Actual End-user Price
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| Author | Content |
|---|---|
| Bob_Robertson Oct 28, 2007 3:04 PM EDT |
I do not believe that the actual cost to HP for Vista and Works would add up to 140 Euros. Not after factoring in all the kick-backs for adware &etc. Still, this is very neat. I'm always glad to see someone other than the end users being held accountable for those EULAs that so few people read. |
| hkwint Oct 28, 2007 3:12 PM EDT |
Quoting:I do not believe that the actual cost to HP for Vista and Works would add up to 140 Euros Off course they don't, because HP is not _allowed_ to reveal the real costs it paid for those software. If it does, it would infringe the Windows OEM-EULA, which literally states OEM's are forbidden to reveal the price they pay for Windows; read 16.1 here: http://lxer.com/pub/files/hkwint/MS_SysBuildLicense.jpg So, for the judge there's nothing left than taking the price the software costs in the stores. |
| Sander_Marechal Oct 28, 2007 3:31 PM EDT |
Exactly. And that's why OEM's are so reluctant to abude the EULA and refuynd Windows. And it's also what makes OEM refund drives a good tactic: they *cost* the OEM money :-) |
| bigg Oct 28, 2007 5:40 PM EDT |
There are two possible responses to this, if it goes beyond a few dozen customers. First, the OEM could offer a refund on the entire system. They could say that they sell only computers with Windows. Second, they could require that the user agree to the Windows EULA before the sale of the machine, a solution which I doubt will turn many heads, given that nearly all customers are used to this when buying a computer anyway. |
| Sander_Marechal Oct 28, 2007 10:10 PM EDT |
Quoting:First, the OEM could offer a refund on the entire system. Ah, definitive proof of coupling. That should go well in the courts :-) Quoting:Second, they could require that the user agree to the Windows EULA before the sale of the machine I doubt that's really feasible. Besides, the EULA is between the customer and Microsoft, not between the customer and the store. The "correct" action on behalf of the OEM would be to renegotiate it's OEM contract and let Microsoft be responsible for the refund, or have the refund clause taken out of the EULA for that OEM. I expect we'll see flying cars first though. |
| dinotrac Oct 29, 2007 1:05 AM EDT |
>it would infringe the Windows OEM-EULA, which literally states OEM's are forbidden to reveal the price they pay for Windows; read 16.1 here: As Sander pointed out, the EULA is the wrong contract, but the vendor would have a separate agreement with Microsoft. Wouldn't matter. Law trumps contract every time. If a legal authority properly seeks information, the OEM is obligated to provide it and the contract is not violated. >Ah, definitive proof of coupling. That should go well in the courts :-) It should go to the courts, along with those cases of cars sold with electronic fuel injection, portable stereos sold with speakers, etc. The EU may really be that screwed up, but bundling laws generally are anti-trust weapons and they are aimed at monopolists. In this case, the monopolist is MIcrosoft, not the PC vendors. |
| Sander_Marechal Oct 29, 2007 1:36 AM EDT |
Quoting:In this case, the monopolist is MIcrosoft, not the PC vendors. MS would be the target in such a case, since MS being a monopolist can set unfair clauses in their OEM contacts. And those clauses are the reason that the OEM either has to pay extra for the refund, or is forced to take back the entire machine and admit that the OS comes bundled. The OEM's hand is forced by the OEM agreement with MS and that would be the crux of the case. |
| dinotrac Oct 29, 2007 1:51 AM EDT |
>admit that the OS comes bundled. "Admit"? Was somebody keeping that a secret? Again, you want to crucify the OEMs for Microsoft's sins. That's just plain wrong. Any means to an end, I guess. Sad. |
| hkwint Oct 29, 2007 4:15 AM EDT |
Quoting:the EULA is the wrong contract Right, I meant the Microsoft OEM System Builder License (which I linked to) forbids OEM's to publish the prizes they pay for Windows. If some legal authority were to ask the price HP (I) paid for Windows, they sure would have had to disclose that information, so I guess they didn't ask. As for tied sales: It is allowed in the EU if it can be pointed out to have a technical benefit. In NL, it is even allowed to sell mobile phones along with a telco provider subscription, like with the Apple/AT&T deal (Surprisingly, in Belgium - on the other side of the border - it is not allowed). So tied sales is not going to work to stop tying Windows to PC's, and probably in NL the judge wouldn't even award a refund. The only thing that could work is arguing Microsoft misuses its dominant market position - by means of the OEM System Builder License I linked too. If that's true, they would be infringing article 82 & 83 of the European Treaty. If Microsoft breaks those articles by tying Windows Media Player & IE to Microsoft Windows from the viewpoint of the EU court of first instance in Luxembourg, then I see chances those same judges would decide Microsoft breaks the same laws with their contracts with the large OEM's - like HP, Dell etc. I mean, if Microsoft can be pushed to deliver Windows without IE and WMP, OEM's could be pushed to deliver their products without Windows, right? Microsoft also made the Windows EULA to be between the OEM and the Customer (Microsoft is no party in this) - to make it less possible they would be convinced, like a kind of protection racket, so it's really going to be difficult. |
| Sander_Marechal Oct 29, 2007 4:25 AM EDT |
Quoting:Was somebody keeping that a secret? No, it's just more evidence. Quoting:Again, you want to crucify the OEMs for Microsoft's sins. So? All the more reason for the OEMs to renegotiate their OEM System Builder Licenses in more reasonable terms. Terms better for the OEM and in the end for us end-users. And if they can't, then perhaps the OEMs should seek assistance from EU antitrust committee and file a complaint. |
| dinotrac Oct 29, 2007 6:13 AM EDT |
>So? All the more reason for the OEMs to renegotiate their OEM System Builder Licenses in more reasonable terms. Next up: Eliminate crime in Amsterdam by killing all its occupants. Extreme, sure, but it gets the job done... |
| Sander_Marechal Oct 29, 2007 6:19 AM EDT |
You think that we shouldn't get Windows refunds from OEMs? Or sue them if they refuse the refund which is granted by the EULA? The OEMs got themselves into this mess. They should get themselves out as well. With help from e.g. the EU if they need it. |
| dinotrac Oct 29, 2007 6:51 AM EDT |
>You think that we shouldn't get Windows refunds from OEMs? No, I don't. I think you shouldn't buy Windows if you don't want it. And oh -- all of this EULA crap -- the EULA isn't printed on the outside of the box so far as I can tell. You didn't enter into the purchase based on the EULA's terms. |
| jkouyoumjian Oct 29, 2007 7:26 AM EDT |
