This is a translation of my latest article (original in French).
At the end of 2008, I acquired two HP laptops for friends for whom I installed Ubuntu Linux. As usual, the models of interest were not available without the operating system and pre-installed software.
Upon reception of the first model, I called HP support for laptops where I was told to call support for HP professional laptops where they asked me to call customer service where they told me to call the sales department, this department then asked me to contact the claims department by e-mail because they could not help me!
After numerous e-mails and phone calls with the claims department, I had still not received the amount due in repayment of licenses for software that I did not agree with. Worse, they told me they were not aware that a End User License Agreement (EULA) is displayed when you first start their PCs (if this is not bad faith, I don’t know what is) and they asked me to send them a copy of the terms in question:
From: Jonathan Ernst
Subject: Attention Mr. S.
Date: Friday, 21 November 2008
Thank you for your phone call.
Here are excerpts from your own license contract
displayed at startup of each computer running Windows
[…] If you do not accept the terms of the agreement, click the
button indicating your rejection and do not copy, download or
use the software in any way. You can
get the full refund of unused software […]
And here is the extract from the second license (Microsoft Windows)
which is also displayed at startup:
[…] Using the software, you accept these terms.
If you do not agree, do not use the software.
Contact the manufacturer or installer to determine their procedures for return of goods
to get your money back.
I am surprised that HP does not know the existence of these
End User License Agreement (EULA), since these licenses
are displayed on all your computers.
In addition, your company has already made several repayments (willingly or
by force) in the past. You have been condemned last year in Italy
to pay 2300 euros (140 euros in software)
I also invite you to educate yourself on this issue by visiting: http://www.racketware.info/
The software I want to get the refund for includes:
– Microsoft Windows Vista Home Basic OEM
– Mc Afee (2 months subscription)
– MS Office 2007 ready
Note that you can probably get repaid these amounts from the publishers of such software.
I then decided to start sending regular letters (I sent an invoice for each computer, then, when expired, threats of prosecution). I finally received a written response (in English even though we had always communicated in French). According to them, their return policy is in line with industry best practices (even though I have pointed out repeatedly that their two biggest competitors had accessed to my previous requests, and that they had recently been convicted for similar facts in Italy).
Here is my answer:
From: Jonathan Ernst
Subject: Your letter
Date: Friday, 09 January 2009
I acknowledge receipt of your reply in English to my letter
in French (you obviously have the resources to translate
the End User License Agreement that you do not respect
in French, but not enough to communicate with your clients
in the language in which they write and buy your products).
As explained in my previous request for refund (for
which I am still waiting for the payment), I don’t care about your
First your refund policy is not in line with best industry practices as you write because IBM
and Dell, your two biggest competitors, have refunded software not used in a similar case after my previous
Second, even if it did, it doesn’t matter because the EULA explicitly gives me the right to a refund in the event I do not
accept the terms of the license. I remind you once again that you have recently been convicted in Italy on this subject:
You can continue as long as you like to hide behind your legal department, but this won’t prevent me from, if you fail to
comply with my requests, prosecuting your management as stated in my last letter sent to your headquarters and Mr. P. and B.
You will also find attached to this e-mail a draft of the prosecution (in french « requisition de poursuite ») that I will send, if by the end of this month I don’t have any satisfactory answer from you.
All rights reserved.
Legal proceedings against HP Switzerland and some members of its management
Hewlett-Packard Switzerland and several members of its management did not respond to my last notice before prosecution sent by registered letter (sent to the address of the company and their personal addresses). Therefore I sent the legal proceedings form to the competent offices.
Finally a response!
In February 2009 (two months after the last notice before prosecution) my debtors received their payment order from the legal proceedings office. Mr B., manager of HP Switzerland finally granted me with an e-mail (this shows how far you have to go to make those companies reply to your letters):
From: Mr B. <email@example.com>
To: Jonathan Ernst
Subject: Legal proceedings
Date: Wednesday, 19 February 2009 17:28:29
Referring to your letter of 17 December 2008 and your payment order (No. xxxxxx) that I received this week, I state my opposition.
I respect the fact that you insist on your rights as a principle, which is quite legitimate. However, I did personally never sell or charge any HP product and I condone the fact that you took legal action against me on a private level for a refund of software licenses pre-installed on HP products.
However, I can confirm that the accounting department will pay you tomorrow an amount of CHF 600 on your account XX-XXXXXX-X to cover your expenses. Therefore, we urge you to withdraw the prosecution against Mr P. and Mr B.
