Software-Hardware Forced-bundling: when exercising one's right is an individual feat, the rules must change

The Court of Monza, Italy, confirmed in December 2020 that one is entitled to a refund for a Microsoft Windows license that was purchased along with a computer, and ordered Lenovo to pay €20,000 in damages to Luca Bonissi, the plaintiff, for abusive behavior. This impressive win, obtained by a free software activist after a courageous legal struggle, is a clear reminder of the need to fight forced bundling of software and hardware, and to change the rules of the game.

As Luca Bonissi refused to pay for the license of Windows – the Microsoft operating system – which he didn't want to use, although it was pre-installed on the Lenovo computer he bought in March 2018, he asked to be refunded for the license. After his request was repeatedly dismissed by Lenovo, he took legal action. The company appealed from the first judgment, but eventually the appeal judge recognized Bonissi's right to be reimbursed for the price of the license, and sentenced Lenovo for abusive behavior1.

Needless to say, this judgment is an impressive win by a free software activist who was determined to assert his right to a refund for a proprietary software license2. It is also important because it highlights the power imbalance and the manufacturer's unfair and aggressive practices, as Lenovo didn't hesitate to pull out the big legal guns to deter its customers from exercising their rights. The legal situation unfortunately had gotten worse in 2016, after the Court of Justice of the European Union gave its blessing to racketware, forcing people to face very heavy proceedings. How many would actually carry out these proceedings to their conclusion in order to be reimbursed for a license worth a few dozen euros?3 When exercising one's right is an individual feat, can we really be satisfied with the status quo?

Let's make no mistake. While it is indeed fair – both legally and ethically – that anyone can get a refund for the license of pre-installed software they didn't want, there isn't any reason for this burden to rest upon them. This situation is all the more inacceptable – from manufacturers, resellers or public bodies and policy makers that allow such practices – that simple solutions have been known for a while, for instance key-based activation systems. April calls for a solution that reverses this burden without banning pre-installation as an option. Software is an option, like any other services, and consumers can decide whether to buy it with their hardware, or not. If they choose so, they only need to pay an additional fee for the software upon purchase.

Public authorities have their share of responsibility because of their complacence with these practices. Forcing someone to pay for a software license when they buy hardware has to be recognized for what it is: forced bundling. Unlike bundle-selling, the unfairness of which must be assessed on a case-by-case basis, forced bundling is unfair in all circumstances4. It is, as such, considered illegal. This significantly eases the burden of proof in case of legal action. A global and systemic political action is essential to fight these predatory practices. We need clear rules – from the legal classification of the practices to an effective right to information – as well as the involvement and adequate funding of competition authorities and consumer organizations.

Congratulations to Luca Bonissi for his determination and courage in carrying out this fight, and for his fine victory that took more than two years of legal endeavor. But although Lenovo is rightly convicted, the rules must change. April remains fully committed to fighting forced bundling of software and hardware.

• 1. Luca Bonissi is a member of FSFE, a German free software organization, and made it the recipient of a €15,000 donation from the €20,000 he received. The FSFE website has a detailed account of the activist's action.
• 2. Italy's Supreme Court of Cassation endorsed this right to a refund in 2014.
• 3. In L’impossible combat contre la vente forcée (The impossible fight against forced bundling), April's Board member Laurent Costy describes how he requested a refund for a Windows license.
• 4. See Article 5 of the Directive 2005/29/CE, along with Item 29 of its Annex I.