Yes sue them

Story: Like it or Not: It is a Windows WorldTotal Replies: 11
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Aug 20, 2010
5:27 PM EDT
Quoting:The EULA is a binding agreement like a contract, if I can get into trouble for breaking it so should they, right? Is it even worth my time to try and sue Asus to get my money back?

If the EULA is a binding contract then it si something that should be tested in court.

Aug 20, 2010
6:49 PM EDT
It has been tested already. Several people have gotten their money in small claims court, which is made for exactly these kinds of situations.

Aug 21, 2010
1:57 AM EDT
If that's the case, then this needs to be more widely known. I suspect taht if it's small claims court, and depending on the jurisdiction, that this is something that will have to be pursued each time, and doesn't necessarily set any presidents.

Aug 21, 2010
2:59 AM EDT
I don't know how small claims court works exactly, but I'd be surprised if you cannot point to other similar small claims cases when you are in small claims court yourself. Whether small claims court sets any precedent for big court cases, I don't know.

Aug 21, 2010
7:10 AM EDT
The EULA has been changed between XP and 7.

I'm not sure if XP refund cases can serve as a precedent (btw is president another word for precedent?)

Windows 7 EULA clearly states the return policy of the OEM might require you to 'return the entire system on which the software is installed' (while the XP OEM EULA didn't!)

As known (once I tried this ) most OEM's don't have a (public) return policy, and while some OEM's state you can return Windows others say they're not legally obliged to do so.

When I contacted the NMa (Dutch competition authority) about this, I didn't receive much reaction. Except I read somewhere they thought this should be handled by the EC / DG of competition instead, as it's a "pan-European" issue.

Now, the DG can't do much because there's no abuse of dominant market positions, as it's required for the tying party to have a market share of above 40%. None of the OEM's have such a market share.

So, to do anything about it, one would have to supply the contracts between MS / the OEM's to the DG so they can act, if anything illegal is in it. Of course, retrieving those 'top secret' documents without permission from the OEM's / Microsoft themselves would be almost infeasible in a legal way. OEM's would certainly say these documents contain trade secrets, as the price (and probably terms) they negotiate with Microsoft are secret, and they may suffer if their competitor knows what they're paying.

The most likely remedy would be reached if there are strong indications such documents with forbidden appointments between MS / OEM's exist. In such a case, the DG could "raid" the OEM's offices to find those documents. However, currently there are no strong indications, and the DG is still asking anyone who might have such indications to send those documents to them.

Moreover, an organization from Italy (ADUC) already filed a formal complaint with the EC against the issue, which proves the EC can't do anything about it at the moment.

A status quo is the result. Despite the clear language of the EULA, it would still be interesting to test it in court and find out if a judge agrees one has to return the whole system instead of "just Windows".

Aug 21, 2010
9:50 AM EDT
Quoting:(btw is president another word for precedent?)

I think it's lysdexia.

Aug 21, 2010
11:08 AM EDT

The Win7 return policy seems to be the same as the Vista policy. But if it's a clickwrap that you never see in print, hence never accept (because you immediately wiped Vista/7 for Linux), how can it be binding?

Aug 21, 2010
9:48 PM EDT
TA: What I thought, but you can never be sure if you're no native Aussie.

gus3: If I don't accept it to be binding, then why would I be eligible for a refund?

Aug 22, 2010
1:31 AM EDT
Keep in mind that a EULA from M$ that does not allow refunds (even if that is due to unilateral decisions by the hardware vendor), may just possibly violate the (most recent) settlement order with the US DoJ... which is still in effect, by the way...

In which case, you may be able to sue both the hardware vendor & M$ on unfair trade practices grounds. Most jurisdictions have some form of fair trade law. In small claims courts, decisions rarely set precedent, by the way. More often than not, they are presided over by lay-judges, not trained in law. Usually there is an automatic right of appeal from their decisions. But if the appeal is not taken in a specified time, it is often binding thereafter.

By the way, I'm a lawyer (licensed in my home state, but earning my living in another profession). Of course I can only render legal advice in my state... So for any jurisdictions other than my own, anything I've said is merely anecdotal...


Aug 22, 2010
1:30 PM EDT
Interesting JaseP!

BTW what's your home state?

Aug 22, 2010
5:33 PM EDT
"Take them to court" to me is a big joke. It takes time, money, and research, and all for what? This is something that should be enforced by ordinary consumer protection laws, instead of whoever is the most stubborn. Easier to just not buy the crud in the first place.

Aug 22, 2010
5:45 PM EDT
Quoting:This is something that should be enforced by ordinary consumer protection laws,

Yes it should, but apparently it isn't, so next best thing find a way to create a precedent in court, and use that as the big stick. To do that someone has to sue in the right court.

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