Suggestions that corporate users may benefit from an online bush war being waged over Microsoft’s end-user licence agreement (EULA) and the right to return unwanted software are misleading, says Microsoft marketing manager Guy Haycock.
One Australian user, Geoffrey Bennett, demanded a refund from Toshiba after buying a notebook with a copy of Windows 95. Bennett wanted to install Linux, an open-source operating system, instead of Windows 95, but couldn’t buy a notebook without an OS included in the price. The EULA, however, includes a clause that says if a user does not agree to the terms and conditions they should: “ … contact manufacturer for instructions on return of the unused product(s) for a refund”. Bennett contacted Toshiba and, after a number of months and several emails, he received a cheque for $A110 from Toshiba (his exploits are recorded at www.netcraft.com.au/geoffrey/toshiba.html).
Other users are keen to exploit this loophole in the EULA, and a site devoted to this movement (www.linuxmall.com/refund/) is calling for a “Microsoft refund day” on February 15.
But the idea that corporate buyers can reduce their licensing costs in this fashion are misleading, says Haycock. Many corporate buyers express displeasure at having to buy a site licence and then paying for another operating system when they buy a new PC, but Haycock says they don’t fully understand the implications of their licence agreement.
“It is not possible to buy a full site licence for Windows 98, Windows 95 or NT work-station under any of our worldwide licensing schemes.”
According to Haycock, common site licences in New Zealand are for upgrades to the latest version rather than for a new licence. “The upgrade assumes that the PC came with something loaded with the Windows name.”
Haycock says there is nothing in Micro-soft’s agreements with any OEM to stop them from shipping a PC without an operating system. “They can absolutely do that. No drama whatsoever.” The problem for Haycock comes when a user returns a PC’s software after purchase.
“For [the OEM] to ensure the customer hasn’t copied the software is not straightforward.” Most manufacturers in New Zealand sell PCs with the operating system pre-loaded, says Haycock, and allowing software to be returned could lead to an increase in piracy.
“If you look at Toshiba notebooks, for example, they don’t bundle a Windows 98 CD, they tend to cut their own recovery CD.”
Haycock points out that he has a Toshiba notebook that came pre-loaded with Windows even though he works for Microsoft.
Few of the OEMs contacted by Computer-world were willing to comment on the idea of offering PCs for sale without operating systems.
Joanna Burgess, Hewlett-Packard corporate marketing manager, points to the issue of configuration testing.
“How could we test the PC before we sold it if it didn’t have an OS? We would have to install the system, test the machine and then take the OS off again, and I don’t think we’d be willing to do that.”
But one lawyer Computerworld spoke to said that the EULA left the manufacturers holding the baby. They were responsible for organising a refund for customers. The lawyer, who spoke on the condition that he not be named, said any argument over who pays for returned software should be between Microsoft and the OEM, not the customer.
“The agreement says quite clearly that any user who disagrees with the terms and conditions should contact the manufacturer for a refund. Whether the manufacturer then contacts Microsoft for a refund is really up to them and doesn’t have anything to do with the user.”