[Fwd: Unhooking Windows from a laptop -- a true story]

[david at kramer.ne.mediaone.net (David Kramer)]

I meant to mention this in the meeting tonight, but there wasn't a real
"open session", we went right to the presentation.

-------- Original Message --------
Subject: Unhooking Windows from a laptop -- a true story
Date: Wed, 20 Jan 99 15:31:50 -0800
From: Peter Langston <psl at langston.com>
Reply-To: psl at acm.org
To: Fun_People at langston.com

X-Lib-of-Cong-ISSN: 1098-7649
Forwarded-by: joev at archtop.com
Forwarded-by: Robin Harris <Robin.Harris at quantum.com>

Toshiba/Microsoft Saga

Geoffrey D. Bennett
geoffrey at netcraft.com.au
12/Aug/1998

I hope that this web page will prove useful to those people who want to
purchase a laptop without Microsoft Windows. The short summary is:

     It is near impossible to buy a laptop without Windows
     The Microsoft Software License Agreement allows you to return the
software if you do not agree to its terms.
     It is difficult, but not impossible to get Toshiba (at least in
Australia) to send you a cheque in return for the Windows License.

I purchased a Toshiba notebook on February 2nd this year from my local
Linux-friendly supplier (Nick Stock at Cybernet Systems). Being the
devoted
Linux user I am, I didn't want to pay for a copy of Microsoft Windows if
I
wasn't going to use it. Unfortunately, Nick informed me that it was
impossible to purchase a Toshiba (or practically any brand of notebook)
without Windows coming along for the ride.

When I received the computer, I noted that the ``End User License
Agreement
for Microsoft Software'' stated that I did not have to accept the
agreeement, and if I didn't agree to its terms, I could contact the
manufacturer for instructions on returning the software for a refund.
That
seemed like just what I wanted, so I contacted Toshiba in Adelaide and
spoke
with Kon Karanastasis.

Kon had apparently never heard of anyone wanting to return just the
software
for a refund, so it took a while to explain what I wanted. "I want to
give
you back the Microsoft software and receive a cheque in return", "We
don't
do that", "But the license agreement that Toshiba supplied with my
computer
says you will".  Kon asked that I send him a letter explaining what I
wanted, along with a copy of the invoice for the notebook and he'd find
out
what could be done.

Here's the letter:

     NetCraft Australia
     PO Box 390 Blackwood 5051
     Phone: 08 8370 3650
     Fax: 08 8278 8325

     2 February 1998

     Mr. Kon Karanastasis
     Toshiba
     5 Hurtle Square
     Adelaide SA 5000

     Dear Kon,

     With reference to my phone call to you today, I have purchased a
Toshiba Satellite Pro laptop computer which included a copy of Microsoft
Windows 95 pre-installed. The ``End-User License Agreement For Microsoft
Software'' included with the computer states in part:

	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.

     I do not agree to the terms of the End-User License Agreement for
the
Windows 95 software, and would like to return the software for a refund.
Please supply me with instructions on how to return the software.

     As you requested, I have enclosed a copy of the invoice for the
Toshiba
laptop computer.

     Regards,

     (signed)

     Geoffrey D. Bennett
     Computer Systems Manager
     NetCraft Australia

Kon got back to me and the word from Sydney was that Toshiba would be
happy
for me to return my notebook and receive a full refund, but they were
not
willing to give me a refund on just the Microsoft Software. I explained
that
this was unacceptable; the license agreement for the Software
specifically
said that I could return just the Software. Too bad apparently; Toshiba
have
a contractual agreement with Microsoft where they can't unbundle the
software from the hardware, therefore they wouldn't give me a refund.

I obviously wasn't happy with this, so Kon said that the person to talk
to
was Laurence White from Product Planning in Toshiba. I sent him email
explaining the situation:

     Date: Tue, 3 Mar 1998 16:25:06 +1030 (CST)
     From: "Geoffrey D. Bennett" <g at netcraft.com.au>
     To: laurence_white at isd.toshiba.com.au
     Subject: Return of unused software

     Dear Laurence,

     Kon Karanastasis from Toshiba in Adelaide said that I should
contact
     you regarding the return of the unused Microsoft software that came
     with my Toshiba laptop.

