Saturday, 25 March 2017 08:20

Illinois residents sue Microsoft over forced Windows 10 upgrades Featured

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Forced Windows 10 upgrades have again landed Microsoft in court, this time in Illinois, with three residents of the state seeking redress for the company's conduct that they allege resulted in data loss and damage to their computers.

Stephanie Watson, Robert Saiger and Howard Goldberg filed their complaint (linked by The Register) in the US district court for the Northern District of Illinois Eastern Division, seeking a jury trial to settle the matter.

The lawyers who have acted on behalf of the trio are looking to have the case expanded to a class action covering every person who has been affected by a forced upgrade from Windows 7 to Windows 10. They allege that there are thousands of such cases.

The trio claim that Microsoft uses various tactics to get users to upgrade and does not give them a chance to refuse.

"Typically when an offer is made on the Internet for goods, information or services, the target of the offer is given an option — and a box or circle to click on — verifying something like: YES, SEND ME SPECIAL OFFERS or NO, THANKS," the complaint said.

"The Windows 10 pop-ups have no provision for their refusal or removal. Similarly, the icons on the toolbar show no provision for removal and are, in fact, very difficult to remove. The user has to resort to seeking professional IT help or searching the Internet for procedures to remove the icon (which apparently do not always work)."

The complaint said no care was taken to see if the PCs in question were completely suited to the upgrade.

"Allegedly the Windows 10 installer genie checks the consumer's computer for compatibility; it does not, however, check the condition of the PC and whether or not the hard drive can withstand the stress of the Windows 10 installation.

"The Windows 10 installer also does not check whether other software already loaded on the consumer's computer is compatible with Windows 10."

Watson claimed she had lost data, some of which was related to her job and had to hire Geek Squad and pay them in order to try to repair the machine, without complete success.

She then claims she had to purchase a replacement machine in order to have a fully functioning computer.

In Saiger's case, after giving in to the persistent nagging to upgrade, he claims his existing software and applications stopped working and he lost data.

He also claims he lost time and money and also incurred aggravation attempting to reconstruct and replace the data.

Goldberg kept the upgrade at bay for more than six months.

"After three attempts to download Windows 10, each of which tied up his computer for extended periods of time, Goldberg's computer was damaged, and Windows 10 was not actually downloaded and functional," the complaint said.

"Goldberg contacted Microsoft about the problems, and was told his computer was out of warranty, and that he would have to pay them for any assistance with the problems. Goldberg therefore had to have somebody repair the computer to make it functional."

As a result of this botched upgrade, he was unable to use his computer, and existing software and applications ceased functioning properly.

Goldberg also claims to have lost data, which he was unable to completely recover; this included valuable business contacts, and he says he lost business revenues as a result.

He also claimed he had lost time and money and incurred aggravation attempting to reconstruct and replace the data.

Claiming damages under the UCC and Magnusson Moss Act which covers breach of implied warranty of merchantability, the plaintiffs said "the Windows 10 operating system upgrade was not fit for the ordinary purposes for which such goods are used with respect to any person who lost data or suffered damage to their software or hardware upon installing it".

The trio also claimed damages under a number of other US statutes.

They claimed that Microsoft had not provided adequate labelling or warnings to consumers regarding the upgrade before it was installed on "consumers’ computers regarding the fact that consumers should back up their data before the download was commenced, the fact that the operating system might render their computers or particular programs on their computers unuseable, or the fact that the download might cause them to lose data".

The three have sought costs to cover the expenses they have incurred, lawyers' fees and any other damages that the court might deem appropriate.

iTWire has reported at least two other cases where Microsoft has been taken to court on similar grounds.

In an unsolicited reaction, a Microsoft spokesperson said: "The Windows 10 free upgrade programme was a choice designed to help people take advantage of the most secure, and most productive Windows.

"Customers had the option not to upgrade to Windows 10. If a customer who upgraded during the one-year programme needed help with the upgrade experience, we had numerous options including free customer support and 31 days to roll back to their old operating system.

"We believe the plaintiffs’ claims are without merit."

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Sam Varghese

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Sam Varghese has been writing for iTWire since 2006, a year after the site came into existence. For nearly a decade thereafter, he wrote mostly about free and open source software, based on his own use of this genre of software. Since May 2016, he has been writing across many areas of technology. He has been a journalist for nearly 40 years in India (Indian Express and Deccan Herald), the UAE (Khaleej Times) and Australia (Daily Commercial News (now defunct) and The Age). His personal blog is titled Irregular Expression.

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