Tangled Webs

   A Tempest in Shrinkwrap
Issue 4.3
Feb 10, 1999

Give the Devil his Due

A little over a year ago in Australia, Geoffrey D. Bennett purchased a Toshiba laptop computer, and being a Linux user, Mr. Bennett had no intention of ever running Windows on his machine. Unfortunately, he found it impossible to buy an Intel-based laptop without also purchasing a copy of Windows. So like the rest of us, Mr. Bennett rendered unto Bill what is Bill's.

Then Geoffrey did a truly astounding thing. Something undreamt of by most computer users. He read the license agreement. Buried deep within that End-User License Agreement, he discovered the following passage:

"If you do not agree to the terms of this EULA, PC Manufacturer and Microsoft are unwilling to license the SOFTWARE PRODUCT to you. In such event, you may not use or copy the SOFTWARE PRODUCT, and you should promptly contact PC Manufacturer for instructions on return of the unused products(s) for a refund."

When he contacted Toshiba, however, he was told that despite the license agreement, they could not give him a refund. After four months of persistence, Geoffrey Bennett got his refund, and his actions inspired others to try to hold PC manufacturers to their own terms. Most have failed, but Linux users in the San Francisco Bay area are now organizing a Microsoft Refund Day. On February 15, they will march en-masse to Microsoft's offices to demand their refunds. Information can be found at http://www.thenoodle.com/refund/

The Fine Print

If you pull out a magnifying glass and read the conditions stipulated in software license agreements, you will find them to be absolutely outrageous. They seek to remove all consumer protection by pretending that the customer is not purchasing software and manuals, but only the right to use the software and manuals. Most go as far as to state that you are legally required to destroy all copies of these materials without compensation or appeal if so ordered by the publisher.

My favorite part, however, is the section that always seems to be printed in all caps. In this section you "agree" that you don't require the software to work as advertised, as documented, or even to work at all. You effectively agree that if this new $2,000 software package does nothing but pop up a dialog box saying "You've been had" the software has fulfilled your expectations.

Now, what I find most galling about this Windows refund situation is not that the refunds have been withheld, but that despite the fact that these companies carefully craft software licenses to strip consumers of every legal protection, they do not seem to feel they should be bound by the terms they have dictated. These companies view it as a one way street. They have rights. You don't.

Research done by David Chun in June of 1998 determined that none of the 12 major PC manufactures were willing to offer refunds even though their own contracts specifically require them to do so. My own calls to the four biggest PC manufactures in Japan produced identical results.

I cannot comment on the legality of these licenses other than to say it is hotly disputed. However, they are unfair to the point of idiocy. The consumer has absolutely no way of knowing the terms of these agreements, or even that there are additional terms beyond those implied by purchase, until after the transaction has taken place.

If such practices are legitimate, it would seem that Microsoft could solve this refund problem simply by claiming that the user had actually purchased the right to have the option to use the software. Thus, a consumer would not be entitled to a refund simply because he decided not to exercise that option. This seems no more unreasonable than the current fiction that users are only purchasing the right to use the software at the discretion of the publisher.

If fact, the whole premise of an opened package being proof of consent of the purchaser is rather questionable. Can a six-year-old make a contract for her parents by opening a box? Can a temporary employee commit his employer to a legally binding contract? Can you image what Federal Express could do with this? "Special delivery. Sign here."

Much Ado About Nothing

In and of itself, I think Microsoft Refund Day will be a non-event. The overwhelming majority of people who purchase PCs do want to have Windows preinstalled. Microsoft will undoubtedly work with PC manufactures to ensure that those who deserve refunds get them promptly. To do otherwise would be to risk a class-action lawsuit.

Furthermore, several major computer companies have already announced or are getting ready to announce that they will be offering consumers the option of purchasing a computer with Linux rather than Windows installed. Thus, those who do not want Windows will not have to pay for it.

The refund issue will likely have a happy ending for all concerned, but if it achieves nothing else, I hope it causes both the industry and consumers to rethink the absurdity that software licenses have become.

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© Copyright 1999, Tim Romero, t3@vanguardjp.com
This article fist appeared in the Feb 17, 1999 edition of The Japan Times.
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