Sunday, May 18, 2008

French Judge Orders Reimbursement of Microsoft Pre-Installed XP (Now Known As Racketware)

Last modified: 05/17/2008 02:38 PM
A Judge in Caen, Normandy (case Hordoir vs. Asus, 30 April 2008) has ruled against Asus in a pre installed and unwanted windows software case. The user who purchased an Asus computer with Windows pre-installed was awarded the damages of 130 Euro for unwanted racketware from M$.
This ruling will certainly help the case put forward by French consumer association UFC-Que Choisir against systematic sale of pre-installed Windows with Personal Computers was held in Court in Paris.

While the judgment in Paris is pending, this decision should encourage users to demand reimbursement from computer manufacturers and Computer manufacturers to reimburse clients more willingly, otherwise many users will follow the racketware guide sue these M$ Yes Sir Followers.
Press release by

Complaint by UFC Que Choisir

Let us recall the facts : when consumers buy the computer of their choice, they are generally forced to simultaneouly acquire the license of pre-installed software, even though it would be easy for the professionals to dissociate both purchases, for a marginal cost, as recommended by the Globalisation Institute, a liberal reflection group, in a report for the European Commission. This dissociation would also dissolve the lack of publicity for the software prices and conditions of use. Moreover, it would induce an evolution of software licenses, considered to be unfair and to contain abusive terms.

Encouraged by the Director General of the DGCCRF at the time, Mr. Cerruti, at a tripartite meeting in November 2006, this trial is intended to provide a jurisprudence related sales of computers and software. The recent response by Luc Chatel to a written question confirms this need: the Secretary of State said he will not do anything.

New victory by an individual: confirmed liberty to choose one's software.

Happy coincidence: on the eave of this hearing, an individual won a new trial in Caen, Normandy. He obtained a posteriori reimbursement of pre-installed software.

The judgement recalls the client's right and liberty to adopt any particular operating system or use other software and licenses than the systems and software installed by [the manufacturer] on the computers.

One of the jurists in the Racketware team that edits the Reimbursement Guide, comments : The obstacles introduced by the manufacturer to a simple and fast reimbursement of an amount corresponding to usual prices are clealy condemned by the judge. Asus' practice can thus be assimilated to bundled sales. The manufacturers, and hence, the vendors, will need to revise their practices if they do not want to undergo more frequent appeals.

This is the fourth victory in a proximity juridiction (Rennes, Puteaux, Libourne, Caen). This victory is the first of a long series of procedures conducted along the lines of the Reimbursement Guide which meets great success.

What is the consumers' opinion?

Petition Stop racketwarewill soon reach 30 000 signatures, which is surprising for a complex matter with so little coverage in traditional media.

Meanwhile, Vista is increasingly rejected. The consumer prefers keeping XP and manufacturers HP and DELL attempt to find way to revive this system to meet demand. As for Microsoft, she receives the timely payment for the Vista license anyway. Only the consumer is the looser : he must pay for software he is not using!

Does the consumer wish anything else than Microsoft products? With bundled sales, he is rarely entitled to speak. Yet EeePC, by the same manufacturer, ASUS, meets a tremendous success: the public chooses an innovative machine that runs a free operating system [11].

What Justice can achieve

The French executive power is schizophrenic. On the one hand, the State has no more money. On the other hand, according to our estimations, Microsoft tax optimization in France, artificially swollen by bundled sales, is on the order of twice the annual cost of the national family card for train transportation. By ignoring bundled sales, not only does the State act against the consumers' interest, but it comforts the monopoly of the editor that controls from 90 to 95% of market shares [12]. A clear court settlement on bundled sales could compensate for the State's lack of action.

Despite what vendors and manufacturers pretend, the solutions we suggest (identical pre-installation for all copies of a model, but selective activation upon client's request) have a minimal cost, they are simple and fast to set up [1]. A clear court settlement on bundled sales would cut manufacturers' dilatory arguments.

Besides, bundled sales illustrates a real problem in France: the law exists and only needs to be enforced. A clear court settlement on bundled sales would re-delineate the spirit of the law where it has been continually eroded by the influence of manufacturers and vendors for their exclusive profit.

Live from Paris Tribunal de Grande Instance

Today's hearing shows that the result of this action mainly relies on the Court's decision. It should be noted that Darty's representents seem to exempt the vendor from its responsibilities regarding customers, just as today's State Secretary Luc Chatel eludates his responsibility [13]. Associations AFUL and April celebrate the quality of the pleading by UFC-Que Choisir representents, which included several key arguments from the Racketware team.

Alain Coulais, one of the leaders of the Racketware workgroup, says: With a victory at Tribunal de Grande Instance, the current situation, which is unfavourable to all consumers, will evoluate towards optionality during the purchase, which is favourable to all consumers and to the State. For a marginal cost, everyone would be winning: the majority that still wants to buy a machine with pre-installed software, the growing minority that knowingly chooses alternative solutions like GNU-Linux, and those who have acquired licenses that entitle them to re-use the software on several machines.

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