lock it up), for a 30% refund (since your hotel rental has 3 rooms in it, kitchen, bathroom, bed). The cost of that item is already incurred by the retailer, and the relationship to the price of the package may be complex. Parts of it may even be free or promotional.

In this case, however, the Windows EULA states that you are entitled to a refund if you refuse to accept. It doesn't provide for a restocking fee.

It would be a violation of the OEM EULA for a manufacturer to charge such a fee.. such a violation might imply that you are no longer bound by the agreement, if your response to not getting a refund is to use Windows, then it would seem that you are taking your self-help remedy in response for the retailer failing to follow the EULA, the EULA no longer properly applies to you, even if you click accept, due to the breach of the agreement by the other party.

Also, attempting to charge a restocking fee for refusing an unanticipated agreement, would probably result in litigation against the retailer, for deceptive/dishonest business practices.

However, the Windows EULA term also doesn't provide for separating Windows from the product. My impression of the term was always... if you don't accept, you can return the entire package that Windows was bundled with, for a refund.

The EULA doesn't guarantee you can return Windows alone, or that you can get a certain price for it.

Re:Markups

[Alex Belits]

...and since I do not accept the EULA in the first place, it does not matter what it says about anything -- including anything it says about not accepting EULA.

Piracy?

[girlintraining]

The refund price for the decline of the EULA is correct in it being US$6. This price unfortunately is not negotiable...

So when I download XP off TPB or a similar site, they're going to sue me for $6 in damages? Yeah. Right.

Re:Piracy?

[Shados]

ever heard of punitive damage? If you only ever have to pay exactly for what you did, and no putitive damage, when you g et caught, there would be no point NOT to do it.

Apparent invented story trolls ASUS

[MSTCrow5429]

This story has no link whatsoever to anything about ASUS. Of the two links on pricing, one is from June 15 2009, months before Windows 7 was released, while the other is an ancient article from fall 2006. How did this badly researched, apparent hoax of a story get to the frontpage?

Re:Apparent invented story trolls ASUS

[westlake]

How did this badly researched, apparent hoax of a story get to the frontpage?

The geek knowingly goes out and buys the dirt cheap mass market OEM Windows PC - which represents about 90%-95% of all consumer PC sales.

He will then demand a refund to punish the OEM, Microsoft, and the big box retailer for delivering the marketable and well-advertised Windows product and - not at all incidentally to his purpose - shave another few bucks off the price of his new Linux laptop.

This cheeky little scam costs everyone in the chain a little bit of time and money. It costs the independent Linux-friendly retailer a sale.

Re:Apparent invented story trolls ASUS

[MSTCrow5429]

This isn't about fact-checking, this is about the editors taking the time to RTFA.

Microsoft dumping to gain netbook marketshare?

[hattig]

If Asus are paying $6 for Windows XP OEM, then surely Microsoft is dumping their product on the market? Probably why they're including it in their netbooks in favour of Linux.

Dumping product? Convicted monopolist? I think that there's a good chance here that some netbook OS vendors have a case here to make an official complaint about anti-competitive predatory tactics by Microsoft.

Or the story is a load of rubbish.

Re:Microsoft dumping to gain netbook marketshare?

[Just Brew It!]

Umm... OEM copies of XP are still for sale; Microsoft only halted sales of the retail version. Furthermore, it is 8 years old only if you completely ignore Service Packs. A better yardstick would be the time since SP3 was released, which would make it less than 2 years old.

Shovelware makes $6 about right...

[ciggieposeur]

A WinXP system is never just WinXP, it's also a boat load of crapware that the crapware authors have paid the manufacturer to bundle in. So ASUS is actually right in their math:

Option 1: Keep XP. No change in price.

Option 2: Refund XP: +$50. Also refund crapware: -$44. Net refund to user: $6.

Re:Have to get that 2 Minutes Hate in.

[AliasMarlowe]

A day without 2 Minutes Hate is like a day without sunshine!

There is no #$@&% sunshine at this time of year where I live, you insensitive clod!

We make up for it with 30 consecutive 2-minutes hate in each and every hour :)

Major double standards

[Raisey-raison]

I love it that 'the obey the law no matter what' types go on and on about not pirating software and not infringing on copyright but when it's a big large corporation not giving you a refund, its different. When they short change you - very mysteriously its 'not stealing'. How very magical! I call it the 'Powerful corporations can never steal law'. How about we apply the same draconian penalties that we apply to copyright infringes to companies who don't issue refunds when the end users reject the UELA. How about we send them to jail as well?

Maybe as well if they claim that the cost of Windows XP is only $6 they need to show some evidence that they actually only paid $6 for it!

BTW the restocking fee is bulls###. They don't need to physically get back anything from you. They just invalidate the license. Besides here is quote from the EULA. Its says nothing about a restocking fee.
"YOU AGREE TO BE BOUND BY THE TERMS OF THIS EULA BY INSTALLING, COPYING, OR OTHERWISE USING THE SOFTWARE. IF YOU DO NOT AGREE, DO NOT INSTALL, COPY, OR USE THE SOFTWARE; YOU MAY RETURN IT TO YOUR PLACE OF PURCHASE FOR A FULL REFUND, IF APPLICABLE."

Re:Major double standards

[mister_playboy]

I absolutely agree with your point. People should be mad as hell about this bullshit double standard, but instead we have a bunch of folks apologizing for it.

Apparently, the money spent on corporate propaganda is money well spent.

Re:Might not be their intention

[interval1066]

Intention or not it should be illegal. If I refuse a product or service, I should not be compelled to pay for it anyway. Being forced to bay for something I don't want is simply wrong. Another excellent case for geeks like me who don't mind putting in the time to build their own rig, which I have always done. Of course, if I want a laptop, that strategy blows and I'm forced to pay the Microsoft tax anyway. I just pisses me off having to pay that money.

So tired of this

[leeosenton]

Why sit around and debate what the proper value of a refund is for a Windows license when you dont want it anyway? What happened to voting with your dollars? Do you want HP, Gateway, Toshiba, and Sony to sell Linux systems? Then buy a machine that comes with an "alternate" OS! I am typing this on my Dell Mini 9 netbook running Linux. I ordered it from them so I could cast a vote for alternate operating systems on new machines. I wiped the Dell Linux (old ubuntu w/ Dell launcher) and loaded UNR, but I wanted my vote to count. Yes, my desktop runs Windows and that is the right OS for the tasks that I do. Linux is the right OS for my little travel machine. I eventually chose another distro, but Dell sold a PC with Linux and got positive feedback from a customer. I actually liked the HP machine a little better, but wanted to support Linux by recording a sale, and I have no regrets. Canonical rewarded me with UNR 9.1 which is most excellent! So, want to thumb your nose at the big boys? Stop supporting them, there are many vendors out there with alternate choices. Vote with your Dollar!