PC-Windows bundling, first hearing at TGI in Paris : UFC Que Choisir against Darty

Today, in Court in Paris (at Tribunal de Grande Instance), was held the first hearing in the series of trials that oppose consumer association UFC Que Choisir and companies accused of violating several articles of the French Consumer Code, in particular Article L.122-1 that prohibits bundled sales.

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 [1], as recommended by the Globalisation Institute, a liberal reflection group, in a report for the European Commission [2]. 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 [3].

Encouraged by the Director General of the DGCCRF at the time, Mr. Cerruti, at a tripartite meeting in November 2006 [4], 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 [5].

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 [6]. 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 [7] conducted along the lines of the http://racketiciel.info/ Reimbursement Guide [8] which meets great success [9].

What is the consumers' opinion?

Petition Stop racketware [10] will 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.

References

1. Racketware team : What is optionality? [fr]
2. Globalisation Institute : Unbundling Microsoft Windows [en] (and translation into French).
3. National Consumer Council : Consumers buying computer software need better protection - NCC calls on the EU to plug gaps in the law [en] (and translation into French [fr]).
4. PcInpact : Meeting at DGCCRF on bundled sales of PC and OS [fr].
5. French Parliament, March 18, 2008: Written question by Philippe Tourtelier and answer by Luc Chatel [fr].
6. Judgment Hordoir-ASUS [fr] on April 30, 2008 (PDF, 2.9 Mb).
7. Press release by AFUL, April, UFC-QueChoisir and CLCV. Consumption: Towards a multiplication of trials for the refund of Racketware in France and original version in French [fr].
8. Workgroup against bundled sales: http://racketiciel.info/ Reimbursement Guide [fr].
9. ZDNet: Bundled sales: the Racketware Reimbursement Guide is a success [fr].
10. Workgroup against bundled sales: No more racketware petition [fr].
11. AFUL: Asus EeePC, new users of lebre software [fr].
12. Antonio J. Russo: The role of the State in the emergence of dominating situations in the computer field [fr]. LinuxFr: comment on this file [fr].
13. LinuxFr: Bundled sales: Luc Chatel will not do anything [fr], April 9, 2008.

About the undersigned organisations

AFUL (www.aful.org)

The French speaking Linux and Libre Software Users' Association (AFUL), AFUL aims to promote libre software and the use of open standards. AFUL is a non-profit association that gathers users, professionals, companies and other associations based in more than a dozen French-speaking countries and regions (France, Belgium, Switzerland, Quebec, French-speaking African countries, etc.).

Partner of many media, AFUL is present at many exhibitions, conferences and meetings. In particular, it has an active role against bundled sales (Workgroup against bundled sales, racketiciel.info petition, comparative list bons-vendeurs-ordinateurs.info of computer vendors), in favor of interoperability (member of AFNOR, participation to Interoperability and accessibility Referentials by DGME, formats-ouverts.org website, etc.), as well as on issues concerning Author Copyrights.

Press contacts:

• Alain Coulais, representing the Workgroup against bundled sales, alain.coulais@aful.org +33 (0)6 20 61 43 66
• Press contact - AFUL: presse@aful.org

April (www.april.org)

Since 1996, April, pioneer of free software in France, has been a major actor for the broadcasting of free software and open standards among the general public, professionals and institutions in the French-speaking community. It also acts as a watchdog on digital freedoms, warning the public about the dangers of private interests keeping an exclusive stranglehold on information and knowledge.

The association totals over 2100 members, users and producers of free software, among which more than eighty companies, around sixty associations and two townships.

For more information, please visit the website: http://www.april.org/, contact us by telephone +33 1 46 49 25 15 or by email contact@april.org.

Press contacts:

• Frédéric Couchet, Executive director, fcouchet(à)april.org +33 (0)6 60 68 89 31
• Alix Cazenave, Public affairs manager, acazenave(à)april.org +33 (0)6 63 51 77 88