[wplug] FYI: Linux Journal: Getting a Windows Refund in California Small Claims Court

[Alexandros Papadopoulos]

Original article at 
http://www.linuxjournal.com/article.php?sid=7040&mode=thread&order=0

Getting a Windows Refund in California Small Claims Court
 Date: Wednesday, July 30, 2003
Topic: Linux in Business

 Steve Oualline

 Thanks to good records and a Small Claims judge, Steve Oualline got a $199 
refund for his unused copy of Microsoft Windows XP. One Linux user's story 
shows how to establish a good refund case.

 

Getting a Microsoft Windows refund from a manufacturer is seldom easy to do. 
In this article, I describe some techniques you can use to get your refund, 
including how to deal with the manufacturers (and all their excuses) and 
going to small claims court. 


The first step to getting a refund is to ask for on. In most every case, you 
immediately hit a wall of stupidity and evasion when you do this. Dealing 
with this part properly is important, though, because you are building a 
record for the court case that may follow. Your job is to be as reasonable as 
possible and to make them look as dumb, inflexible and unreasonable as 
possible. 


It's important to know what excuses the manufactures will come up with and how 
to counter them. 


Excuse: You aren't entitled to a refund. 

Answer: Then why did the software come with a license that said I was. Isn't 
the license a binding contract? 


Excuse: Contact Microsoft about the refund. 


Answer: The license said contact the manufacturer. That's you. Why should I 
contact Microsoft when they said to contact you? 


Excuse: The software comes bundled with the hardware and can't be separated. 


Answer: Then why did you give me a license that said they could? 


Excuse: We'll give you a refund, but not for the retail price. 


Answer: I paid retail for the computer and the software. 


Excuse: The software is only worth $10. 


Answer: Okay. Send me the check. 


Although this doesn't look like it, you've won a major victory with these 
words--that check is written evidence of the fact that the manufacturer owes 
you a refund. If you go to court, you don't have to establish that the 
company owes you something. All you have to do is establish the amount. 


But before you do that, you should follow up with the company. There are 
several ways of doing this. 


Follow up #1: I got your check for $10. You say Windows XP costs only $10, so 
I'd like to buy 100 copies please. To whom do I make out the check for $1000? 

You won't sell me Windows XP for $10? I'll have to pay $199 for it? Then that 
means the check you sent me is too low. Please send me a check for the full 
amount. 


Follow up #2: I got your check for $10. But your $10 price is far lower that 
the retail price of Windows XP ($199). Because of the vast difference in the 
amounts, I'm going to have to ask you for a copy of your purchase contract 
with Microsoft so I can verify the price. 


You can't verify the price. Well, I can only find one documented price and 
that's $199. You'll have to pay that amount or document your price. 


One company tried this excuse with me. When I asked for documentation, the 
customer service representative said, "I don't have access to price 
information". 


"Then how did you come up with the $10 price figure?" 


"I just know it's the right amount." 


"So what you are really doing is guessing. Well, my guess is the software is 
worth $1,000,000. Tell you what, let's split the difference. Send me a check 
for $500,005." 


Excuse: We'll give you a refund but that applies to only Microsoft Windows, 
not the other bundled software. 


Answer: No problem. Please provide me with a copy of all the other software on 
another disk so I can install it under Linux using the Wine program. 


In all of these cases, follow up the phone conversation with a written letter 
describing what was said and why you're unhappy with it. Remember you are 
creating a record for the judge. 


At some point in this process you'll either get your refund (rare) or you'll 
realize the manufacturer is going to be totally unreasonable. So now is the 
time to present your argument to an unbiased third party who has the power to 
get you your refund. This person is a Small Claims Court judge. 


I am not a lawyer, so any legal advice I give isn't official, but I have been 
to small claims a few times and have won a few cases. (I lost a couple as 
well.) Also, my experience is limited to the California Small Claims Court; 
Courts in other states may be different. 


The first step in filing suit is to figure out who you are suing. If you are 
going after a corporation, you need the name of the registered agent for the 
company. You can't serve legal papers on a fictional entity, such as a 
corporation, so the law requires the corporation to name someone--the 
registered agent--who handles all the legal stuff. You usually can get this 
information from your secretary of state. (In California, the web site is 
www.ss.ca.gov/business/business.htm.) 


