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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.
You bought what you bought. If you took the XP as part of the package, you should be stuck with it. You knew what the EULA was. Don't like it? Choose one of the many systems from another vendor that come with Linux or no OS.
But... It's not the OEM's job to decide for you what software to run. If you want just the computer with no OS on it you should have that option. If people use declining the EULA to work around the fact that OEMs don't offer no-OS options or the crudware is just offensive, I guess that's the best we can do.
If enough people did this, the no-OS option would become available. But... society is too litigious already and more of this doesn't help.
Can't we all just get along?
Help stamp out iliturcy.
Did he know it came with XP Pre-Installed?... If he did, I don't agree with this, if he didn't, then I do, provided it wasn't his own negligence.
ASUS (or wherever distributor) probably has the option of having a barebones components only option for purchasing, so do that, or at least ask if you can get one if its not advertised.
If it says "Comes With Windows XP Pre-Installed"... and he bought it, and then said "hey wait I dont want this"... too damn bad... keep the machine, or send the entire PC back... its not like it failed (jokes aside) as if it was a dud NIC or something...
"ASUS tried to apply a procedure which cost more money to the consumer that they will give back..."
Tried? it seemed to have worked.
Anyone have a more informative non-french link to exactly what he bought, and what was advertised, etc?
Do Asus sell computers without Windows pre-installed in France? My French isn't good enough to find out, so if you could provide the link to this, it would be much appreciated for the rest of us /. readers not au fait with French.
The Mothership
I call bullshit, even as I'm forced to post AC.
The fact is it is very hard to find systems without the operating system at the same cost as you would find from a place that sells enough systems with windows preinstalled for the total hardware cost to be cheaper. In fact, its impossible, unless you want to prove me wrong.
The fact is, Windows is being FORCED on people.
Except that, the power windows and AC didn't come with paperwork, provided only after the sale, that not only said "you must agree with this", but also "if you don't, give it back and you'll get a refund for it".
Does your car dealer sell you a car, you drive it away, then when you go to use the power windows it pops up an EULA with onerous terms that you don't agree to?
Thats complete and utter BS.
If I wanted an ASUS Computer, I should be able to buy JUST THAT. Most manufacturers still dont have a "No OS" option for their configured systems, and I'm damn sure that there isn't a single computer sold in a retail store that has "No OS" as an optional package(at least in the US).
Look, if the guy doesn't want to pay the Microsoft Tax, then he shouldn't have to. Last time I checked, they were 2 completely seperate companies, ASUS and Microsoft. Imagine that if every manufacturer pre-installed a $1000 copy of Adobe CS3 and you couldn't opt out of it, wouldn't you be a little pissed off? Wouldn't you feel that you'd have the right to get your money back for something you didn't want in the first place? This isn't the slightest bit different. Not to mention the whole EULA problem. If you can't see the EULA before you purchase something, you can't just say "Oh, well, I won't buy this then". If he didn't agree with the EULA upon starting his computer (which it may not have even appeared, if ASUS preinstalled XP, which would create a whole new problem in itself) then he has every right to tell ASUS to kiss his ass and give him his money back.
All your 09 F9 11 02 9D 74 E3 5B D8 41 56 C5 63 56 88 C0 are belong to us
I wonder if this would work for a Mac too - could you get one without OSX or get a refund on it if you didnt want to use it?
Can't MS just send some programmers over there to take over the country?
It's not like they'd put up a fight...
You mean, like they did when they defeated the British Army and won the American War of Independence?
Why is a car considered a single product, while a computer including an operating system is not? The computer is pretty useless without an operating system. This law is stupid because if consistently applied it would lead to unbelievably absurd outcomes.
Frosty piss posts are worthless, GNAA posts are worthless and hurtful, but they are the least of this site's neuroses.
As for the ruling. When do two wrongs make a right? This seems like a very meddlesome court. Sure they are fighting the excesses of bundling when monopoly software is involved. But I'd rather see them attack the root of the problem than set lousy practices like this as precedent.
As they say when elephants fight the grass gets hurt. Asus is the grass.
Some drink at the fountain of knowledge. Others just gargle.
Whilst it may be trivial to remove an OS from a computer, it's certainly not trivial to get refunded for something you do not want. In this case it took a court case.
If I had an Ass, I'd call it Fanny Bottom, then I could slap my Ass; Fanny Bottom, on the Arse.
