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01.25.11

OEMs to Potentially be Forced to Unbundle Windows as Forced Vista 7 ‘Sales’ Lead to Class Action Lawsuit

Posted in Courtroom, Europe, GNU/Linux, Microsoft, Vista 7, Windows at 2:24 pm by Dr. Roy Schestowitz

Carlo Piana

Summary: Carlo Piana et al. take Microsoft to court for removing choice in the OEM channel, including reasonable choices such as GNU/Linux, BSD, or simply no operating system at all

THE MICROSOFT WINDOWS chokehold is being eroded in the OEM channel. Vista 7 refunds are already becoming possible in Denmark, in Brazil, and in Portugal. Back in the days we also wrote about similar actions pressing for unbundling in France.

Some of the many reports about the new lawsuit in Italy stress that there is international relevance:

The Italian consumer watchdog is suing Microsoft over the “Windows Tax” – the near impossibility of an ordinary user getting a refund if they decide to delete Microsoft’s software from a new computer or laptop.

The class action case says Microsoft makes it too difficult for people who buy a computer with Microsoft software on it to remove that software and get their money back. Most users do not realise that starting the software means you have accepted the end user licence.

Carlo Piana, a lawyer who helps defend software freedom, is personally involved in it and there’s stressing that “it’s a class action, PPL can join (later)”

“OK,” writes Piana, “now it’s public. I’ve served a class action against MSFT for bundling & refusal to reimbourse Windows, for ADUC” (he links to an article in Italian) and there is also a “blog post on ADUC class action against Microsoft #MSFT,” starting with this introduction:

Aduc, an Italian Consumers association, has served on Microsoft Italia (the local branch of Microsoft Corp) a class action complaining that the company consistently refuses to reimburse users the price of ubiquitous windows licenses, bundled with OEM (Original Equipement Manufacturers) computers. I am part of a much larger legal team that has produced it and I can briefly illustrate what it is about.

Italy has adopted a regulation (Art. 140 bis of the Italian Consumers Code) that allows consumers individually (not consumers associations, which is strange) to file class actions, through ordinary proceedings, open to be joined at a later time. A class action is a case which is arguably identical to a class of users and which is likely to protect the interest of this class. Unfortunately, the Italian version has been adopted with very odd provisions that limit the effectiveness of it, as one can read in this document by Aduc (in Italian).

Here are some more links on this matter (some are from Microsoft blogs, thus they are biased):

The case, which was filed in Milan by the Associazione per i Diritti degli Utenti e Consumatori (ADUC), and picked up by The Register earlier today, points to Microsoft’s end user license agreement (EULA)–as outlined in various copies of Windows–noting that once users turn their computer on and begin to use it, they are no longer able to return the software for a refund.

Microsoft booster Peter Bright adds this: (special thanks to Girts for some of these pointers)

This is not the first time ADUC has taken to the courts over Windows preinstalls. In 2007, the group successfully sued HP after it failed to abide by the terms of the Microsoft End User License Agreement, which explicitly permits a user to refuse to accept the terms and receive a full refund.

Meanwhile we learn about some new actions in Portugal, where Microsoft wants government policies to help stifle Free software (in France, the lawmakers recently had created Apple/Android tax, which is based on copyright). Microsoft is going down, but not without a fight.

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2 Comments

  1. Clanky said,

    January 25, 2011 at 4:07 pm

    Gravatar

    I don’t know what to think about this, as mush as I would love to see more choice I would prefer it to be through natural choice than through lawsuits.

    I would like to think that if this lawsuit is successful, then by exposing more people to the advantages of free software would lead to an increase in its use, but I am not so sure. I have always believed that the way forward for Linux was for it to be sold as a pre-configured system on compatible hardware, but the take up of the Linux based Eee-PC was disappointing.

    Lawsuits like these on their own will not be enough, there needs to be something ready to step into the void left if hardware suppliers are forced to stop bundling Windows with their machines. At the moment the closest contender would be Ubuntu and I honestly don’t think it is ready yet, although it does seem to be going in the right direction.

    twitter Reply:

    This lawsuit is not about exposing people to free software, it’s about righting the injustice of bundling and anti-competitive behavior. There is an abundance of evidence about this, much of it published through Comes vs Microsoft. Techrights documented the EEE/Asus/Xandros story very well. Forcing Microsoft to refund licensing fees for software they never wanted is a modest first step towards restoring a free market. A better step would be for regulators at the US DOJ to do their jobs and fine Microsoft for obviously illegal contracts with OEMs and retailers. That people will overwhelmingly prefer software freedom in a free market is something that remains to be proved, but the answer is foreshadowed by the success of Android, embedded gnu/linux and Microsoft’s frantic efforts to bully the market.

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