MS doesn't force, it coerces
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| Author | Content |
|---|---|
| Sander_Marechal Feb 28, 2007 2:05 PM EDT |
Quoting:Now, the 'evidence' we got, that Microsoft forces OEM's to only sell desk/laptops with an OS, dates back from 2002. They're not allowed to do that. What they most likely do is offer further discounts on Windows to OEM's if they comply with certain things. Stuff like "$5 off all your Windows licences if you put 'We recommends Vista Home Premium' on all your ads and website pages", "$10 off Windows if you don't sell dual-boot machines", "$10 off Windows if you offer no OS besides Windows". And to top it off the per-unit price drops with higher volumes. Under such a construct it's very hard for Linux to get pre-installed. Assume that Dell offering Linux pre-installed as a second boot option adds $20 to each Windows license. Now assume Dell ships 10 million PC's per year. Thats $200M in added cost for Dell. Add to that Linux support (another $50M perhaps?). Linux of the end-user desktop would have to bring in at least $250M more in order to be profitable for Dell. |
| Scott_Ruecker Feb 28, 2007 5:20 PM EDT |
You hit the nail on the head I think sander. Someone in charge of a company like Dell, would be forced to make the same decision. I am not saying it is the correct one. Just the one I would make if I wanted to make money and had to have a deal with Microsoft in place. Their goal is to make the most money possible, for themselves and their stockholders. It is the goal of every company to make the most amount of money otherwise the person in charge gets replaced, quickly. This is the one "immovable object" in the way of getting Linux to be pre-installed on new computers from the big OEM's. |
| Aladdin_Sane Feb 28, 2007 8:24 PM EDT |
"Ouch!" (Grumble, grumble says the nail who's head was hit.) |
| Sander_Marechal Feb 28, 2007 10:15 PM EDT |
Oh, and here's the kicker: We want out desktops to be cheaper than the equivalent Windows PC. After all, Linux is free. That means that the price difference between Linux and Windows goes to the customer and the margin stays the same for Dell. Continuing the example from above, say that Deoll makes $50 pure profit off each PC sold. That means in order to break even on Linux desktops, Dell needs to sell $250M / $50 = 5 million Linux PC's. That's 33% market share. Alternatively, assume that we would be willing to pay the same for a (supported) Linux PC as a (supported) Windows PC. Profits on a Linux PC would rise to about $100 so Dell would need to sell 2.5M Linux PC's or 20% market share. In reality our market share is far lower, somewhere between 2%-5% is usually quoted. The Linux market share at Dell would be less since Linux folk are technical folk and many prefer to build their own boxes and have no use for Dell. I just grabbed the above numbers out of thin air but it's clear why Dell won't offer Linux PC's to end users. There are two factors that have a high impact on the numbers. (1) how much would Windows become more expensive for Dell and (2) How much of the Windows OEM license price goes into Dell's pocket and how much into the Linux user's pocket. |
| number6x Mar 01, 2007 8:21 AM EDT |
Many years ago margarine sold in the US was white. It used to come with a little yellow packet of food coloring that you could mix into it to make it look more like butter. Oleomargarine. Why couldn't the margarine maker just mix the color in at the time they made the margarine? It was illegal! The powerful dairy interests lobbied for laws that would not allow margarine to look like butter, and also had extra taxes imposed on margarine. In the end it was all wasted effort, but it did hurt 'innovation' for many decades. |
| jimf Mar 01, 2007 9:39 AM EDT |
> Many years ago margarine sold in the US was white. Oww... Long time ago. Is that a personal memory number6x :) |
| henke54 Mar 01, 2007 10:14 AM EDT |
>MS doesn't force, it coerces http://www.theinquirer.net/default.aspx?article=37568 ;-P |
| number6x Mar 01, 2007 11:50 AM EDT |
I'm old but not that old. |
| jimf Mar 01, 2007 12:04 PM EDT |
I remember my Mother telling me that :) |
| Bob_Robertson Mar 01, 2007 4:21 PM EDT |
Using market leverage is not coercion. It's enforcement of _contract_. Under various contracts, Microsoft can sell their products at different prices to different parties. Some of that "price" might be sole-source provisions, advertising concessions (stickers with Made for Windows or whatever), support for software sold even if it's not their software, etc. Just because you, or I, would consider that reprehensible, doesn't make it coercion. Coercion is, like in the example above, using the FORCE of law to cripple competition. A contract only applies to the people who voluntarily agree to the contract. Law is a unilateral contract enforced on other parties with the barell of a gun. |
