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.

I see that the French term for OS is...

[jejones (115979)]

.."système d'exploitation". In the case of Windows, that seems appropriate.

Re:I see that the French term for OS is...

[Red Alastor (742410)]

The best part is that the abbreviation is SEX. It's not even a joke.

Re:I see that the French term for OS is...

[Yvanhoe (564877)]

SEX is better when it is free

'Tied Selling' is illegal in many states.

[flyingfsck (986395)]

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.

Times are truly changing

[dunkelfalke (91624)]

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.

Re:How does this make sense?

[The Ancients (626689)]

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.

Re:How does this make sense?

[kbdd (823155)]

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.

No it's not, and quit the stupid analogies

[Nicolas MONNET (4727)]

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?

Re:No it's not, and quit the stupid analogies

[janrinok (846318)]

No, you are wrong. It is a sensible law which has been based upon sound principles to ensure fair trading in France. You may not like it - but that doesn't make it stupid. (However, whether you like it or not is irrelevant, unless you live in France. The French like this law, or at least the majority do, and it is up to them which laws they have in their own country.) The law is intended to prevent tie-ins to any specific manufacturer which are not in the public interest. Your 'earlier explanation' can be easily countered. Those who are content to be tied to Microsoft's offering are free to buy the computer with the OS pre-installed. But those who do not agree to this have legal recourse to have the OS removed and fair costs refunded. This point has been argued for many times here on /. and I am surprised that when it is actually applied then someone thinks it is 'stupid'. What is stupid about giving users a choice, or people having the freedom to spend their money how they wish?

Your claim about the EULA is also wrong. Of course the purchaser might expect to be presented with a EULA but the EULA that you are supporting is not readable until it has been opened which in itself constitutes acceptance of it. That is not legal in France - or the rest of Europe for that matter. Secondly, the wrapping states quite clearly that, if you do not wish to accept the conditions of the EULA then you may return it unopened for a full refund. The customer was doing exactly this but was having unreasonable barriers placed before him to prevent him from benefiting from the refund. The judge viewed that as unfair and ordered ASUS to refund fair costs. Both Microsoft and ASUS are well aware of the statement on the EULA wrapping but both, in their own way, were attempting to make it uneconomical for the purchaser to exercise his rights.

Re:How does this make sense?

[countach (534280)]

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?

Re:How does this make sense?

[by Anonymous Coward]

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".

Re:How does this make sense?

[bpkiwi (1190575)]

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.

Re:How does this make sense?

[Kryptonian Jor-El (970056)]

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.

Re:How does this make sense? Easily

[Finallyjoined!!! (1158431)]

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.

Re:How does this make sense? Easily

[mh101 (620659)]

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.

Re:How does this make sense?

[Max Littlemore (1001285)]

To me this feels like she bought a car with power windows and AC then went back to the place that sold her the vehicle and forced them to take out the parts.

Nah, that's a bullshit analogy. That's like your saying that a car needs power windows or AC to be usable - it's as if you're saying that an OS is an optional extra.

To be really useful cars, whether or not they have AC, need roads. Even off-road cars don't last long without them. Roads are the things that facilitate the application of the tool (car) to the task (transport), much like computer operating systems are to computers.

For a better analogy, try this:

To me this feels like she bought a car with power windows and AC then went back to the place that sold her the vehicle, complained that it only allowed her to drive between the car dealer, a MacDonalds and the local infectious diseases clinic, charged tolls on otherwise free roads and the stereo automatically put earplugs in the ears of her passengers when she listened to the stereo. She forced them to allow her to drive her car wherever the fuck she wanted and give her a new stereo.

See the difference?

Re:How does this make sense?

[twistedsymphony (956982)]

The fact is, Windows is being FORCED on people.

Next time you buy a computer order it without a hard drive, and then order whatever hard drive you want separately... this has worked for me several times in the past.

Re:How does this make sense?

[The End Of Days (1243248)]

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.

Re:I'm torn about this subject

[Winckle (870180)]

You knew what the EULA was. Don't like it?

But if i'm not mistaken the EULA does say "Click Disagree" and then take it back for a refund?

Re:I'm torn about this subject

[by Anonymous Coward]

Explicitly stated in the EULA:

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.

Re:I'm torn about this subject

[cpt kangarooski (3773)]

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.

Re:I'm torn about this subject

[lixee (863589)]

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.

Re:I'm torn about this subject

[WoollyMittens (1065278)]

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.

Facilitating a monopoly

[EmbeddedJanitor (597831)]

Sure, you have a choice of PC with windows or nothing. It is a packaged deal, but they don't offer choices apart from the monopolistic one.

Unlike USA - where the DOJ's anti-trust ruling has no real impact on MS's business - the Eurpoeans take this more seriously. They feel that there should be options other than the monopolistic one.

Forcing vendors to give back more than the XP cost sends a clear message: give non-MS options or feel the pain.

That will force them to give options

[EmbeddedJanitor (597831)]

If you look at the extra USD100 as punitive damages it is not so bad.

This will force the PC vendors (in France anyway) to provide better Linux options.

Re:That will force them to give options

[Xzzy (111297)]

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.

Re:That will force them to give options

[basiles (626992)]

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!

Re:That will force them to give options

[basiles (626992)]

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/ [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.

Re:French

[Swampash (1131503)]

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?