     On the 2nd of February this year, I purchased a Toshiba Satellite
Pro
     laptop computer which included a copy of Microsoft Windows 95
     pre-installed.  The ``End-User License Agreement For Microsoft
     Software'' that was included with my computer states in part:

       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.

     I did not agree to the terms of the End-User License Agreement for
the
     Microsoft software, so I refrained from using the software, and I
     completely removed it without creating any backup.

     I would now like to return the unused software product for a
refund.
     Could you please supply me with instructions on how to return the
     software and obtain a refund.

     Regards,
     --
     Geoffrey D. Bennett (geoffrey at netcraft.com.au)
     Computer Systems Manager, NetCraft Australia
     http://www.netcraft.com.au/geoffrey/
     Red Hat Linux Resellers: http://www.netcraft.com.au/redhat/

Laurence told me essentially the same thing that Kon did. I can return
the
notebook, but I can't return just the Software:

     Date: Thu, 05 Mar 98 10:08:40
     From: "laurence white" <laurence_white at isd.toshiba.com.au>
     To: "Geoffrey D. Bennett" <g at netcraft.com.au>
     Subject: Re: Return of unused software

	Hello Geoffrey,

	I am the Toshiba Product Manager and am responsible for all
	notebooks.

	The EULA you have received is a generic Microsoft document supplied
	by all manufacturers as proof of the purchase of your operating
	system.

	As you can see in the wording of the text you need to contact a
	vendor for instructions and Toshiba is unwilling to refund the cost
	of the operating system.

	Toshiba is required by Microsoft contract to provide and purchase
	a valid operating system. Toshiba cannot get a refund from
	Microsoft.

	I hope you can understand our position. Toshiba must pay Microsoft
	at point of manufacture and cannot get a refund from Microsoft, so
	we can't refund you.

	If we gave you a refund on the operating system component then
	Toshiba cannot claim this on Microsoft.

	I hope this explains our position with Microsoft Software.

	Regards
	Laurie White
	Toshiba Australia

	(my original message was included here)

If at first you don't succeed... so I asked again, explaining why his
reasons for refusing a refund were not valid:

     Date: Thu, 19 Mar 1998 02:26:22 +1030 (CST)
     From: "Geoffrey D. Bennett" <g at netcraft.com.au>
     To: laurence_white at isd.toshiba.com.au (laurence white)
     Subject: Re: Return of unused software

     Hi Laurie,

     Thank you for your reply to my message regarding the return of
unused
     Microsoft software.  Although I understand Toshiba's position, it
is
     not acceptable for reasons I give below, and therefore, I would
like
     to request for the second time you to send me instructions on how
to
     return the unused Microsoft software to Toshiba and obtain a refund
     for that software.

     You wrote:

     > Hello Geoffrey,
     >
     > I am the Toshiba Product Manager and am responsible for all
     > notebooks.
     >
     > The EULA you have received is a generic Microsoft document
supplied
     > by all manufacturers as proof of the purchase of your operating
system.

     I'm not sure how this is relevant?  The EULA certainly is my proof
of
     purchase, but it is a lot more than that.  The EULA states the
terms
     under which the software is to be licensed to me under.  I have
     rejected those terms, and according to the agreement I may not use
or
     copy the software and I should return it for a refund.

     The EULA is the document that specifically says that PC
Manufacturer
     (Toshiba in this case) and Microsoft are unwilling to license the
     software to me, and I should contact Toshiba for instructions on
     returning the software for a refund.

     > As you can see in the wording of the text you need to contact a
     > vendor for instructions and Toshiba is unwilling to refund the
cost
     > of the operating system.

     Toshiba might be unwilling this month to refund the cost of the
     operating system to me, but the EULA which was sent to me last
month
     by Toshiba with the computer when I purchased it does not include a
     provision for you to reject my claim for a refund.

     If Toshiba were not willing to refund the cost of unwanted software
to
     me when I purchased the product, Toshiba should not have supplied
me
     with a license agreement that states that I can return the software
     for a refund.

     > Toshiba is required by Microsoft contract to provide and purchase
     > a valid operating system. Toshiba cannot get a refund from
Microsoft.

     The agreement between Toshiba and Microsoft is irrelevant to me.