| swbrown Mar 01, 2007 8:54 PM EDT |
> Coercion is, like in the example above, using the FORCE of law to cripple competition. So that'd apply to their current patent threats, right? |
| Sander_Marechal Mar 01, 2007 10:22 PM EDT |
Quoting:A contract only applies to the people who voluntarily agree to the contract. And that is the *exact* reason why the MS OEM contracts should be illegal. OEM do *not* voluntarily agree to the OEM contracts. Because of Microsoft's monopoly position an OEM that doesn't sign the OEM license is pretty much out-of-business overnight. Linux simply doesn't sell enough to switch to an MS-free OEM model in the mainstream PC market (it can work in niches though). It's abuse of monopoly power and Microsoft should be punished for it. Unfortunately MS is very good at sidestepping the issue. Both the US DoJ and the EU focus on other aspects of the monopoly abuse (which are probably easier to prove). It wouldn't surprise me if MS intentionally focusses on these other aspects of their abuse to protect their OEM license. I'll bet that their OEM licensing is a bigger revenue driver than the MS-Office lock-in. |
| Bob_Robertson Mar 02, 2007 3:55 AM EDT |
"So that'd apply to their current patent threats, right?" Yep. The "government grant of monopoly" on an idea is no different, in function, than a monopoly grant on supply of olive oil. It crushes competition and prevents innovation by protecting vested interests. "And that is the *exact* reason why the MS OEM contracts should be illegal." Just because _you_ do not like the contract does not mean you get to make it illegal. What's next? Size of car? Number of children? You, as a consumer, have an absolute power to not buy their product. Compare that to a real monopoly where, if you refuse to pay, there will be a knock on your door and men with guns will take you away in chains to get the money from you anyway. "It's abuse of monopoly power" A private company cannot "abuse" monopoly power, because it does not possess monopoly power. A monopoly must be able to _compel_ use, Microsoft does not. They cannot prevent white-box sales, they cannot prevent use of other OSs, they cannot prevent you from never using a Microsoft product. Only government can do that. Microsoft is in the fight of its life against F/OSS software. Its only two money making franchises, Windows and Office, are now commodities. I'm not surprised that the organism is trying anything and everything to survive, why are you? The US DOJ applied leverage until Microsoft's campaign contributions rose to something acceptable to their political masters. Then the leverage went away. No different than any other extortion racket. So don't expect any help from that quarter. If the government were serious about busting the "monopoly" of Microsoft, they would have simply stopped buying Microsoft's products. But no, all they really wanted was some of Bills cash. "Nice software company you have here, Bill. Be a shame if something were to happen to it." |
| bigg Mar 02, 2007 5:05 AM EDT |
> A private company cannot "abuse" monopoly power, because it does not possess monopoly power. Most members of the economics profession would disagree with you there. > A monopoly must be able to _compel_ use, Microsoft does not. Microsoft limits choices and causes consumers to pay more than they otherwise would have to pay. That is the problem with a monopoly. A company with a monopoly on AIDS drugs can force you to pay a lot to save your life. Obviously you have the right to choose to die. That's not really the point. > They cannot prevent white-box sales, they cannot prevent use of other OSs, they cannot prevent you from never using a Microsoft product. Only government can do that. They can make it costly for you, though. You are referring to possibilities. What economists and antitrust law are concerned with is hurting consumers. |
| purplewizard Mar 02, 2007 5:46 AM EDT |
Talk of contracts is interesting. It makes me think of the Unfair Terms in Consumer Contracts Regulations 1999 in Europe (and a similar named item under UK law). Of particular note is:
Regulation 5(1), A contractual term that has not been individually negotiated shall be regarded as unfair if, ... snip ..., it causes a significant imbalance in the parties' rights and obligations under the contract, to the detriment of the consumer The companies installing Windows can avail them selves of it as can we buying from the PC makes. I don't know how the interactions form with what is in affect the passing on of the rights contained within the license. |
| Bob_Robertson Mar 02, 2007 6:05 AM EDT |
