Currys.co.uk not abiding by Distance Selling Regulations

frugal_mike

If the law was to be interpreted as meaning hardware with software on it was excempt from DSRs when opened then a large number of items may end up being excluded. TV's, radios, white goods etc.

I would hope a judge would realise that wasn't the intent. But small claims courts don't set precedent anyway.

neilmcl

One has to look at the reason why that exception exists in the first place. Essentially it's to prevent unscrupulous buyers ripping copies of the media then sending back the originals, hence the reason why they have to remain sealed and why the exception is regarding the contract to supply the software as a separate entity rather than the activation of software on a supplied PC for example.

notken

neilmcl wrote: »

...it's to prevent unscrupulous buyers ripping copies of the media then sending back the originals, hence the reason why they have to remain sealed and why the exception is regarding the contract to supply the software as a separate entity rather than the activation of software on a supplied PC for example.

Exactly what I was going to say. The spirit of the DSRs is to allow consumers to try items at home as they would in a store. The spirit of the exception is to exclude items that can be easily copied. Since in my case I've tried and not liked an iPad, I'm keeping to the spirit of the DSRs. Any software that I might have 'activated' is not transferable or copyable, and so I could not have taken advantage of having access to it. Currys refusing a return on those grounds would be against the spirit of the DSRs and against the spirit of the exception.

Furthermore, I performed a "factory reset" on the tablet, which by its very definition returns the product to its state as sold new.

As mentioned above, it may well be a get-out to fob someone off, but I can't see how it could possibly hold any water when argued.

bru88 didn't mention if this was just his guess at why Currys denied him being able to return the laptop, or that's what they quoted. They've not said anything like that to me. It's just been a blanket refusal, with no mention of it being refused because it's a computer, or because it contains software. Just a blanket, definitive, "we don't accept returns of used items".

Has anyone contacted the OFT before? It looks like they want me to call first, presumably so they can weed out complaints with no legitimacy before they go to the trouble of formally investigating.

bru88

Currys (ha ha cant believe I was misspelling that all the way through... not intentional) kept saying to me that it was because "the software has been activated and registered by you". Currys never actually referenced the 13d clause of the DS Regs. This is something I only discovered by researching it since then on the internet when it became apparent that this grey area exists and is being exploited to 'trump' my right to inspect the goods.

To me, as a consumer who is now uncertain of my rights, the resolution would be simple: has this gone to court and has a judge made a decision which agrees or disagrees that 'computer software...unsealed by the consumer' extends in its meaning to encompass 'computer software activated by the consumer' (which I understand to also mean activating the licence on the software)? There is a clear sense that the software has been 'unsealed' when the licence has been activated, but there is also a clear sense that this does not pose the same problems as when software disks are unsealed, in terms of copying.

Technically yes when I had my Currys laptop up and running in windows I could have cloned the HD (and windows software), returned the laptop, and then used the clone in a very similarly specced laptop... viola I have a free (and illegal) OS. I am not arguing that this is feasible for many people to want to do, or a problem, unlike copying audio Cds or software disks. But 'computer software...unsealed by the consumer' is still being intepretated to include 'software on hardware'. I think its just a backdoor way for the retailer to stop (or put off) consumers from 'trying before buying' because obviously that costs the retailer money, no doubt more money than it costs them to force (minority of)buyers to start proceedings against them and then they settle the matter before it ever gets to a court (this is just my own cynical supposition here of course)

I don't have the technical knowhow (and I have not seen anyone demonstrate a convincing argument either) to know how activating sofware (and licencing it) effects the next purchaser of the laptop (after the laptop has been factory restored & returned). Even if the laptop has had a factory reset, the licence has still been activated and registered to that first person, right? But so what, in practice? I don't know.

I do know that it is perfectly legal to sell on a laptop second hand and for the next user to use the software legally and as the owner of that software (I think?). I also understand that it is illegal for a user to use the software in any other machine other than the one it is licensed to. And importantly note that the DSRs are not dependent upon the retailer being able to re-sell the product "as new", that is not a requirement in order for the buyer to be able to cancel the purchase.

Re. small claims courts dont set precedent... yes but it would give me confidence to know that judges are dismissing the retailers' interpetation of the law (rather than upholding it).

Re OFT guide: 3.92 says most software is sealed, but if they mean that as physically sealed then no most computer software these days comes on the hardware. Secondly the 3.93 paragraph doesnt actaully address the issue in the 13d clause. I havent seen any relevent definitve statement quoted from OFT about that. That would help.

So if you managed to perform a factory reset on your tablet, what stops you going back to a Currys store and saying that you never switched it on?

notken

bru88 wrote: »

So if you managed to perform a factory reset on your tablet, what stops you going back to a Currys store and saying that you never switched it on?

Nothing at all, except I want to keep a clear, consistent and truthful story should it need to go further. I don't think I need to make that distinction, so I'd rather not withhold information in case it appears like I'm being misleading in the future.

I would also argue that software has not been 'lost' or 'destroyed' when a laptop is first used, since OEM software is licensed to the hardware, not the user. It cannot be moved to alternative hardware anyway.

While we are talking about legal action setting precedent, I suspect it would only take a ruling by the OFT to clarify this. I'll call them a bit later today for advice.

societys_child

unholyangel wrote: »

So why have amazon been expanding their operations and building new distribution centres (along with employing thousands of new staff)?

What you're referring to is customers who have a very high return rate and as such, are not profitable customers for amazon. It doesn't have anything to do with rights - amazon allow returns for up to a month. If people enforcing their rights was costing them so much money, they wouldn't have such a generous returns policy.

It was another poster that brought Amazon into it, so I pointed out that they do take action to protect themselves against unprofitable customers.
I'm not particularly interested how many new distribution centers they open or how many people they employ (suppose using Luxemburg as a tax haven helps them grow their UK business . . .;))

neilmcl

notken wrote: »

While we are talking about legal action setting precedent, I suspect it would only take a ruling by the OFT to clarify this. I'll call them a bit later today for advice.

The OFT doesn't give advice to individuals, you'll be better off speaking to your local Trading standards. If you've exhausted all avenues with Currys personally I'd go straight to sending out an LBA and proceed from there.

notken

neilmcl wrote: »

The OFT doesn't give advice to individuals

Oh, you're right. I'd found myself on the complaint section of the Competition Act. Saved me a phone call. Thanks.

What's an LBA?

halibut2209

Letter Before Action. Have a wee search for it

notken

halibut2209 wrote: »

Have a wee search for it

Ha! I did search for LBA, but assumed it wasn't:

• Leeds Bradford Airport
• Logical Block Addressing
• London Business Angels
• Lightweight Body Armour

which were the top results!