     The agreement between myself, Toshiba, and Microsoft says that I
can
     return the product for a refund.  Whether or not Toshiba can then
     receive a refund from Microsoft is really none of my business.

     > I hope you can understand our position. Toshiba must pay
Microsoft
     > at point of manufacture and cannot get a refund from Microsoft,
so
     > we can't refund you.
     >
     > If we gave you a refund on the operating system component then
     > Toshiba cannot claim this on Microsoft.
     >
     > I hope this explains our position with Microsoft Software.

     I do understand your position, but if Toshiba enter into an
agreement
     with Microsoft where Toshiba is required to purchase Microsoft
software
     for each notebook, then Toshiba should be willing to wear the cost
of
     that software if I do not want to purchase that software from you.

     Surely the discounts obtained by purchasing Microsoft software with
     every notebook manufactured far outweigh the cost associated with
me
     not wanting to purchase the Microsoft software from Toshiba?  If
they
     don't, perhaps Toshiba should review their agreement with
Microsoft.

     I look forward to your reply.

     Regards,
     Geoffrey.

     (my original message was included here)

     --
     Geoffrey D. Bennett (geoffrey at netcraft.com.au)
     Computer Systems Manager, NetCraft Australia
     http://www.netcraft.com.au/geoffrey/
     Red Hat Linux Resellers: http://www.netcraft.com.au/redhat/

He obviously didn't like my arguments:

     Date: Thu, 19 Mar 98 09:38:15
     From: "laurence white" <laurence_white at isd.toshiba.com.au>
     To: "Geoffrey D. Bennett" <g at netcraft.com.au>
     Subject: Re[2]: Return of unused software

     Geoffrey,

     Toshiba is happy for you to return the complete computer system for
a
     refund to the place of purchase. We are not willing to sell just
the
     computer system to you.

     If you have any further questions regarding this matter you will
need
     to talk with our legal department.

     Regards
     Laurie White

     (my first reply was included here)

I called the ACCC (Australian Competition and Consumer Commission) who
said
that selling one product bundled with another as Toshiba are doing is an
okay thing to do, and then I called Consumer Affairs who suggested I see
a
lawyer. I ended up going to see someone from the Legal Services
Commission
who said that I could take my case to the small claims court and I'd
probably win, but if I didn't then I'd be up for their expenses (plane
trip
from Sydney plus hotel accomodation). I definately didn't want to take
that
risk, so I decided to give in.

By this time, the model of notebook I had purchased was discontinued (it
had been about two months since I purchased it) and the next model up
was
$700 cheaper than what I had paid for mine. Since Toshiba were offering
me
the chance to return the entire computer, this was obviously a good
deal.
They were effectively offering me $700 and a notebook upgrade :-). I
didn't
really want to pursue this option, since I would still be paying for a
copy
of Microsoft Windows that I didn't want (it's the principle of the
thing!),
but I didn't see any other option.

So I contacted Nick, who was quite happy to take the computer back from
me
provided that his supplier would take it back from him. Unfortunately,
his
supplier didn't like this idea and were quite ticked off that Toshiba
would
say to me that I could return a pre-loved, two-month old, and
discontinued
computer at their expense. They wanted to know who at Toshiba told me
this.

I then get email (quite unexpectedly) from Kon Karanastasis, who wrote:

     Date: Thu, 02 Apr 98 13:46:11
     From: "kon karanastasis" <kon_karanastasis at isd.toshiba.com.au>
     To: geoffrey at netcraft.com.au
     Subject: Return of Unused Software

     Dear Geoffrey

     In respect to your formal request for a refund for unused software
on
     your Toshiba Laptop Computer the matter is currently being assessed
by
     our General Affairs Division.

     Before they reach a final decision they have asked me the following
     questions in respect to your purchase ;


     1.       Mr Bennett states that he purchased the computer on 2nd
               February 1998.

               From whom did Mr Bennett purchase the computer?

     2.      Did he rely on a brochure in making his decision?

     3.      At the time of purchase did he notify the vendor that he
did
              not want the standard MS operating system?

     4.       Did Mr Bennett read the End User License Agreement prior
to
               turning on the Computer for the first time?

     5.       Mr Bennett states that he "refrained from using the
               software, and .... completely removed it without creating
               any backup". How was this accomplished? When was the
               Operating System deleted?

