Out-Law News 1 min. read

Sony wins case over pre-installed Windows software

Selling a computer with pre-installed software is not an unfair commercial practice and there is no requirement to list the costs of the software, the Court of Justice of the European Union (CJEU) has ruled.

The CJEU, Europe's highest court, was ruling on a case between Vincent Deroo-Blanquart and Sony. Deroo-Blanquart bought a Sony laptop in 2008, but refused to subscribe to the operating system's end-user licence agreement, arguing that he wanted to be reimbursed for the cost of the pre-installed software.

Sony refused to do so, but offered a refund if Deroo-Blanquart returned the computer.

Deroo-Blanquart brought legal proceedings against Sony, looking for €450 for the pre-installed software, and €2,500 in damages.

The French Cour de cassation, which is hearing the case on appeal, had asked the CJEU whether supplying a computer with pre-installed software, with no option to choose a version without it, constitutes an unfair commercial practice. It also asked whether it is a misleading commercial practice to fail to indicate the price of each item of software.

The CJEU said that it is not necessarily an unfair commercial practice to bundle computers with pre-installed software, so long as "such an offer is not contrary to the requirements of professional diligence and does not distort the economic behaviour of consumers".

The national court will have to decide whether, when a consumer has been informed before the sale "that the model of computer is not marketed without pre-installed software and that he is therefore free to choose another model of computer, of another brand, with similar technical specifications and sold without software, the ability of that consumer to make an informed transactional decision was appreciably impaired," the CJEU said.

As to whether Sony should have given individual pricing for the software, the CJEU said this was not necessary.

"A commercial practice is to be regarded as misleading if it omits material information that the average consumer needs in order to make an informed transactional decision," the CJEU said.

Failure to indicate the price of each item of software is not "likely to cause the average consumer to make a transactional decision that he would not have taken otherwise", the court said, and so does not constitute a misleading commercial practice, it said. 

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