I've mentioned this before, but I think it is worth saying again. The presence of Windows on a new OEM computer *lowers* the cost of that computer to the end user. This is because the manufacturer receives payments from third parties to pre-load Windows apps on those machines, thereby allowing them to sell at a reduced price. If OEMs are forced to offer boxes without Windows and the paid-for third party apps, the cost for these Window-less boxes to the end user is going up, not down. Rather than paying a "Windows tax" when you wipe a new Windows box and install Linux, you are getting a Windows subsidy. This is free money. Thank you M$ and junk-ware providers. |
| bigg Oct 29, 2007 8:23 AM EDT |
> Thank you M$ and junk-ware providers. This is the wrong place to post something non-negative about Microsoft. You'll be met with many unfriendly responses. Beyond that, though, the price paid by a consumer for the computer is determined by the retailer. Sell Windows, and they get additional profit from copies of MS Office, antivirus, and a lot of other software. Would there be any incentive to sell computers to non-Windows users? Probably not at the prices we see, at least in the US. |
| Sander_Marechal Oct 29, 2007 8:39 AM EDT |
Quoting:No, I don't. I think you shouldn't buy Windows if you don't want it. That's a tad hard if the machine you want is only available with Windows preinstalled. I'm not advicating buying Windows PC's just to get Windows refunded and stick it to the OEM. But if you do buy a machine with Windows because there's no Windows-free version then there's noting wrong with getting the refund (even it it costs the OEM extra) or filing suit if they try to weasel out of it. Quoting:The presence of Windows on a new OEM computer *lowers* the cost of that computer to the end user. Not necessarily, as the Acer suit showed. In Acer's case, software made up 53% of the total cost of the machine. |
| dinotrac Oct 29, 2007 8:41 AM EDT |
>Not necessarily, as the Acer suit showed. I have never seen the evidence in that case, but I find it easier to believe that a low-level judge made a bad decision than to believe that softare made up 53% of the machine's cost. Correct me, please, if I'm wrong, but I seem to recall that the awards in that case were based on the retail prices of the software. |
| dinotrac Oct 29, 2007 8:42 AM EDT |
That's a tad hard if the machine you want is only available ... It's also real hard to buy a Toyota Camry with a Nissan Maxima motor. So what? |
| Abe Oct 29, 2007 9:03 AM EDT |
Quoting:Rather than paying a "Windows tax" when you wipe a new Windows box and install Linux, you are getting a Windows subsidy. This is free money. Thank you M$ and junk-ware providers. I am not sure what you mean by this! Kind of weird sarcasm. |
| dinotrac Oct 29, 2007 9:26 AM EDT |
> I am not sure what you mean by this! Not sarcasm, but is speculative. The reference is to all the bloatware that comes pre-installed on Windows computers. Vendors collect fees from the software publishers to include that stuff. Potentially, the fees collected for bloatware could negate the fees paid to Microsoft for Windows. Don't know if that's true for any vendor, but, in theory, at least, it could be. |
| Scott_Ruecker Oct 29, 2007 9:30 AM EDT |
Abe, I think what jkouyoumjian is getting at is, If the computer is cheaper for having Windows come installed on it then we should thank Microsoft for making my computer cheaper even though I will either never use it or most likely erase it when I reformat the hard drive. Scott |
| Bob_Robertson Oct 29, 2007 9:36 AM EDT |
> the EULA isn't printed on the outside of the box so far as I can tell. You didn't enter into the purchase based on the EULA's terms. I would expand on this. Until the EULA comes up for me to read and agree to when the machine boots, there is no indication ever given of any such agreement being required for the use of the machine. Also, we all know that the EULAs change. So even if I know about the EULA before hand, I cannot know which EULA it will be, or exactly what it will say for certain, until I read it. The EULA specifically says "use of this software" and that the agreement is with Microsoft, not the OEM. It is unfortunate for the OEM that the EULA stipulates that it is the OEM who has to provide the refund. Sadly, I'm much more likely to "go along" than to make waves (much as some of you might not believe that), so I have never tried to get a refund for an unused copy of Windows. Not even with this last HP laptop. Mostly this is because I know they have Windows on them before I buy them. Much like replacing the stereo in my car but not going back the dealer to demand they refund the cost of the radio that came in it. I've also gone in and made a full system backup of Windows, as a "last straw", just in case everything else went wrong and I just wanted the system to work no matter what. In that way, I am actually agreeing to the EULA, since I have a working (although not installed and running right now) copy of Windows. When, as stated by others, the machine never even boots into Windows once, the HD is reformatted at the outset, then going for the refund is exactly the right thing to do. I guess I have to wait for my next system to do it myself, and by then I may be buying an OEM Linux anyway! |
| Abe Oct 29, 2007 10:00 AM EDT |
Thanks for the clarification. From a customer perspective, this post didn't make much sense to me originally, but I see his point about OEMs making extra money from add-on software like virus scan, burner application, etc... Those are needed extra for Windows but come included with Linux. What I still don't understand is, if customers are going to wipe Windows out, why should they pay for Windows license, subsidized or not? With Windows, OEMs are actually selling crapware with windows and doing their customers a disservice. They are better off selling computers with Linux, charging for services and support, and serving the customers better by offering them much better computer experience. I believe they would be making more money than selling crapware since Linux and apps are mostly free. |
| dinotrac Oct 29, 2007 10:00 AM EDT |
>then going for the refund is exactly the right thing to do The right thing to do is to not buy a Windows computer. |
| dinotrac Oct 29, 2007 10:06 AM EDT |
> They are better off selling computers with Linux, charging for services and support, Some, in fact do, and not just specialty makers. The 800 lb. gorilla itself, Dell, does exactly that. I understand that HP is contemplating a jump into the pool (if they haven't already done so) The 4th largest PC maker in the US (Apple) sells no Windows computers at all, selling an all Unix lineup. Nobody needs to buy a Windows computer unless they actually want to run Windows. |
| jdixon Oct 29, 2007 10:32 AM EDT |
> Some, in fact do... Such as: System 76, EmperorLinux, Linux Certified, and Zareason; just to name a few from the excellent pre-installed Linux vendor database, found at: http://lxer.com/module/db/index.php?dbn=14 :) This is the link to the laptop list, since the options for desktops are too numerous to mention. |