"Most members of the economics profession would disagree with you there." Man, Economy and State, Chapter 10, Monopoly and Competition: http://www.mises.org/rothbard/mes/chap10a.asp That's not to say I don't agree with you completely, that Microsoft's actions are self-centered, predatory, destructive and evil. That is why I am disgusted that Microsoft continues to be able to sell their shoddy products in vast quantities to governments at all levels. I resent my money being given to Microsoft. But what I will ask you to do is show me how Microsoft has harmed _you_. Not "consumers". Demonstrate deliberate harm on their part to you, in court, and receive compensation. "...to the detriment of the consumer" Which, unfortunately, is completely subjective. Which means that if the offending party has the money to buy the politicians, by direct means or just "campaign contributions", they don't get punished. That's why such regulations are a sham. They sound oh so good on paper, they get the politicians re-elected for "doing something", and all it does in real terms is set a precedence of violation of private contract that leads, always, to more and more intrusion into what people may and may not do in a voluntary and cooperative agreement. Education is the key. Don't sign a contract you don't understand. Arbitration and precedence will make absurd and unknowable terms, such as "fine print", unenforcible. The fact that Microsoft has been able to weasel their way out of paying their promised _refund_ is, to me, very clear grounds for a massive and punitive class action lawsuit. But that's just my opinion, and so far it seems that the "class" of people "harmed" by the Microsoft tax is actually very small, because such a suit has failed to occur in almost two decades of "preinstallation". |
| Sander_Marechal Mar 02, 2007 6:45 AM EDT |
Bob, you and I are atlking about very different paths. You are talking about taking up MS as an individual and getting compensation. I am talking about the anti-trust regulators. An OEM must sell Windows or go out of (mainstream) business. Therefore the OEM will have to sign pretty much whatever MS dictates to them (within limits set by the US DoJ*) in order to stay in business. MS dictates them terms that limit the competition severely. That's abuse of monopoly power and thus a case for the anti-trust regulators. The this is that so far, other aspects of the MS monopoly have been easier to prove in court (e.g. bundling) so MS has been effective at sidestepping the OEM license issue in court. I think it's about time that changed. * The US DoJ rules are faily lax. MS can't say "Offering other OS'es is not allowed" but is allowed to say "Offering other OS'es ups he price for Windows by $15 a copy". |
| bigg Mar 02, 2007 7:14 AM EDT |
> The US DoJ rules are faily lax. MS can't say "Offering other OS'es is not allowed" but is allowed to say "Offering other OS'es ups he price for Windows by $15 a copy". Are you sure about that? That goes against what I remember about the outcome of the case. |
| purplewizard Mar 02, 2007 7:32 AM EDT |
Bob the legislation I quoted is about the fact for example Microsoft restricts using Vista in a virtual machine. I haven't had opportunity to negotiate with them about that nor have I got equal negotiating power to sway them to allow me. I need an operating system and the only operating system (perhaps the other software I need to run is for Vista) I can have that runs it is that. So I (the consumer, the legislation says consumer as a template for you to place yourself in the shoes as that consumer) use the Act to enable me to get a change for me to use it. The virtualisation isn't so great an example probably as more expensive versions of Vista allow it. Other examples might be the limited install even if I replace my machine or components enough to have to have another version. Having to buy another copy when my existing one isn't worn out is a detriment. The key is that I have no power to negotiate, which is what is considered to make it unfair. |
| purplewizard Mar 02, 2007 7:35 AM EDT |
Sander I mentioned the unfair contracts regulation for just the sort of dominant negotiating position when it comes to contracts that you describe "An OEM must sell Windows or go out of (mainstream) business", so yes there are avenues that a regulator can examine (the competition laws) but the OEMs have a position to fight terms and conditions too. |
| Bob_Robertson Mar 02, 2007 10:16 AM EDT |
