Windows Vista Capable Lawsuit Continues

By Peter Galli  |  Posted 2007-08-09 Print this article Print

The court case examines whether Microsoft's Windows Vista Capable and Express Upgrade programs were deceptive.

Microsoft has lost the first round in a legal battle over whether its Windows Vista Capable and Express Upgrade programs were deceptive and led consumers to buy PCs that could only run the most basic version of the operating system. The case was brought against the software giant, based in Redmond, Wash., by lead plaintiff Dianne Kelley of Camano Island, Wash. Kelley bought a new PC in November 2006 that had a sticker labeled "Windows Vista Capable" affixed to it. Windows Vista had not been released at that time, so customers bought machines with Windows XP preloaded and were given a coupon that allowed them to upgrade to Vista when the operating system was released at the end of January 2007.
Click here to read more about Microsofts Express Upgrade to Windows Vista program.
Kelley then discovered that her machine was only capable of running Vista Home Basic, which does not include the new Aero user interface, advanced graphics and other "signature" features available in Vista Home Premium and other more advanced, and more expensive, versions of the product. Kelley sued, claiming that Microsofts marketing violated the Consumer Protection Act, was unjustly enriched and violated federal warranty law. She also sued for breach of contract, a claim she subsequently voluntarily dismissed. On Aug. 7, U.S. District Judge Marsha Pechman denied Microsofts request to dismiss the lawsuit and ruled that the case could continue. However, she withheld judgment on the allegations that the company violated federal warranty law, saying she would issue a written ruling on that issue in about two weeks. When asked for comment on the judges decision to allow the case to proceed, Microsoft spokesperson Guy Esnouf would only say, "We are pleased that the court dismissed one of the plaintiffs claims and we look forward to the judges opinion on the claim she took under advisement. This is the first step in the process and we welcome the opportunity to put our case to the court in due course." To read an eWEEK Labs review of Vista, click here. Microsoft has argued that Kelleys allegations do not show that she was either harmed by its actions or influenced by the "Windows Vista Capable" labels, and that her PC was able to run Vista, albeit just Vista Home Basic. While the claims made in the lawsuit will be resolved by the court or with a settlement, it seems likely that many consumers will sympathize with Kelley. As Microsoft Watch Editor Joe Wilcox points out, Microsoft had some stumbles along the road to getting Vista into the hands of consumers, including the fact that Microsoft announced the Vista Capable program in late March 2006 and for the next two months or so that was the only Vista logo sticker. "Consumers could easily presume that Capable meant all versions of Vista. But Microsofts sticker was supposed to mean capable of running Windows Vista Home Basic, which wasnt clearly enough stated," Wilcox said. Microsoft also did not announce a second logo, the Vista Ready program—which meant ready to run Windows Vista Premium—until two months after the Capable program started. It also did not formally announce Vistas system requirements until the start of the Vista Ready program. Microsoft also slightly tweaked Vista system requirements in December, Wilcox said. The judge will rule whether or not to allow the case to be certified as a class action, thereby broadening it to include other consumers who bought PCs under similar circumstances. The case is currently scheduled for trial in October 2008. Check out eWEEK.coms for the latest news in desktop and notebook computing.
Peter Galli has been a financial/technology reporter for 12 years at leading publications in South Africa, the UK and the US. He has been Investment Editor of South Africa's Business Day Newspaper, the sister publication of the Financial Times of London.

He was also Group Financial Communications Manager for First National Bank, the second largest banking group in South Africa before moving on to become Executive News Editor of Business Report, the largest daily financial newspaper in South Africa, owned by the global Independent Newspapers group.

He was responsible for a national reporting team of 20 based in four bureaus. He also edited and contributed to its weekly technology page, and launched a financial and technology radio service supplying daily news bulletins to the national broadcaster, the South African Broadcasting Corporation, which were then distributed to some 50 radio stations across the country.

He was then transferred to San Francisco as Business Report's U.S. Correspondent to cover Silicon Valley, trade and finance between the US, Europe and emerging markets like South Africa. After serving that role for more than two years, he joined eWeek as a Senior Editor, covering software platforms in August 2000.

He has comprehensively covered Microsoft and its Windows and .Net platforms, as well as the many legal challenges it has faced. He has also focused on Sun Microsystems and its Solaris operating environment, Java and Unix offerings. He covers developments in the open source community, particularly around the Linux kernel and the effects it will have on the enterprise.

He has written extensively about new products for the Linux and Unix platforms, the development of open standards and critically looked at the potential Linux has to offer an alternative operating system and platform to Windows, .Net and Unix-based solutions like Solaris.

His interviews with senior industry executives include Microsoft CEO Steve Ballmer, Linus Torvalds, the original developer of the Linux operating system, Sun CEO Scot McNealy, and Bill Zeitler, a senior vice president at IBM.

For numerous examples of his writing you can search under his name at the eWEEK Website at


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