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HMV refuses PS3 pre-orders unless consumers agree to buy PSP too


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Sorry to be picky (even though Wickedkitten is wrong) but every example you've given there is an example of something that Marks and Spencers would buy in as a single unit, ie: sweet and sour chicken and rice wouldnt be bought in seperately and then offered only as a single unit - they'd be bought in as a single unit and thus have a single sku/barcode attached to them. HMV is blatantly not doing this, as they are advertising as getting the psp now, so obviously they are making the bundles themselves as they already have stock of the psps to go out. I doubt very much that when you'd get it, it'd be processed as a single product, like you suggested, or have some kind of "part of a bundle - do not sell seperately" which the multibuy dvds and such you mentioned in your example do.

Its still knitpicking and largely irrelevant though - at the end of the day, hmv are under no obligation to offer you the item by itself.

You are probably right but my example is largely irrelvent to the law we are arguing about. I was just trying to present something so that people could visualise what Wicken Kitten was suggesting which was being able to go into any store and demand that packs of products be split. Yes of course the examples I gave were nonsence examples but I was trying to illustrate a point. Plus under the sales of goods act the courts really only look at the situation between the seller and buyer. How the seller came to procure the goods is not a factor. It is simply the relationship between the seller and buyer that the Sales of Goods act covers. There are other acts that look at the ways in which the retailer has brought the product but they do not support Wicked Kittens position I felt mentioning them would not add anything constructive to the present scenario.

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You're going to make a great solicitor.

Well I'm counting on the fact that when clients come in asking me to tell them the law I'm not going to have to listen to them prattle for half an hour first telling me what they think the law is and then once I have told them the law I'm kinda hoping they are still going to trust that I know more than they do.

Obviously if I had you as a client you'd come in. Tell me the law (wrongly). Listen to me as I explain the law. Disagree with what I have said using illogical arguments not backed by law and then leave.

Either way I'm still going to bill you for the time so I would advise you if you are ever in that situation to trust that your solicitor does know more than you and also knows what he is talking about. Trust me, I know more than you and I know what I am talking about which I would imagine would please most of my clients. I would actually be concerned is that was not the case.

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You are probably right but my example is largely irrelvent to the law we are arguing about. I was just trying to present something so that people could visualise what Wicken Kitten was suggesting which was being able to go into any store and demand that packs of products be split. Yes of course the examples I gave were nonsence examples but I was trying to illustrate a point. Plus under the sales of goods act the courts really only look at the situation between the seller and buyer. How the seller came to procure the goods is not a factor. It is simply the relationship between the seller and buyer that the Sales of Goods act covers. There are other acts that look at the ways in which the retailer has brought the product but they do not support Wicked Kittens position I felt mentioning them would not add anything constructive to the present scenario.

Yes because of course I was talking about going into a shop and demanding they open up a premium 360 and sell me the wireless headset and a controller out of it wasn't I.

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Well I'm counting on the fact that when clients come in asking me to tell them the law I'm not going to have to listen to them prattle for half an hour first telling me what they think the law is and then once I have told them the law I'm kinda hoping they are still going to trust that I know more than they do.

Will you give them examples that are largely irrelevant to the law you're discussing?

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Yes because of course I was talking about going into a shop and demanding they open up a premium 360 and sell me the wireless headset and a controller out of it wasn't I.

You're getting caught up in the notion of packaging and what comes with what. Under the law the trader offers you something and then you can choose whether to accept or not. Usually yes it will be what was supplied to them but there is not stipulation to this under the law. How it was sold to them, the packaging it is in is all irrelevent. What matters is the offer they are offering you. A retailer can offer you anything. As long as you have a choice to decline the offer then your legal rights are limited.

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You're getting caught up in the notion of packaging and what comes with what. Under the law the trader offers you something and then you can choose whether to accept or not. Usually yes it will be what was supplied to them but there is not stipulation to this under the law. How it was sold to them, the packaging it is in is all irrelevent. What matters is the offer they are offering you. A retailer can offer you anything. As long as you have a choice to decline the offer then your legal rights are limited.

Yeah ok Charles, carry on making out like I'm wanting a wine shop to sell me a glass of Krug out of a bottle

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Will you give them examples that are largely irrelevant to the law you're discussing?

Errr... Yeah? If it helps the people I am advising understand the law and what I am saying I'd be quite happy to explain it to them using Lego if it helps them or whatever other analogies I can think of to try and make the law understandable.