"the legislation I quoted is about the fact for example Microsoft restricts using Vista in a virtual machine." It's their product. They can restrict it any way they want. "We" enforce the GPL. I don't see any difference what so ever. The beauty of it is, if you don't like the restrictions that Microsoft puts on its product, then don't use it. "Microsoft limits choices and causes consumers to pay more than they otherwise would have to pay." Ah. Somehow, my choice has never been limited. I just don't buy from people who only supply Microsoft products. I think this is because I don't consider the hardware and software separately, when they are supplied as a package, any more than I object to AC-Delco radios being in a Ford when I buy it, even if I would _NEVER_ buy such a piece of crap radio if they were offered separately. I also don't object to paying more for Perelli Tires than I would for Cheng Shin. If the store doesn't carry Perelli because of some contractual obligation with Cheng Shin, I go to a different store. But let's get back to the "refund" issue, shall we? The fact that Microsoft does not honor the express terms of its license agreement is something I, and everyone else here, can agree is reprehensible behavior. It has nothing to do with law, or country, or super-state, it has to do with a voluntary contract that is being violated by one of its signers. |
| bigg Mar 02, 2007 10:30 AM EDT |
> It's their product. They can restrict it any way they want. Sort of. Unless they happen to be a monopoly. Perhaps you mean that in your opinion there should be no legislation regarding monopoly. Unless they can justify the restriction, other than making it more difficult for consumers to use other operating systems, their behavior is illegal. > The beauty of it is, if you don't like the restrictions that Microsoft puts on its product, then don't use it. You are not a believer in mainstream US economics. Unfortunately we do not live in a world of perfect competition. If a bully is stealing lunch money from nerds, the teacher could say the nerds can choose not to give him the money, but it is difficult to justify why they should have to take a beating rather than having the teacher step in. It is safe to say that you have a strong view of the world. It is also safe to say that we disagree about protection of consumers. |
| Bob_Robertson Mar 02, 2007 1:02 PM EDT |
"You are not a believer in mainstream US economics." Correct. I do not believe that the proported ends justify the chosen means; that might makes right; or that printing money can magically create wealth. To then tell me that there is no perfect competition is an error, because the Keynsian economic policies that make up "mainstream" American economics _DO_ rely on just such theories as "perfect competition". That bogus theory is what the prosecutions for "monopolistic" practices is based upon. Your example of bullies is also in error, because Microsoft cannot compel (beat up) anyone to use or pay for their products. If you cannot keep clear what is and is not "mainstream" economics yourself, how can you accuse me of not believing in them? You and I do not disagree about protection of consumers. Show me someone -harmed-, and I will be right their fighting for their rights. For instance, the inability to receive a refund for software not used. But the ends do not justify the means, and I will not rationalize violating the right of private contract for everyone just because I think Microsoft charges too much for their software. The problem being that "consumers" are not harmed by competition, and only government can prevent competition. Please note that the US government is still one of the largest Microsoft customers. If the "monopoly" prosecution were not a sham, then stopping buying their products would have been government policy change #1. |
| bigg Mar 02, 2007 2:50 PM EDT |
> If you cannot keep clear what is and is not "mainstream" economics yourself, how can you accuse me of not believing in them? I consider our discussion closed. You write >the Keynsian economic policies that make up "mainstream" American economics _DO_ rely on just such theories as "perfect competition". That bogus theory is what the prosecutions for "monopolistic" practices is based upon. Keynesian economics and antitrust economics are completely different issues. One is macroeconomics and one is microeconomics. It's not even worth starting a debate with someone who thinks antitrust economics is built on Keynesian economics, or that Keynesian economics is built on an assumption of perfect competition. You saw a few of these words in a conservative newsletter once and now you want to explain to the rest of the world that monopoly is a good thing? |
| Sander_Marechal Mar 02, 2007 3:19 PM EDT |
Quoting:Your example of bullies is also in error, because Microsoft cannot compel (beat up) anyone to use or pay for their products. But it can beat up the OEM if it dares to sell anything but Windows, which is the point of this thread. It's not about you (the individual consumer) being forced into Windows. It's about the OEM's being forced into Windows. |
