Dell has told a Linux-loving Reg reader that he can't receive a refund on the copy of Windows 7 that shipped with his new Dell netbook because it was bundled with the machine for "free". In October, another Reg reader succeeded in gaining a $115 (£70.34) refund from the computer maker after he rejected the licence for Microsoft' …
Major difference - he tried in the UK
Refund? In the UK? Give me a break. Bwahahaha...
The difference between the two cases is that the first one was in the USA, the second in the UK.
Sometimes, I think that the USA probably got it right with the class action statutes. We need them here, because otherwise companies like Dell in this case abuse the fact that it will cost an average customer more to exercise their right than they can ever get back from exercising it.
Unfortunately there is no private action available under competition law..
..in the UK.
We need to find a designated body to make a super-complaint regarding licence bundling.
This matter does seem to be sufficiently important to OFT
We could try to ask the Consumer Association, except that they seem to think that Microsoft is the answer, now what's the question?
National Consumer Council? They nearly got there in 2008 with unfair licensing terms. Whatever happened to that?
I doubt if CAMRA have locus :(
Not only Dell
I have access to an employee price reduction program with HP, through the deal my employer made with HP. I want to play with a Hackintosh, so I looked at an HP desktop that meats the needed hardware requirements. But of course there is no option to purchase the desktop without an OS (windows only).
BEFORE - I spent my money I tried to get an answer from HP about returning the license, even going so far as to offer to purchase a second hard drive, and returning the original one - unused.
They also refused to confirm a refund would be made available, and even if one was, they refused to quote a value of the refund.
I think a call to DOJ (in the US) and its equal else where might be in order.
The EULA *does* indeed say - if you dont agree to these terms return the software (license) to the place of purchase for refund or credit.
Apple EULA terms
Interesting that you would spend time looking at how you could use the MS EULA fully to your advantage in order to get a refund for pre-installed software, but ignore the Apple EULA stating that you may only install OSX on an apple-branded machine.
So everyone go order a Dell laptop and then return it for a full refund because you do not agree with the Windows licence terms?
Illegal trading practice
This sounds remarkably like dumping - where a product is sold below cost price to damage competition.
I do hope the EU dumps on them!
Dumping -> Product Tying
This is not dumping, which is selling a product below its market value to kill the competition, you can be sure that Microsoft is making a profit from this sale. This is product tying
which is tying the sale of one product that the customer wants to the sale of another unwanted and unrelated product. Yes its generally illegal in most countries, but the key here is proving that Windows 7 is an unrelated product to the PC its installed on..
Typical MS-driven evasion
I tried last year to buy a Dell laptop without an OS, as it was intended as a test machine and I intended to install my own multiboots of WinXP, WIn7, and some Linuxes. Instead the sales rep haggled me down to a price too low to refuse, but including Vista Home Basic.
When the unit arrived that OS lasted all of 10 minutes before it got wiped and replaced ;-)
But you paid the tax!
Big win to MS. Clever ba*****ds.
Anyone got Stallman's email addy?
I'm sure that Mr Richard Stallman (remember founder of the Free Software Foundation) would vehemently deny that any version of Windows is "free". Or are Dell passing comment on Windows 7 - by saying that it's worth $0 - and therefore worthless. Ha-ha!
Personally I would have thought that Mr Drake would have had a good case to at least get Dell to replace his Windows netbook with the Linux equivalent. At least it wasn't a desktop/laptop where you don't get the option - it's Windows or look somewhere else. That said, given the difference between Mini 10 (Windows) and Mini 10v (Linux) is only £30, I'd probably just junk the Win7 license because the M10 is a better spec anyway - which probably accounts for the price difference.
Or get the best of both worlds - shrink the Win7 partition - and dual-boot with Ubuntu Karmic-UNR (which I've got, and like, on my little Acer Aspire One).