But I guess according to you I'll only be a good solicitor is the client walks out having no idea what the hell I was saying for the last hour. The law is complicated, I don't mean to be condescending but to explain to someone who does not know the law you are going to have to simplify it a bit. In this current topic there are a number of other acts and cases I could mention to support and/or cast doubt on the position I have taken but I think you'll agree as long as I can convey the gist of the law to you, you're not that interested in the authorities I use for holding that view.

My goodness....isn't this turning out to be an education.... :)

I get enough at uni.... :)

Btw Charles, good on you for sharing your knowledge with us :(

Sorry everyone I know I've been droning on, trust me, the law is the only thing I know anything about so it should be a while until you have to hear from me again B)

I promise I'l quit now...

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Imagine a farmer trying to open up a restaraunt inside one of his cows. Obviously he would need a large cow, but that would be the least of his problems. I'm talking health and safety here people. Of course, this example is largely irrelevant to the law being discussed here.

See the difference is that my example was a demonstration of the law in effect but not relevent when considering the HMV situation and whether you agreed or disagreed with it the example is largely irrelvent to the discussion in hand.

Your example is only relevent if we need to prove you're a moran, but after looking at your posts, I'm not sure we need to bother.

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Unfair Commercial Practices simply refers to treating (amazingly enough!) consumers unfairly. But you're not obliged to buy from HMV, so it's hardly 'unfair' is it? It would only be unfair if HMV had exclusive distribution rights to the PS3, which they haven't.

I think Wickedkitten and I must have read the same article as I'm convinced I read something on this issue. For a start, I certainly remember reading (In an official government website, not some "Know your Rights" type website) an article on retail law which dealt with companies bundling seperate products into one. I'm 100% sure about this, however it was very possible that this didn't apply to highstreet retailers and was in fact dealing with something like Microsoft's problems with bundling software with Windows and hence falling foul of anti-competition law.

In any case, I can 100% see where Wickedkitten is coming from and I'm sure she has the same thing in the back of her head about this bundling thing. Funnily enough, it may have been one of her links which lead me to that article.

In any case, there is definitely some law about this, though it's safe to assume it doesn't apply in HMVs particular case.

Wicked Kitten, you're wrong, everyone else is right. Trust me. I do a law degree,

Sorry, I have to pull you up on that. For a start, the fact you do a law degree doesn't make you right when it comes to legal matters, and to be honest the only people I hear say things like that are people who have fuck all clue about what they're talking about. I studied certain subjects for years and have also been working in my industry for many more and I still make mistakes in these areas. The only time you think you know everything is when you really don't know a thing.

the law has absoutely no bearing on what HMV choose to sell and what price they choose to sell it at.

Actaully it does, but Wickedkitten hasn't proven that HMV is breaking it. Free market doesn't mean you can set up shop and do whatever the hell you like.

They buy the goods from thier suppliers but they can sell them in whatever manner thay like. Don't think of it as buying a PS3 and also then having to buy a PSP. It's not like that. HMV are simply offering a product which includes both the PS3 and the PSP which they are completely entitled to do.

If they are indeed selling it as a product. We can assume they are, but they could quite easily be selling them as seperate products and perhaps breaking a law or two.

Would you go into Marks and Spencers and demand that thier knives and fork starter set be split so you only have to buy the forks?

No, but that's nothing like the situation with HMV. The cutlery set you talk about was most likely designed as a package from the start, has a single SKU and comes in a single package. I wouldn't ask for M&S to remove all the peas from my paella and sell them seperately because it's understood that the peas are a component of the item being sold. The cutlery set is an item, with the knife and fork being components of that item. The PS3 and PSP are clearly seperate products. They are packaged seperately, have a seperate SKU number, seperate RRP etc. HMV has simply said they will not sell them seperately. It's not hard to see why that may seem unfair and might break some retail law, even if that's not actually the case.

have absolutely no right to dictate to a trader on how they choose to sell thier goods. They present you with an offer. There is no obligation for you to accept if you don't like what they are offering you.

Again, that's not true, but in this case HMV seem to be ok.

What about those Stew Starter packs which include lots of different vegtables, obviously these would have been sourced from compeltely different suppliers and then packed up together. Are you really telling me you can then go and demand they be split becuase the supplier did not buy them as one pack. Really?

No, because the the ingredients are part of the stew and without them it wouldn't be the same product. If the stew starter pack included a garden hose with it then you'd probably question its inclusion wouldn't you?

Unfair terms? Bundles? What are you talking about?