The next step is to fill out the forms. Most states now put these forms 
on-line. (California Small Claims forms can be found at 
www.courtinfo.ca.gov/selfhelp/smallclaims.) Most of the questions are simple 
and obvious. 


One thing you should notice is the forms provide limited space to state why 
you are suing. This is because the judges don't want a lot of detail, only a 
simple explanation of what's going on. For a Windows refund case, you should 
write something like, "The computer came with a license that said if I didn't 
agree with it, I could return the software and get a refund. They won't give 
me a refund." If you've received a $10 check, you can say something like, 
"They would only give me a $10 refund for $199 of software." 


After you fill out the forms, you have to go to small claims court and file 
your case. This usually means standing in line for a long time and giving 
your papers and a filing fee to the court clerk. The clerks can help you make 
sure you filled out the forms correctly, but don't ask them any questions 
about your case because they can't give legal advice. 


In California, you need to have the papers served. This means someone needs to 
give the papers to the registered agent of the company being sued. One way of 
doing this is to have the court clerk send them out certified mail. This is 
the easiest way of serving most companies. 


Now you prepare for your case. Judges like documentation. For example, you 
should have: 


A copy of the initial letter asking for the money 
Any responses sent by the company 
The $10 check (if you received it) 
A Windows XP advertisement showing the price is $199 
A phone log giving details of every call you made trying to get your refund 
and the company's response 
Any other document generated by this process 

Number each document for easy identification. I also create a cover sheet with 
a one-line description of each document to help the judge locate any document 
he wants. 


There's one document that I've not talked about yet, and that's the license 
agreement. I never have been able to find a copy of the license agreement in 
any of the printed materials that comes with the laptop. The only copy I know 
of is on the disk itself. 


When you start the software, there is no way of printing the license without 
agreeing to it. To print it you must install the software. If you install the 
software, you agree to the license. 


One thing you can do is get the court to issue a subpoena for the license and 
require that the company bring a copy of the license to court. Or you can 
ignore the problem and try your case without a printed copy of the license. 


In my case I made a tactical decision not to subpoena the license. I didn't 
want to look like a lawyer or, more importantly, someone using legal tricks 
to try and get money out of a company. Also, I thought it would be better if 
I could go into court and argue: "Your honor, I would like to present you 
with a copy of the legal document governing this dispute, but according to 
its terms, I was not allowed to print it and was forced to destroy the copy 
on my hard drive." As neither one of these strategies has been tried in 
court, I can't tell you which one to try. 


After you file suit, you're going to get a phone call from someone at the 
company to see if the case can be settled. Unlike most of the people you find 
handling the customer service line, these people are allowed to think and 
given the authority to do the right thing, even if it costs the company 
money. 


In my case, the manufacturer called a week before the trial and sent me an 
offer the night before. The offer was for $199, but I had to agree to a gag 
order and could not talk about the case. That was unacceptable to me; I 
wanted $199 and court costs. (Court costs in this case were high, $135, 
because the company was located out of state.) Also, I wanted to be able to 
tell people what happened. So I went to court. 


Contrary to what you see on TV, small claims court is based on common sense 
and reasonableness. Also small claims court is where the common man can plead 
his case against the big corporation. 


Cases are handled quickly, so the judge is not interested in a lot of detail 
and complex arguments. I would suggest that your argument be something like, 
"Your honor, I read the license agreement, and it said they'd give me a 
refund. But they won't do it." That's it. A simple contract dispute. Judges 
understand things like that. 


The thing that you do not want to do is be a nut case. Don't bash Microsoft; 
simply say the license contained terms you can't agree with. Don't bash the 
manufacturer, just present the facts. And make sure you have the paperwork to 
back up those facts in a form easily accessible to the judge. 


The other thing you do not do in a courtroom is tell the judge about the law. 
The judge knows the law. And in his courtroom, whatever he or she says about 
the law is the law. If you try to quote the law to a judge, he or she 
probably will put you in your place by finding some way of interpreting the 
law in favor of the manufacturer, followed by a ruling against you. 


