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Sony Wins Battle Over Preinstalled Windows in Europe's Top Court (arstechnica.com)
An anonymous reader shares an Ars Technica report: The sale of a computer equipped with pre-installed software isn't an unfair commercial practice because most customers prefer to buy a laptop they can use straight away, Europe's top court has ruled in a victory for Sony. "Failure to indicate the price of each item of pre-installed software" isn't misleading, the Court of Justice of the European Union added in its ruling on Wednesday. The CJEU was asked to intervene after French citizen Vincent Deroo-Blanquart took Sony to court for failing to reimburse the cost of pre-installed software -- Windows Vista Home Premium operating system -- that he did not wish to use on a laptop. Sony refused and instead offered to cancel the sale altogether.
I can't go to the grocery store and tell them I don't want the chees that comes with my mac and chees. So it is the same with a computer.
Why would you buy a Sony of all things & then complain about pre-installed software? Its a key part of the Vaio trademark.
The user pays [a pittance] for Windows, but they typically don't pay for other preinstalled applications unless they're paying rather a lot for a bundle of stuff they already know the value of, and it drives the sale. Rather, the vendors pay the OEM for inclusion of their garbage in your install. If someone had to pay the true cost of that software, it would be the user, whose machine is subsidized by crapware. I went to TFA and didn't find any useful information (that is, the summary here is about as informative) and I'm curious as to what other software on the device was supposed to have been worth money.
"You're right," Fisheye says. "I should have set it on 'whip' or 'chop.'"
Like...he knows he can buy a different laptop without Vista...
Just because you may want the company to offer different products, doesn't mean they have to. My electric razor came with all kinds of useless attachments, but it would be silly to ask for a refund for those I don't use. The seller offers the product for sale, the buyer decides whether to buy it, they negotiate the price, and if both are satisfied the sale takes place.
Asking about "the price of each piece of preinstalled software" is even worse nonsense. We don't obliged sellers to disclose their costs of assembling their products (that's their private information!). And the retail price of the components is utterly irrelevant.
In the specific case of MS-Windows on laptops there is a question of abuse of monopoly power (the ruling does have an exception for when the bundling distorts the market) -- but as long as Sony's policy of not offering component refunds is due to Sony (rather than a contractual obligation between Sony and Microsoft) I don't see how that could be a cause for complaint either. I remember situations where MS insisted that to get an OEM license vendors had to promise to only sell machines with preinstalled OS -- but even then I don't think it had to be MS-Windows that was preinstalled, and this is not similar to what's in the complaint.
if they dont Sony just lost my business altogether , both personal and business purchases , oh right i was already boycotting sony because of GeoHotz story
I think this was probably the correct legal conclusion. Clearly, the computer and operating system were meant to purchase as a bundle. If I buy any other product bundled up with something else, returns or exchanges are "all or nothing" (speaking as a U.S. citizen, anyway).
You can't just buy the package deal of a tube of toothpaste and a toothbrush, and say "I want to know what the included toothbrush is worth, and get refunded for just that part of the package, because I still want to use the toothpaste."
That being said? This probably helps clarify that bundled OEM software or operating systems should be treated as free "throw ins" when making computer purchases. They're generally restricted in their licensing provisions anyway, so they're useless for anything except that specific computer they were bundled with. About the only significance I see with the pre-loaded OS is that hardware manufacturers may have designed the whole machine not to run many other options.
Hopefully, more people will put pressure on the vendors to ensure their computers can run alternate OS's, instead of just buying them first and making assumptions it "should be able to work". My workplace was recently bitten by this when we bought one of those Intel NUC PC's to replace a dead Dell PC running our Finance's scanning software and flatbed scanner. The old system was all configured in Windows 7 Pro so we hoped to just image the drive and blast it back onto the NUC, to get things back up and running. Nope! The NUC seems to not be able to run anything older than Windows 8.
You can't buy/order a Laptop with Linux Pre-installed. They won't do it. This ruling should have had the caveat that if a user wants a different OS Pre-installed, Sony should have to offer a "Linux option"
I'm tired of the trend of whiney consumerism. If you don't want an OS, don't buy the fucking computer that has it pre-installed. It's not like it was advertised as just the hardware and he was surprised when Windows booted up.