Again, there are laws which deal with this. In fact, weren't banks recently in the shit about their practice of forcing seperate financial products on people as a bundle? You talk like Wickedkitten has said the most outrageous thing in the world when clearly it's not beyong the realm of possibility that there are laws which may deal with this, even if they don't in this instance.

I am actually sorry I have wasted this long typing becuase obviously it is lost on you or you. I know what I am talking about and it is becoming incresingly apparent with each post you make on the subject that you do not.

:)

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See the difference is that my example was a demonstration of the law in effect but not relevent when considering the HMV situation and whether you agreed or disagreed with it the example is largely irrelvent to the discussion in hand.

Your example is only relevent if we need to prove you're a moran, but after looking at your posts, I'm not sure we need to bother.

moron.jpg

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With the attitude that Charles is exhibiting in my experience he is going to make a great solicitor... It's either part of the education process or genetic haven't worked out which one yet.

Regardless of anything else didn't HMV have a pretty poor trading Christmas? Could this be more down to their trying to clear stockpiles of PSPs to desperate early adopters? This, like the parent companies purchase of Ottakar's completely bemuse me. All it does is pee off the people who do manage to get a unit at a highly inflated price, pee off the ones who decide that the cost is too high and generate bad press for the company over the practise. Is there any positive to come out of all of this? How many PS3s would they get at launch... enough to cover the hostility the bundling deal is likely to generate?

Anyhow, owing to them buying Ottakar's, rebranding them and them closing any Waterstones where too many shops existed in a small area made me grumpy enough to avoid them for the time being (which is a little petty I know but what the hey I can vote with my mouth and my feet, sometimes with both in the same place at thesame time :) ) and I wonder if this sort of oddball decision will encourage otehrs to do the same.

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Sorry, I have to pull you up on that. For a start, the fact you do a law degree doesn't make you right when it comes to legal matters, and to be honest the only people I hear say things like that are people who have fuck all clue about what they're talking about. I studied certain subjects for years and have also been working in my industry for many more and I still make mistakes in these areas. The only time you think you know everything is when you really don't know a thing.

I don't know everything. I do make mistakes. However I was using the fact that I do a law degree simply so when I say something about the law I actually have some expearience behind me to back it up. Of course sometimes I'll be wrong but it doesn't negate the fact that I do know what I'm talking about.

I live with a engerneering student. I know very little about engerneering. Hence when she tells me something I trust that she knows more than I do. Perhaps I'm wrong to take that approch but if someone has spent 4 years studying a subject I sadly put more faith in them rather than me. That was the only reason for mentioning my Law degree just so people might have a bit more faith in what I am saying. Obviously not though....

Actaully it does, but Wickedkitten hasn't proven that HMV is breaking it. Free market doesn't mean you can set up shop and do whatever the hell you like.

Of course not, I'm sorry if my posts gave the impressions that retailers were free from burdens. They ar enot, just in this case I don't think the law applies.

If they are indeed selling it as a product. We can assume they are, but they could quite easily be selling them as seperate products and perhaps breaking a law or two.

But what law. I'm quite willing to entertain a discussion on whether they are breaking a law or two if only people would present a law for me to argue for/against. Wicked Kitten presented Sale of Goods act and I explained IMO why I don't think it applies - primarily since regardless of the products the SGA deals with contracts made and obligations imposed there after. In this case it would appear HMV are offering people the chance to buy a PSP and PS3 together. This is not illegal. Retailers can offer whatever they like together for 1 price. It matters little that HMV are not selling the PS3 seperately. Legally speaking retailers can buy whatever they like and they sell it however they choose, if a seller wants to buy two items seperately and sell them together they are quite welcome to do this. Using a games example, a retailer can buy a Wii, can buy some games and then can offer a package of a Wii and 2 games. However that retailer has absolutely no obligation to sell the Wii on it's own even though each product is intervidual and has seperate SKU's, if a retailer wants to sell items together, they can.

No, but that's nothing like the situation with HMV. The cutlery set you talk about was most likely designed as a package from the start, has a single SKU and comes in a single package. I wouldn't ask for M&S to remove all the peas from my paella and then them seperately because it's understood that the peas are a component of the item being sold. The cutlery set is an item, with the knife and fork being components of that item.

Or M&S simply got in from suppliers packs of Knives on thier own, packs of forks on thier own and thought that they would make more money if they marketed a pack of Knives and a pack of Forks together as one set, got some sticky tape and stuck them together. OK it's a silly example but it would be completely legal for M&S to sell products in this way. They may even choose to sell all thier Knives and Forks this way and not offer them in thier original packs of just Knives and Forks...

