Many of you have posted here, and written to me privately, threatening to sue Microsoft for the pushy nature of the “Get Windows 10” campaign. It look
[See the full post at: A legitimate-looking lawsuit claiming damages for the Win10 coerced upgrade]
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A legitimate-looking lawsuit claiming damages for the Win10 coerced upgrade
- This topic has 46 replies, 16 voices, and was last updated 6 years, 2 months ago.
AuthorViewing 10 reply threadsAuthor-
I wonder if one could seek reimbursement for all the time and effort spent figuring out how to protect oneself successfully from the “upgrade”…
Could we have flying cars by now if not for all that wasted effort?
-Noel
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WOW. I could not agree more!!! All the wasted mind share and man hours!!!
t
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A difficult one to prove, even though Microsoft was very aggressive in it’s Get Windows 10 upgrade. It technically could argue users had a choice not to accept it. Although we know Microsoft had some sneaky tricks with this opt out. That could go in favor of the end user who was given a unfamiliar way of opting out of the upgrade. I wish everyone well in this litigation. But my complaint revolves more around computer makers refusing to sell restore disks of Windows 7 or 8.1 even if one of those was the original operating systems. Many also did not realize they lost their partition when upgrading to Win 10. Personally I think Microsoft hurt itself and its reputation of trust with how it handled the Windows 10 upgrades.
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First the suit is on contingency and seeking class action. If they get class action and win MS will be out a rather large, tidy sum. I would rate winning about 50/50 now based on the reports I have seen. The nasty part if the suit goes forward, is MS is legally obligated to turn over internal documents relating to the Get W10 campaign. Depending on what is in them, the case could become an unmitigated disaster for MS.
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Woody, was my posting the first you had heard about it?
When I read the actual filing, it brought back memories. I have been doing a lot of lurking on the Microsoft Answers forum (www.answers.microsoft.com) for quite a while now. There were a very large number of people who were and still are victims of this scam (Get Windows free) from Microsoft. The detail of the filing is absolutely what happened.
I had one person who evidently was elderly and not very computer literate, whose computer had fallen victim and now did not work. She had no idea how to get her system (win7) back and could not afford to pay some one to fix it for her. It was her portal to her otherwise lonely world. Now, she was alone again.
I had another elderly person who now had Windows 10 working the best he could tell, but had no idea how to use it. His Windows Live Mail would not work. He was far past the learning of new system.
CT
It will be interesting if the federal district court decides to certify the complaint as a class action. That would invite other plaintiffs into the class with similar complaints. To date MS has been able to settle the lawsuits individually and to keep settlements confidential as they definitely do not want to deal with a class action. The W10 EULA attempts to bind all OS users to no remedy other than individual arbitration with MS; I guess that means you get to go to Redmond at your own expense to have your complaint treated badly. The EULA is also designed to shield MS from state consumer protection laws under actions filed by customers in state courts. It will be truly interesting to see if a class gets certified pursuant to this action.
It occurs to me to wonder why such a lawsuit has to be couched as protecting those who don’t know any better. It seeks damages for those who a) had their systems upgraded without being sufficiently warned about what could go wrong, and b) had some kind of data loss or damage.
Is not giving enough warning to the uninformed, technically challenged crowd really the only unjust or improper thing Microsoft did in pushing GWX out through the Windows Update process?
I posted above my point about Microsoft costing the smart and well-informed amongst us extra time and effort trying to prevent what were clearly unwanted things from happening to our computers.
So where is the class action lawsuit for smart and well-informed people claiming wasted time, loss of profits, and mental stress?
Up to now I’ve been willing to consider it all a learning experience (I certainly know more about Windows Update now than I ever did and I’ve added more layers of technical protection to my systems to ensure I remain in control), and also a bellwether of societal changes (I have learned to mistrust big corporations now more than ever), but hey, if those who couldn’t or didn’t bother to stop the installation of Windows 10 are going to be paid for not paying attention to what’s around them, where’s my check?
In all seriousness, I’m not holding my breath. 😉
Even in seeking justice there is injustice.
-Noel
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Good points Noel. I did learn a lot from this experience.
I was a trusting fool who admired Microsoft for years and years.
I was a promoter of their software.
I dedicated years of time learning all about their products and helping people learn them and use them.
I learned that they are an untrustworthy lot.
I learned that in actuality, Windows 7 is the last Windows that anyone I know would ever consider using.
When Windows 7 no longer runs well, I will then buy some non-Microsoft product.