I'm glad common sense prevailed in this case.
"Action without philosophy is a lethal weapon; philosophy without action is worthless."
First of all, everybody knows Sony is crap. So don't buy their shit and complain afterwards.
But second, they offered to cancel the whole deal, but Vincent refused. Another reason to not complain. Although most laptops are sold with Windows, it is possible to buy one without. Dell for example sells FreeDOS / Ubuntu laptops. He should have picked that one.
Apparently there is not enough market for non-Windows laptops. If where him, I would simply buy the laptop I want, removed Windows, installed Linux and used the Windows license to install Windows as a virtual machine. Always fun / nice / useful to have a small Windows installation at hand. Just in case.
It doesn't have to be like this. All we need to do is make sure we keep talking.
My electric razor came with all kinds of useless attachments, but it would be silly to ask for a refund for those I don't use
Were any of those attachments a third-party product with a not-insignificant cost that were produced by a known monopolist? There are lots of thing we buy that may come with components that aren't used - or aren't often used - but in general those are still part of the product. When I buy a car, it's not like I can't get the options like fancy mags, high-end stereo+woofers, etc... I just pay for them as an option. Including an OS or not is a pretty easy option. Heck, they could even include an unactivated version of windows but require you to pay if you want to use it (and get a serial key etc).
"The sale of a computer equipped with pre-installed software isn't an unfair commercial practice because most customers prefer to buy a laptop they can use straight away,..."
Did he really say that? Idiot.
"The sale of a computer equipped with pre-installed software isn't an unfair commercial practice because most customers prefer to buy a laptop they can use straight away"
Fairly charitable to describe Windows as 'usable', but I digress. I don't see why offering the choices of ChromeOS or Ubuntu or whatnot is so verboten. If the OEM can make multiple editions of the same computer but with a different brands/types/amounts of CPU, drive(s), GPU, RAM, and bundleware, then it's obviously trivial to also offer the same option for an OS. Heck, they might even find that customers like the idea of saving $100 because they don't need to pay the Microsoft tax.
Unless of course Microsoft is still using its monopolistic position to penalize OEMs and vendors that don't make it impossible to buy computers without Windows, that is.
But nah, it couldn't be that.
I wouldn't even necessarily describe it as "a bundle". It's a product. The product includes an operating system, necessarily, because without operating system all you have is an oversized paper weight. Sony doesn't want to be in the business of selling oversized paper weights, nor of supporting people who bought them to install some OS of their choosing. Sony also doesn't want to offer other operating systems. They are selling their product, part of which happens to be the Windows operating system.
Would we have the same discussion about any particular hardware part that comes with the product? Is anybody complaining that a car company is selling cars only as "complete bundle" instead of each part individually? Companies simply choose what business they want to be in. Sony doesn't want to sell naked hardware, just as a car company isn't interested in only selling you the engine.
Bitten Apples are still better than dirty Windows...
The EULA that comes with Windows specifically allows customers to return it for a refund. The agreement is the first thing that pops up on a new computer.
Based on the ruling and your logic, the MS EULA is invalid. Sony is not bound by the terms of the written agreement. Keep in mind that the customer does not see the agreement until the computer is purchased and in their possession.
you are dumb enough to be unable to see that you can buy hardware that does not come with a pre-installed software. you are buying the HARDWARE.
Sony isn't selling you "the HARDWARE". They're selling you A COMPUTER WITH OPERATING SYSTEM (and loads of other crap).
Seriously, Sony's mantra is that they're differentiating themselves through their bundled software. I worked there, that was their official line.
If you want to buy hardware, find a company that sells you hardware. Sony apparently isn't it.
Bitten Apples are still better than dirty Windows...
"most customers prefer to buy a laptop they can use straight away"
Maybe. But preinstalling windows BUT not activated it will still do the job for newbie.
Activating it will need the licence which will come with the PC. Licence which you could refused and get refunded.
