Taxing Times for Free Choice [Updated]

It seems, unfortunately, as though my experience with Amazon was not common place.

Neil Wilson left a comment this morning explaining that his request to Amazon did not meet with the same response as my own…

We are not in a position to offer a partial refund for this product. You can of course return the laptop to us for a full refund if you wish

This appears to be in breach of consumer protection law and, more to the point Microsoft’s own EULA which, if you read it, and then decide to not accept it, clearly states:

“If you do not agree to the terms of this EULA, you may not use or copy the SOFTWARE, and you should promptly contact Manufacturer for instructions on return of the unused product(s) for a refund in accordance with Manufacturer’s return policies.”

Some may try and suggest that “product(s)” means the computer in question, but since when have Microsoft started licensing the computer hardware of unknown manufacturers? The EULA is written for the protection of their software, not for some arbitrary computer of which they have little or no knowledge.

Amazon – This is not good. You really do need to do the right thing. I am sure that if you ask Asus, AIUI, or whoever else supplies your computers they will be able to reclaim the License cost from Microsoft and pass it back to you.

Unfortunately, it seems as though Amazon are not the only ones trying to ignore consumers and force us to pay for software we have no need of, nor desire for. Enter Ebuyer (a UK based “stack ‘em high, sell em cheap” etailler)…

Here’s a potential customer’s question being answered this morning by Ebuyer’s E-Note system (E-Notes are Ebuyer’s way to avoid having to provide telephone numbers or email address so you can talk to real people)

Dear x,

Thank you for your response.

I have been speaking to the Product Managers for the Software and Laptops and they have both advised that we would not issue a refund on the OS.

You may return the product for a refund if you are within the time period of 28days after purchase but other then that we are not going to be issuing a refund on the OS.

The Product Manager for the laptops has been speaking to the manufacture and they have come back with the below response regarding the matter:

‘It’s a load of rubbish, I don’t know where this rumor has come from J we started getting people asking for it on the EEE PC when we first produced the XP versions.

We get the odd person phoning up saying this to us but no one gives the cost of XP back and I can understand why they think we would.

I’m sorry we cannot help — I have never heard of any manufacture or reseller giving the money back.’

Kind Regards,

y

Ebuyer Customer Support Team

Dear oh dear Ebuyer…

What a very strangely worded response. The internet is quite awash with people who have successfully claimed a refund for the Windows Tax. Please see this page for a consolidated list of many.

Asus, of whom the above message is referring are not doing themselves any favours by locking themselves into only supplying Microsoft’s Operating System. See this public letter regarding one buyer’s thoughts on the subject.

I would also like to bring to the attention of all vendors what the National Consumer Council, here in the UK, thought about EULAs in February 2008.

The National Consumer Council (NCC) has accused 17 firms, including Microsoft, Adobe and Symantec, of using unfair “end user licence agreements” (EULAs).

The NCC has asked the Office of Fair Trading to launch an investigation.

The NCC said the firms’ EULAs were misleading customers into “signing away legal rights”.

The NCC looked at 25 software packages and said that in 17 instances, the packaging did not tell potential buyers they would have to sign an EULA in order to use it.

While some contained the EULA inside an instruction manual, or let it be read online, this was only after the software had been bought.

This means that consumers are unable to make informed decisions before they buy a product, yet are being forced to take on an unknown level of legal responsibility,” said the NCC.

After examining the contents of the EULAs, the NCC also said that some contained potentially unfair clauses.

Unfortunately, on the 1st October 2008 the Welsh, Scottish and National Consumer Councils merged with Postwatch and energywatch to form Consumer Focus. And did they maintain a historical record of the old sites? Not that I could find.

Anyway, it boils down to this:

Forcing people to buy something else with what they really want to buy is called bundling. It is now prohibited in France, and it is probably so in the UK too.

Perhaps these vendors need to read about the Sale of Goods Act again.

Neil Wilson described the situation very succinctly in an earlier comment on the same original post.

It is much better that the retail store pays, because they are the ones that are ultimately the channel to market. The more expensive it is for a retailer to stock Microsoft the better.

If the retailer is awkward, then the way to a refund is avoid the trap of following the instructions in the EULA. Instead you request that the retailer replace the software with a version that isn’t ‘faulty’ (ie doesn’t have the additional terms and conditions imposed). You didn’t agree to them when you purchased the item and therefore they don’t form part of the contract of sale with the retailer.

The Sale and Supply of Goods to Consumers Regulations 2002 requires that the retailer replace the faulty item, or if that is impossible provide you with a refund. The Sale of Goods Act gives you the right to partially reject items. Essentially you assert your ’statutory rights’.

I feel that we need to have a bit of a campaign here… Can I request that all readers of this post, especially in the UK, please pass it on, tell others and if you have the time, please write to your MP to make your opinion heard. It is disgraceful that we should be FORCED to pay for software for which we have no need nor desire. Microsoft seem to have successfully closed down many of the earlier Linux bundled netbooks through downright bribery or co-coercion I assume. It is not right.

This is the 21st century, there are other operating systems available which are superior in almost every way and, even better, are free. Just go and download Ubuntu if you don’t believe me and try it out for a few weeks…

[UPDATE]
Neil left a comment below. But just to make sure it doesn’t get overlooked he wrote:

Can I ask that all readers contact the OFT and request that they investigate the use of bundled software EULAs as an unfair practise under the new Unfair Trading Regulations 2008.

Thanks Neil, I’ll do that shortly. Sounds like a good idea.
[/UPDATE]

NB: There is a small but growing band of niche retailers and vendors who will sell you a computer with no operating system pre-installed. The choice is quite limited and the major manufactures seem incapable of escaping the grasp of Microsoft. But if you care to, do visit Naked Computers to see if there is a vendor that can help you.

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