| Bob_Robertson Mar 02, 2007 3:43 PM EDT |
Then let the OEM bring the suit. I keep being told that "consumers" are being coerced, but now it's the OEM? Gosh, I wish people would just pick one. The fact that the story keeps changing means, maybe, the issue is much more complex than that someone is being a bully. "One is macroeconomics and one is microeconomics." That is a Keynsian distinction. As far as I am concerned, there is only "economics". "You saw a few of these words in a conservative newsletter once..." That's an awful lot coming from someone who had already said, "I consider our discussion closed." No, I didn't see things in a "conservative" newsletter. "Conservatives" are as messed up as socialists, they try desperately to use mathematics to describe what is unmathematical: Human Preference. If you would like to do some investigation on the subject, I can suggest such tomes as, _How Capitalism Saved America_ by Thomas DiLorenzo, _Human Action_ by Ludwig von Mises, _Man, Economy and State_ by Murray Rothbard. The latter two are available online, gratis, at http://www.mises.org The only reason that Keynsianism is "mainstream" is because his absurdities are easy to use to justify government intervention. Therefore, governments like Keynes, government schools teach Keynes. Too bad his processes don't withstand the test of time. |
| Sander_Marechal Mar 02, 2007 4:45 PM EDT |
Quoting:I keep being told that "consumers" are being coerced, but now it's the OEM? It's the OEM's all along in this discussion. Read back the thread. MS coerces the OEMs. The result being that consumers have a hard time buying something that isn't a Windows PC. |
| Bob_Robertson Mar 04, 2007 7:59 AM EDT |
Ah, yes, "this" thread as opposed to "other" threads. Please forgive me, the "Microsoft is illegal" threads tend to blend. No argument that Microsoft is hostile, nasty, avaricious, and deserves to have their business model fail spectacularly. I just don't see "monopoly" in anything but mind-share. |
| purplewizard Mar 04, 2007 9:38 AM EDT |
Bob what is 95% or so share of a business market. Regardless of if you agree or not that represents a monopoly. That is also regardless of if you consider abuse of monopoly a bad thing a monopoly. And as you say Microsoft are " hostile, nasty, avaricious..." it seems difficult to reconcile your comments and position on the monopoly as it is the monopoly power that allows them to behave that way. |
| Bob_Robertson Mar 04, 2007 11:53 AM EDT |
"what is 95% or so share of a business market[?]" Excellent marketing. "Regardless of if you agree or not that represents a monopoly." False. A monopoly means they can prevent competition. Microsoft cannot do so, by any means but through voluntary contracts. Voluntary contracts is not compulsion. "...as it is the monopoly power that allows them to behave that way." Hahahahahaha! Oh, I see. Because I disagree with them, because I think they are doing something _wrong_, therefore somehow they have to be doing something illegal. I do not equate _wrong_ with _illegal_. |
| jimf Mar 04, 2007 1:50 PM EDT |
> I do not equate _wrong_ with _illegal_. Absolutely correct. And ragging on about how things 'should be' doesn't make it any less legal. We're always going on in the Linux community about how it's about 'user choice', but when people are aware of the 'choices' and continue to 'choose' the MS abuse, we rant about 'wrong' they are. The truth is that if people 'choose' to buy into the MS market hype, and run MS's inferior products, we may think their choice is stupid (I certainly do), and we may not have much respect for their rationality, but the rants are useless at best and usually just alienate the people we are trying to reach. Corporate America has done a great job in training most of the population to be good little consumers. Brainwashing is a hard thing to break. We can continue to educate and promote free software, but in the end, it may be MS marketing, and the unthinking gullibility of the consumer that defeats us. And again, none of this is illegal. |
| Sander_Marechal Mar 04, 2007 2:48 PM EDT |
Quoting:A monopoly means they can prevent competition And Microsoft does. They can't prevent it 100%, but they can (and do) prevent a big chunk of it. |
| Bob_Robertson Mar 04, 2007 3:19 PM EDT |
"And Microsoft does." Not once has anyone from Microsoft prevented me from visiting their competition. |
| Sander_Marechal Mar 04, 2007 9:55 PM EDT |
There's a difference between you as the individual and consumers as a group in general. |
| purplewizard Mar 05, 2007 2:27 AM EDT |
False
"A monopoly means they can prevent competition."