     6.        Has the computer been used between the dates of 2nd
February
               1998 and 3rd March 1998? If in the affirmative, utilising
               what operating system?

     If you could please provide answers to these questions, I will
ensure
     a speedy resolution of this issue.


                     Regards
                     Kon Karanastasis
             Toshiba ISD

             Email Add : Kon_Karanastasis at isd.toshiba.com.au
             Phone : 08 8223 2878
             Fax : 08 8232 5022

I thought that the above message was a bit strange, since I hadn't
talked
to Kon for quite a while now, and I wasn't asking them consider a refund
for the unused software anymore. I wrote the following email back:

     Date: Thu, 2 Apr 1998 15:42:33 +0930 (CST)
     From: "Geoffrey D. Bennett" <g at netcraft.com.au>
     To: kon_karanastasis at isd.toshiba.com.au (kon karanastasis)
     Subject: Re: Return of Unused Software

     Dear Kon,

     You wrote:

     > Dear Geoffrey
     >
     > In respect to your formal request for a refund for unused
software on
     > your Toshiba Laptop Computer the matter is currently being
assessed by
     > our General Affairs Division.

     I'm a bit confused here, because my refund for unused software has
been
     assessed and denied three times already, each time with an offer
for
     me to return the entire computer, and the last time also telling me
     that I'd need to contact Toshiba's Legal Department if I wanted to
take
     the issue of returning just the software any further.  After the
three
     refusals, I decided to take up the multiple offers of returning the
     computer, so I contacted my supplier to arrange doing so.

     Are Toshiba now reconsidering the refund for the unused software? 
If
     so, that is fine, but if it is refused (for the fourth time), I
will
     be again wanting to take you up on your offer for me to return the
     entire computer.

     > Before they reach a final decision they have asked me the
following
     > questions in respect to your purchase ;
     >
     > 1.       Mr Bennett states that he purchased the computer on 2nd
     >           February 1998.
     >
     >           From whom did Mr Bennett purchase the computer?

     I purchased the computer from Nicholas Stock at Cybernet Systems
     (017 864 264).  I sent you a copy of the invoice on February 2nd.

     > 2.      Did he rely on a brochure in making his decision?

     No, I didn't rely on a brochure in making my decision.  I read many
     brochures, viewed many web pages, and talked to many people when
     deciding which notebook to purchase.

     > 3.      At the time of purchase did he notify the vendor that he
did
     >          not want the standard MS operating system?

     My vendor was aware before I purchased the computer that I did not
want
     the standard MS operating system.  My vendor had already informed
me
     that it was not possible to have Windows removed from the computer
     before purchasing it.

     > 4.       Did Mr Bennett read the End User License Agreement prior
to
     >           turning on the Computer for the first time?

     I did.  The license agrement said that if I did not agree to its
terms,
     Toshiba and Microsoft were unwilling to license the software to me,
     and I could return the software for a refund.  Therefore, I did not
     use the software, and I contacted Kon to arrange a refund.

     > 5.       Mr Bennett states that he "refrained from using the
     >           software, and .... completely removed it without
creating
     >           any backup". How was this accomplished? When was the
     >           Operating System deleted?

     I removed the operating system by connecting the floppy disk drive,
     inserting a Red Hat Linux boot floppy, turning on the computer,
     deleting all partitions on the hard disk, and installing Linux.  I
did
     this on the same day I received the computer.

     > 6.        Has the computer been used between the dates of 2nd
February
     >           1998 and 3rd March 1998? If in the affirmative,
utilising
     >           what operating system?

     Yes, the computer has been used the entire time I have had it.  The
     operating system used has been the Red Hat Linux operating system.

     > If you could please provide answers to these questions, I will
ensure
     > a speedy resolution of this issue.

     Thank you,
     --
     Geoffrey D. Bennett (geoffrey at netcraft.com.au)
     Computer Systems Manager, NetCraft Australia
     http://www.netcraft.com.au/geoffrey/
     Red Hat Linux Resellers: http://www.netcraft.com.au/redhat/

The next day I received email back from Kon:

     Date: Fri, 03 Apr 98 13:14:32
     From: "kon karanastasis" <kon_karanastasis at isd.toshiba.com.au>
     To: "Geoffrey D. Bennett" <g at netcraft.com.au>
     Subject: RE: Return of Unused Software

     Geoffrey

     Toshiba's General Affairs Division have assessed your claim for a
     refund of the unused Microsoft Software.