How will it hurt ? (Except for MS money of course)
I would also argue that when they present the product they present it as a "computer with MS Windows installed", so it is clear from the outset what is being offered. If the person doesn't want that configuration, then they should look elsewhere. There are plenty of alternatives, and based on the opinions of the /. readership, better ones.
At the same time, then could also include a refund cost of $0 and charge $100 admin and support fee as part of the small print?
Jumpstart the tartan drive.
True, but things are often different when dealing with a convicted monopolist with a long history of illegally abusing its position to coerce manufacturers into not offering alternative OSes.
--- Most topics have many sides worth arguing, allow me to take one opposite you.
What will you do if all (>90%) cars were sold with an insurance you don't want and you were forced to buy another one (and not be refunded for the primary) if you want different protection scheme ?
Or if all (>90%) phones were sold with Verizon ?
Or all TVs with Netflix ?
Or all audio equipment with spotify ?
Sony also doesn't want to offer other operating systems. They are selling their product, part of which happens to be the Windows operating system.
Why did Sony, maker of the PlayStation video game console, choose to offer only a PC product containing a major, inseparable component made by Microsoft, maker of the competing Xbox video game console?
No, we would not have that discussion -- but not for the reason you seem to expect. With cars or any other product, there's nothing stopping the owner from disassembling the thing and selling off the parts. Unlike a Windows install, the ECU from car A won't contain DRM that makes it refuse to run when installed in car B. (It may or may not actually work correctly, but the point is that you're not disallowed by encryption and DMCA anti-circumvention law from attempting it.)
You might want to pick a different example next time.
"[Regarding the 'cloud,'] ownership was what made America different than Russia." -- Woz
Painfully wrong.
You are buying Sony's computer model # XYZ-123. It has a number of hardware components and software packages when delivered from the factory. Refer to the spec sheet, and you will likely see Windows 10 listed.
Maybe you only care about the hardware, but the product specs include the Windows OS. And since most buyers will want a preinstalled OS, I understand why Sony ships them that way.
Hell, it probably costs them less to ship it with Windows just so they don't have to take support calls from idiots who can't manage it themselves.
---
According to the latest ruleset, this post should be modded as Vorpal Flamebait +5.
Fair enough with the car example; and of course I am aware that some car companies also sell just their parts. Let a man have his obligatory car analogy, will ya?
The issue with DRM is more complex and there is a point to be had there. However, you're still buying the product as is and as advertised. Disassemblability is not an explicitly advertised feature. You can sell the whole thing as is to somebody else. Whether you must be able to also sell individual bits and pieces of it is rather debatable.
Bitten Apples are still better than dirty Windows...
> You can't just buy the package deal of a tube of toothpaste and a toothbrush
Yes, but you also have the option to buy the toothbrush hardware WITHOUT the toothpaste software.
Then buy another one and find that IT TOO comes with an OEM copy of windows that won't be uninstalled, refuse the sale, get a refund and Sony collects. Or HP. Or Dell. Or...
PS as the other person says, the grocery store doesn't match because, for example, if you had to buy apples to get a sack of potatoes, it would be called tying products, and that's illegal.
Where your toothpaste analogy fails is that it's easy to buy toothburshes and toothpaste separately. What if that weren't the case? What if toothbrushes only and always came bundled together with a brand toothpaste you didn't like to use? And the only way for you to buy a toothbrush was to also pay for the toothpaste which you'd never use?
I agree with this legal decision for desktops, but not for laptops. It's easy to to build your own desktop if you don't like any of the pre-built offerings with Windows pre-loaded. But it's virtually impossible to buy a laptop without Windows pre-loaded.
Funny, I'm typing my reply on a NUC running Windows 7. Intel is still providing updated drivers.
https://downloadcenter.intel.com/product/83255/Intel-NUC-Kit-NUC5i5RYH
Spoken like a true millenial corporate denizen. Freedom is not something you give away just because something is always done some way. You get tall the crap with your razor because you put up with it and play the lemming. Instead of complaining how you should follow the leader, you should realize that these complaints are the reason that companies do things like provide choice.
When it comes to software like M$Windows, we are talking at least $100 that the company is getting as a KICKBACK to pre-install windows. Free money. The user asking for a refund is simply asking for the merchandiser to be more respectful of the consumer.
