Case against Microsoft Corporation dismissed in Washington Court House small claims court


By Ashley Bunton - abunton@civitasmedia.com



Clicking the “red X” on a pop-up screen that appears on a computer may do more today than just close out of a program, according to information released in a small claims court hearing April 13.

Washington Court House resident Bryon K. Ely filed a small claims judgment against the Microsoft Corporation in February for what he said was a deceptive practice but the case was dismissed after Ely failed to provide clear and compelling evidence.

Ely filed for a judgment in the amount of $813.43, damages that he said Microsoft owed him for computer repairs.

A hearing was held on the small claims matter in the Washington Court House Municipal Court with acting judge D. Brent Marshall presiding over the hearing.

Ely represented himself in the case. Attorney Jeremie W. Imbus was the defense counsel on behalf of Microsoft, the corporation founded by Bill Gates that is today worth $500 billion.

In his opening statement Ely said, “I’m here to seek compensation for having my computer repaired for deceptive action taken by Microsoft for installing Windows 10 on my computer.”

Imbus waived presenting an opening statement and the hearing proceeded forward with Ely telling the magistrate his side of the story.

Ely said that in May or June of last year, he kept receiving a persistent notification on his computer, called a “nag screen.”

Nag screens are common. They pop up on the computer for all sorts of reasons, from program upgrades to software downloads to Malware notifications. In Ely’s case he said a nag screen kept appearing to get him to download software for the Windows 10 operating system. Windows 10 is the newest version of Microsoft’s Windows operating system.

Ely said that instead of clicking “download” on the nag screen he would just click the “red X” in the upper right hand corner of the nag screen. He said that after about a week of doing that he went to start the computer and it would not come on. After two hours of fooling around with the computer, Ely said, the computer struggled but did manage to start. Ely said the system was different and all of his family’s files and photos were gone.

From then on, the computer wouldn’t work correctly, and Ely said he thought it had some sort of computer virus that was making the computer malfunction. He started to do some research and found several articles online. Ely said that other people have experienced the same problem and found that Microsoft had changed the function of the “red X,” so that when a person clicked on it, instead of closing the screen, it meant instead accepting the installation of Windows 10. Upon clicking the “red X,” it would give permission to download the new operating system at a later time, like the next time the computer was re-started.

Then Ely said he drove to Columbus and talked about the issue with the employees at Micro Center who told him that this problem was common. He said the employees then fixed his computer and took off the Windows 10 operating system and re-installed the previous system, Windows 7.

The amount of $813.43 was for the cost of the hardware and software that Ely purchased to fix his computer. Also factored was his time, based on his hourly wage at his job, as well as his mileage for driving to Micro Center.

Ely did contact Microsoft to file a notice of dispute. Microsoft offered him $300 to settle. He declined and the corporation later offered him $500, but he refused and asked for the full amount of $813.43.

For evidence Ely presented the online articles he had found that detailed people who had similar accounts with Microsoft’s software. He provided a copy of his pay stub to show what his hourly wage was and the receipts from Micro Center for the purchases he made to fix his computer.

Ely was then asked a few questions by Imbus, the defense counsel for Microsoft: How did you get Windows 7 on the computer? Did you try to contact Microsoft for help? Did you read the licensing agreement? Did anyone else have access to the computer?

Imbus went on to say that the Windows 10 system was a free upgrade offered by Microsoft that had benefits to increase several features. He said that in order to download Windows 10, someone would have had to have clicked an “accept” button to complete the process. Upon clicking the “accept” button, the user agreed to the licensing agreement, said Imbus, which meant agreeing to contact Microsoft for free computer support from the tech team and agreeing to any damages incurred for repair or replacement.

Imbus did say that Microsoft admits that there have been customer complaints and said Microsoft “changed that dialogue box as a result of that.” But, said Imbus, Microsoft denies any liability in the case with Ely. Imbus said computer hardware wears out over time, and the Windows 10 software upgrade does not cause the hardware to wear down. Ely’s computer was seven-years-old.

In closing, Imbus said Microsoft asked that Ely receive no damages in the case, or if the court did decide to award damages, that those damages were limited.

Ely’s rebuttal was that he never saw a screen that had an “accept” button. He said that because he never accepted anything, he didn’t agree to the licensing agreement with Microsoft, either.

Judge D. Brent Marshall said he would rule from the bench on this one.

“These licensing agreements are innocuous but they are a part of our culture,” Marshall said.

He then said that Ely did not provide any clear and convincing evidence that he could have gotten the download without pushing an “accept” button.

As for Ely not seeing the licensing agreement, Marshall said that most people do not read those agreements. Marshall said he was quite shocked they didn’t get this matter settled by way of motion before the hearing.

Marshall delivered a specific finding that whether it was accidental or intentional that Ely accepted the licensing agreement, the point is that he did accept it at some point and did not meet the burden of proof to show otherwise.

Marshall dismissed the case and awarded court costs to be paid by Ely, which Marshall said wouldn’t be very much. According to the case, the court costs in the matter were $32.

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By Ashley Bunton

abunton@civitasmedia.com

Ashley may be contacted by calling her at (740) 313-0355 or by searching Twitter for @ashbunton

Ashley may be contacted by calling her at (740) 313-0355 or by searching Twitter for @ashbunton

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