Software-hardware bundling not accepted in France

By EDRi · February 15, 2012

This article is also available in:
Deutsch: [Frankreich: Verknüpfung von Hard- und Software nicht zulässig |]

The giant Lenovo computer hardware manufacturer that sold computers with
Windows OS included suffered a defeat in a French court of Aix-en-Provence
in a case introduced by a French customer. This is another case in a long
line of defeats in France for companies that sell computers who include
mandatory unwanted software licences in their products’ sales.

The case was brought to court in 2007 by Mr. Pétrus who decided to buy a
Lenovo laptop. As the laptop was not offered for sale without a Windows
Vista license and as he was using GNU-Linux, Mr. Pétrus rejected the Windows
Vista End User License Agreement (EULA) and contacted Lenovo to obtain a
refund. His request being denied, he brought the case to court. After a
first negative ruling in the court of Tarascon, the French Court of
Cassation reversed the judgment in a decisive ruling in November 2010 and
sent back the case to a court in Aix-en-Provence. The final judgement
obliged Lenovo to pay the plaintiff 120 euro as a refund for the software,
but also 800 euro for personal damages and 1000 euro for legal expenses.

The judge insisted on the distinction between hardware and software and
rejected Lenovo’s argument that the sale in question was that of “complex
products made of an assembly of indispensable components for the definition
of a product as desired by the manufacturer”. The company even compared the
sale of the computer which cannot operate without the software to that of a
car which cannot run without wheels.

The judge explained that the hardware is the object of a sale contract
giving the owner full right over it after having paid for it. On the other
hand, the supply of software is the provision of a service which gives only
the right to usage of the software (fact which is actually stipulated in the
licence of the software). Moreover, joking over the comparison made by
Lenovo with the car and wheels, he considered that a better comparison would
be that of selling a car with a driver included.

This is a real victory and this significant decision is a positive precedent
as the legal ground of the ruling was European directive 2005/29/CE on
unfair business-to-consumer commercial practices in the internal market,
which could be used again as legal argument in similar cases in all EU

Hardware-software bundling crumbles in France (6.02.2012)

Condemnation of Lenovo, symbol of computer and software bundled sale (only
in French, 6.02.2012)

Court’s Decision (only in French, 9.01.2012)

Pétrus vs. Lenovo: the supply of unsolicited software is a unfair commercial
practice (only in French, 6.02.2012)

List of similar French cases (only in French)