Yesterday, Adam Kosmin had his first day in court against Toshiba. Adam, with about 6 others in support of his case, were present at the Queens County Courthouse, particularly Small Claims Court. The night was rather uneventful, after waiting to find out where we were going, we ended up waiting in a long line outside one of the courtrooms. After waiting for a while, we were moved to a different courtroom, where Adam and the lawyer from Toshiba discussed their side of the case with 2 women, who I assume were there to try and talk them into taking the case into arbitration. Since any agreement reached in arbitration would be binding, without the possibility of appeal, and that an arbitration agreement wouldn't set any precedent for future cases like this, Adam wisely decided that he wanted the case to be heard before a judge. Before the night was through, he and the Toshiba lawyer had a brief conference before a judge, where they each presented their side of the case. Since this was the first time the case had come up in court, and since there is a backlog of older cases still waiting for a hearing, this hearing was postponed until April 23, 2003.

It was not a wasted night, however. We did find out what the major arguments of the Toshiba case are. Number one, they claim that they have a contract with the buyer that supercedes the EULA provided by Microsoft, two, the Microsoft EULA is not their responsibility (seems to contradict their argument for point 1), and that the customer has express knowledge that Windows came installed on the machine but bought it anyway. We also know that we need to be a little better prepared for next time, and to help that, a couple of suggestions were made, like looking for pro bono help, or seeing if any law students would be interested in helping with the case. Also, the possibility of seeking an expert witness to demonstrate that the OS is not tied to the hardware was mentioned, and this avenue may be pursued if needed.

The important thing to take note of is that this case is no longer simply about the monetary value of the refund, it's the precedent that a case like this would set, and the floodgates it could potentially open. I wish Adam the best of luck with any future proceedings (which I hope to be able to attend), and I ask that you help to spread the word about the case and just about the Windows refund provision in general.

Please note, by 'we' I refer to Adam's side, which I support. Any opinions expressed here are mine and not necessarily those of anyone else supporting Adam.