The role you are playing is an ordinary Joe who has a simple problem and is 
being cheated out of a refund, because manufacturers' bureaucracy is too 
fouled up to give you your refund. Most judges are used to little guys being 
picked on by a big company that's too slow and stupid to follow the law. Make 
sure your judge sees you that way, and you'll probably win. 


Here's how a typical case might go. Remember I'm not a lawyer, and I've not 
been to court on a case like this, so this probably is wrong. But, here's the 
fictional case of John Doe vs. the Big Computer Maker (BCM): 


Judge: Mr. Doe, I've read your complaint. Why do you think that BCM owes you 
money. 

Mr. Doe: When I first turned on my computer, I was presented with a license 
screen. It said that if I didn't agree to the license, I could get my money 
back from BCM. 


Judge: Do you have a copy of the license? 


Mr. Doe: No. The license stated that unless I agreed to it, I had to destroy 
all the data on the disk. This included the only copy of the license 
available to me. 


Judge: What is it about the license that you don't like? 


Mr. Doe: One of the terms of the license stated that I had to give Microsoft 
permission to do anything that they wanted to in the name of security. Later 
they defined security as preventing me from doing things on my computer that 
they didn't think I should do. 


Judge: Such as? 


Mr. Doe: They didn't define that. But in the past they have issued licenses 
that prevented people from using Microsoft software to develop code licensed 
under the GPL. Since I write such programs, that means that if I accepted the 
license, the computer could be made totally useless to me. 


Judge (turns to BCM): Mr. Doe has explained why he thinks you owe him money. 
Why don't you think he should get it? 


BCM: We agree that Mr. Doe should get his money, but the cost of Windows XP is 
only $10.00. 


Mr. Doe: That's the wholesale cost. I bought my computer retail. Also, I have 
been unable to find any place that would sell it to me for $10.00. I even 
tried to buy it from BCM for that price, but they refused. 


The only documented price I can find is the one I gave to your honor of $199. 


Judge (to BMC): Do you have any evidence to backup up your price of $10? 


BMC: Our agreements with Microsoft are confidential, and we can't reveal what 
they charge us for Windows XP. 


Judge: Well, in the absence of any evidence to the contrary, I'm going to have 
to go with Mr. Doe's valuation. Judgment for the plaintiff of $199, plus 
court costs. 


Again, I wish to stress that this case is fictional, but in real life the 
judge would probably spend only this much time on the case. Things go fast in 
small claims court. 


My case was even simpler. The company did not show up. The entire case, as 
best I can remember it, went like this: 


Judge: The defendant didn't show up, but Mr. Oualline you still have to prove 
your case. You say that they owe you some money. Why? 

Me: I bought a computer from them, and when I booted it up it displayed a 
license agreement with a long list of restrictions that limited what I could 
do with my computer. It also said that if I didn't agree with the license 
agreement, I could get a refund. 


Judge: I take it you didn't get your refund. 


Me: They sent me an e-mail yesterday offering me one, but it was only for the 
software. I want my court costs too. 


The judge then fumbled through my papers looking for the printout of the 
refund letter. He found it. 


Judge: You removed the software from your system. 


Me: Yes. 


Judge: You installed something else. 


Me: I installed Linux. 


Judge: Judgment for the plaintiff. 


Two things should be noted about this case. First, because only two letters 
were in my exhibit, I didn't supply a cover page listing them. That was a 
minor mistake as the judge momentarily was confused by what I had presented. 
The second thing to note is he didn't ask me what Linux was. 


The main thing to remember throughout this process is to remain calm and 
reasonable. The more reasonable you seem, the more silly they seem. Remember 
you're dealing with a large company, and the larger an organization, the 
higher its potential for collective stupidity. 


When that stupidity crosses the line and the company won't follow the law, 
that's where small claims court comes in. In court, most of the time common 
sense and reasonable win, even when it's a small guy against a big big 
company. And the case always ends with those magic words, "It is so ordered." 


My refund check will be arriving this month. 

------------------------------------------------------------------------------

I sure hope more cases like that emerge.

-A
-- 
http://andrew.cmu.edu/~apapadop/pub_key.asc
3DAD 8435 DB52 F17B 640F  D78C 8260 0CC1 0B75 8265
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