That my main grind about Dell
If Dell was to offer the OS as an option on every computer that they sold I would not have any problem with them refusing a refund. As long as a) the Linux option is always cheaper and b) the real price that Microsoft get for Windows is clearly stated. But they don't their Linux offering is weak and sometime cost more than the same config with Windows and their no way in hell that Microsoft is giving away Windows 7 for free so show the peoples the real price and let it be their choice! http://www.theregister.co.uk/Design/graphics/icons/comment/linux_32.png
If I go to buy a Dell Latitude L2100 it offers me XP as default, with the choice of linux with £24 reduction or Windows 7 at £17 more. So why can't he get the £41 back?
It is high time that the "MS tax" was a choice, not something that is forced on most PC purchases.
The 41GBP is only the sum of price diferrences against Windows XP. For sure Windows XP costs money to Dell as well, so you'd have to add this to the refund. Seeing that retail licenses are at least 70GBP, you'd expect the OEM license to be much less, but still worth some solid money.
I (now) think the argument for combined sales is much stronger than any other argument. And this argument should go against any PC vendor building PCs for just one type of OS.
I think you've misunderstood the original post. The price difference between 7 and XP is £17. The £41 is the price difference between 7 and Linux, so unless they're charging for Linux, that's the entire cost of the OEM version of 7 they're using.
This is fairly typical - you have the standard amount for a standard build, and it's more or less depending on what options you add or remove. To say that Windows is free would, in this case, imply that Linux costs -£24; and unless they have boxes of Linux in their store that come bundled with the price of a decent round in cash, that claim is clearly bogus!
Oh and another opportunity to mention
They look a lot cheaper and better specced than dell anyway - and they may even have someone on the other end of the phone.
Me - I use old pc's that business chuck out when the 'upgrade' their windows/office software.
Its nice to find a supercluster for free!
nothing to see here...
They are abiding by the EULA by refunding the product if you return it as sold (i.e. on the machine it was installed on).
Do you apply the same standards to apple? Bar for the exact wording of the EULA it looks like the same argument to me, can I claim to be installing Linux on the machine and return it for a refund too?
Apple is a different scenario
The difference with Apple is that they are both the hardware AND software vendor. Dell are only building the hardware and selling that hardware with third party software pre-installed for which they charge extra, but at the same time refusing to sell a 'hardware only' option or otherwise a choice of pre-installed third party software.
If you were comparing a machine built and sold by Microsoft themselves pre-installed with Windows (or indeed a Dell machine running a Dell OS - maybe a variant of Linux of their own making) then it'd be a fair comparison to what Apple does, but in this case it is different.
The point is MS -and pardners) have been forced by the courts to propose a refund in the case you don't accept the EULA. If they hadn't complied they would have been squashed for abuse of dominant position and associated nastiness. So the point really isn't "is it idiotic to buy a Dell machine when you don't want Windows", it is "Does Dell have the right to refuse a refund" and the answer is a big, phat NO. Especially as they otherwise insist that the EULA is legally binding (which is a load of bullcrap but you can't have your cake and eat it too...)
Essentially what Dell is saying here is "it is our policy to disregard the law on that matter".
They are obviously not disregarding the law
"is it idiotic to buy a Dell machine when you don't want Windows", ehm who are you quoting here?, I don't believe I said that!
Would you feel it was fair to remove the CPU from a system and return it for a refund?
According to my legal friends who have read the EULA, they are complying just fine by treating the whole item as a product, i.e. hardware and software, if I bought a DVD player and it came with power dvd and I didn't agree with the terms and returned it for a refund I would need to return the whole product not just the power DVD disk, they would not be complying if you bought the item and gave you no refund if you then sent it back because you read the EULA and disagreed with it.
Having said this if I were dell I would probably offer the hardware with no software installed for those who are so offended by windows licenses or don't understand how to format the hard disk, as this is no skin off my nose, however I wouldn't offer a discount as there are so few of them and the hassle in the production line and testing etc would probably offset the cost saving anyway. Also I guess I would remove all entitlement to any sort of support for any non-standard system.
I have a couple of dell laptops and a dell desktop at work, all of which are running ubuntu or Debian, and all of which came with various windows licenses. I don't feel offended by this as I know that if I could have bought the same hardware from another vendor sans windows I could have done, but that Dell's business model and totally up to them.