You can't force someone to accept the terms of a license simply thru purchase. If you could, then I would sell iPhones for $1 which also include my special new license that entitles me to half of your yearly salary.
Your "too bad you bought it" doesn't hold up. If it did, then does that mean that once we make the purchase we can copy and redistribute it? Or decompile and alter it? If you say "too bad you bought it", then I've got my own theory that says "too bad you sold it to me".
Well, it turns out that the situation isn't so lawless, because there's something called a software license. Once again, you can't force someone to accept a license, especially if you haven't even been given the opportunity to read the license yet. The license says that you don't have to accept it, but if you do then you can't do things such as modify the software or copy it and distribute it to others for free. But the people in bed with M$ are hoping that you won't decline the software license, because there's usually a part in it which says that you're entitled to a refund if you don't agree.
I applaud the people in these articles for standing up for their rights. It's not stupid socialist law, it's simply using the software license against M$. They're hoping you won't take them up on that part of the deal, and will blindly accept the Microsoft Tax even if you don't want it.
How is bundling Linux with a computer any different than bundling Windows? If there's no extra cost involved (ie, one of the many free distros) then, presumably, that's fine. Bundling anything that implies a "tax" would still get the same treatment (if people complain that is).
It doesn't force them to consider Linux at all, there's no law on the books that says "if Windows is a pain in the ass, you must offer Linux."
What it will do is encourage the companies to not force bundled software. Either they'll make a point of selling bare-bones PC's, or they'll start honoring refund requests. If their licensing with Microsoft prevents that, then maybe they'll consider another operating system (which Microsoft would never allow to happen, Microsoft will just lower the price of licensing to make sure sales continue).
Nothing says it'd have to be Linux, it could be joe schmoes Perl-based OS if that's what Asus thought was a good deal for customers.
Tied selling, whether applied to banks forcing you to buy insurance to get a loan, even when you are already insured, or to buying a PC with MS Windows pre-installed, is illegal in many jurisdictions. The MS EULA also says something to the effect that you can refuse to use it and get a refund. These lawsuits simply hold the sellers responsible for all their promises.
Excuse me, but please get off my Pennisetum Clandestinum, eh!
You MUST be an american. I know of no german speaking like this. For a simple reason : they get history taught in college there. France was not "taken over" in both world war, only 1. The "great war" the trench/battle limit went back and forth north of France, but nobody took over France. For the second war, what did you expect them ? To die like a single man ? Are you for real ? You are aware that "die in honor" is an outdated previous century concept, and all modern commander would accept surrendering ? There was no cowardiness shown by france during WW2, don't get me started also on resistance and the work thereof under extremly awful condition (torture, execution, hostage killing etc...). And by perpetuating this mostly US joke, all you show is your pettiness of spirit. Jeez and I bet you will be one of the first to complain that french give you the finger.
C. Sagan : A demon haunted world:
http://www.amazon.com/gp/product/0345409469/
visit randi.org
This is the point I was trying to get at. If my AC example isn't sufficient, we can use the example of a car's engine. She buys a Honda Civic and those jackass Honda people include a crappy Civic engine. Why should she be forced to use it when she wants to put in a Mustang engine. Should Honda offer everyone a car without an engine by law, or should there be a law requiring Honda to remove the engine on demand and reimburse the person for the cost-as-new of the removed engine?
I'm asking seriously, how is this any different than a computer. The point is if you start to apply this law to other items it illustrates how absurd it is, and how nonsensical it becomes to do business over any product that isn't a single component.
You get relegated to selling only apples, single cuts of meat, individual plates, DVD seasons that are sold by disc - the case also separate, and every piece of electronic equipment is a build-it-yourself of basic single electronic components (sold separately by law)!
The fact is the Windows EULA is presented on first boot of any new computer that comes with windows.
This agreement states that if you do not agree to the terms you may turn off the computer and request a refund for Windows.
Anyone and Everyone who buys a new computer with windows pre-installed has the right to get a refund for Windows.
The reason this went to court was because ASUS was charging the customer more for shipping than they were refunding for Windows.
Anyone who says this shouldn't have gone to court is shooting themselves in the foot.. Even us in the USA have the right to return windows if we disagree with the EULA. I don't want OEM's making it cost me money to do so!