- a monopoly can exist it doesn't have to be abused, it doesn't have to be able to be used abusively it can just exist. Speech exists I don't have to speak or even be able to speak I just can. I don't recall ever having said if something is wrong it is illegal or that if it is illegal it is wrong. Even using a dominant position doesn't have to be wrong, we put the police in a dominant position and generally (at least in my country) the use of their powers doesn't constitute a wrong. However I think multiple court cases lost by Microsoft have enough evidence to show that they have both abused their monopoly and dominant market position (I accept liberal use of monopoly in loose substitution of dominant market position was too loose). On the refunds I think it was asserted earlier that a contract between parties should be able to contain what ever between them they wish. On two examples, first the XP EULA says return it to your seller for a full refund. It doesn't actually represent an agreement with the seller with the buyer that they will. I think there are cases in some countries that made court that perhaps I should look over. Second the Vista license says in addition if the retailer won't pay ask us (Microsoft) and refers to its nation by nation guides on it. It again makes no commitment to refund, just suggests it might depending on regional policy. Which in the UK would really only leave you with the statutory protection which entitles you to exchange in the event for defects or not being fit for purpose. There is no right to return something you buy just because you don't want it. So on the angle of Microsoft aren't doing anything wrong in leveraging their market dominance nor are they in not honoring refunds, because they don't have any obligation to do so, there is nothing to honour. |
| bigg Mar 05, 2007 6:03 AM EDT |
> There is no right to return something you buy just because you don't want it. I should point out that I have read (in print, no link, a long time ago - take it for what it's worth) the story of why the refund clause exists. Microsoft inserted the refund clause not to be nice to customers, but rather to protect themselves. When you buy a computer at a retail outlet, you do not agree to the EULA before making a purchase. You cannot sell something, then the next day call up the customer and say, "Oh by the way, here are the restrictions on the product you purchased". Under the current system, you enter into an agreement with Microsoft when you use the computer the first time, and Microsoft is saying "you can opt out without a penalty". Otherwise the consumer is under no obligation to follow a list of restrictions that they did not agree to when making the purchase. They could not, for instance, simply say "You can choose not to use the software if you don't like these rules" because they have already purchased Windows. To avoid any potential problems, they included the clause, knowing full well that very few individuals would take advantage of it. If that is the case (again, I have no idea of its accuracy and little interest in pursuing it further), then they do have to provide the option of a refund. |
| Bob_Robertson Mar 05, 2007 8:43 AM EDT |
"If that is the case, then they do have to provide the option of a refund." It is the case. They are asking me to agree to a contract with them, after which I can use their product. Since they do not have a monopoly, they cannot force you to pay for something you do not want and will not use. Microsoft could also have gotten around this, I think, by not charging for Windows. I cannot go to AOL and say, "I do not want your product, give me a refund", because they did not charge me for the AOL software that came preinstalled. The "I didn't sign anything when I bought it" is also one of the sticking points for "shrink wrap licenses". Since I've signed nothing, and yet bought the product, I cannot be held to the supposed restrictions placed upon the product by simply opening the package. That is why Microsoft includes "Read this, and specifically state below that you agree to this EULA". Without it, the EULA would not be binding. But a contract cannot be binding to only one of the parties involved (unless you're government). *IF* Microsoft specifically says I may say "no" _after_ purchase, then Microsoft has created the situation requiring a refund if I indeed do say "no", just as I would not be charged for the software if, at purchase time, I had declined to sign the EULA. |
| purplewizard Mar 05, 2007 1:31 PM EDT |
The point from reading the license(s) I was making is they (Microsoft) make no actual promise to refund you anything in either license I looked at. You would have to imply that is what they mean. And why bother with the clause when it's always been possible to get or at least build machines with no operating system installed? They can surely just argue "you didn't have to buy one with Windows on". |
| Sander_Marechal Mar 05, 2007 2:02 PM EDT |
Quoting:They can surely just argue "you didn't have to buy one with Windows on". They can't. In the store you can choose to buy Windows, go home, read the EULA and decide that you don't agree to it after all. The EULA isn't on the outside of the box so you cannot decide that before you buy it and try to install it. |