The Power DVD EULA
<hypothetical situation> Does the PowerDVD EULA specifically state that you are entitled to a refund of PowerDVD should you not agree to the terms outlined in the EULA?</hypothetical situation>
As I understand it, the EULA for Windows refers to being entitled to a refund of Windows - not the entire product, i.e. hardware and software - if you disagree with their terms and conditions.
Personally, I never read EULAs but I'm not fussed as Microsoft gave me a free copy of Windows (Vista for attending InfoSec a few years back and Win7 for pretending to have a Launch Party.... the suckers!).
Similarly, I've not read the Apple EULA but I wouldn't have bought the hardware if I didn't want to run the software.
I'm sure my Xubuntu has an EULA but again I've not read it... anyone know if it's worth reading seeing as though I paid nothing for the OS in the first place?
powerdvd et al
Does the PowerDVD EULA specifically state that you are entitled to a refund of PowerDVD should you not agree to the terms outlined in the EULA?
apparently it does
"...IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, PLEASE DO NOT USE THIS SOFTWARE, PROMPTLY REMOVE IT FROM YOUR COMPUTER AND RETURN IT TO YOUR LOCAL RETAILER FOR REFUND OR REPLACEMENT.."
"As I understand it, the EULA for Windows refers to being entitled to a refund of Windows - not the entire product, i.e. hardware and software - if you disagree with their terms and conditions."
The legal guy I talked to suggest that you do indeed misunderstand it, the text in question says
"IF YOU DO NOT AGREE, DO NOT INSTALL, COPY, OR USE THE SOFTWARE; YOU MAY RETURN IT TO YOUR PLACE OF PURCHASE FOR A FULL REFUND, IF APPLICABLE"
1. Dell say that it is not applicable as they associate no cost to it, however they may return it to Microsoft for the cost they pay for it (which we do not know of course).
2. Dell is perfectly within its rights to treat its sales and returns as an all or nothing thing.
I don't know the business costs for doing it another way but in the end it is up to Dell, if enough of their customers wanted Linux or naked systems they would sell them that way and charge whatever they could get away with for them, if there were cost savings which generated them more sales by passing them on they would. End of story!
As an aside my legal contact says that a judge in Italy made acer (I think) refund someone for the bundled software which was publicised a year or two ago, however this decision was actually later reversed by a court of appeal and the wording for the EULA in Vista and beyond was presumably subtly changed for OEM's, though ACER did in this case refund the user in the end out of 'good will'!
I don't believe this has actually been tested in court in the UK so there is an opportunity for one of you to challenge the wording if you feel that strongly about it...
"Similarly, I've not read the Apple EULA but I wouldn't have bought the hardware if I didn't want to run the software."
But you would with Dell clearly!
"I'm sure my Xubuntu has an EULA but again I've not read it... anyone know if it's worth reading seeing as though I paid nothing for the OS in the first place?"
Finally Ubuntu doesn't have an EULA.
Firefox and some other things (Sun Java, Adobe etc) do when you install their packages.
disregarding the law, or not?
" "is it idiotic to buy a Dell machine when you don't want Windows", ehm who are you quoting here?, I don't believe I said that!"
Erm, I don't believe I said that you said that -other people in this thread have, though-, and I phrased it as a question. To which my personnal answer would be "somewhat", btw. That's one of the reasons why I don't buy Dell kit.
"Would you feel it was fair to remove the CPU from a system and return it for a refund?"
Would you feel it was fair to prevent you from re-using said CPU (or the RAM, or hard drive,...) in another machine? Would it be fair to prevent you from reselling them should you not need the machine anymore? Actually you could even resell the whole machine /as is/ if you wanted to... but for the OS because the OEM Windows license is tied both to you AND to the machine: you cannot re-use it, and you cannot resell it. i.e. you pay for it but it has exactly zero value once you start using it. Which is why MS was forced to propose this refund option.
"if I bought a DVD player and it came with power dvd and I didn't agree with the terms and returned it for a refund I would need to return the whole product not just the power DVD disk, they would not be complying if you bought the item and gave you no refund if you then sent it back because you read the EULA and disagreed with it."