No, the point is that a French customer should be able to buy a hardware without any software. There should be no obligation to buy any software when a French consumer is buying hardware. It is not about buying a PC with Linux, it is about the right to be able to buy a PC without software!
Yeah being part of Canada would be AWFUL. You'd have a decent minimum wage and free health care. What a nightmare that'd be.
No, people exercising their rights is fine. No one should be ripped off. What I'm saying however, is if the vendor did not sell her the product the way she wanted it, why would she buy it just to sue? I'm more than certain that she had alternative choices.
Because she didn't have any alternative choices. Unless you're a techno-geek who knows how to build your own system from parts, or you're looking for a subnotebook like the XO or the EEE, it's incredibly difficult to find anything that doesn't come with a Microsoft OS bundled. If you're looking for a name-brand consumer machine (ie. you're not buying on a corporate account), it's effectively impossible. This person, like most, had two choices: buy a computer with some variety of Windows bundled, or don't buy a computer.
The French court here seems to be saying "The specific OS isn't an integral part of the computer, witness all the ones sold with different OSes. It's easy enough for vendors to supply a machine without an OS. Under French law the consumer has the right not to be forced to buy additional products just to get the one they're nominally buying. The vendor's refund program appears to acknowledge that, but it's more convoluted and costly than it has any reason to be. Vendor, stop playing games and give her the money back like the law says you have to.".
I'm pretty sure the gp meant that it is extremely difficult to buy a computer with a non-Microsoft operating system, that gives you freedom as to what hardware you can use.
If the memory of the people in the US went a little more back into history they'd also notice that France actually totally kicked the Western World's ass lead by a tiny Corsican. It's not like the can't fight, you know.
And Germany (then Prussia) saved the world from France once. At the battle of Waterloo.
Not only did Blücher's troops play a huge part in it, Wellington's troops also had a big share of German troops.
So I guess if you dig around long enough then most of the major nations have once saved other nation's asses and at other times kicked other nation's asses. So what.
There are two rules for success:
1. Never tell everything you know.
Yeah, but I doubt that was the parent post's point, rather a computer without any operating system.
But since you brought up Apple, what if someone for whatever reason wanted to by an Apple computer, but didn't want OSX? Apple doesn't give you the option to buy a Mac pro w/o an OS. Of course that's a moot point, since most people would buy a Mac because of the OS rather than them simply getting a PC and taking whatever OS they're given.
Duct tape is like the Force. It has a light side, a dark side, and it holds the universe together.
I've fought that battle, and believe me, PC manufacturers are terrified by Microsoft's behind-the-scenes bullying and price manipulations should they dare to try selling machines without Windows. It took me seven years of work and four years of convincing to get ONE brand-name manufacturer to sell me laptops without operating system to sell to my customers, and that manufacturer is Fujitsu-Siemens. Every single other brand chickened out of the deal, including big names like Lenovo (then IBM).
So no, I'm reasonably sure it wasn't possible to get that machine without Windows, which is product tying and illegal (in France and other countries) anyway. Second, she couldn't read the EULA before she bought the product, but as the EULA allows her to return the Windows license for a refund if she doesn't agree with it, she's completely right.
I find it even more astonishing to see the lengths most English native speakers go to as not to be forced to speak any other language at all.
I've been living in Japan for 12 years now, and it's really amazing how perseveringly most English native speakers manage not to learn the local language beyond the level of a 4-year-old. It's amazing.
There are two rules for success:
1. Never tell everything you know.
Suppose every computer came with an intel chip, even the AMD systems - you can get an AMD, but itel gets paid either way. Would you object to that being illegal?
"We returned the General to El Salvador, or maybe Guatemala, it's difficult to tell from 10,000 feet"
Because in order to use the software installed, you had to agree to a separate license agreement with a third party who was not involved in the legal and financial transaction of buying the computer. Furthermore, that license agreement was not conveyed to you before you purchased the computer. If your car was a Honda civic, and it was advertised as coming with AC, but when you got it, it had a sticker over the AC button that said "By pressing this button you agree to be bound into the following legal agreement with Acme AC conditioners Ltd, France. You agree that any and all disputes will be governed by the laws of France. If you do not agree with this agreement, return this AC unit for a refund." etc etc. What would your response be? I suspect you would feel that you should be able to take it back and say "I'll take the refund". Furthermore, I suspect that if they said "We will have to charge you the cost to tow the car to and from the garage, they will keep it as long as they want, and you'll get 1/10 the price of buying the AC unit alone back" you would be a little upset.