| Bob_Robertson Mar 05, 2007 8:37 PM EDT |
"they (Microsoft) make no actual promise to refund you anything in either license I looked at." Really? Let's see... http://www.microsoft.com/about/legal/useterms/ Selected Vista, Home Basic: Page 1 paragraph 3, in bold print: "By using this 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." Bold print ends. Paragraph then goes on, "If you cannot obtain a refund there, contact Microsoft or the Microsoft affiliate serving your country for information about Microsoft's refund policies." ...and includes web site URLs and an 800 number. I'm sorry, PurpleWizard, how much more blatant do they have to be? The refund is in _their_ contract. |
| Sander_Marechal Mar 05, 2007 10:10 PM EDT |
IIRC not all EULA's are the same. Specifically, only the OEM EULA's come with the refund clause, not the retail versions. I don't know how this affects small shops without OEM licenses that install retail versions on their whiteboxes before selling them. |
| jdixon Mar 06, 2007 2:55 AM EDT |
> not the retail versions. Most retail stores have a returns policy which will allow you to return an unused item for a full refund. There's usually a time limit (often 30 days), and the need for a receipt. Most small shops can simply reuse your copy on another machine, so they should be willing to take it back as long as it hasn't been activated. |
| hkwint Mar 06, 2007 3:32 AM EDT |
Bob: The license you point too are retail-licenses*, a minority of the licenses they sell, and the retail-clauses are not for OEM customers. The OEM's are responsible if customers want to return Windows OEM, and it's unsure if you can get a refund for Windows OEM products. Obviously, the paragraph you quoted wasn't made by Microsoft because they wanted to do so, but because they felt they were forced to do so. If that paragraph is in the Vista license, it should be in all their licenses. Also, it's not really sure what the refund means; it could also mean, return the whole desktop including Windows, and go home with a refund for the desktop _and_ Windows, but without a desktop. Also, HP (I believe) sent me a letter in which they stated they weren't legally obliged to offer a refund for the software only. Another OEM replied it is possible, but will cost you more than the refund you receive. What I actually want to see, is a page at every OEM's website telling you how the refund is possible, how it works, and how much money you will receive. Until then, most people don't have a choice, since they don't know they have a choice. The example above (is a refund for the software + desktop or for the software only?) and the discussions we have about it asking if and what the OEM's are legally obliged to refund or not, shows the OEM's need a clear statement + explanation about this issue at their websites, understandable for non-EULA-experts (because we, the customers, don't fully understand the matter at this time, so it's to the sellers to inform us). *Retail licenses: If you buy Windows software without hardware. They usually are about two-three times as expensive as the OEM licenses, and therefore, aren't popular at all. Almost nobody uses those, and even small around-the-corner shops sell OEM licenses, when they really (legally) _should_ sell Retail-licenses, because nobody wants to pay that amount of money for Windows software. |
| Bob_Robertson Mar 06, 2007 5:23 AM EDT |
hk, really? Where did it say that? |
| purplewizard Mar 06, 2007 6:24 AM EDT |
Bob
"If you cannot obtain a refund there"
Implies they are not obliged to refund they just might. There is no enforceable commitment from the license, that commitment can only come from your contract with the retailer and if they don't include those terms in your contract of purchase it would look to me like you are without obliged refund. Also " for information about Microsoft's refund policies." Doesn't actually commit to you being able to get a refund it just says there is information that might offer it. And yes that is the phrasing in the Vista retail license, the older product retail licenses I looked at didn't include the additional part saying contact Microsoft if you can't get a refund off the retailer. And my interpretation seems to fit with the experience HK reports in letters from OEMs. And even then it would be open for the OEM to value the Windows portion at zero hence even when it came to a refund they put a zero price on it. |
| Bob_Robertson Mar 06, 2007 12:45 PM EDT |
"And my interpretation seems to fit with the experience HK reports in letters from OEMs." Which is why I have repeatedly asserted that a class-action suit, with punitive damages, is long overdue. You're really trying so very hard not to say, "Ooops, it does say refund. My bad." |
| hkwint Mar 06, 2007 1:04 PM EDT |