| Abe Oct 29, 2007 11:22 AM EDT |
Quoting:Such as: System 76, EmperorLinux, Linux Certified... That is nice but, unless the big OEMs (HP & Dell) offer it, it wouldn't be sufficient. HP has a new series of desktops for business. Although they don't offer Linux installed, but they do offer them with Free DOS. This leads me to believe they are getting ready to offer them with Linux. Looking at a desktop with exact hardware configuration, the FreeDOS one is $160. cheaper than the ones with VIsta. That is a big enough margin to allow them to charge for service and support but still keep it much less than Vista, especially when the Linux ones come with many more application for free that customer would have to pay for if they go with Vista. Here is a sample HP dc7800 Business Desktop USDT Alternate OS HP Compaq dc7800 Ultra-slim Desktop FreeDOS Intel® Pentium Dual Core E2160 processor Intel® Q35 chipset integrated 1GB PC2-5300 (DDR2-667) SODIMM 2x512 80GB 7200RPM SATA 1.5Gb/s Hard Drive 1st Slim 8X/24X DVD-ROM Drive No S/W Integrated Intel 82566DM Gigabit Network Connection No keyboard USDT/SFF No mouse Country Kit dc7800 USDT External 80PLUS Power Supply Standard HP 3-3-3 (parts/labor/next business day on-site) warranty USDT FreeDOS $756.03 -------------------------------------------------- HP dc7800 Business Desktop USDT HP Compaq dc7800 Ultra-slim Desktop Genuine Windows Vista® Business 32-bit Intel® Pentium Dual Core E2160 processor Intel® Q35 chipset integrated E-Star® standard 1GB PC2-5300 (DDR2-667) SODIMM 2x512 80GB 7200RPM SATA 1.5Gb/s Hard Drive 1st Slim 8X/24X DVD-ROM Drive Integrated Intel 82566DM Gigabit Network Connection No keyboard USDT/SFF No mouse Country Kit dc7800 USDT External 80PLUS Power Supply Standard HP 3-3-3 (parts/labor/next business day on-site) warranty USDT Genuine Windows Vista® Business 32-bit $918.02 Savings $161.99 |
| dinotrac Oct 29, 2007 11:32 AM EDT |
Abe - Kind of interesting that, even with the third most expensive Vista ($299 list, $249 at Newegg), the savings is only $162, or a bit more than half the retail price. Wonder how much difference there would be (if any at at all) between a Linux equipped machine and Windows Home Basic. Mind you, that would be serious apples and oranges as Vista Home Basic is good for pretty much nothing, but... |
| hkwint Oct 29, 2007 3:36 PM EDT |
Quoting:It's also real hard to buy a Toyota Camry with a Nissan Maxima motor. Quoting:with those cases of cars sold with electronic fuel injection, portable stereos sold with speakers, etc. Dino, Dino, Dino... I cannot believe you're making the same mistake over and over again. I would appreciate it very much if you stopped spreading misinformation in this forum by comparing apples to oranges in the way you do. Tied sales in the case of pre-installed software cannot, I repeat CAN NOT be compared to tied sales in cases when there are no: -Network effects in play, -License agreements in play. Therefore, comparisons with cars and tires generally s*ck, so please stop making them, thereby misleading readers. That cannot be your goal, and I do not believe it is. Of all people, it was you telling me what copyright is! In case of the Camry, there are no copyright (except for the design itself), no licenses and no network effects in to play, so please stop spreading this nonsense (unless you are paid by Microsoft to mislead people and make it look like pre-installed tied sales are like any other tied sales, then please go on, you're doing a fine job). As you see, I'm really fed up with it. Please let me explain why those comparisons are that bad: First of all, I don't have to agree to any license when buying my Camry. When Toyota starts selling cars without an engine, the international automobile association don't starts complaining it increases piracy and should be forbidden. Also, there's no limit for the number of cars you may install your Nissan engine in, or on the number of Nissan engines you may put in your car. Also, you're Toyota engine won't come with additional 'advertising samples (which don't work on your Nissan engine)' which make your car with a Toyota engine cheaper than your car without an engine at all. Also, the fact that 90% of the people drive Toyota's with a Toyota engine isn't of much influence for your experience with the Nissan engine in your Toyota - (almost) no network effects are into play (this is disregarding the recent EU vs. Toyota e.a. service - station case, which just like in the EU vs. MS case concerns information - so copyright again). You will only pay a bit more for services, but M6-bolts are going to ft just as well in your Nissan engine as in your Toyota engine. If exchanging an engine was that much of a problem, you wouldn't see that many VW Beetles with a Porsche-engine in it. Look at car-customization / hotrod TV-shows, and you see how easy it is to transfer an engine, and putting it in a car where it wasn't designed for. Do you ever see them worrying about copyright and license issues? Did you ever see they were accused of infringing IP when making a standard thread in a hole if the original engine featured a non-standard thread in one of its holes? Did you ever see them thinking how it would cause the driver troubles if he had another engine than 90% of the people? Did you ever see a buyer of those custom-cars being hesitant to buy the car because they were afraid they couldn't 'operate' that new engine? Of course you didn't, and that's because comparing these things with the pre-installed software issues doesn't make any sense at all. In mechanic engineering, there are mature standards, and also (ideally) there's one and only one standard for one goal. If Toyota were to use their non-standard bolts so you're obliged to buy their bolts when your car is broke, it would make their cars much more expensive, because the standard bolts are cheaper. In fact, it enables the car manufacturers to outsource the manufacturing of the bolts to the company which makes the best bolts for the best price. That's why you didn't pay $400.000 for your Camry of which 70% went directly to Toyota: There are open standards everybody uses and the market works like it should. Yes, some marks do include non-standard parts, but that's usually because it wasn't possible to include a standard part, or because they serve a niche market in which the costumers don't care about their cars being as cheap as possible (think of the very expensive Porsche-toolkits). So, as shown, car-makers are cheaper of when using standard parts. The same is true for any branch of trade in which there isn't abuse of a dominant position. Tires of mark A fit as well on your Toyota as they do on your Nissan, and they do fit just as well as mark B. That's called interoperability, and in a normal functioning market interoperability makes products cheaper for the end consumers. Therefore, in a market