I decided to never again recommend a Microsoft product
I learned that this is the beginning of a very long slide to the end of a huge behemoth that grew too big and forgot that it is customers who pay the bills.CT
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Personally, as I have said before, to grow legs, there needs to be both individuals and a number of small to medium businesses that were hammered, and for that to be publicized. However, that could backfire as MS may try to say that good IT folks would have prevented it from upgrading the network before it was tested. How do you recognize “Official OS-sponsored Malware”?
I feel that this has still not gotten real-world publicity outside of the technically literate. There needs to be a “me too” moment for individual users and small businesses for this to grow legs and get media attention and thereby get more folks to sign on. That may happened if the lawsuit gets to the discovery process, but I have yet to see it in main stream press except for a tiny blurbs from the wire services on the financial pages. Nothing of the human interest aspect as Noel Carboni and Canadian Tech and others here have mentioned.
A tiny snowball sits on the hill. Get it rolling and folks pay attention.
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It occurs to me to wonder why such a lawsuit has to be couched as protecting those who don’t know any better. It seeks damages for those who a) had their systems upgraded without being sufficiently warned about what could go wrong, and b) had some kind of data loss or damage. Is not giving enough warning to the uninformed, technically challenged crowd really the only unjust or improper thing Microsoft did in pushing GWX out through the Windows Update process? I posted above my point about Microsoft costing the smart and well-informed amongst us extra time and effort trying to prevent what were clearly unwanted things from happening to our computers. So where is the class action lawsuit for smart and well-informed people claiming wasted time, loss of profits, and mental stress? Up to now I’ve been willing to consider it all a learning experience (I certainly know more about Windows Update now than I ever did and I’ve added more layers of technical protection to my systems to ensure I remain in control), and also a bellwether of societal changes (I have learned to mistrust big corporations now more than ever), but hey, if those who couldn’t or didn’t bother to stop the installation of Windows 10 are going to be paid for not paying attention to what’s around them, where’s my check? In all seriousness, I’m not holding my breath. ? Even in seeking justice there is injustice. -Noel
I look at it somewhat like getting burglarized in our home: if we didn’t bother to take any measures to protect our property (burglar alarm, reinforced doors, whatever) and got robbed, then we’d have a case against the burglar. But if we did take protective measures and the burglar runs off to find a softer target, then we have no case. It’s not like I can sue the burglar for the cost of the alarm system.
I’d rather not have to make a case. 🙂
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It may not be quite so simple as ‘protecting’ yourself. Remember last May, when MS changed the normal action of the Close Button?
… in Microsoft’s latest round of three-card monte. As it stand, if you have Windows Automatic Update turned on and you don’t do anything — anything at all — Microsoft automatically initiates the upgrade to Windows 10. Even if you try to X out of a dialog box like the “Windows 10 is a Recommended Update for this PC” (screenshot courtesy of Groovypost), Win10 will start installing.
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I never said it was “simple”, but a fair number of folks DID manage to avoid the Windows 10 update. That took effort and time and research to learn how to do. Connecting with information sources online like this site or any number of other Windows enthusiasts’ forums to find out how to stop the upgrade well before it did any damage was doable, by virtually anyone. You’d almost have to have purposefully ignored it. Microsoft’s lawyers should be able to pull out evidence showing that many millions of non-technical people DID manage to go online and educate themselves well enough to have avoided Windows 10. The lack of Windows 10 adoption could work in their favor.
You have to admit, it’s hard to have a lot of sympathy for plaintiff Goldberg, who pressed the X button over and over and over again for 6 months without ever having gotten the idea to go online to find out how to get rid of the nag entirely (e.g., through GWX Control Panel or by removing the update). Who doesn’t bother to fix a problem like that on a system with critical business data?
Whether they can prove that plaintiff Watson had the upgrade installed without her EVER having been notified will be interesting. I suspect Microsoft will be able to present specific telemetric evidence that the pop-up was answered in the affirmative on a particular date and time. There were rumors but I don’t recall whether anyone proved conclusively that the upgrade was going in without any confirmation at all. Did it pop up while she was typing and she didn’t see it, then hit return at the wrong time? Did a child in the household do it? Did she just forget? Tough to prove. I’d love to be a fly on the wall when Microsoft pulls out information showing just how much they know about her particular system.
Plaintiff Saiger, though, who believed Microsoft when they said everything would be hunky dory and welcomed the upgrade into his system, only to find out that it caused existing applications to stop working, causing him to become aggravated, waste time, and lose data… His to me seems like a good case since the actual upgrade certainly wasn’t trouble-free. Some complex issues w/regard to compatibility DO take a real geek to get right.