I think you'll find that it's part of the American culture to assume that they got where they are on their own, under their own steam by the sweat of their own brow, and that the rest of the world is a bunch of useless incompetent fools who blunder along blindly. Kind of the same attitude that teenagers have about their parents and grandparents. Not having the slightest clue what it was like for them and that they haven't actually gone through *anything* without someone holding their hand yet.
The truth of history is completely at odds with this, Americas success came from being geographically isolated from it all and more than a bit of international help when needed. This and the same double crossing ruthlessness that they accuse the rest of the world of has led to the USA of now, not some magical concoction of pixie dust available only to Americans. Just population and a smooth run for over 100 years. My country's the same, but we just call ourselves lucky.
It's nicer to believe myths than the truth, especially a truth that painfully goes against everything you 'know'.
Even the truth of what the French endured last century is quite painful to understand to a reasonable person. How many tens of millions dead and wounded, how viciously they fought in WW1, under conditions that make Iraq and Vietnam look like a stay at the Hilton in comparison. Where chemical weapons were used by both sides like regular munitions, fields were metres thick with the dead tens of thousands of men, who died to gain inches of land. Then 20 years later they have to do it all over again.
Then fifty years later three thousand out of two hundred million yanks die in the first attack on her home soil...well ever, and the biggest tantrum in the last fifty years is thrown and we're told over and over and over again how we should all feel so sorry and damn it, it's just the worst thing ever to happen to anyone! We listen for nearly a decade about how awful it all was, patting them on the head, saying "there there it's ok". All the while quietly waiting for them to grow a pair and grow the fuck up. How they have the audacity to put shit on the frogs who each and everyone lived through, experienced *personally* not just on the TV or paper, and fought valiantly in the most awful warfare in the history of this world...twice, when they carry on like such a bunch of drama queens about such a tiny incident in the history of the world is quite frankly embarrassing.
It's ok to have a bit of a dig and friendly rivalry, but the yanks seem to have started believing their bullshit. The comparison of an immature bratty teenager really is apt.
This whole argument has nothing to do with IF the supplier offers systems without the product. The whole argument here is that as a user you can choose not to agree with the EULA and therefore are not buying the software.
What the court has said was that it was not fair to charge you $200 for the software but only refund you $25 if you didn't choose to accept it.
And doesn't matter where you are from or how you buy your software/systems/pc - charging you $200 for something and refunding you $25 for it in an unused state is simply not fair.
Moved to http://soylentnews.org/. You are invited to join us too!
Here's the basic rundown of US consumer rights:
-You have the right to not be misled regarding what you are buying.
-You have the right to refuse to buy something.
That's it (I don't think I've missed anything big). In addition to those, we have anti-monopoly laws, the basic gist of which is:
-You cannot, through monopolistic powers, interfere with the business of competitors.
For instance, you can't say (to a consumer) "I'll sell you my widgets cheaper if you agree to not buy widgets from Bob for the next year." You also cannot say (to a distributer) "I won't allow you to distribute my goods so long as you also carry Bob's brand of goods." The reason these things are are bad is that you are pushing Bob out of the market without actually competing with him. And that's the essence of these laws: competition.
Now the reason this French law seems stupid to Americans is because Microsoft is not preventing competition with anyone! Certainly if they are using their market power to keep ASUS from bundling with competitors (or, I suppose, selling an unbundled product), that's a problem; but really what the French law is trying to do is **preempt** the harmful act, and in doing so it is overly broad.
At least that's how Americans see it.
The French law forbids to tie-in a product (like a computer) with a service (like a software license). You must sell each of them individually.
To make a better car analogy, it would be like selling a car with a mandatory insurance policy or a 10-year repair contract.
Free beer is never free as in speech. Free speech is always free as in beer.
I can still remember that some years ago the slashdot crowd cheered at the people who have tried to get a refund for OEM Windows preinstalled on their computers.
Either the people here are different now or it is french bashing time. Maybe both.
"It's such a fine line between stupid and clever" -- David St. Hubbins, Spinal Tap
americans are loud mouths, who have no idea about anything outside their own country.
