Dependant sale

The dependant sale , also called subordinate sale , consists in gathering in a batch comprising only a Prix, several produced without it not being possible to get them separately. The legislation prohibits the sale dependant in the majority of the countries with however various interpretations of the “produced” word and a certain laxism as for the application of the law.

More and more usually at the origin of monopolistic anticompetitive practices and , the dependant sale most frequent consists in binding the sale of a well to that of a service under pretext that this last is necessary to the use of the good. The consumer finds himself forced to accept the Contrat governing the service to have the good, or to pay for a good to benefit from the service. Thanks to the monopolies granted by the State on works of the spirit, of the companies are then capable to consolidate positions of monopoly.

Various legislations prohibiting the dependant sale

The French legislation

In France, the dependant sale is prohibited by the L122-1 article of the Code of consumption. The French legislation is more precise than the legislation of the other countries by explicitly prohibiting the dependant sale of a service with another product (service or).

The EU law

Example of dependant sale and not-dependant sale

Not-dependant sale conveys/auto insurance

The sale dependant of a car on that of an auto insurance is prohibited by the L122-1 article of the Code of consumption although the auto insurance is essential to the use of a car (because imposed by the law). The contract of this insurance could indeed oblige you to make make all repairs near the manufacturer.

With beginning of the year 90, certain manufacturers tried to bind their insurance house to the purchase of vehicles but they hastened to go into reverse in front of the pressure of the insurers.

Dependant sale computer material/licenses of software

Today, it is almost impossible to buy computer material without paying for software licenses of . Under the denomination OEM for Original Equipment To manufacture , of many software are thus imposed on the purchase of peripheral (example: software of reading of DVD with a reader of DVD) or complete Computer, particularly for the laptops. The French-speaking Association of the Users of Linux and Free software (AFUL) conducts under the name of Non to the racketiciels an active campaign against the simultaneous sale of computer and software.

Manufacturing computers practitioner the dependant sale

Certain groups estimate that manufacturing it of computers practical Dell the dependant sale in France and perhaps in other countries, since it is impossible to order near this company a computer deprived of the operating systems Microsoft.

In same time the professional customer can acquire certain machines without Operating systems Microsoft, for a low price. The range general public of Dell proposes since 2007 of Inspirons with GNU/Linux.

Thus, it should be possible:

to buy the licenses alone. This can be appeared as an envelope gathering:
1. the license agreement
2. the code of activation of the software under sealed envelope
3. if need be, a Certificate of authenticity
4. in an optional way, supports of installation. If those are not provided (it is about good), the editor can propose to order them or not in a paying way, the purchaser having in any event the right to create a backup copy since having a legal license.
to buy the material alone. No code of activation being provided, the software pre-installed is unusable. If need be, the disc can be encrypted using the code of activation. Associated with an activation on line, this method makes it possible to the software publishers to trace the people who would use pirate versions as the law allows them.
to buy the material and the licenses at the same time by paying the sum of the two prices. The consumer can thus continue to profit from the facility of startup offered by the pre-installation.

It is only about one method making it possible to separately sell license and material while keeping the facility of startup offered by the pre-installation. There exists about it of different as to propose all the software in version of evaluation for one limited time at the end of which the software ceases functioning if their license were not bought. In this case, the licencior can sell licenses on line in order to allow to buy the licenses alone.

Following discussions with the DGCCRF, making the report which article 122-1 is seldom exploited, after legal study, the UFC That To choose decided, in December 2006, to attack two retailers and a manufacturer of data processing only on this article.

July 23rd, 2007, the company Acer was condemned to refund 311 € licenses of software pre-installed on a computer sold to a private individual.

Dependant sale cellphone/subscription of mobile telephony

Pourquoi all the mobile telephone operators propose subscription without engagement of duration to less than one euro per month in Finland, a country where the cost of living is on average 30% higher than in France?

Failing to explicitly prohibit the dependant sale of a good and a service, Finland explicitly prohibits to very offer produced related to mobile telephony for the purchase of a subscription. The consumers buy their telephone for a price equivalent to the French full price (whereas the prices are normally 30% higher). The “blocked” telephones are well-sure unknown since blocking to consist in binding the telephone to the subscription. Manufacturers being in direct catch with the consumers, competition the growth to offer products answering all the segments of the market.

On their side, the operators propose tariffs calculated with just. The consumers not having any interest to engage for one long period, the near total of the offers have a one month notice. One can thus find the offers following since at least semi-2004. In 2006,9 operators out of 12 propose the following offer (with expenses of opening going of 0 with 3€):

subscription 0,69€/mois;
0,069€/min (that is to say 4€/h, deducted at the second), towards all the operators;
0,069€/SMS;
not of engagement of duration;

This formula is not interesting that for a consumption strictly lower than one hour per month. For a higher price of the subscription, the price of the minute of communication and SMS go down until 0,02€. One also finds fixed prices, for example 500 minutes (8h20) for 19,99€/mois (always without engagement of duration). Certain operators also propose to change free for another type of subscription at any time.

The three French mobile telephone operators realized more than 50% of benefit on 2004-2005 (to be checked).

Advantages and disadvantages

the consumer having to buy his telephone without reduction, the cost of startup is higher. The real price of a telephone “with 1€” being generally of approximately 75€, such a purchase is however deadened at the end of approximately 3 months.

the consumers are incited to change telephone, thus causing a slower adoption of new technologies such as the 3G.

Dependant sale reproduction right/support (CD, DVD, books, etc)

Comment is it made that the legal platforms of remote loading propose prices almost as high as for the purchase of a support?

Bound for historical reasons, the sale of the reproduction right and support any more raison d'être does not have since the consumer with the possibility of creating his own support. If it is normal that one cannot buy the support (well) without having the reproduction right (service), one can nevertheless imagine a system of not-dependant sale:

to buy the right alone: the salesman (store or site of sale on line) provided an invoice comprising the name of work concerned as well as a randomly drawn single number. The number entered the base of data of the manager of the rights. A store can buy numbers in advance and associate them with works in the database every week or every month.
to buy the support alone: while going in a store provided with his proof of purchase, the salesman checks in the base of data of the manager of the rights using the single number provided into 1) which one has well the right of copy. In the base of data, the salesman associates CD (or DVD) with the single number. One can buy new CD to replace CD damaged by bringing back this last. The salesman checks using the single number that we should bring back CD because one has already a support.
to buy at the same time the right and the support as one can currently do it, by paying the sum of the two prices.

This system makes it possible to buy anonymously and to continue to offer CD (accompanied by the right of copy). One can also imagine the installation of network of p2p checking near the manager of the rights that the person asking for a remote loading has the right of copy well.

One can think within sight of the preceding examples that the current prices are higher than of reason. The manufacturing costs of CD, small pocket included/understood, lie between 1 and 2€. By taking of account the margin of the distributers, the price of the support (2°) should approach 5 or 6€. With the current price of disc, that leaves more than one ten euros for the right of copy whereas the majority of the authors do not touch almost anything on the sale CD.

Relationship to the bill DADVSI

Bill DADVSI proposes contrary to more closely binding the reproduction right with the support -- physical support, for example CD as well as the logical support, i.e. the format of file. This would make it possible the “recording companies” more effectively to take the control of the monopolies granted by the State the authors. It is to be feared that as for the other examples, this is done with depend on the consumers but also on the authors.

References

L122-1 Article of the Code of consumption on Légifrance
Left L122 the Code of the intellectual property on Légifrance

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