Regarding data loss from the plaintiff’s systems… Remember that pop-up message we all saw WAYYY back when, that showed not long after you started using your new system and warned you to set up Windows Backup? Will Microsoft have telemetry records of when THAT was presented to the plaintiffs? I can’t quite recall… Did that message only show for Windows 7, or was it presented by Windows 8 as well? Did the plaintiffs just click through it, ignoring its specific warning?
Is the lawsuit focusing hard enough on the core problem, which is that Microsoft did overtly deceptive things that deliberately used up their reputation as a trustworthy partner built up over a lifetime?
-Noel
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“I never said it was “simple”, but a fair number of folks DID manage to avoid the Windows 10 update. That took effort and time and research to learn how to do. Connecting with information sources online like this site or any number of other Windows enthusiasts’ forums to find out how to stop the upgrade well before it did any damage was doable, by virtually anyone. You’d almost have to have purposefully ignored it. Microsoft’s lawyers should be able to pull out evidence showing that many millions of non-technical people DID manage to go online and educate themselves well enough to have avoided Windows 10.”
I have many smart, well-educated, completely non-techie friends with home PCs. When I tried to talk to them about GWX and the perils of letting their PCs be upgraded, they stared at me blankly. They had no idea that not upgrading was even an option. They were now running Windows 10 and the concept of rolling their systems back to Windows 7 didn’t even parse for them.
People really, really don’t understand the lack of the most basic computer knowledge in the general populace. We talk about it broadly, but there really are tiers of ignorance/knowledge when it comes to computers. And the people who come here and describe themselves as fairly computer illiterate, but trying to learn, are nevertheless a couple of tiers above the truly ignorant in their computer knowledge. There are broad swaths of people who don’t know that these sorts of sites exist and don’t know to ask these sorts of questions.
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You are so right, Anonymous (which ever one of you that is?). There is a large tier of people who don’t really think of their PC as more complicated than their electric tooth brush. They never did read the instruction book that came with their new toothbrush, and the PC did not even come with one.
CT
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Not only do some not understand the basics of computers……….. they are plain not interested.
It’s not important……. it just doesn’t come into their thinking…..
I see some of them with their questions in other groups……. and really wonder how they manage.
They have no idea at all. LTOnly those who will risk going too far
can possibly find out how far one can go.
– T.S. Eliot
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@Noel
In my experience, I would guess over two thirds of the PC Users/owners are your average “Joe User.”The average “Joe User”, out of ignorance:
1. Never made Recovery Disks for a new PC – what are Recovery Disks?
2. Never back up their PC, have no clue what to backup.
3. Clicks “Yes” when the UAC box pops up, without reading it, just to get it out of the way.
4. Probably never opened the Control Panel.
5. Has Windows Update on Automatic (the default).
6. May not even have been aware Win10 existed or that it would be forced/tricked on him.
7. Does not have any idea what to do if their PC crashes.
8. Has no clue how the computer works or what the file structure is
9. Uses the computer for e-mail, surfing the Internet (news, Google, etc), and maybe Facebook.
10. Does not read tech websites and would not understand even if he did
The list goes on……IMHO Microsoft, in general, and its Win-savvy employees specifically. had to be aware of this. However, a suit against MS cannot be based on the public’s ignorance or MS’s greed. It can only hope to address some incidences where MS’s negligence produced real damage to which a value can be assigned. Then try to expand the damage to cover a Class.
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PKCano, I agree completely. However, keep in mind that MS has sold its product as a consumer product that has no instructions. It pitches it as an electric tooth brush kind of appliance. Just plug it in and it works. The people you describe are people who believed that, and as it turns out have been victims because they believed the hype which is simply not true as is demonstrated by this whole GWX fiasco.
CT
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I dunno… If my electric tooth brush shocked me every time I went to use it until I re-secured the battery cover, I still think I’d fire up my web browser and see if anyone else was having problems with their battery covers…
I’m of course being a bit of a devil’s advocate here. I suspect the courts will be TOO.
Of course I think that people who have had Microsoft screw up their systems / lose their data / waste their time / cause aggravation should be compensated. I just don’t think it should only be the least savvy “Joe Public” users. The legal eagles should be aiming higher. Maybe they will after round 1.