Just because you don't have the balls to fight goliath doesn't make it wrong to do so. Oh wait - you stream your DRM content with no thought and watch everything in 1080p on your blueray devices that phone home to tell the media companies what you are doing.
Good on you.
you hear stuff like:"google is hiring asus or huewei or whatever to build a android tablet/phone, whatever."
but in the global mind we never ever things about all the big computer manufacturers being subsidiaries of microsoft.
all these companies would be DEAD IN THE WATER if they upset microsoft in anyway. they are SLAVES to great ol' microsoft.
this is not to say, that consumers should show some understanding for these poor companies.
it is however funny how the "competition"(*) between these companies keeps them from forming a united front against microsoft.
(*) it doesn't exist because whatever super-duper hardware gets build, it will eventually be crippled by the m$ bug, called a OS ^_^
abit more on topic: the computer is hardware. there should be a law that forbids tieing software to hardware. if soemone wants to buy a computer from a computer hardware maker, they must be able to do so ... minus the licensing fee from global monopoly m$ which should be renamed to computer-oxygen, because it seems without it everybody would asphyxiate (including law makers it seems) ...
Where does the EULA *MICROSOFT* produces say "it" being the entire computer, most of which is not theirs?
I don't have the Windows Vista EULA handy, but the Windows 10 EULA states:
Key words: "which might require you to return the software with the entire device on which the software is installed"
I think the idea of a "barebook", such as those by MSI, Clevo, or Compal, is that it includes everything but CPU, RAM, and storage, at the cost of being significantly bulkier and more expensive than a fully assembled laptop.
Yes, I could buy a desktop, but I want an integrated keyboard with no screen.
You mean a PC built into a keyboard chassis, Commodore 64 or Apple IIc style? A quick Google search for keyboard pc turns up this one. Just add monitor.
No it isn't; it's a fundamental principle of property law going all the way back to when the concept of property was first invented. If an object is mine, it's mine and I can do whatever I want with it. Disassembly doesn't have to be "explicitly advertised" because it is an intrinsic feature of what property is!
What Sony (and Microsoft) are asking for here is a fundamental change in the status-quo, where things that are nominally "owned" by me nevertheless require some sort of third-party approval for me to use. That is a huge destruction of basic rights, in similar scope and scale as a shift in society from capitalism to feudalism.
"[Regarding the 'cloud,'] ownership was what made America different than Russia." -- Woz
This ruling should have had the caveat that if a user wants a different OS Pre-installed, Sony should have to offer a "Linux option"
WHICH "Linux Option"? RedHat? Ubuntu? Gentoo? Slackware? Android? SteamOS? ChromeOS? ...
Why stop with a "Linux Option"? What's special about Linux that the legal system should force it to be offered and not others? How about FreeBSD, NetBSD, and OpenBSD? ReactOS? Redox OS?
Why stop at open source OSes? (Have to go do other things or I'd list a bunch of these, too.)
And all of those are just a sampling of their categories. Here's a list of OSes, a substantial number of which could be made to run on the platform.
Even if there were some legal doctrine by which forcing Windows alternatives on ready-to-run computer manufacturers might make sense, applying it opens the issue of selecting what alternatives to force. That open, not a can, but a 55-galon drum of worms.
Bantam Dominique roosters crow a four-note song. Once you've heard it as "Happy BIRTHday" you can't NOT hear it that way
The problem with that logic is that way back when - before "everybody" thought a computer was a box that runs Windows, computers used to come with a choice of OS - or at least with a separate invoice line item for the OS. Mostly, that OS was MS-DOS (because back then, everybody thought a computer was a box that ran MS-DOS), but then Microsoft started cutting deals with OEMs to include a 'free' copy of Windows with all of their DOS computers. That turned out to be a case of illegal anti-competitive bundling, for which Microsoft received a slap on the wrist. But in turn, they were able to kill off the market for alternative OS's. Now there are no more alternative OS's, and no remedy has been provided to make it possible to use one without also paying for Windows - which makes it unlikely that any could ever become mainstream.