And like all teenagers they think they can fix all the worlds problems, almost cute
preview button, my computer does't have any preview button
PS: not polite to reply to my own post: another thing is that The Netherlands was neutral in the first world war, and also claimed neutrality here. Even though France and Belgium had already declared war to Germany in 1939.
So when Belgium and France surrendered, they surrendered to a country they themselves were at war with. But when Germany invaded the Netherlands they attacked a country that had invested little in the military since the turn of the century and that explicitly chosen to stay neutral in the conflict.
The "whatever its origin" part is actually very important:
Basically, the French did not wanted to see their city destroyed by German tanks in the WW2. So the French goverment left the city and declared Paris an "Open City".
http://en.wikipedia.org/wiki/Battle_of_France#New_German_offensive_and_the_fall_of_Paris
We are Turing O-Machines. The Oracle is out there.
The operating system is a component of the computer, just like the processor, video card, sound card, network card, monitor, keyboard, mouse, ... Just because it's not hardware doesn't make it less necessary for using the end product.
If your going to complain about the OS, why not complain that they won't sell a specific PC without and AMD processor or a Tyan motherboard? And if you're going to go there, why not complain about the resistors and individual components on the boards? They're all made by different companies, and the way you're interpretting the law would require letting the consumer pick and choose. If that's where you're heading with this, I guess I see your side of the argument, I just don't understand it.
Okay, fair enough. Not presenting the EULA until after purchase is a bit sneaky, even if it is common practice. But in this case, since the customer didn't buy the OS itself, wouldn't "return for a refund" be referring to the whole PC? If they didn't buy the OS, how can they get a refund for it? Can I rip out the processor and return it specifically? No, if it were bad, I'd have to replace or get a refund for the whole PC.
Maybe not
Americans (I am one) had no problem with the French I think until it came time to drop bombs on Lybia. The French denied fly-over rights. Now we are in a war with Iraq and the French haven't sent troops. I think both decisions by France were wise and justifiable. Now Americans blame the French for a big costly war when instead they should blame themselves for their own gullibility. Americans have a "with us or for terrorism" ideology, which is a silly ideology. You'll see some idiots quote stats about the the percentage of the French population that is Muslim and other pseuodo-intellectual arguments. Personally, I think Americans should get a grip on reality, grow some brains, get the hell out of Iraq, stop pissing every one off, and stop blaming every one else for their problems. I'm an American and I've done it.
That said, I personally have a problem with France because of mimes. Mimes suck and France should never had invented them.
Just callin' it like I see it.
>>That does not forbid selling them together, but it also under the laws of MOST European countries make it legally questionable to require a customer to buy them together.
It's there for a reason: We actually care about the consumers rights, and companies better accept if they want access to our markets. Experience shows that not only is this good for consumers, but it's also good for the market as it encourages unhindered competition.
Does this mean that Apple sells bare-bones Macs in France? Is their EULA stating that Mac OS/X must only run on Apple hardware invalid?
MadCow.
I used to have a sig, but I set it free and it never came back.
I'm actually a Windows fan, and I don't like Linux at all, but I think this French law should be an example for every other country. Bundling software leads to anticompetitive behaviour and forces us all to pay more for software. In addition we end up with all the crapware bundled by manufacturers. I would love to be able to buy bare but brand name computer without anything preinstalled and have my own choice of what OS and what applications I want to install. It would also open up opportunity for the businesses that sell computers to offer preinstalled, customized software opackages or services of preinstalling software a la carte when customers buys new computer at their store. Competition is always good for the consumer. JacekM
Comment removed based on user account deletion
That said (going with Europe since Europe seems to be the chosen "enemy" in this little discussion), our country is darned near as big as the entire continent of Europe. Our individual states are the size of many countries there. International travel isn't going to be as common - we can travel all over and see all sorts of different cultures, ideals, and geographic features within our own country. As far as variations and ideas, and regional politics, your average American has a lot more to keep track of to follow only "their own country" compared to most citizens of European nations.
Trust me, for all the animosity you might think we harbor towards you guys, most Americans don't really care one way or another, and we pick on ourselves much more. Heck just watch and wait until a story about a Southern US state pops up. You'll see countless (just as stereotyped and unwarranted) jokes about incest or the IQ of people in that state.
"People who think they know everything are very annoying to those of us who do."-Mark Twain