where there are no network effects or monopoly abuses in play, interoperability will be reached naturally, just like the free market was _meant_ to work in first place. Also, you're messing up mass-products and custom products: They are not the same, and comparing them is misleading. A Toyota Aygo engine is a 'rather custom' product: It is designed to put and fit in a Toyota Aygo. A Nissan Note engine is a custom product to; It was designed to put in a Nissan Note. Exchanging them is rather hard. Both the (GNU)Linux OS and Microsoft OS are mass products; they are meant to work on any x86-compatible hardware. Therefore, demanding I can put a Nissan Note engine in my Toyota Aygo doesn't make that much sense. Also, asking my Toyota Aygo to be shipped without engine doesn't make that much sense, since there are no mass-market 'general' engines; so basically there are no feasible alternatives. Only if the measures and transmission specifications for cars were to be standardized like the x86-platform/PCI etc., would it make sense to ask for a new car to be delivered without an engine. By the way, you cannot make me believe if you see a Toyota Camry in a showroom, and you really want that Camry real bad because it is the best value for the price, you are not going to buy it because it has got Viking tires instead of the Goodyear tires you like. No, if that's the case, you're still going to buy the Camry, and probably you are going to try to make a 'custom'-deal, or you're immediately selling your Viking tires on eBay (that's allowed and easy, your tires are not tied by means of serial numbers to your car, like pre-installed software sometimes is these days). By now I hope you understand you're only fooling people over here with your comparisons, and most important: You're fooling yourself. |
| jezuch Oct 29, 2007 3:48 PM EDT |
Quoting:It is unfortunate for the OEM that the EULA stipulates that it is the OEM who has to provide the refund. My God, it's Brilliant! "We sold 88 million copies of Vista! 70 million of them were refunded, but... WHO CARES?!? It's the OEM's that refunded them, we still got the sale, BWAHAHA!" |
| Sander_Marechal Oct 29, 2007 4:37 PM EDT |
jezuch, it's even better. ow many of those 88 million Vista copies were sold to OEMs and distributors and are still not resold to end-users? :-) IIRC there was an article about 6 weeks after Vista's launch that compared MS's "20 million copies sold in first month" PR with the way they changed measuring the number of sales over the years. E.g. they used to count acual used installs, then actual sales, then sales to OEMs and distributors, then including the unclaimed coupons too, etcetera. I believe that the article concluded that, if you recalculated all the sales from the same common base, that Vista was selling about as badly as Windows ME was. I should really try digging up that article. |
| jdixon Oct 29, 2007 4:51 PM EDT |
> ow many of those 88 million Vista copies were sold to OEMs and distributors and are still not resold to end-users? :-) Even worse, how many of those well corporate licenses which were immediately downgraded to XP? |
| bigg Oct 29, 2007 5:03 PM EDT |
@hkwint: I'm making the same "mistake" again and again as well. Maybe you can explain where I'm going wrong. If I want to buy a computer without Windows, I jump on the internet and order one. I can also buy the parts and assemble the computer myself. HP sells certain models with only Windows. Why is that a problem? Do you have evidence that Microsoft is paying them to not sell computers without Windows? Do you have evidence that those payments are harming competition and harming consumers? If Microsoft, a monopolist, is doing something wrong, they can be taken to court. But if you take an OEM that participates in a very competitive market to court on antitrust charges, I don't think you'll get very far - at least not in the US or in any other place where antitrust law is grounded in economic theory. There is just no economic case for imposing restrictions on an OEM. If you can suggest a way to remedy this by imposing restrictions on Microsoft (the monopolist) in a way that benefits consumers, I'm all ears. |
| dinotrac Oct 29, 2007 6:14 PM EDT |
Hans - I am not making any mistake. I understand who the monopolist is and who it isn't. I do not share your unprincipled willingness to throw anyone under the train in order satisfy your hatred of Microsoft. While you're at it, why not take action against Windows users as well? After all, if there were no Windows users, vendors would not sell PCs loaded with Windows. |
| moopst Oct 29, 2007 8:23 PM EDT |
While you're at it, why not take action against Windows users as well? After all, if there were no Windows users, vendors would not sell PCs loaded with Windows. ========== And there wouldn't be monster bot nets like storm to pester sites like Windows Update into hiding behind Akami's Linux proxy servers. |
| GDStewart Oct 29, 2007 8:28 PM EDT |
Dino, I too am tired of the increasing frequency of your silly arguments. I remember you from the days when you were posting on Linux Today before LXer existed. Back then I didn't always agree with you but you always put forth a good argument that made me think. You still do, but now there seems to be an increasing tendency by you to be condescending or outright rude when someone (you clearly dislike) disagrees with you. This time you're both. I thought your car motor analogy was pretty silly too. I could buy a Toyota Camry and put a Nissan Maxima motor in it spending lots of money for custom parts and labor but who in their right (or left) mind would want too? What does this have to do with getting an OEM to rwemove/install the OS of YOUR choice in YOUR computer ? And when the poster points out how bad your argument really is you just get pi$$y (oh, and topping it off with the accompanying I'm not wrong theme (again) comes across as arrogant too). I've been thinking about posting this for a couple of months now even though this has been going on for a lot longer. It has made reading these usually above average posts a lot less interesting. I could just stop reading LXer but that would be like letting the bully have his way. |
| Sander_Marechal Oct 29, 2007 10:34 PM EDT |
Quoting:But if you take an OEM that participates in a very competitive market to court on antitrust charges, I don't think you'll get very far It's the OEMs that should take Microsoft to court if they cannot get a reasonable OEM System Builders License. |
| dinotrac Oct 29, 2007 11:10 PM EDT |
>I too am tired of the increasing frequency of your silly arguments Hmmm. You're not paying attention. My silly arguments have become less frequent. The goofy positions of others, however... |
| hkwint Oct 30, 2007 2:47 AM EDT |