I leave you to your opinions and your principles, as well as your undignified pride to have recovered the license fees charged for our HP products, and for the fees you also racked « willingly or by force » from other manufacturers such as Dell, Lenovo and IBM to use your own quotations.
The man almost made me shed a tear, here is my answer after having received the promised sum:
From: Jonathan Ernst
To: Mr B. <firstname.lastname@example.org>
Subject: Re: Legal proceedings
Date: Wednesday, February 26 2009 19:39:46 0100
On Thursday, Mr. B. 2009-02-19 says:
> Referring to your letter of 17 December 2008 and your payment order (No.
> xxxxxx) that I received this week, I state my opposition.
> I respect the fact that you insist on principle to your rights, which is
> quite legitimate. However, I did personally never sold or charged any HP
> product and I condone the fact that you took legal action against me in
> private for a refund of software licenses pre-installed on HP products.
I regret that my approach has caused you harm, but what is even more unfortunate is that I had to go this far in order to get back what was due by contract.
Furthermore, I find it somewhat inappropriate to play the surprise and indignation when you acknowledge yourself earlier to have been informed of my approach by registered letter in December. Perhaps you could have taken the necessary actions to avoid this situation at that time?
As a manager you will certainly ensure that the various telephone services from Hewlett Packard in Switzerland and your company’s complaint service are more aware of your customers rights so that this situation never happens again. I am also at your disposal if you want to learn more about the real uphill battle that forced me to take this kind of actions.
It is clear to me that the current policy (ignoring letters, claiming that the licensing contracts do not exist, etc..) of your
company is intended to discourage customers from exercising their rights which is unacceptable for a company like yours.
Therefore, I will not hesitate to assist any interested person to assert their rights as long as a simple and transparent refund process (or, better yet, a purchasing process that does not force the tying) is not implemented by manufacturers of personal computers.
> However, I can confirm that the accounting department will pay you
> tomorrow an amount of CHF 600 on your account XX-XXXXXX-X to cover your
> expenses. Therefore, we urge you to withdraw the prosecution against Mr
> P. and Mr B.
I took the necessary steps to undo these actions (including the one against your headquarters) and acknowledge receipt of your payment.
> I leave you to your opinions and your principles and undignified pride
> to have recovered the license fees charged for our HP products, and for
> the fees you also racked « willingly or by force » with other
> manufacturers such as Dell, Lenovo and IBM to use your own quotations.
These fees are in no way « racked » to manufacturers as you seem to think. It is simply a reimbursement proposed by the
publishers of the software when the accompanying license agreement is not accepted by the end user.
Therefore it does not cost anything to the manufacturers that you mention. Of course, if, on your side, you do not want to make the necessary arrangement to be refunded from your vendors, that is your problem.
As for my pride, please note that this was solely done because of principles and not to get money. To enforce my rights and not pay 20-30% of the price of a computer for software I do not intend to use. Who knows, one day you may allow your customers to choose the software they want pre-installed (opt-in instead of opt-out) on your computers and make this whole process and the inconvenience caused by it to manufacturers and their customers unnecessary.
This time, I really thought that Hewlett-Packard was going to turn a deaf ear until the court. Nevertheless, as it had already been the case with one of my first experiences on the subject, the threat (in the case of Dell) or the actual stake in pursuits again provoked a reaction and in forced the debtors to pay off to me what was due to me.
It is unfortunate to notice how difficult it is to assert ones’ rights in IT tax removal. I dare to hope that this kind of initiatives as well as those relayed by the project « detaxe » from swisslinux, the racketiciel.info site at the French level and racketware.info at the international level, will allow everyone not to pay pointless expenses of licenses for software of no use (whether they do not wish to use them, or because they already possess them) whatever their choice of equipment. A clear display of the prices of this » inclusive software » as well as their optionality would be to the advantage of the consumers and the computers makers.
In order to multiplicate these procedures and to encourage the makers to change their dishonest practices, do not hesitate to let know your procedures (successful or not) against these groups quoted previously as well as to request for coaching.
Here is a non exhaustive list of documents sent and received to/from Hewlett-Packard:
2008-12-17 first invoice sent to HP (french)
2008-22-12 invoice for the second HP conputer (french)
2008-17-12 dernier avis avant poursuites (without appendices, a similar letter has been sent to two others members of HP management, french)
2009-01-08 HP response (english)
2009-05-02 réquisition de poursuite (without appendices, a similar form has been sent to the cantons where are living both HP management members targeted by my pursuit, german)