So your logic fits the current situation pretty well - i.e., the situation where Microsoft behaved badly and ended up being rewarded for it rather than punished.
Posted from my Android phone. Oh, I can change this? There, that's better...
Would you also complain that you can't extract the firmware of your, say, heart rate monitor, or fridge, or, yes, car, and sell it? Why is the argument so substantially different just because the *ware in question is a bit softer?
Bitten Apples are still better than dirty Windows...
This is a victory for Microsoft and all the PC OEMs. This decision validates the consumer Windows business model in Europe.
except a lot of them do offer it....and that history is just that...history. The EU profitted from it, too (by way of fines). I still haven't figured out how Apple hasn't been sued...
Unlike a Windows install, the ECU from car A won't contain DRM that makes it refuse to run when installed in car B
If your car is run by an ECM, which is the pre-OBD-II (retroactively renamed OBD-I) style then you're probably right. If your car is run by a PCM, which is the OBD-II naming convention (it's actually in the spec) then odds are you're wrong. It's called an immobilizer system and its goal is to prevent theft. It's the way that automakers prevent someone from simply swapping in a new PCM and driving away with your car. In my 1997 A8, the immo system has been completely defeated, but you still have to take a couple of extra steps. You've got to get the immo code out of the cluster, which these days you can do through the OBD-II port with a five dollar eBay cable by dumping the EEPROM and running it through a DOS program. Then you've got to reprogram the new PCM with the old immo code. Newer vehicles are more difficult to defeat, and dumping their flash may actually require removing the cover from the module and hooking up a jump socket, or even desoldering the (surface-mount) chip and dumping it.
"You're right," Fisheye says. "I should have set it on 'whip' or 'chop.'"
How does Apple coerce other companies to artificially restrict consumer choice? They don't, they just produce "black box" products whose software components can't be used with anyone else's hardware. I'm not a fan, but they're not leveraging their power to shut out the competition, well, not beyond buying up 100% of the production capacity of key components, forcing competitors to compromise.
--- Most topics have many sides worth arguing, allow me to take one opposite you.
Your question relies on the ambiguity of the word "can't." Would I complain that I can't physically extract the firmware, as an unintended side-effect of the manufacturer designing the item in the most convenient way for them? No. Would I complain that I can't legally extract the firmware because the manufacturer purposefully and maliciously went out of his way to prevent me from doing so? Yes!
(Incidentally, I actually have modified the firmware running my car, so that's not theoretical. In fact, I refuse to buy newer cars than the ones I currently own in part because I'm boycotting the DRM in modern vehicle firmware!)
"[Regarding the 'cloud,'] ownership was what made America different than Russia." -- Woz
The license have to be shown to the buyer before purchase to be valid.
For a PC sold online, a conspicuous notice should be sufficient: "Use of this product is subject to acceptance of software license agreements and online service terms of use. If you do not agree to Windows terms, do not purchase this product."
Microsoft's EULAs and tactics become more draconian over time:
Here is a Microsoft spokesman talking about the Windows 98 EULA (1:45).
Here is a quote from the XP EULA:
"IF YOU DO NOT AGREE, DO NOT INSTALL OR USE THE PRODUCT; YOU MAY RETURN IT TO YOUR PLACE OF PURCHASE FOR A FULL REFUND."
Here is a quote from the Vista EULA:
"If you do not accept them, do not use the software. Instead, return it to the retailer for a refund or credit. If you cannot obtain a refund there, contact Microsoft or the Microsoft affiliate serving your country for information about Microsoft’s refund policies."
The Windows 10 EULA appears to state that you may return the entire computer at the manufacturers discretion for potentially no refund (note the words "if any" in the quote).
Here is a quote from the Frontpage 2002 EULA that forbade the user from creating a web page disparaging Microsoft or its products:
"You may not use the Software in connection with any site that disparages Microsoft, MSN, MSNBC, Expedia, or their products or services, infringe any intellectual property or other rights of these parties..."