Quoting:I do not share your unprincipled willingness to throw anyone under the train in order satisfy your hatred of Microsoft. Well, if that's the best you can come up with after my post with lots of arguments why you're wrong, than I'm sorry for you. The only thing you can say to my arguments seems like I hate Microsoft, but that doesn't change you're wrong. Maybe you didn't notice, but there is progress in my view of Microsoft, and I don't dislike them that much anyway, just their non-ethical way of doing business. Anyway, no hard feelings from my side, but it surprises me you're out of arguments and you reside to putting me in the 'extremist' corner, while after all making sure the free market works like it ought to doesn't sound that extremist to me. Still, I might be wrong. @Bigg: You're not wrong. In fact, you're extremely right; and that's the problem: Microsoft shifted the pre-installation 'problems' the FLOSS-using community might have, to the OEM's and since there's competition between the OEM's, it looks like all is functioning well. Therefore, it's extremely hard, if not impossible, to do something against it using anti-trust. Nonetheless, you probably still agree the market isn't functioning like it ought to with respect of pre-installed software. The reason that competition still doesn't work that well in my view is this: Indeed, if you don't want Windows or help Microsoft, don't buy Dell, HP etc, but instead by from System76 or something like that. However, buying from such a small company is: -Much more expensive, those small companies selling Linux computers don't have the large-scale advantage of Dell or HP; -More difficult, I cannot go to the store in a town near the place where I live and buy a Linux-computer from the stock of the shop. As long as it is more difficult and more expensive to buy a Linux-computer, only a small group that cares about free software (this group is less than 5%) will take the hassle to buy a Linux computer. That's just the way market works, and probably there is not much we can do except 'voting with our wallets'. However, we still should make sure OEM's and Microsoft don't break the law. Indeed, like you say, there's no evidence at all that Microsoft is breaking any anti-trust rules with respect to the OEM-contracts, only mere speculation. So, the only thing left for us (and I learned that from people like Dino, so thanks to them!) is pushing the EU to check if the contracts between Microsoft and OEM's obey the law. |
| Bob_Robertson Oct 30, 2007 4:09 AM EDT |
Ok. I think I've got the counter argument to Dino (and my, for that matter) argument that, if you don't want Windows, don't buy a machine you know has Windows preinstalled and then cry about it. To wit: The EULA. With the EULA, I must agree to a contract I didn't see before, _after_ I have bought the product in order to use it. Isn't that the very reason that shrink-wrap "licenses" (By opening this package, you agree to all of the following....) have been brought into question? I think everything hinges upon the EULA. It comes up only after the purchase is made, rather than before, and it stipulates the conditions for a refund. When I buy a machine from HP, I'm not going to send the mouse back and demand a refund even if I don't want it and don't use it. Yes, I know that Windows comes on the machine before I bought it, just as the mouse does, but the mouse did not require me to agree to a laundry-list of conditions after purchase but prior to use _and_at_the_same_time_ stipulate that if I didn't want to agree to those conditions I could send it back for a refund! So I'm not going to be using the car analogy any more. |
| dinotrac Oct 30, 2007 4:16 AM EDT |
Hans - You had no arguments as to why I was wrong. You are proud of yourself for tossing out lots of words. Next time, you should try making sense. You essentially said this: 1. Gosh, dino, what about network effects and license agreements? What network effects are you talking about? If we were talking Apple computers, you might have something there. Apple both bundles and controls its OS. Of course, Apple doesn't have a monopoly, so that doesn't create any antitrust problems. None of the other PC vendors control their OS and none of them have a monopoly. There is no network effect involved in buying a Dell vs an HP vs a Lenovo. As to license agreements, you're wrong again. You just don't know it because the licensed technology is embedded into the hardware. A modern Camry will have licensed software running its engine management system and who knows what else. You will pay license fees for patents that cover everything from fuel injection to suspension. One major difference is that the Windows license says you are entitled to a refund if you never open the package, break the seal, whatever it is these days. Most auto dealers won't take the car back, but, in my view, that EULA, if you do not crack the seal, obligates the vendor to either take the computer back or to refund any difference in costs attributed to Windows. You seem to agree with me on car engines. I do not argue at all over the freedom with which you can move engines around. I agree completely that the restrictions on moving Windows around -- that is, removing the installation from one machine so that you may install it on another -- are ridiculous. Your entire discussion on that pont is an excellent reason not to use Windows and I agree completely. But -- those evils come from Microsoft, not from PC vendors. PC vendors are the ones you are calling out, but it's Microsoft that is the problem. |
| dinotrac Oct 30, 2007 4:22 AM EDT |
Bob - I agree with you except for one thing. I believe that the EULA entitles you to a refund under the circumstances you describe. The only argument is what refund. The PC vendor did not sell you Windows any more than the Car vendor (thought you were going to get away from that, did you?) sold you a 15 amp fuse. Oh sure, you got Windows and you got a 15 amp fuse. The PC vendor sold you a PC and the car dealer sold you a car. The PC vendor is obligated to take that PC back for a full refund or, in the alternative, offer you a refund for Windows. |
| NoDough Oct 30, 2007 5:36 AM EDT |
Quoting:(oh, and topping it off with the accompanying I'm not wrong theme (again) comes across as arrogant too)Gee! All this time I though that was just Dino's schtick. |
| Bob_Robertson Oct 30, 2007 6:01 AM EDT |
> The PC vendor is obligated to take that PC back for a full refund or, in the alternative, offer you a refund for Windows. Not according to the EULA. The EULA says "This is an agreement between you and Microsoft. If you do not agree to these terms, return the software to where you bought it for a refund." So the vendor is obligated to offer a refund for Windows. |
| dinotrac Oct 30, 2007 6:09 AM EDT |
>So the vendor is obligated to offer a refund for Windows. Bob - Nothing in the EULA limits the form of the refund. A refund for the entire computer includes a refund for the software. In fact, re-read that section. The EULA is between you and Microsoft. It doesn't bind the vendor to any form of refund at all. The vendor is obligated to make you whole, nothing less and nothing more. Accepting the machine back does so. Again, the answer is: if you don't want a Windows computer, don't buy one. |
