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Windows refunds and the law

We look at some of the possibilities of Windows Refund Day

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With the rise of the open source movement, an increasing number of users find they don't use the copy of Windows that invariably comes with their new PC, unless they have purchased it from a specialist OEM. It's understandable that they feel peeved at having to pay what is known as the Microsoft tax, so any possibility of getting a refund from the OEM is likely to be of interest. The upshot is that 15 February has been decreed as Microsoft Windows Refund Day. The current movement started when after heroic efforts, Australian Geoffrey Bennett obtained an Australian $110 refund from OEM Toshiba. (Linux user wins refund) Microsoft is of course playing it very cooly, with spin doctor Adam Sohn claiming that there is "no provision in any of our contracts telling OEMs they can't ship something else" or, he says, a naked machine without an operating system. It's strange that you can't therefore buy one from a convenient local source. Of course, the unstated concern is that Microsoft is petrified at PCs without Windows lest users load Windows illegally, any OEM caught shipping naked PCs is unlikely to get a fair deal on Windows in the future. The advice to those seeking a refund has been to ensure that an alternative to Windows is loaded first, so that Windows is not used. An interesting issue that does not seem to have been raised is that the BIOS (basic input output system) is in a sense an operating system, so that the BIOS treats the operating system as an application. Going back to the origins, there was a common factor in Gary Kildall, who invented both the BIOS and CP/M, the first recognisable operating system for microprocessors. Most readers will be familiar with CP/M: it was ripped off and became the basis of Microsoft's DOS, which lives today in Windows 9x. So far as retail versions of Windows are concerned for those who were horrified to read the terms of the Microsoft end user licence (EULA) and did not want to accept them, it is possible to get a full refund from the retailer, but it may not be easy. The terms of the EULA are contained in a shrink-wrapped box and are unavailable at purchase time, so they are unenforceable in the English courts. Partly this because they are treated as proposed modifications to the law governing the purchase of goods. In addition, Microsoft backed away in a case where it was about to lose on account of it being a third-party, would-be enforcer unacceptable to the English courts. Ironically, the Scottish courts are less fussy about this, but it has yet to be tested. (Nae bather- we'll just pit the heid on them - Scottish Ed) ®

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