Lawyer files frivolous lawsuit over Surface storage space

California lawyer sues Microsoft claiming storage space on Surface tablet less than advertised:

Andrew Sokolowski says he bought a Surface with 32 gigabytes of storage last week. But he quickly ran out of space after loading it with music and Microsoft Word documents.

He discovered that half of the 32GB storage space was being used by the operating system and pre-installed apps.

Sokolowski filed the suit Tuesday at the Superior Court in Los Angeles. He is seeking class action status.

Microsoft says on its website that the 32GB Surface has 16GB of free space while the 64GB version has 45GB free.

Shocking. Scandalous.

Wait. You say other computers are like this too? Apple is selling this model right now:


The original 2008 MacBook Air advertised 64GB of flash storage, but according to this report the actual amount free for user data storage was 38.29 GB. After laborious tweaking, owners of the first-generation MacBook Air were able to uninstall stuff and get that free space up to around 45GB.

After poking around various Mac forums, I have determined that a fresh-out-of-the-box 2012 MacBook Air with 64GB of flash storage actually allows only 49GB of user data storage. And if that value were displayed the way Microsoft utilities measure it, the actual data storage available would be shown as roughly 46GB.

How come no one has filed a class action lawsuit against Apple yet?

Bonus points for a picture when someone shows this guy sections 2d and 2e of the Windows RT license agreement that he accepted when he set up his computer:

d. Binding arbitration. If you and the manufacturer, or Microsoft, do not resolve any dispute by informal negotiation or in small claims court, any other effort to resolve the dispute will be conducted exclusively by binding arbitration. You are giving up the right to litigate (or participate in as a party or class member) all disputes in court before a judge or jury. Instead, all disputes will be resolved before a neutral arbitrator, whose decision will be final except for a limited right of appeal under the Federal Arbitration Act. Any court with jurisdiction over the parties may enforce the arbitrator’s award.

e. Class action waiver. Any proceedings to resolve or litigate any dispute in any forum will be conducted solely on an individual basis. Neither you, the manufacturer, nor Microsoft, will seek to have any dispute heard as a class action, as a private attorney general action, or in any other proceeding in which any party acts or proposes to act in a representative capacity. No arbitration or proceeding will be combined with another without the prior written consent of all parties to all affected arbitrations or proceedings.

Maybe someone will put together a how-to guide like this one for Windows RT users.

PS: Seagate settled a similar lawsuit back in 2007.

PPS: The best explanation of how the Surface RT uses its included storage is this one from Peter Bright at Ars Technica.

11 thoughts on “Lawyer files frivolous lawsuit over Surface storage space

  1. The truly outrageous thing is that EULA. Yes, software companies need some protection otherwise they’d be sued out of existence if anyone could file a suit over trivial or annoying bugs, etc. But to deny people rights they have under law is to say “We, Microsoft, don’t give a fig about your rights under the laws of the United States or your state and don’t care about your Constitutional rights, no matter that your case may be valid.”

    This guy’s suit is dumb but that EULA is offensive, and probably unenforceable – albeit you’d need to spend a lot of cash to get a court to void it.

  2. “Shocking. Scandalous.” Yes… yes it is.

    Although I think a class-action lawsuit is useless for issues such as these, it’s bringing an important issue to light. ALL companies (repeat ALL of them) should have to report accurate available storage space for their devices. This is unethical… and clearly getting worse.

    It drives me crazy that apologists will say “well everyone does it” so that makes it ok, instead of pointing out how anti-consumer this way of thinking is. Instead, we should be demanding that we do better and holding people to a higher standard. And pointing out the EULA as a big “FU”? Really? How many EULAs have we seen over the years that were so over the top as to border on the ridiculous? Sorry Bub. You signed the EULA.

    Even Paul Thurrott calls out Microsoft when they do something stupid like this.

  3. At least Microsoft says on their site how much storage space you should have for user-generated or acquired content. Apple just has a little “note” saying that the storage space is the blank drive size and it will have space taken by the OS and programs.

    Microsoft does it right, but Apple fans go ape at them because they’re pointing out that you’re 32GB device doesn’t store 32 full GB of data.

    It would be smart for MS to do something like throw a 16GB space for the RT OS on a separate NAND chip, but I’m not a hardware tech, so I can’t comment on anything they should have done. They were in the clear pointing out that there’s a difference between advertised size and storage space.

  4. Uh, Tom, did you miss the part where Microsoft DISCLOSES ON ITS WEBSITE the amount of storage available to users? Before you go flinging around words like “apologist,” why don’t you read the post?

    Please and thank you. And by “thank you” I actually mean something else.

  5. Ed, that wasn’t there until a WEEK AFTER it first started shipping. The first adopters were royally screwed over. The OS on tablets is generally a very small portion of the overall capacity. It shouldn’t take over half the available space.

    1. KitF, it does NOT take over half the formatted capacity. Follow the links, please.

      And how were early adopters “royally screwed”? They have an SD slot and they have the option to return in 14 days, no questions asked.

  6. Also people, the MicroSD slot on the Surface is SDXC compatible, so storage expansion goes way above 64G as card sizes increase. Check I even have reports of first gen Windows Phones that work with 64G SDXC.

  7. I’m unsure how data sizes are displayed under Mac OS or Linux, but another contributing factor of confusion (mentioned in the P.S. “Seagate” reference) is how Windows uses (and has always used) “KB” as a binary-based indication of storage. That is, a Kilobyte = 1,024 bytes. The term Kibibyte (along with Mebibyte, Gibibyte, etc) which was introduced by the IEC in 1999, around 15 years after the term Kilobyte (as 1,024 bytes) was already a defacto standard, was a clumsy attempt to clarify use of binary vs. decimal terms with data storage. Unfortunately, it has not been adopted within the computer industry, and so the confusion remains.

    In my opinion, the terms “bit” and “byte” are binary in nature (2 states for a bit, 8=2x2x2 bits to a byte) so using decimal prefixes like Kilo, Mega, and Giga should never have been introduced. It’s definitely deceptive to buy a 1 TB hard drive (advertised as 1 TB = 1,000,000,000,000 bytes), and then discover after formatting it in Windows that you only can use 931 GB of it, where GB = Gibibytes, not Gigabytes.

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