| bigg Oct 30, 2007 6:13 AM EDT |
> I thought your car motor analogy was pretty silly too. I could buy a Toyota Camry and put a Nissan Maxima motor in it spending lots of money for custom parts and labor but who in their right (or left) mind would want too? What does this have to do with getting an OEM to rwemove/install the OS of YOUR choice in YOUR computer ? This is so elementary that it's hardly worth talking about. If the OEM only wants to sell a computer with Windows WHY CAN'T IT? Again, there is no economic basis for any such arguments. I will leave this discussion until someone provides an *economic* argument, as opposed to a senseless "I really wish the world worked like this". I wish I had a million dollars but why the **** would I ask a court to force HP to give me a million dollars? > So the vendor is obligated to offer a refund for Windows. That can be in the form of a refund for the entire system, because you actually bought a group of products, not just Windows. |
| dinotrac Oct 30, 2007 6:32 AM EDT |
>I will leave this discussion until someone provides an *economic* argument, as opposed to a senseless "I really wish the world worked like this" Bingo. Stubborn as I am, I agree and will follow you out the door. |
| hkwint Oct 30, 2007 7:23 AM EDT |
Quoting:What network effects are you talking about? So you're saying my arguments don't make sense but on the other hand you don't know what I'm talking about. I would appreciate it if you used Wikipedia before posting. Quoting:A modern Camry will have licensed software running its engine management system and who knows what else. Again, a ridiculous comparison. Like I said (if you've actually read my post you would have known), you are comparing custom software - like Camry engine's software-management to mass-software like Microsoft, again comparing oranges to apples. Again, network effects don't have anything to do with software for engine management, since Nissan & Toyota motor management don't have to exchange information. Quoting:But -- those evils come from Microsoft, not from PC vendors Ok, here's news for you: If you buy Dell, HP etc. the EULA is between you and the OEM, NOT between you and Microsoft. You would have known if you once read such an EULA or read the articles I wrote about it. In the EULA, which is between you and the OEM, a 'refund policy' is mentioned, and that policy doesn't exist, as I showed in the past. In theory, Microsoft doesn't have anything to do with this, and the absence of a refund policy, which would make clear if you have the right for a refund for both your PC+OS as a package or for the OS only. It's not Microsofts fault OEM's don't have a policy mentioned in THEIR agreements with THEIR users. the OEMS don't follow the obligations of the agreements they made THEMSELVES. And then you are saying the evil comes from Microsoft, not from the OEM's? Like one person I knew once spoke, there's only one thing I can reply: "I do not share your unprincipled willingness to satisfy your hatred of Microsoft." |
| dinotrac Oct 30, 2007 7:34 AM EDT |
I lied. If you're going to write stupid things like: Quoting: So you're saying my arguments don't make sense but on the other hand you don't know what I'm talking about I feel it's ok to respond. I know exactly what network effects are, Hans. I knew what they were back when I studied antitrust law in law school and I know what they are now. Clue alert: Using magic words does not make an argument. Quoting: Ok, here's news for you: If you buy Dell, HP etc. the EULA is between you and the OEM Didn't see Bob's post in this very thread, did you? To quote Bob quoting the EULA: Quoting: The EULA says "This is an agreement between you and Microsoft. If you drew knowledge from some place other than Wikipedia, you would know that a software license has to come from somebody with the right to grant it. |
| hkwint Oct 30, 2007 8:01 AM EDT |
Quoting:Didn't see Bob's post in this very thread, did you? I did, but both Bob and you are wrong. Quoting:If you drew knowledge from some place other than Wikipedia I did, from the EULA itself: like you should have done before blaming me (I wrote about this fact in the past: http://lxer.com/module/newswire/view/49036/index.html but cannot remember anyone saying I was wrong); Look here: http://www.knudde.be/ms_eula_viewer/win_XP_PRO_OEM_nl.text (That's a Dutch XP OEM license) What does it say on the first line (you should find yourself an English one, they are on the MS site, but I'm to lazy to search for it)? It says: This is an agreement between you and the computer manufacturer. Clue alert: Having studied anti-trust does is no justification for assuming I don't know what I'm talking about. |
| Sander_Marechal Oct 30, 2007 8:18 AM EDT |
Since Dino et. al. cannot read Dutch, I'll state here that the Dutch XP license is indeed between the OEM and the end-user, not between Microsoft and the end-user. |
| dinotrac Oct 30, 2007 8:24 AM EDT |
>I'll state here that the Dutch XP license is indeed between the OEM and the end-user, not between Microsoft and the end-user. Well, then, that is different. >Clue alert: Having studied anti-trust does is no justification for assuming I don't know what I'm talking about. Umm...I believe you were the one who assumed that I don't know what I'm talking about. Besides, your posts are ample basis. |
| hkwint Oct 30, 2007 8:33 AM EDT |
Well, okay, sorry for the interrupt, but here's my question again: If the OEM's are not providing a refund policy, then they are the ones to blame, or am I wrong here? As a customer, I may assume if a 'manufacturer refund policy' is mentioned in the agreement between me and that very same manufacturer, it exists, not? |
| hkwint Oct 30, 2007 8:44 AM EDT |
Not being that lazy anymore, here it is in plain English, from Microsoft itself: http://download.microsoft.com/documents/uk/licensing/faq/dow... Look at the first paragraph, executive summary: "What remains unchanged is that the Windows XP OEM license is between the OEM and the end user and that the product is typically licensed for use with the hardware or PC on which it was first installed." So this is for OEM licenses in every country. Remember, (far) more than 90% of Windows licenses sold are OEM licenses. The licenses that _are_ between Microsoft and the end user are the Retail licenses (Bob and Dino must be confused?), these are the of the Windows 'Retail' type that hardly anyone buys because they are about two times as expensive as a OEM-license. I wrote a letter to Microsoft in the past asking about the OEM refund-issue, and they answered 'Microsoft is no party in this' (referring to the EULA between OEM and customer). |
| dinotrac Oct 30, 2007 8:50 AM EDT |
