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French Judge Orders Refund For Pre-Installed XP
Racketiciel writes "A French user asked for a refund after buying an ASUS computer
that came with Windows XP and other software pre-installed. ASUS tried to
apply a procedure which cost more money to the consumer than they
will give back... The court ruled in favor of the user,
who received back 130 Euro (~200 $) for the software.
Here is the ruling (PDF, French). In France, this is the fourth victory for refund seekers during the last two years,
and many people are now filing for refunds (in French). Two French associations (AFUL
and April) published
a press release on this victory the same day an important hearing happened." The English-language press release linked above gives a pretty good idea of what happened here, for those unsuited to wading through French.
The EULA includes the option to reject it. And ProCD, the leading case for the enforceability of EULAs, supports the proposition that a EULA wouldn't be enforceable if you couldn't reject it and return the software for a refund. If people weren't supposed to be free to take advantage of the option, it wouldn't be there. So no, people shouldn't be stuck with it.
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
I would look at it more like buying a 1970's Ford Pinto. It came preinstalled from the factory with a new fuel component that had a fantastic new feature. Some times during brisk driving, the sudden mixture of gasoline and air, combined with a slight vibration, would result in some quite "super-tropical" temperatures being exhibited in your vehicle. Upon experiencing this feature, some customers disliked it and requested that Ford immediately remove it from their vehicle.
Why should Ford have had to remove this feature from their vehicle when the consumer already knew it existed when they purchased it? Surely they had read the reviews beforehand.
Well, as it turned out, the courts sided with the consumer in this case as well.
It's just another example of the consumer taking advantage of the trust of helpless corporations.
When will this madness end?
Tying a product with something else violates article L122-1 of the French law. The argument is that some giant corporation might convince or coerce somebody to bundle one of its products, creating a de facto monopoly. This is the same reason no telecom operator can force you to buy a subscription with your iPhone.
If you don't like the law, stay out of France. The majority of the population here like it very much as it keeps the competition alive and healthy.
Res publica non dominetur
Here in France it's forbidden by law to sell a product only if you also buy another: the customer must be able to buy it alone. You car analogy is bad because the "whole" car is considered as a single product, while the computer is a product without it's operating system. And even if you don't agree with this concept or anything, that's not the point here: since it's forbidden by law, any customer who asks a refund (without previously using the packed Windows of course) will win in court. That doesn't mean they have to sell computers without operating systems at all, they only need to give a *real* way to get a refund. Not asus' crappy "yeah we keep your computer for a month and you pay the shipping too, then we give you back 30euros".
"you don't have a "right" to buy a computer not bundled with Windows XP"
Actually you're wrong, in France this is a right covered by law: two products sold together must be available alone too. You may agree or not with it, but in the end it's law and computer seller have to do it, so when an user go to court he wins.
ASUS in France offers to buy back the Windows license, but the user must ship the computer two ways at his own expense, and he gets only 25 Euros back for the Windows license, and ASUS can keep the computer as long as they want to do that. French law forbids tie-ins, such as forcing someone to buy a computer with an OS already installed. The court felt that the 25 Euros combined with the cost of shipping the computer both ways and the fact that the procedure had undetermined duration was effectively discouraging the user from using that capability. Therefore ASUS lost.
Your analogy is not sound, you _can_ buy a car without power windows or AC, it's extremely difficult to buy a computer without a Microsoft operating system.
The computer was sold with XP pre-installed & a "shrink-wrapped" EULA. She wanted a computer but not XP, but was unable to buy a computer without XP pre-installed. This is generally called "The Microsoft Tax", because people who buy computers in order to run other Operating Systems (yes there are others) are forced to pay this tax.
She didn't want to pay this "tax" so asked to be refunded the cost of XP.
If I had an Ass, I'd call it Fanny Bottom, then I could slap my Ass; Fanny Bottom, on the Arse.
Those people don't care about the choice and wouldn't know how to make it if one were present. The exceptions to that statement buy Macs.
You missed the point. The laws says that it is illegal to refuse to sell you a computer if you are willing to pay for it. The law also says that the store cannot legally tie two products together.