If your DVD player's seller acted as a reseller for PowerDVD, and the PowerDVD EULA stated that you are entitled for a refund if you don't want PowerDVD, I would very much expect a refund if I choosed to get rid of PowerDVD.
"Having said this if I were dell I would probably offer the hardware with no software installed for those who are so offended by windows licenses or don't understand how to format the hard disk"
No you wouldn't, because you would be tied by borderline-legal agreements with MS. Which is precisely why they were made (by court order) to provide the refund option.
"however I wouldn't offer a discount as there are so few of them and the hassle in the production line and testing etc would probably offset the cost saving anyway. Also I guess I would remove all entitlement to any sort of support for any non-standard system."
Appart from the fact that Windows (any version) is anything but "standard" (the "de facto" argument is fallacious, and wrong as the different flavours are not even compatible with each other), you could. MS would still kick your sorry arse though, as the real point here is to build a monopoly and construct nice market share figures to boost their stock. They probably don't care a lot about the price of the license -and neither do I-, they just want to be able to say that 99% of PCs run Windows (even if that's not actually the case). That's what I object to.
"I don't feel offended by this as I know that if I could have bought the same hardware from another vendor sans windows I could have done"
Good for you.
"but that Dell's business model and totally up to them."
No it's not. They act as a reseller for MS, and thus are bound by MS engagements. If they don't like that, they can stop selling Windows altogether. MS legally HAS to propose a refund if you don't want their crap, and they pass the bucket to the reseller (which is standard practice, if somewhat morally discutable). Therefore Dell _have_ to comply. Or they can stop being MS resellers.
I actually own several Dell machines, which I bought second-hand -some for spares-, and none came with any OS because the previous owners could not resell the license. No biggie as they all run Debian or some BSD now, but the fact is, Dell disregards the law by merely _renting_ Windows licenses (i.e. they rent the right to use the OS, which is akin to a rent in itself, so they kinda sublet the OS) while disregarding the legal refund obligation that was dumped on them by MS.
Worked for us
In the past we used to order desktops which came preloaded with Windows, and it was company policy to return the licence and get a refund prior to installing Solaris. Always worked for us.
Of course uSoft will soon figure out the "administration charge" wheeze. "Yes you can return your copy of Windows for a $70 refund. Note: we will apply an $80 administration and restocking fee to your request".
...to which you reply...
"Yes you can return your copy of Windows for a $70 refund. Note: we will apply an $80 administration and restocking fee to your request"
And that payment will be made, minus an administration charge of $150 to handle the time wasted in having to return the unrequested licenses in the first place when no choice was given for an OS-free version.
Not in the UK
Don't think we have a restocking charge and I'm not sure that you could get away with it.
Windows 7 free from Dell
So if Dell is offering free copies of Win 7, can we all have one please? Where do I order my free copy? The mistake was made long ago when MS was allowed to force manufacturers to install only windows on their products. A comparison would be if perhaps Ford entered an agreement with Esso that you could only fill your car with Esso gas, and of course doing anything else would invalidate your warranty. Hmmm, I wonder how that would affect the sales of Ford cars?
It's more like Ford entering into an agreement with Esso that you have to use Esso fuel in your car, but that you can fill your car up for free for the rest of your life using Esso fuel. Then, the price of what would otherwise be an £8000 car is hiked to £15000. If you don't like the fact that you're paying the extra cash for free fuel for life, the answer is go buy a different car and pay for your fuel, not buy it then whine about wanting the 7 grand back because you'd rather use Shell.
Unbundle Esso, or rather, Windows!
I actually considered this analogy recently, although I had Shell doing the bidding of Esso/Exxon. But again, your "I wouldn't mind" attitude is an obstacle to any comprehension of the matter.
What if every car sold through a dealership had this "free fuel offer" attached and you couldn't choose to drop it? Or if you could, you'd still be paying £15000 because Ford/GM/Renault/VW claim that the fuel really is "free"? Have you considered what the regulatory response to this would be? I guess not: everyone concerned would be fined heavily by the regulators.