The PS3 and PSP are clearly seperate products. They are packaged seperately, have a seperate SKU number, seperate RRP etc. HMV has simply said they will not sell them seperately. It's not hard to see why that may seem unfair and might break some retail law, even if that's not actually the case.

Absolutely which is why i tried carefully to explain why although it might seem like it was breaking the law IMO it is not. What would you have prefered me to do, just say no its not against the law? I could have done but I prefered to explain my thinking, explain how I arrived at that conclusion and then if people wanted to pick me up on the facts they were welcome to do so. However with the exception of nitpicking my examples no one has done so yet.

No, because the the ingredients are part of the stew and without them it wouldn't be the same product. If the stew starter pack included a garden hose with it then you'd probably question its inclusion wouldn't you?

Again, there are laws which deal with this. You talk like Wickedkitten has said the most outrageous thing in the world when clearly it's not beyong the realm of possibility that there are laws which may deal with this, even if they don't in this instance.

Well the stew was another example of products which retailer could have brought in seperately and packaged up together to sell as one product. They could be sold intervidually but they also work together. (Again I'm not saying it's a watertight example, just trying to point out that bundling of items goes on quite a lot). As I understand the PSP and PS3 also work together which I would imagine would hurt anyone's chances of proving it's an unfair bundle. If HMV were making you buy a George Foreman grill with your PS3 then you might have an interesting arguement (If as I have read they do infact do the same thing.... :) )

Wickedkitten did not say an outrageous thing, but she just did not listen when people pointed out she was wrong. I can cope with people asking questions and being wrong about stuff but if you are not willing to listen to other people and realise when you are wrong then posting on a discussion board seems a bit pointless.

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Right, it seems that Wickedkitten and I were thinking of "product tying". We were right in one sense, it is illegal as it violates anti-trusts laws, however it doesn't apply to HMV's case. It would only apply if HMV were the only retailer to actually sell a PS3 and so their actions hampered market competition. Also, I think it this would only apply to Sony if Sony themselves bundled the PSP with the PS3.

Like we said (Well, I said it in the original thread), we were wrong about it being illegal for HMV, but the concept of forcing consumers to purchase one product as a means of purchasing another is illegal in some sense.

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I don't know everything. I do make mistakes. However I was using the fact that I do a law degree simply so when I say something about the law I actually have some expearience behind me to back it up. Of course sometimes I'll be wrong but it doesn't negate the fact that I do know what I'm talking about.

Well, not to labour the point but you should have said "I remember from my retail law module etc." or something like that. It came across as whatever you posted was indesputable because you were studying law. I have a friend who has worked as a solicitor for a fairly large company in Switzerland for many years and when I ask him things from time to time he says "Well I'm not familiar with that particular discipline of law" or "I'm only familiar with the Swiss regulations" etc. It seemed a bit presumptious of you to claim that studying law immedaitely made your opinion completely right. I accept that's not how you wanted it come come across, but it's fair to say it did.

But anyway, let's move on.

I live with a engerneering student. I know very little about engerneering. Hence when she tells me something I trust that she knows more than I do.

You shouldn't have blind faith in people. I studied engineering but you certainly wouldn't want to build a house based on what I say.

Of course not, I'm sorry if my posts gave the impressions that retailers were free from burdens. They ar enot, just in this case I don't think the law applies.

Agreed.

But what law. I'm quite willing to entertain a discussion on whether they are breaking a law or two if only people would present a law for me to argue for/against.

I posted about which law I had in mind a little earlier before I saw your recent post. I was thinking of "product tying". It relates to anti-trust laws.

Wicked Kitten presented Sale of Goods act and I explained IMO why I don't think it applies - primarily since regardless of the products the SGA deals with contracts made and obligations imposed there after.

Yes, you were right. Wickedkitten isn't a lawyer though, she just presented what she thought was the right act. A savvy legal mind such as yours should have figured out what she may have meant :)

Loads of examples...

Charles, it may be better for you to actually quote the laws you're referring to rather than come up with fictitious examples. It's better than a saga about M&S, sticky tape and boxes if cutlery. If we still don't understand then fire away with examples, but at the moment it comes across like you don't actually know what the law says about this. I'm not saying you don't, you probably do.