-Noel
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(This is the anon from post #104468 above) In reply to both CT and Noel:
CT, I agree with your characterization and I would suggest that, because M$ is preying on the computer ignorant/uneducated, at a minimum they are ethically and morally responsible for the negative outcomes to those people who were auto-upgraded and suffered losses. But hopefully the courts will also find them legally responsible.
Noel, I would suggest that an important distinction here is that these people aren’t aware of having been “shocked” by their toothbrush PC. It has always just worked for them, allowing them to read and send email messages, surf the web, open and edit Word and Excel documents, etc. Their needs are simple and few and, as long as they never see a BSOD, everything is Fine™. And Windows 7 has been an especially stable OS, so they likely have become especially trusting of M$ and Windows in recent years, making them particularly vulnerable to an “upgrade” that wasn’t in their best interest and may have even caused damage.
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Noel, isn’t this a catch 22 situation for Microsoft? If they produce telemetry data to show that a particular user was notified of an impending Win 10 “upgrade” and chose to accept it (even accidently), doesn’t that destroy their public stance that all the data they collect is anonymized? And might that not be grounds for more legal action on the basis of misrepresentation if not outright fraud? I’d love to see how that would work out!
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I’ve just checked that your reply has been correctly linked to #104432, but the replies showing above are replies to an earlier reply, and I believe the nesting goes only as afar as 4 replies, or the replies get far too narrow to read.
It’s a little confusing, for sure!
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This is a key issue. MS went against their own published interface protocol that were adopted worldwide to scam the end user. To me it shows an attempt to deceive.
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@Noel, etal,
You put forth many valid points and observations regarding the lawsuit topically under discussion. The time wasted and grief incurred by users who successfully blocked the GWX code from executing on their systems is not subject to equitable or monetary remedies as a result of this lawsuit. The lawsuit is trying to frame a complaint under the Uniform Commercial Code which showed Microsoft breached a duty under the concept of “implied merchantability” to W10 users by not taking all reasonable and necessary steps to ensure the product was fit and usable for its intended purposes. The complaint also attempts to enumerate the harm the plaintiffs sustained as a result of this breach of duty. The counsel for plaintiffs are primarily trying to lay the foundation for the specification of an affected class of plaintiffs who clearly suffered similar harm and insult as a consequence of MS’s actions. If counsel cannot convince the federal court to recognize and certify a class action, then for a variety of reasons, each plaintiff will be seeking their remedies through arbitration with MS. If a class is ultimately certified, than other complainants can be invited into the action and subjugate their remedy to that ultimately awarded to the class. As such, legal counsel is trying to construct a legal theory and chain of causality that a potentially non-technical judge can understand which lead said judge to break the EULAs arbitration requirement and allow the suit to proceed as a class action. Nuance and too wide a variety of complaints works against getting a class certified. Whether justice is adequately served by such tactics is always a worthy topic but it is also a discussion that may quickly become too unfocused to advance a legal action against a major corporation with more than abundant legal resources. MS has been behaving badly for some time and my best hope is not to reconstitute the values and ethics informing MS’s current management but to attenuate the most egregious practices that have been put on display.
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The potential problems for MS are one of these cases gets class action status or the courts rule the binding arbitration is unenforceable with the case moving to discovery. MS will have to cough internal documents relating to the W10 campaign. Depending on what these documents show, it could an unmitigated disaster for MS; I am assuming the paper trail shows MS is more or less guilty of the UCC. The is probably the real danger. The W10 campaign has been considered by many to be unethical at a minimum and there is likely to be some emails, etc. showing that some within MS thought the campaign crossed an ethical/legal boundary.
woody
I saw these articles on the main Yahoo web site today March 27 morning:
TechRepublic.com “Windows 10 upgrade destroyed data and damaged PCs, claims lawsuit”
http://www.techrepublic.com/article/windows-10-upgrade-destroyed-data-and-damaged-pcs-claims-lawsuit/International Business Times “Microsoft sued over free Windows 10 update that ‘damaged user data and systems'”
http://www.ibtimes.co.uk/microsoft-sued-allegedly-faulty-windows-10-update-damaging-user-data-system-1613825ZDnet.com “Windows 10 upgrades: Microsoft sued for millions over lost data and damaged PCs”
http://www.zdnet.com/article/windows-10-upgrades-microsoft-sued-for-millions-over-lost-data-and-damaged-pcs/2 users thanked author for this post.
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That is a serious problem. Most all publications depend on advertising and most all of them have a major part of the advertising revenues from Microsoft.
One of the reasons I am so attracted to Woody is that he is the only tech writer I know that is willing and seems to be allowed to criticize Microsoft openly.
CT
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