Re:French

[by Anonymous Coward]

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.

Re:French

[twostix (1277166)]

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.

Re:French

[damburger (981828)]

Needed to be said. As a Briton I've more fondness for France than America (an unusually position as most people here loathe them both with equal measure) and am getting tired of these French=Cowards jokes. In many ways their country is better than ours, and this should be a source of embarrassment for us because they have a similar sized economy and population. I guess that is why it is deemed necessary for the media to lay on the French-hate so thick, in case British people start to say "Hey, why can't we have fast trains that turn up on time?" and such stuff.

Re:English grass

[schon (31600)]

When do two wrongs make a right?

What's wrong with a consumer having rights, and not being forced to buy something they don't want because it's tied by a convicted monopolist to something they *do* want?

The *real* second wrong here is that the person had to go to court to get what they should have been able to buy in the first place.

Re:English grass

[Mistshadow2k4 (748958)]

So... people should have to pay in order to NOT have this crap pre-installed on computers they buy, so as not to hurt poor little Asus? A simple request should damn well be enough not to have a ton crap I don't want on the computer I'm already paying for. I shouldn't have to pay extra to get it removed. (This is part of why I always build my own.) You say two wrongs don't make a right, but how the hell is it wrong for a court to rule that the consumer has the right to buy a computer without crap pre-installed on it without paying extra?

Re:French

[digitig (1056110)]

I'm sure some countries see American's as all cowboys or some other equally ridiculous thing...

"Burger-eating invasion monkeys" is a memorable phrase that has been heard on British TV.

Re:French

[Cassius Corodes (1084513)]

What surprises me is that the French got labelled as surrender-happy, when Norway, Netherlands, Belgium and Luxembourg all did the same thing, not to mention the Italians which switched sides in both world wars to avoid being the losing side.

Btw France fought tooth and nail in the first world war, so its not from that (and it certainly wasn't taken over, you might want to brush up on history a bit :P ).

Re:French

[Geirzinho (1068316)]

Actually Norway never surrendered. They moved their administration to London.

Re:French

[ozmanjusri (601766)]

However, we do compensate.

I think Ferraris are commonly considered overcompensation...

Re:French

[vidarh (309115)]

Sweden was neutral, and never under occupation or attack in WW2.

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.

Learn from history

[aepervius (535155)]

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.

Re:Learn from history

[ChameleonDave (1041178)]

Indeed. Perhaps there should be a meme according to which the Jews are ridiculed for surrendering and letting themselves be herded off to camps, instead of nobly fighting to the death on their doorsteps as they ought to have? No, I didn't think so.

More to the point, all this WWI and WWII talk is just a retrospective justification. The real reason we hear Americans (and only Americans) making these bigoted comments is because Jacques Chirac used the UN veto against an attack on Iraq, thus making the subsequent invasion a war crime under the Nuremberg Principles. The fact that Chirac has now been proven quite right, with WMDs and suchlike now known to be a pack of lies, does not seem to embarrass the bigots at all.

Re:French

[Maxo-Texas (864189)]

Jokes are just that.

In Texas, we make all kinds of jokes about "Aggies" implying they are exceptionally stupid.

And then there are blond and dead baby jokes.

Your average french citizen is similar to people from other cultures.

I'm sure the french soldiers on the Magenot [sp] line would have fought very hard to defend france but they got driven around. The folks behind the line were not ready to fight germans with tanks with virtually no warning. To have something like the impact of a blitzkrieg war today, imagine that an enemy country could teleport their entire army inside your country.

However, just like an "aggie" joke or a "blonde" joke or a "dead baby" joke wouldn't make any sense with some other subject, the "french surrender" jokes wouldn't be funny with someone else now. I laughed at the "French military rifles for sale, dropped once" joke myself.

Re:French

[timrichardson (450256)]

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.

Re:French

[bursch-X (458146)]

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.

Re:French

[FST777 (913657)]

the United States has saved...

No, don't start that. We've heard that meme for long enough already. We've seen it recently, and it's not pretty.

France-Bashing and Overlord Memes

[billstewart (78916)]

There are two different memes you're mixing up here. The "I, for one, welcome our [Fill-in-the-blank] overlords" was from a Simpsons episode [wikipedia.org], and gets used relentlessly on Slashdot.

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.

Re:France-Bashing and Overlord Memes

[Nicolay77 (258497)]

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 [wikipedia.org]

Re:France-Bashing and Overlord Memes

[CmdrGravy (645153)]

Also in England, as I recall the folk knowledge says that Italians change sides whilst the French just surrender. It also tells us that Americans are more of a threat to their allies than to the enemy and the Germans, whilst coldy efficient war machines, can't think outside the narrow corridor of their 'orders'.

Stop with the stupidity

[Nicolas MONNET (4727)]

1. It's the law. If you don't like French law, stay out of the fucking country, it's not like Asus was forced to come here anyway.

2. It's the fucking law.

3. The EULA says that if you don't agree, you are entitled to ... A FUCKING REFUCKINGFUND. The judge said that a refund should be a full, no question asked, no bothersome bullshit ship your computer at your own cost pseudo refund.

4. IT'S THE FUCKING LAW.

Re:I for one...

[mjwx (966435)]

welcome our anti-XP French overlords.

I would have welcomed them as well but they surrendered before I got the chance