     Toshiba is prepared to offer you $110.00 (AUS) as a refund for not
     using the bundled software.

     Please confirm your acceptance (or otherwise) of this offer and we
will
     implement the appropriate actions to settle this matter.

     Regards

     Kon Karanastasis

     (the message he replied to was included here)

Since this was exactly what I was wanting, I wrote back:

     Date: Fri, 3 Apr 1998 16:21:43 +0930 (CST)
     From: "Geoffrey D. Bennett" <g at netcraft.com.au>
     To: kon_karanastasis at isd.toshiba.com.au (kon karanastasis)
     Subject: Re: Return of Unused Software

     > Geoffrey
     >
     > Toshiba's General Affairs Division have assessed your claim for a
     > refund of the unused Microsoft Software.
     >
     > Toshiba is prepared to offer you $110.00 (AUS) as a refund for
not
     > using the bundled software.
     >
     > Please confirm your acceptance (or otherwise) of this offer and
we
     > will implement the appropriate actions to settle this matter.

     Hi Kon,

     That sounds good.  Let me know what the next step is.

     Regards,
     --
     Geoffrey D. Bennett (geoffrey at netcraft.com.au)
     Computer Systems Manager, NetCraft Australia
     http://www.netcraft.com.au/geoffrey/
     Red Hat Linux Resellers: http://www.netcraft.com.au/redhat/

Time passed, and I called Kon to find out what was happening to my
cheque.
He explained that in big companies, weird things like giving money to
customers for return of Microsoft software can take a while to happen. A
little later I received email from him:

     Date: Thu, 07 May 98 14:51:43 +1000
     From: "KON KARANASTASIS"<kon_karanastasis at tap.toshiba.com.au>
     To: <geoffrey at netcraft.com.au>
     Subject: Refund for Unused Software

     Geoffrey

     I've followed up the progress of your refund cheque.

     I still can't give you a definite date, however, I think I've
managed
     to put some higher priority on your claim.

     Hopefully it should all be resolved within a fortnight.

     Regards

     Kon Karanastasis

     Email : Kon_Karanastasis at tap.toshiba.com.au

And then the email I was waiting for:

     Date: Thu, 21 May 98 10:46:44 +1000
     From: "KON KARANASTASIS"<kon_karanastasis at tap.toshiba.com.au>
     To: <geoffrey at netcraft.com.au>
     Subject: Refund Cheque

     Hi Geoffrey

     Your refund cheque has arrived in Adelaide.

     If you would like to return all documentation/software relating to
MS
     Windows to our office at 5 Hurtle Square you can pick up your
cheque.

     Regards

     Kon Karanastasis

I couldn't pick up the cheque immediately because I had just left for
Linux
Expo, but when I got back I wasn't in any particular hurry to get the
cheque
because it was the principle of the thing, not the money. After some
hassling from a couple of LinuxSA members at the July meeting, I finally
went to Toshiba on the 10th of August to pick up my cheque.

Lo and behold, I now have a cheque for $110 from Toshiba in return for
an
unused license for Microsoft Windows!

Many thanks to:

     Paul Ashton (of Samba fame). Paul was the one who told me in
January
that when I purchase a laptop I should read the Microsoft Licence
Agreement,
and take note of the bit about a refund.
     Kon Karanastasis at Toshiba for being patient with such a strange
request.
     Nick Stock at Cybernet Systems for being an all-round good guy.

No thanks to:

     Laurence White at Toshiba for three times denying my request for
Toshiba to honour the license agreement they included with my computer.

If there's anyone else wanting to do a similar thing, I think that the
important things are:

     Check the license agreement. Look for something like ``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.''

     As the first thing you do with the computer, boot from a floppy and
delete the Windows partition immediately. If you boot Windows even once,
you will probably be considered to have accepted the agreement.

     Contact your manufacturer immediately, and say that you do not
agree
to the terms of the EULA and would like instructions on return of the
unused Microsoft Software for a refund.
***
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