The Italian Supreme Court (Corte di Cassazione) issued a
judgment1 that bans the "Microsoft tax," a commercial
practice that discourages users from converting their PCs to GNU/Linux
or other free operating systems by forcing them to pay for a Windows
license with their PCs. PC producers in Italy now cannot refuse to
refund the price of the license to purchasers that will not run
Windows.
The ruling definitively concludes the case filed in 2005 against a hardware
producer by Marco Pieraccioli,2 with the support of the Consumer Association
ADUC,3 and affirms Marco Pieraccioli's right to a refund for the price of the
Microsoft Windows license for the computer he purchased.
The primary reason to insist on using free software4 is because nonfree
software deprives the user of freedom, including the freedom to participate in
its development. The "Microsoft tax" has no effect on that issue.
The "free" in "free software" refers to freedom. It does not mean "gratis,"
and copies of free software do not have to be distributed without charge.
Selling a copy of one free program or many of them is legitimate.5
However, most GNU/Linux distributions are offered to the public
gratis, while Windows is not. Therefore, switching to GNU/Linux offers
an opportunity for the secondary benefit of saving money -- a benefit
that many Italians would value. The "Microsoft tax" has the effect of
abolishing that secondary benefit. Now the secondary benefit must be
available.
The ruling applies to more than just Windows. The Court states a
general principle that applies to any device with software
preinstalled: "...who buys a computer on which a given operational
software (operating system) was preinstalled by the manufacturer has
the right, if he does not agree to the conditions of the license of
the software made available to him at first start of the computer, to
retain the computer returning only the software covered by the license
he did not accept, with refund of the part of the price that
specifically relates to it."6
According to the Supreme Court, any commercial practice that prevents the user
from getting a refund "..would clash in different ways with the rules that
protect the freedom of choice of the consumer, and the freedom of competition
among firms..."7
On the one hand, therefore, the judgment follows the path of the French
Courts' case law, that on several occasions stated that the joint sale of
hardware and software, without providing for the buyer the possibility to
obtain refund of preinstalled software, violates the right of the consumer.8
On the other hand, the Italian Supreme Court states that the act of
hindering the refund violates the freedom of competition among firms.
This statement of principle is interesting considering that, to date,
the antitrust authorities have done little against business practices
that "force" the joint sale of hardware and proprietary software. Now
they may consider taking stronger action.
The focus of the Court's reasoning is that the sale of a PC with software
preinstalled is not like the sale of a car with its components (the 4 wheels,
the engine, etc.) that therefore are sold jointly. Buying a computer with
preinstalled software, the user is required to conclude two different
contracts: the first, when he buys the computer; the second, when he turns on
the computer for the first time and he is required to accept or not the license
terms of the preinstalled software.9 Therefore, if the user does not accept
the software license, he has the right to keep the computer and install free
software without having to pay the "Microsoft tax."
Notes:
1 Judgment n. 19161/2014 published 11/9/2014
http://www.italgiure.giustizia.it/xway/application/nif/clean/hc.dll?verbo=attach&db=snciv&id=./20140912/snciv@s30@a2014@n19161@tS.clean.pdf.
2 I had the honor to assist before the Supreme Court Marco Pieraccioli who
already had favorable decisions both at first instance (judgment no. 5384/2007
of the Giudice di Pace di Firenze) and in second degree (judgment no.
2526/2010 of the Tribunale di Firenze).
3 See http://aduc.it/.
4 See https://www.gnu.org/philosophy/free-sw.
5 See https://gnu.org/philosophy/selling.
6 See p. 22 of the judgment.
7 See p. 21 of the judgment.
8 See http://non.aux.racketiciels.info/.
9 The judgment at p. 21 states: "Having been assessed that there are not
technological obstacles, the 'packaging' at the source of hardware and
operating system Microsoft Windows (as it would for any other operating system
for a fee) would actually respond, in substance, to a trade policy aimed at
the forceful spread of the latter in the hardware retail (at least in that, a
large majority, headed by the most established OEM brands); among other
things, with cascade effects in order to the imposition on the market of
additional software applications whose dissemination among final customers finds
strong stimulus and influence - if not genuine compulsion - in more or less
intense constraints of compatibility and interoperability (that this time we
could define 'technological with commercial effect') with that operating system,
that has at least tendency to be monopolistic".
© Marco Ciurcina, 2014 – Some rights reserved.
This work is licensed under a Creative Commons Attribution 4.0 International
License or any later version.
The text of the license is available here
https://creativecommons.org/licenses/by-sa/4.0/legalcode.
