Refund of pre-installed Windows: Lenovo must pay 20,000 euros in damages
mardi 2 mars 2021 à 00:00Refund of pre-installed Windows: Lenovo must pay 20,000 euros in damages
In a historic judgment in Italy, in a case initiated by FSFE supporter Luca Bonissi, Lenovo was ordered to pay 20,000 euros in damages for abusive behaviour in denying to refund the price of a pre-installed Windows licence. In a motivating gesture for the Free Software cause, Luca donated 15,000 euros to the FSFE.
We all know how frustrating it is to buy a brand new computer and realise that it comes with a pre-installed proprietary operating system. Some companies have adapted their unfair behaviour and established clearer procedures for consumers to obtain the refund for paid licences of software they do not want to use. However, some computer manufacturers like Lenovo still make it very hard for consumers, forcing them to assert their rights in expensive and exhausting lawsuits. This is the successful story of Luca Bonissi, an Italian developer and long-term FSFE supporter and volunteer, in his relentless quest for getting a Windows licence refund, and how Lenovo was ordered to pay 20,000 euros for its unlawful behaviour during the court proceedings.
Lenovo and pre-installed Windows: market and consumer abuse
It should go without saying that everyone should be able to freely choose the operating system to run on their personal computers. Free Software is about granting the liberty for people to freely run software they desire and, consequently, decline the software not respecting their freedom. But Microsoft and the vast majority of hardware manufacturers dishonour this principle by dictating which operating system their customers must use, forcing them to run Windows even when they simply do not want to.
In March 2018, Luca bought a brand-new Lenovo Ideapad convertible tablet and decided he wouldn't run Windows on it. Instead, he contacted Lenovo to file a request for refund and return of the pre-installed Windows. What followed was a truly legal and bureaucratic quest which consumed years, several court proceedings, and much resilience and determination from Luca.
Two years, two lawsuits and much money spent - all because of a 42-euro licence
After having his requests pretentiously denied twice by Lenovo, Luca tried to seek help from the Italian Competition and Market Authority (AGCM). However, when he realised that these efforts were fruitless, Luca decided to take legal action against Lenovo.
Due to the low cost of the Windows home licence, Luca could start the proceedings before a court for small cases without the assistance of a lawyer. However, in the face of Lenovo's aggressive defence, Luca sought professional help. In June 2019, the Justice of the Peace of Monza recognised Luca's right to reimbursement and ordered Lenovo to refund 42 euros for the Windows licence and 130 euros for court costs.
Lenovo was dissatisfied with the verdict. The company summoned "heavy legal artillery", and appealed, indicating 15 grounds on which the sentence had to be revised in a 59-page document. Lenovo's disproportionate and complex arguments imposed on Luca the necessity to defend himself with a lawyer on the appeal too. By now, the refund request, which could have been resolved by a simple email if Lenovo acted in good faith, was already lasting more than two years and cost several hundred euros for Luca.
The outcome: 20,000 euros in damages for consumer abuse
Finally, in December 2020, the Court of Monza rejected all Lenovo's arguments, confirming that the right to reimbursement of the pre-installed software was due. The sentence pointed out that the manufacturer itself had expressly assumed this obligation in the Windows licence. But that is not all: in a historic decision, the court imposed upon Lenovo punitive damages amounting to 20,000 euros for abuse of the appeal procedures. Lenovo forced its customer to take part in a disproportionate and unnecessary legal process. The court also noted that this case is an example of the arrogance and prevarication of a giant company against a modest consumer. In the end, the court ruled that the sum was to be paid to Luca, by way of compensating for the damage caused by aggravated procedural liability.
This decision is a major win against tech companies' questionable commercial practices of hindering a consumer's ability to get a refund for pre-installed proprietary software. However, the price ordinary people have to pay to get their rights is still high, as Luca reminds:
"Although the reimbursement was recognised, seeking it can be economically disadvantageous for consumers. The high litigation costs and risks, as well as the low economic return, constitute a strong deterrent which prevent anyone pursuing a refund for pre-installed Windows. Considering that the normal consumer does not have the technical and legal skills to face such case without a lawyer, and the risk that the manufacturers could drag the case out for several years, it will be very unlikely anyone feels encouraged to sue tech giants, unless sentences such as that of the Court of Monza force manufacturers to comply with their own licences and develop better refund policies".
What was taken from Free Software returned to Free Software
For decades, computer manufacturers have artificially increased hardware prices for users of GNU/Linux with a mandatory payment to Microsoft by bundling computers with a Windows licence. As seen, producers like Lenovo do not comply with their own terms and make it almost impossible for customers to get a refund for non-used Windows licences. The best treatment is still prevention. Users are best advised to buy hardware from vendors which offer computers with Free Software or which sell it without proprietary software in the first place.
Everyone should be able to run the software they want on their computer.
Some manufacturers have defined better policies and procedures to obtain the refund, but for others the users have to write insistently, and, as a last resort, file a lawsuit. In 2019, Luca initiated a similar case against HP, in which he also achieved a favourable decision in December 2020. Several FSFE volunteers have shared their experiences in getting the Windows refund. We are extremely grateful to all of them, especially to Luca who also shared the documentation and procedures in the updated wiki page for Italy.
Notwithstanding the several hurdles imposed by Microsoft and hardware manufacturers, we recommend that everyone ask for a refund of the unused Windows licences when buying a new PC. These insidious practices must not prevail in scaring Free Software users away from enjoying their liberty of running any software they choose. In a deeply motivating act, Luca donated 15,000 euros from the recovered damages to the FSFE, encouraging people to stand their ground for their rights.
Since its foundation in 2001, the FSFE has been working to foster Free Software in Europe and beyond. With our concrete activities, based upon the three pillars of our work, we focus on protecting and extending user rights. Some of our actions run for many years, some are aimed at short-term developments, but all are part of our mission: to empower users to control technology. You can also get involved, and together we can improve the treatment of Free Software users by large tech companies
"The Monza decision demonstrated that is possible to reverse the unacceptable behaviour of big techs. What was taken away from the Free Software community has now been returned to it. I encourage everyone to fight back for their legitimate rights!" - Luca Bonissi.
Further materials
A special thanks is due to Luca for compiling in a very methodical and organized way all the documentation involved in the lawsuits related to the Windows licence refunds.
- Wiki page for Windows refunds in Italy (English and Italian).
- Complete documentation on the Lenovo case (Italian).
- Complete documentation on the HP case (Italian).
- Documentation for Windows refunds involving other companies (Italian).
Beaucoup d'action lors de la toute première Assemblée Générale de la FSFE le 6 mai 2001. Photo CC-BY-SA 4.0 Peter Gerwinski.
Portrait de Georg Greve, président fondateur de la FSFE
L'équipe du stand de la FSFE au FOSDEM, sur et devant l'écran
Let's celebrate #ilovefs day!
Let's celebrate #ilovefs day!