> If the OEM's are not providing a refund policy, then they are the ones to blame Absolutely. And I have agreed --- repeatedly -- that they are obligated to give you a refund. Where we differ is what that refund looks like. If they sell you a complete system, they must be willing to accept that complete system back and give you a full refund. They are free to offer you a refund for the Windows portion alone and hope that you accept it but keep the system. You want to change their product mix and make them offer you a refund for a product they don't sell -- standalone Windows. You would even have a reasonable case for that if it were difficult to buy PC's without an alternative OS or with no OS at all. I know things are a little different in the EU from over here, but I believe that you've got a reasonable range of choices. That's not the same thing, legally -- at least in terms of antitrust law as I understand it -- as being able to demand that a specific non-monopolistic vendor offer you a specific product. It just means you have choices that can reasonably be substituted for a particular offering. |
| dinotrac Oct 30, 2007 9:00 AM EDT |
Quoting: "What remains unchanged is that the Windows XP OEM license is between the OEM and the end user and that the product is typically licensed for use with the hardware or PC on which it was first installed." Gotta love that "typically licensed" language. It's typically licensed that way because Microsoft wrote the license. What a greasy, nasty thing. It's like Microsoft's "blame the hardware manufacturers" response every time there is a security hole. To the extent it comes from the vendor, it is an "I grant you the ability to pass along these rights to buyers of your machines so long as you pay me the appropriate amount". If that weren't the case, Microsoft would not have the right to change EULA terms when performing online updates - an activity in which they have been known to engage. |
| Abe Oct 30, 2007 9:02 AM EDT |
Quoting:I'll state here that the Dutch XP license is indeed between the OEM and the end-user, not between Microsoft and the end-user.Does that mean there are two or more EULA's from MS or OEMs? Does the US one have the same clause? I wouldn't know since I never bought Windows. At home, I only used MACs and bought PCs only when I was able to get it with Linux installed. Note: This is a good discussion. May I suggest cooling it a little and be more diplomatic by avoid personal remarks. |
| dinotrac Oct 30, 2007 9:19 AM EDT |
>Does that mean there are two or more EULA's from MS or OEMs? I'm not sure what it means, except that Microsoft wants the vendor to take over any obligations under the EULA. Sounds like I've mixed some apples and oranges -- ie, "normal" Microsoft retail EULA and EULA that applies to purchases from OEMs. It's not unreasonable to have 2 licenses. Microsoft offers OEMs a bargain on the software. PC vendors tend to have help desks and support personnel anyway, so they might as well be the front line for Windows support, I guess. What OEMs cannot do, is grant end users any rights in MIcrosoft software that goes beyond what Microsoft allows. |
| Bob_Robertson Oct 30, 2007 10:51 AM EDT |
Ok, indeed I must have gotten the retail and OEM licenses confused. I only read one of them, clearly the wrong one. I will echo Dino here: how astoundingly lawyerly of them to write a contract that binds two _other_ parties and not themselves. Please excuse the foul language. So show me the refund policy that says I must return the entire machine. Or as HK points out, there are no such policies and it gets made up as things go along. I don't even mind if some PC seller tells me ahead of time that no refund is going to be given for software separate from hardware. But I have never seen any such policy stated, and it remains that I cannot know the real terms of the EULA until after I've already brought the entire unit home. |
| hkwint Oct 30, 2007 11:44 AM EDT |
Quoting:Does that mean there are two or more EULA's from MS or OEMs? Indeed. 1) If you have an old computer and want Windows on it (or you want Vista on your current XP computer but you don't have upgrade coupons), you'd normally have to buy a Retail version. Retail means you are buying Windows on its own. That's, a 'box' with only Windows in it, and nothing 'tied' to Windows. Retail versions are usually much more expensive (2 or more times is no exception) than OEM licenses. If that's the case, there's the 'Retail' license directly between the consumer and Microsoft themselves. This is a rare case, and my guesses are less than 5% of all Windows Licenses are sold this way. This license is easy to find with Google: http://www.microsoft.com/windowsxp/home/eula.mspx That's because it's designed for end-users. 2) Then there are the OEM licenses; which are the licenses for: -All pre-build computers with pre-installed Windows (everything HP, Dell, Lenovo, Toshiba and so on) -Meant for people who manufacture their own PC (assemble it from bare parts); they are 'their own' OEM. It is only legal to use Windows with an OEM license on a _new_ built PC; however a lot of people abuse these OEM licensed Windows products, by using them for old existing computers. Till recently, Microsoft didn't took much action to prevent this. In this case, there's a 'System builder license' between Microsoft and the OEM, and there's the Windows OEM EULA between the manufacturer and the end user. Especially the OEM licenses are hard to find on the net. However, I had the luck to receive a harddisk with a 'Sys builder license' on it (some hardware-shops also install Windows on PC's they sell, and use the box in which they received Windows to wrap up other hardware parts). |
| dinotrac Oct 30, 2007 12:24 PM EDT |
>So show me the refund policy that says I must return the entire machine. Nothing in the EULA talks about the form of the refund. It is up to the vendor to set their own policy. Personally, I should hope that a smart vendor would rather take back a sealed OS CD/DVD and refund the difference (which can properly reflect lost income from crippleware not loaded along with the OS not accepted) than nullify a sale. Of course, I'm not in that business and have no idea of the costs, so I could be flat dead wrong. |
| jdixon Oct 30, 2007 12:31 PM EDT |
> Personally, I should hope that a smart vendor would rather take back a sealed OS CD/DVD... Due directly to pressure from Microsoft, most preloaded machines no longer come with such a CD/DVD. :( ...and refund the difference (which can properly reflect lost income from crippleware not loaded along with the OS not accepted)... Can it? The EULA is for Windows, and says nothing about any other software. I'd think they trying to tie Windows to the various other programs installed would be questionable at best. |
| techiem2 Oct 30, 2007 12:35 PM EDT |
Quoting:Due directly to pressure from Microsoft, most preloaded machines no longer come with such a CD/DVD. :( Anymore you are lucky if they even provide a restore disc. They seem to like hacking off 8GB or so from the hard disk and making a "restore partition". You're lucky if they let you make a restore set from it... Our new HPs at the college had a partition and apparently let you run the program to create a restore set ONCE - I'm not sure if it's also a bootable restore partition or not, but I think it is... |