Quoting:You're really trying so very hard not to say, "Ooops, it does say refund. My bad." I understand your reaction. Maybe, I should try to make the story a bit clearer. It is really important to distinguish between Retail-Windows licenses and OEM-licenses. Retail-Windows _isn't_ pre-installed Windows, it's the one you install yourself. Off course, you can return it, because you buy it separately; that's the specific thing about the retail version. The OEM license also says refund. That's what I knew and wrote on January first, 2006: http://lxer.com/module/newswire/view/49036/index.html But, though it says refund, out of nine, five big international OEM's didn't reply to my question (most of them none reply at all!) what the refund policy was at all, and two told me (written!) they are not obliged to give me a refund! One kindly explained a refund was possible, but the costs the customer pays to get the refund were bigger than the refund (this just isn't acceptable to me). The other one didn't say so directly, but it was between the lines (I should say scheme, in that particular case). It can say refund more than a billion times all over Redmond on every billboard, building and dustbin, but as long as there's no policy at the OEM's, there's no refund neither, and as long as OEM's aren't able to answer my mail by recorded delivery asking where I can find their policy, I assume they don't have one. Therefore, it's doesn't mean _anything_ at all that it says refund (in the OEM license). Do you believe Microsoft when they say their shared source initiative is about open software? Do you believe them when they say they care about interoperability and therefore opened port25 and made an OOXML/ODF conversion tool? Do you believe Bill Gates when he says he is filantropic? Well, that's written (though not in licenses) too, and I don't believe any of this without research (on my own). You know about Samba and interoperability. You probably know how Bill Gates invests in companies that polute Africa, and sell anti-AIDS drugs for prices those people can't afford. You probably have you ideas about how Microsoft wants to stop ODF, even though they made a conversion tool. Believing something they write on their website, or even if it's in the (Vista Retail only!) license, doesn't mean that much. It's all about the refunds from the OEM's. Go to Dells, Toshiba's, Lenovo's, HP's, Sony's or NEC's site (Include Medion and Targa if you live in the EU). Where does it say: Refund possible, contact this 800 number, visit this website, here's what to do? Where does it mention a refund at all? Last time I searched all those sites, it didn't. I'd really like to hear from you again when you found it, but at the moment, I think it just isn't there, since the OEM's mentioned just doesn't want to give their customers refunds for software they don't want and don't use, and neither they feel obliged to do so by law. Of course, I could refuse to buy their laptops. I could buy a laptop from one of the suppliers in our Linux-vendors database. However, those laptops are far more expensive, even without Windows. I just want to be able to buy a cheap laptop, like the special offers at Dell's and HP's site; without Windows. I want to be able to buy those incredible Medion laptop at the Aldi (which was really cheap by the way, and sold out nation-wide within about five minutes after the stores opened, as I heard), also without Windows. That's what we are talking about. Not about what Microsoft says, because frankly, I don't care. Almost nobody buys retail Windows for more than 300 dollars. So, that's what I'm working for. I hope it is a bit more clear now, and if not, I'll be glad to explain it again in a different way, so feel free to comment. |
| Bob_Robertson Mar 06, 2007 1:07 PM EDT |
"more than 8 OEM's didn't reply to my question what the refund policy was." I couldn't agree more. I hope I'm on the jury that hears the case, I would slap them absolutely silly for such a careful, systematic ripoff of customers. |
| hkwint Mar 06, 2007 1:25 PM EDT |
Ah, I'm sorry, changed my reaction after you reacted I assume. The numbers of OEM's were a bit different, updated them. |
| purplewizard Mar 07, 2007 1:39 AM EDT |
No Bob I'm not "really trying so very hard not to say" blah, there is no need for me to say such because your simply wrong. The license conveys no clear right to obtain a refund be it OEM or retail. Most retailers probably will refund an unopened product. Nothing in the EULA requires it. |
| Bob_Robertson Mar 07, 2007 9:05 AM EDT |
Purple, "By using this 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." How is this "no clear right to obtain a refund"? How is this "Nothing in the EULA"? It is quoted DIRECTLY from the EULA. |
| dinotrac Mar 08, 2007 3:36 AM EDT |
> It is quoted DIRECTLY from the EULA. All well and good, but what in there says that you are entitle to a refund for the software alone? A refund for the entire computer is a perfectly reasonable way to satisfy your request. The fact that some people have managed to get token refunds is nice, but not required. |
| Bob_Robertson Mar 08, 2007 5:54 AM EDT |
I've written: "I don't equate wrong with illegal". Fraud is both wrong _and_ prosecutable. To write that in the _SOFTWARE_ EULA and not give the refund is grounds for being staked out on top of an ant hill and smothered in honey. |
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