This means that if you want to buy a computer without the OS they must sell it to you without it
and not charge you for windows that you don't want.
actually the russians did all the hard work to win the war http://en.wikipedia.org/wiki/World_War_II , so mebe you could argue that Paris would be Doestroyevskigrad or something.
Agree completely. Here in the UK I can buy unencumbered computer-tooters from Novatech.
:-)
Yay.
Disclaimer: I have no association with them other than being a satisfied customer
If I had an Ass, I'd call it Fanny Bottom, then I could slap my Ass; Fanny Bottom, on the Arse.
I like your enthusiasm but you're wrong!
Point 1) As offered by the VENDOR, the customer simply exercised their LEGAL right to not agree with the EULA supplied with laptop as they didn't want the OS but wanted the laptop.
Point 2) Well, thats just silly. Again, please read Point 1.
But I suppose having people exercise their rights to not be ripped off by what amounts to not much more than collusion is somehow against the constitution?
Bear in mind, quite often in principle the groups supporting people like this, are also the groups supporting things like, not being discriminated against with DNA testing, health insurance, etc, etc. But I guess you would see things like that as bad for business too?
In fact... if I'm not mistaken, France was the first country in which an unlocked iPhone was required to be offered as an alternative to the usual operator lock-in.
I am French (and I glanced the ruling). However, the 130Euros cost for the software is somehow realistic (100Euros for Windows, 30Euros for extras). It is even a bit more than that. A "laptop sold with "Windows Vista Edition Familiale Premium" on http://materiel.net/ (some home version of Vista, without any extra software) has a price tag of 1000Euros and exactly the same laptop without any OS is sold 870Euros. So the customer price tag for this Windows is 130Euros. (it is quite difficult to buy a laptop without OS, but there are some few offers). So the 100 euros estimate by the French judge is probably a bit too small but not far from the reality. And the judgment is based upon consumer laws. The price tag should be what the consumer has to pay, not what the seller paid.
The law explictly, specifically, prohibits tie-ins. It's the fucking law. It applies to carpets, car insurance, hair stylists and frozen vegetables. So why shouldn't it apply to computer and operating systems?
If you or Asus don't like it, why don't you fucking go to Russia or something?
The EULA says she has to abides by its term or get a refund if she declines. Well, guess what, the judge felt that the vendor had to respect the terms of what it put forth.
Big fucking surprise.
This thread is so full of fail, it's painful.
Which is completely fine, because the EULA explicitly allows this. I'm sorry for the shouting, but this is Microsoft's capitalization of the sentence in the EULA:
"YOU AGREE TO BE BOUND BY THE TERMS OF THIS EULA BY INSTALLING, COPYING, OR OTHERWISE USING THE SOFTWARE. IF YOU DO NOT AGREE, DO NOT INSTALL, COPY, OR USE THE SOFTWARE; YOU MAY RETURN IT TO YOUR PLACE OF PURCHASE FOR A FULL REFUND, IF APPLICABLE."
Since the guy couldn't read the EULA before purchasing, and since tying the OS to the computer is illegal in France (and a bunch of other EU countries), he's perfectly right to return the thing and get his money back.
Actually Norway never surrendered. They moved their administration to London.
The "French surrender a lot" meme is different - whatever its origin, and the Onion article that helped propagate it in the ~2000 timeframe, the US right wing started pushing it heavily during the run-up to the US invasion of Iraq, because the French weren't jumping onto Bush's bandwagon, and it was a convenient way to get the rubes to attack anyone who wasn't cooperating, further drawing them in to the neo-con's frame of reference.
But it was especially important for Bush, because the obvious name to call the Iraqis who fought back against the US-led invasion would have been The "Iraqi Resistance", in parallel to the French Resistance of WWII, who everybody remembers at least vaguely as having been brave fighters against an overwhelming attacker, which was really really not the meme that Rove et al wanted to have around.
Bill Stewart
New Fast-Compression-only CPR http://preview.tinyurl.com/dy575ks
Actually, The Netherlands only surrendered because the Germans flattened Rotterdam (an unprotected city) by bombarding it unannounced. After that they threatened to do the same to other cities in the country.