| Abe Oct 30, 2007 12:38 PM EDT |
@hkwint,Quoting:Does that mean there are two or more EULA's from MS or OEMs? What I meant to ask is "Does that mean there are two or more different EULAs for different countries/regions? I.e. One for US another for China or Europe. |
| dinotrac Oct 30, 2007 12:48 PM EDT |
>Can it? The EULA is for Windows, and says nothing about any other software. Of course it can. The price you pay for the machine reflects any payments made to the vendor for crippleware installation. If you do not wish to receive the crippleware -- which, presumably, needs Windows to run, you are not entitled to a crippleware discount. |
| jdixon Oct 30, 2007 1:25 PM EDT |
> If you do not wish to receive the crippleware -- which, presumably, needs Windows to run, you are not entitled to a crippleware discount. Oh, I'm perfectly willing to receive the crippleware, and I'm sure most users would agree. Now, running it is another matter entirely. |
| Bob_Robertson Oct 30, 2007 1:56 PM EDT |
> Our new HPs at the college had a partition and apparently let you run the program to create a restore set ONCE The HP laptop I bought in May, and the Sony in 2003, did exactly that. No disks included at all, up to me to make the "recovery" cd/dvd. As I said in another thread on this same subject, it wouldn't bother me if the "refund" for unused Windows turned out to be $10 or such, because of the economies involved. All I really want is public recognition and a stated policy on the matter, and no hassles if choose to say "no" to he EULA. |
| Sander_Marechal Oct 30, 2007 3:19 PM EDT |
Quoting:What I meant to ask is "Does that mean there are two or more different EULAs for different countries/regions? Maybe. Probably. It;s likely that besides just translations, the EULAs are also adapted to local laws. It's hard to check because of the translations and because the OEM license text is harder to come by. HKWint linked the Dutch EULA because that's the one he knew. I simply confirmed that it said indeed that it's between the EOM and the end-user, because Dino and the rest of you can't read Dutch. |
| hkwint Oct 30, 2007 3:32 PM EDT |
Quoting:What I meant to ask is "Does that mean there are two or more different EULAs for different countries/regions? If you look at the Retail EULA, there's a distinction if you live in North America, in which case you are dealing with Microsoft Nevada, or if you're in Europe, in which case you're dealing with Microsoft Ireland, but further than that, I believe they're all the same (of course the EULA says local laws have precedence above the EULA). Quoting:it wouldn't bother me if the "refund" for unused Windows turned out to be $10 or such Actually, one company I wrote my letters to replied with a paper that seemed like an 'internal' refund policy. It was not meant to be seen by end-customers like me, but nonetheless they sent it to me, and I'm thankful they did . They told to return the computer to their technical center in one of the cities in my country (actually, where Sander lives), where the technical personnel would erase Windows from the harddiks. The refund was €30 if I remember correctly. There's one small line which was very, very interesting about this internal refund-doc: This OEM is allowed to claim the refund back from Microsoft! So, finally, it's not the OEM's paying the refund, but Microsoft itself. At least, it seems like this. A very interesting point, since Microsoft ends up paying for a non-public refund policy which is mentioned in a license agreement in which Microsoft itself is no party. Nonetheless, the customer had to pay for the transport. The customer could also bring the laptop to the center himself, but fuel is very expensive in my country, so savings will be minimal, or it only would cost money. I also got a letter back from the juridical department of both Toshiba and HP (Europe I believe) telling me no refund is available, since they're not obliged to give one. All other OEM's didn't reply, except Dell and Medion, which sent one or two mails and told they were working on it, but after that, nothing. Quoting:HKWint linked the Dutch EULA because that's the one he knew. Not only that, also because for a long time it was and still might be the _only_ Windows OEM EULA which you could find on the web using Google (and I tried hard!). That's why I had to reside to an English 'OEM EULA changelog' to show the English OEM EULA's (probably) are the same. BTW: I'm really interested in other Windows OEM EULA's that can be found on the web, so please let me know if you find one. From this, I conclude Microsoft is trying really hard to keep the OEM EULA from the web and only inside computer wrappings (I never saw them outside the wrappings, but have to check that), and probably they're also pushing the OEM's not to make the refund policy public, since THEY are the ones ending up paying the refunds. Therefore I'm expecting, even after jurisdiction in both Italy and France, the refund policy will still not be published on the websites of the big OEM's. Since OEM's don't lose anything by giving a refund (they can claim it back from Microsoft), those OEM's have nothing to lose from publishing the refund policy. Or have they? Mark my words: This case smells, so don't stir it too much, because it's pooh. |
| hkwint Oct 30, 2007 4:01 PM EDT |
For the non-French speaking, please check this site, in which the decision of the French judge awarding over €500 refund + damages for an Acer desktop with Windows+adware installed, is clarified: http://www.racketware.info/ |
| Sander_Marechal Oct 30, 2007 4:24 PM EDT |
Quoting:The refund was €30 if I remember correctly. There's one small line which was very, very interesting about this internal refund-doc: Do you still have a copy, and could I take a look at it? I wonder if the OEM can claim back the €30 from MS but still be forced to pay €100 and up to the customer because the System Builder License forbids them to disclose the €30 amount. |
| moopst Oct 30, 2007 8:51 PM EDT |
I would be happy with 10 bucks if 70 went back to the crippleware producers and 80 came out of Microsoft. What could be better than paying the crippleware producers not to distribute? Answer, Microsoft chalking up one return. |
| hkwint Oct 30, 2007 11:14 PM EDT |
Quoting:Do you still have a copy? Yes, I do. I had them all scanned last year, but lost the files - and the scanner kinda too (scsi over parallel isn't supported by Linux anymore). Please remember me to scan them this weekend. |
| NoDough Oct 31, 2007 9:21 AM EDT |
Don't know if this will help... http://www.cybersource.com.au/cyber/about/comparing_the_gpl_... |
| hkwint Oct 31, 2007 11:13 AM EDT |
Thanks, but it (probably) refers to a Retail EULA, since it describes the agreement as an agreement between 'you' and Microsoft. |
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