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The Redmond Tea Partyby Nick Sayer Purchasers of pre-built computer systems, and in particular laptop computers, have known for years about the "Microsoft Tax." That is, such computers come with a copy of Windows, and often with extras like either Office or Works. It is, for the most part, impossible to get a computer that does not come with such software, unless you buy computer parts and put them together yourself. Even if the extra cost imposed for the copy of Windows (and whatever else gets bundled) was zero (and it certainly is not, make no mistake), damage is done to the marketplace insofar as Microsoft gets to increment the Odometer of Hegemony for every such sale, even if the user immediately formats the hard drive and installs some other (better) operating system. In June of 1998, David Chun, a student at UCLA, surveyed many of the big computer manufacturers. Not one was willing to sell him a computer without Windows bundled. In August of 1998, Geoffrey Bennett found the loophole that leads directly to the foundation of Windows Refund Day (February 15). The End User License Agreement (EULA) is Microsoft's shrink-wrap license. Its purpose, like the purpose of all shrink-wrap licenses, is to reduce the rights of the software purchaser. When you buy a book, you own that copy and may do with it anything you wish, short of distributing copies (or anything else that violates copyright law). When you agree to a shrink-wrap license, you are treated very differently. Typically a shrink-wrap license removes the grant of ownership and instead confers a "right to use" the software, subject to a list of conditions. This "right to use" can typically be terminated at any time by the software manufacturer. The Microsoft EULA is no exception. But one thing that all shrink-wrap licenses have in common is that they are all voluntary agreements. You signify your agreement by running the software. If you don't want to agree, you can return the software for a refund. There's the rub. If a license agreement is to be valid, it must be voluntary. You can't impose conditions on a sale after the sale has taken place. The offer of a refund for those who refuse the license terms is the fig leaf of voluntary entrance into the agreement. So what happens if you refuse the terms of the EULA for software that was bundled with your machine? The answer is to be found in the EULA itself: [...] By installing, copying, downloading, accessing or otherwise using the SOFTWARE PRODUCT, you agree to be bound by the terms of this EULA. If you do not agree to the terms of this EULA, Manufacturer and Microsoft Licensing, Inc. ("MS") 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 Manufacturer for instructions on return of the unused product(s) for a refund. There it is. If you refuse to abide by the EULA, you must seek a refund. Geoffrey Bennett did just that, and received a $110 (Australian) refund from Toshiba for his unused copy of Windows. This really puts Microsoft and the OEMs between a rock and a hard place. If they don't give refunds, then the EULA is no longer voluntary. At that point, by refusing to agree to the EULA, I own that copy of Windows, just like I own a book. I can decompile it, I can sell it (so long as I don't sell multiple copies or otherwise violate the copyright laws). I can install it on multiple machines (again, so long as I don't run more than one copy concurrently. See the copyright laws for details on what is and is not allowed). For paranoid corporations like Microsoft, that has to be a fate worse than death -- no longer being allowed to dictate terms of usage of the products they sell. And if they provide only trivial refunds ($10 or so), then that pours more gasoline on the antitrust fires (even volume discounting can't explain charging OEMs $10 when the retail price of a non-upgrade Windows 98 license costs $189). If they allow OEMs to unbundle Windows, then it represents a rather massive conceptual loosening of the stranglehold that Microsoft has on the OEMs. What if you could buy a Gateway computer with BeOS instead of Windows? What if people figured out just how crappy Windows is compared to the alternatives? Those are questions that Microsoft desperately wants to keep unanswerable. All of this brings us to Windows Refund Day. The idea is to change the refusal of the EULA terms from an individual act to a movement. Local actions are already being set up for the Foster City, Orange County (California), Manhattan and Japanese offices of Microsoft. Users of alternative operating systems who have never used the bundled copies of Microsoft software and who refuse the terms of the EULA will present their demands for refunds en masse directly to Microsoft on February 15, 1999. Within 48 hours of its announcement, more than 2,000 people had signed up for the Windows Refund Mailing list. As of the end of January, the count stood at nearly 3,000. Published: 30 January 1999 |
Microsoft's biggest and most dangerous
contribution to the software industry may be the degree to
which it has lowered user expectations. ESTHER SCHINDLER, OS/2
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