All you're doing is saying that companies can bundle together as many products as they like, whether you want all of them or not, name a price (£15000), and then tell you that one of the products really costs as much as the ticket price but not the others. Oh, and you can't actually obtain the other things for free, even though they're separate things (the car doesn't have a pre-filled bottomless fuel tank). It doesn't take an economist to know that you're paying for the "free" products somehow - £7000 in this case - but all you're doing is advocating for that figure to remain secret.
In effect, you're advocating an effective tax - there's £7000 (or the price of Microsoft Windows) that you can't avoid, even though there's no practical reason for its imposition - and price opacity (as opposed to transparency) - that all car manufacturers and retailers can pretend that a car really costs £15000 (or that a computer really does need Microsoft Windows which magically doesn't contribute anything to the ticket price). Next, you'll make the laughable claim that you're in favour of the free market or something.
It is through such consumer ignorance as your own ("No, Mr Regulator, I'm OK with this!") that corporations are able to dish out the shoddy treatment they do. And yet you were so close with the car analogy.
When they force-sell Windows, Dell don't offer anything more than what you'd get for buying a retail copy. They DO NOT offer a "lifetime free refills"-type feature that you wouldn't get if you got Windows by choice. Actually these days they offer LESS as the installs don't come with a physical support anymore. But as they charge less for the OS, it kinda balances out. Except if you want a real OS instead, in which case you end up paying MS for nothing, both directly and indirectly by inflating their perceived market share (it's great for their stocks and for abusing gullible customers with lies such as "everyone has it so you must buy it if you want to work with other people". Very effective with the idiots, the elderly, and the managers).
Not a bad analogy
But think Diesel vs Gas and ask why we are not all driving Diesel car or Hybrid by now!
Not Quite RE: Not Quite
... as long as you realize that the "life" of the car is inherently limited to X number of years. After that, support is dropped and you are on the side of the road.
Just slightly better would be, instead of a consumable (which the OS is not), it was compared to the engine of the car (or powertrain):
For the life of the vehicle (determined to be 5-6 years or so), we warranty that the engine installed in your vehicle will operate according to our minimum standards (by they high or not). Any security or functional modification will be done remotely when you connect your car to the Car Live! network. It is recommended you allow the car to automatically connect to the Car Live! network every night at 03:00 (local time) and update as needed. When we degrade support for your version of engine, we will only do minimal security updates. After this "grace" period, we will then no longer support updates to your engine. We provide no warranty that any tire, steering wheel, radio, etc. or other component will work with your engine (unless that manufacturer is also REALLY big and force legal action on us or bribe us to fix something). Any attempt to tweak your engine using anything other than our tools voids this warranty.
BEWARE PIRATE ENGINES!
So, if you can keep it going yourself without their "help", good for you. Just remember that unlike a physical product (like an engine), you can't give it any needed overhauls or replace broken parts after the support life-cycle ends. :(
Policy varies with OEM
I just recently bought a lowend Toshiba laptop and the EULA for this machine stated that the return policy was (and I quote):
"By using the software, you accept these terms. If you do not accept them, do not use the software. Instead, contact the manufacturer or installer to determine its return policy. You must comply with that policy, which might limit your rights or require you to return the entire system on which the software is installed."
Toshiba's policy on not accepting the EULA is:
"...TAIS DOES NOT ACCEPT THE RETURN OF COMPONENT PARTS, OR BUNDLED SOFTWARE, WHICH HAVE BEEN REMOVED FROM THE TAIS HARDWARE PRODUCT. PRO-RATA REFUNDS ON INDIVIDUAL PC COMPONENTS, OR BUNDLED SOFTWARE, INCLUDING THE OPERATING SYSTEM, WILL NOT BE GRANTED. "
The loophole has closed.
I think the whole argument is whether, in the EU, it is legal or not. If it is not legal to bundle the unwanted and refuse to refund it's cost upon return then any contract is moot - you cannot sign away statutory rights.
1/ Use a hair drier to remove sticker from computer .
2/ stick on dvd case
3/ download iso of windows 7
4/ sell for £65
5/ go to pub
Buy one without the MS tax, and from people that talk properly.