On the manufacturer side, Microsoft used to demand that they sell either all computers with Windows or none with Windows. This was modified to paying Microsoft for each computer sold, whether or not a copy of Windows was included. Hence the Antitrust monopoly convictions. Here is an entry from the United States Federal Register Vol 67 No 86:
"Second, it is equally well settled that an antitrust remedy should be tailored to fit the conduct that has been found illegal. Here, the RPFJ carefully addresses each of the types of conduct that the Court of Appeals found illegal. It regulates the agreements that Microsoft can enter into and prevents Microsoft from retaliating against software or hardware distributors. The RPFJ also gives both computer manufacturers and consumers more choices in configuring their computers, and specifically enables them to turn off any Microsoft middleware and replace it with the middleware of their choice."
Today most consumers still do not read EULAs, do not realize that they have a choice, and never install or reinstall their operating systems. Manufacturers were given a choice by the courts, but were reigned in by the MANUFACTURER Recommends Microsoft OPERATINGSSTEM campaign.
We are right where we started.
You have a valid point with respect to copyright and the way it has been applied to software to stifle resales. However, even if selling one's copy of Windows OEM were legal, it would still be wrong to insist that Sony refund the value of the OS just because one didn't intend to use it. Sony isn't preventing resale of Windows, the law is.
It's well-known that OEMs take money from software publishers to include their software pre-installed. By refusing Windows, and by extension, all the pre-installed software, the customer is actually causing Sony a loss. Sony should charge the self-entitled asshole for taking back the OEM key.
MS was not a party of the lawsuit. Their monopoly status is irrelevant.
So you're in favor of punishing Sony for MS's historic behavior? What a fucked-up piece of shit. You. And your position.
I agree that the law is the majority of the problem, but that does not absolve Sony (or Microsoft) of blame. First of all, they lobbied for that bad law in the first place! Second, just because a law enables them to fuck over their customers that way, doesn't mean they are required to avail themselves of that power. Nothing is stopping them from choosing not to DRM the software except their own sociopathic greed.
"[Regarding the 'cloud,'] ownership was what made America different than Russia." -- Woz
FYI. Here in Russia computer manufacturers are all required to return funds for OS on request. But the amount they return is very low -- equivalent of 10-20USD. OEM licenses are about twice more expensive when purchased is low quantities here. Actually who knows maybe 10USD is all is costs for companies like Sony.
Just curious, do you complain that you can't legally extract the written part of the book, copy it to some other format, and then sell it to a third party because you only wanted the dead tree part of the book in the first place?
The fact that you conflate Microsoft and Sony so readily (and some of your colorful choice of language) seems to show you're not entirely rational or objective on this topic. First, why do you say that Sony lobbied for the laws you're complaining about (it would help also if you articulated those laws with specificity, but then that would make your assertions falsifiable, which I imagine you don't want.) They're mostly hardware, they have no skin in the game on software protection. Also, I find it telling that so many seem to switch seamlessly back and forth between characterizing Microsoft as using their monopoly powers to coerce manufacturers into doing things that aren't in their own economic best interest, and characterizing Microsoft and Sony as voluntary co-conspirators who should thus be collectively liable for Microsoft's past misdeeds, depending on which (diametrically opposed) interpretation supports your argument at the moment.
That's a false analogy because now you're talking about making a copy.
The correct analogy would be ripping pages out of a book and selling those original pages. And yes, I would complain if I wanted to do that and somebody tried to use the law to stop me. (Consider a magazine, or a reference book -- why shouldn't I be able to rip out an individual article and sell it or give it away separately from the rest?)
"[Regarding the 'cloud,'] ownership was what made America different than Russia." -- Woz
What, have you been living under a damn rock for the last 20 years? Sony has lobbied for pretty much every recent copyright law. DMCA, SOPA, PIPA, TPP -- you name it, they've lobbied for it. It's not a goddamn secret, you know!
What the fuck are you talking about? Sony operates major movie, music and video game studios in addition to making hardware. And don't even try to feed me some bullshit about "that's some other division" -- they're all owned by the same corporation.
Microsoft is not forcing Sony to install Windows at gunpoint. Sony is installing Windows because they want to install Windows and have entered into a contractual agreement with Microsoft to do so -- that's called a partnership.
"[Regarding the 'cloud,'] ownership was what made America different than Russia." -- Woz