The other countries that you mention as having surrendered didn't get the same treatment.
France didn't get taken over in the first world war. The French army moved reserves to the front line when it appeared Paris may fall (even using taxis) and stopped the aggressor German imperial army, and then the next four years was spent without the front moving much.
I'm an Australian and I haven't heard that joke before. Perhaps more indicative is the fact that in two world wars French freedom stood for something that Australians were willing to die for. The French had no useful allies in the second world war in their time of need: the Americans didn't care and the British hardly had an army, let alone an army on the Continent. The disaster that befell France happened due to inaction of the democracies from 1935 onwards; the French army in 1940 can't take much of the blame, the situation was completely hopeless by then.
You knew what the EULA was
No you don't. The EULA is INSIDE the package, genius.
In Europe we tend to prefer to not rely on the whims of the corporations and instead just force them to do what we want.
I can't believe one second that you're German. As a French living in Arras, town that was on the frontline of both wars, I can tell you that you're disgusting me..
One of the few things I know of my grand-grand-father is that he had drank his pee while defending his country from (probably) your grand grand father? This war was terrible. Millions died, not least by the incompetency of the generals, and on both sides soldiers did their duty to the end in the most horrific conditions. No one could live the battlefront with any sanity left. Don't talk me about being taken over, because we didn't fail despite contrary odds, and thanks to the US and English and Canadian and Australian help.
When came the second world war, with the generals having made more or less the same errors as before ww1, I can understand that people only wanted to avoid a second tranch war. Actually, given that my small town of birth (Saint Laurent Blangy) was flattened (higher wall left after the war in the whole town: 1 meter) during ww1, my grand mother told me many times how women and children alike thrown themselves on the roads as soon as they knew ww2 was coming. This was an exodus to the south.
http://images.google.com/images?q=arras%20ruines%20guerre&sourceid=navclient-ff&ie=UTF-8&rlz=1B3GGGL_enFR258FR258&um=1&sa=N&tab=wi
ps: let's hope you don't keep other funny ideas in your "German psyche / German blood".
pps: yeah for Europe.
They might have been "gutless" but they didn't surrender. And while certain elements were certainly nazi-friendly (notably the king), a lot of Swedes were actively helping the Norwegian resistance in bringing people who needed to escape over the border. A lot of Norwegian resistance fighters who got close to being captured can thank them for getting a safe haven when the nazis started closing in on them in Norway.
Yes I am for real, I would expect any Australian (or American for that matter - but I hate them just as much as any other race) to fight to the last drop of blood for their country.
Ok leave Hollywood version of war for a second...here is how it works in real life: Would it include that you would happily sacrifice women, new born babies, children, eldery people? Look at your girlfriend, your mother, and your children and imagine them dead...Not a nice quick death mind you...Imagine them almost wounded by sharpnels and agonizing for hours, or burn to death for the sake of your nation honnor.
Because that's what happen when the fight actually happens in your country, street fights, bombing cities and all. Look at the Rotterdam bombing. The Dutch dared to resist and their main city was litteraly flatenned (citizens included). Or Belgians franc tireur dared to act as snipers and then Nazis shot randomly 20 citizens for each killed soldier. War isn't about being a hero or anything, war is hell. So please before taking such a pompeous position think twice (and I guess you have never experienced war...Let alone facing Nazis SS divisions).
Live today, because you never know what tomorrow brings
The French court system follows precedent rulings (jurisprudence ) but it is weaker as in the US system.
Christophe (Don't hesitate to point out my spelling and grammar mistakes, I want to learn - Thanks).
The GPL is not an EULA. You only need agree to it if you ever redistribute GPL software; personal use & copying is granted explictly, unconditionally, and free of charge.
Windows wants you to agree to an EULA. Said EULA says that if you refuse you can get a refund.
We want the damn refund.
That is all.
Expansys in the UK is doing pre-orders for the MSI wind; from what I can see the linux version is identical to the windows xp home one in hardware spec (same ram, HD, 3 cell battery, BT included) but £30 cheaper.
Remember kids, it's all fun and games until someone commits wholesale galactic genocide.