I wish more sales people had a bit of spark
Many moons ago I was involved with said refusnik company and I can only say that I wish the sales people were of an appropriate level where they could communicate with customers. Yes, marketing dosh from Microsoft kept the availability of alternative operating systems hushed and difficult to find, but most business machines were available with FreeDOS for a nominal tenner. Thus ensuring that all systems shipped with an OS of some description and therefore enabled tech support troubleshooting (if said FreeDOS was ever installed, which could be insisted upon by the tech support engineer in order to troubleshoot a system as it shipped). Also I beleive that it was a certain Redmond based company that stipulated that although a system didn't have to ship with a Windows OS, it had to ship with something in order for the manufacturer to have a chance of a sicky 'WIndows' label applied to machines that did ship with a MS OS.
Anyway, obviously an anonymous post.
Paris, as most sales people are about as knowledgeable.
Correct me if I'm wrong but is there ANY law that requires that a PC ships with an operating system pre-installed?
Okay I know Microsoft say that PCs shipped without an OS are 'Naked' and 'can' be subject to piracy but heck, doesn't mean they will, just as much as I could run over the neighbours with my car, doesn't mean I will (I don't want to dent my car!).
He should definitely fight this, bring it to the courts so the rest of us have legal 'precedents' to work with.
But you know what will happen, MS's EULA states 'Refund or credit note'.
I wonder which one Dell will provide him with....
Hmmm, let me think.....
Just what the hell would somebody do with a $100 credit note from Dell, buy a Dell (Logitech) wireless keyboard? whoop de doo, either way he has to leave the money in Dells hands which would leave me galling.
There's always routes out for these ruthlessly unscrupulous companies. It seems the bigger they get, they just feign that they're too big a company to be flexible in such matters.
But then because El-Reg posted the story (good job there, I doubt whether most of us will be able to muster up an IT related consumer rights news story) Dell will probably retract it and give him a refund. Oh and then claim it was a processing mistake so they can't do it for everybody else.
$100 credit note
"Just what the hell would somebody do with a $100 credit note from Dell, buy a Dell (Logitech) wireless keyboard?"
Buy a couple more, get the credit notes and use them to buy another laptop.
"a touchpoint point for training refresh"
No. It's the Borg.
a touchpoint point
That made me do a double take.
Still not sure if the spokesperson were using sanctioned vocab, or just making words up.
They state that you are buying a machine with Windows on it, it shouldn't be a surprise to you when it arrives with Windows preinstalled.
@ Jamie Kitson where is in option on Dell site not to have winddowns
The MS user agreement gives the option of a refund, I thought even MS users knew this.
If he wanted a Dell in the knowledge that Dell have refunded in the past then he was quite correct to expect the same.
These people just need to keep going eventually Dell will have to abide by the eula as they say it is part of the machine
No surprise but
If Dell provided a machine without any OS whatsoever on it then you'd have a case. The Windows sign on EULA specifically allows you to not install and get a refund. Its the first opportunity you have to say "No" to Windows.
Missing the point
Jamie, the problem is that the EULA states that Windows can be returned to the manufacturer. If Dell isn't going to honor this policy, then it is in violation of its own licensing terms with Microsoft.
Besides, that clause in the EULA is the only thing that keeps Microsoft and Dell out of a DOJ lawsuit for racketeering.
If the EULA refund clause is thwarted, then Dell are third-line forcing
The clause is in the EULA to protect the hardware manufacturer from claims of third-line forcing, a behaviour forbidden by most consumer protection legislation. Dell's take it all or leave it all modification to the exercise of the EULA term very much results in third-line forcing.
This isn't a problem for Apple, as both the Mac and MacOS are made by the same company.
If a claim for a refund is rejected then I would approach your consumer protection agency.
I'm told the trick is to video the startup procedure and then involve the Trading Standards department.
Free return of lappy........
If it was me, I'd just return the lot and get a complete refund.
It'll cost Dell alot more to try to sell a second hand machine than just to refund.
It's not like Dell machines aren't crap anyway, the guy could do much better.