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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.'"
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.
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.
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?
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Actually, there is something similar that occurs in software, called "bit rot". The older a piece of software is, the more security vulnerabilities have likely been found in it, making it a bigger and bigger target so long as it is in continued use (obviously, now that Windows 9x's user base is about 3 dozen people, they're not much of a target anymore).
This is true of MacOS X, Linux and Windows. If you install a new copy of Fedora 8, you are going to have a ton more security patches to apply than a recent Fedora 12.
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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.
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.
Came here to see a car analogy, and only in the second post *walking away happy as a pig in mud*
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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.
First, I shouldn't even dignify your post with a response given the poor spelling and general lack of knowledge of the subject matter, but I'm bored. Second, here's how it looks in the US (I'm even more of a non-expert on non-US laws);
Actual:
$6--30. (from TFA) Copyright holder is also entitled to any profits derived from the violation (in general). In the case of someone using XP privately for themselves and deriving no profit beyond that, the profits would also likely be zero.
Statutory:
Only available if the copyright is registered with the copyright office.
$200 if it can be proved it was accidental at the discretion of the court.
$750--30,000 if it cannot be proved, but there is reasonable doubt at the discretion of the court.
Up to $150,000 per work if it can be proved to be willful. Source: 17 USC 504.
Punitive:
Not generally available. [1] It may be available if statutory damages are unavailable, or if the plaintiff elects to seek actual damages (plus profits derived). This is very rarely done in practice, and generally the punitive damages will equal the actual damages plus profits derived from the violation.
In the vast majority of cases, statutory damages far exceed actual or potential punitive damages.
[1] Leutwyler v. Royal Hashemite Court of Jordan, 184 F. Supp. 2d 303, 308
[2] http://library.findlaw.com/2005/Feb/10/172826.html#_edn14
P.S. IANAL.
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Take them to small claims court instead. They'll quickly learn that it's cheaper to provide a full refund than to pay someone to show up in small claims court.
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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."
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.
Here are six great options, ZaReason, Inc: Building Linux hardware so you don't have to
Here are six more: System 76 laptops
Did you even try to look? Most people do not even try.
The biggest mistake any consumer of PCs, laptops, towers, etc can make today is to buy any hardware from a vendor who does not understand and do Linux. This goes for all the big box stores and even Dell, they only pay a passing glance to Linux and do not really do it right, as experienced by Linux being buried down in their website and not prominently marketed on their main page from the start.
If you are foolish enough to purchase from anyone but a Linux hardware computer builder, you will be frustrated with needless vendor lock-in issues meant only to keep you a Microsoft Windows users, period.
Here is the rub, Every Linux PC can run Windows. Because of Vendor Lock-In, not every Windows PC can run Linux.
Even the most devout Windows / Microsoft FAN can NOT deny that simple fact!
Moral of story: Eventually a proprietary company will STOP supporting what you purchased attempting you to pay more for new equipment. Your only choice for that older, yet very useful, hardware is to KNOW you can run Linux (any distro, there are many). Even if you do not want to run Linux, by purchasing hardware that will, you will be in a position to donate that older hardware to non profits that will get Linux up and running and donate it to third world countries so children can learn.
There is NO downside to purchasing hardware from a Linux vendor. There are almost ALWAYS vendor lock-in hardware issues from any of the big box stores and anyone who only does Microsoft.
Use the two vendors ZaReason or System 76 above, you will be glad you did, and you will help out children in third world countries one day when you upgrade your hardware, as the hardware your purchased will run Linux.
The Apple Store.
If I could rearrange the keyboard, I'd put U and I together.
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.
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If I buy a new car, when I first put the key in the ignition, does a notice pop up saying: "you must agree to the terms of use of the engine before you can start it"?
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."
"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.
W..w..W - Willy Waterloo washes Warren Wiggins who is washing Waldo Woo.
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...
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.
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!