What would you have prefered me to do, just say no its not against the law? I could have done but I prefered to explain my thinking, explain how I arrived at that conclusion and then if people wanted to pick me up on the facts they were welcome to do so. However with the exception of nitpicking my examples no one has done so yet.

To be fair part of the problem is that the examples you used to arrive at your conclusion were wrong. Going back to what I said about you not really knowing what the law says on this, it does seem like you've just come to a conclusion based on what you think might be right/wrong, just like the rest of us, rather than actually know for a fact what the situation is. It may be an informed opinion but it's still an opinion.

Well the stew was another example of products which retailer could have brought in seperately and packaged up together to sell as one product. They could be sold intervidually but they also work together.

In this case they make an actual product, a stew. A PSP and a PS3 do not make a product, they are products which work together.

Wickedkitten did not say an outrageous thing, but she just did not listen when people pointed out she was wrong.

She said herself several times that she was wrong didn't she?

I can cope with people asking questions and being wrong about stuff but if you are not willing to listen to other people and realise when you are wrong then posting on a discussion board seems a bit pointless.

To be fair she did say several times that she was wrong and it seemed like she wanted a clarification more than anything.

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Wickedkitten did not say an outrageous thing, but she just did not listen when people pointed out she was wrong. I can cope with people asking questions and being wrong about stuff but if you are not willing to listen to other people and realise when you are wrong then posting on a discussion board seems a bit pointless.

:) Are you reading a different thread from me? There was a combination of everyone discussing what was what without really knowing either way, and gradually the facts became apparent. Wickedkitten didn't "not listen" to anyone. Certainly since you appeared and tripled the average post length (good practice for when you're paid by the hour :( ) she's been nothing but humble.

OK, humble and sarcastic.

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So long as HMV are making it clear from the very beginning that you're pre-ordering the PS3/PSP bundle - and the price of said bundle exceeds the price of the PS3 by itself - they're well within their rights to do so. Doesn't mean they'll sell through their allocation or shift the gazillions of PSP's they couldn't sell in shitty, uncompetitive bundles before christmas, but the gamble is theirs to take.

lolz@HMV.

I'm a little less sure of this, but I imagine that if HMV were the only people stocking PS3 at launch, they wouldn't be allowed to do it. Feel free to correct me if I'm wrong.

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Are HMV doing this because

a) they think people will be so desperate for a PS3 that they will buy a whole other console to get one

or

B) the not-as-good as expected sales in Japan and the US have got them worried about their profit projections so they are trying to make as much money possible from each bundle sold.

If they do this and it works then Ebay will be chock full of PSPs as well as PS3s.

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This isn't the actual article I originally read, but it says pretty much the same stuff. This is why I was confused (And maybe Wickedkitten too).

Simply put, a tying arrangement is an agreement by a party to sell one product but only on the condition that the buyer also purchases a different product (often known as a positive tie), or at least agrees that he will not purchase that product from any other supplier (often known as a negative tie). The product that the buyer is required to purchase in order to get the product the buyer actually wants is called the tied product. The product that the buyer wants to purchase is called the tying product. In the most basic sense, the seller has tied two products together, as if in a knot. The only way the buyer can get the one product is to also purchase another product that he or she may or may not want...

1. There must be two separate products or services.

2. There must be a sale or an agreement to sell one product (or service) on the condition that the buyer purchase another product or service (or the buyer agrees not to purchase the product or service from another supplier).

3. The seller must have sufficient economic power with respect to the tying product to appreciably restrain free competition in the market for the tied product.

4. The tying arrangement must affect a "not insubstantial" amount of commerce.

...The Supreme Court finally created a standard for analyzing whether there are two separate products, known as the "character of the demand" test. Under this test, the focus is not on how the two products are functionally related to each other (i.e., shoes go together) but on the character of demand by consumers for the two products. That is, would consumers typically demand that the two products be sold together or separately? ...

I just took some parts, searching for "product tying" and "anti-trust" brings up loads of interesting stuff on the subject.

Oh yeah, seems like it's a US thing, which explains one of the places I may have heard this. I was required to do a basic test on anti-trust law because my company is American. It was mentioned on one of the documents I had to sign too.

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Are HMV doing this because

a) they think people will be so desperate for a PS3 that they will buy a whole other console to get one

or

B) the not-as-good as expected sales in Japan and the US have got them worried about their profit projections so they are trying to make as much money possible from each bundle sold.

If they do this and it works then Ebay will be chock full of PSPs as well as PS3s.

Launch day on Ebay will be comedy!!

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Perhaps HMV are actually being smart. I know it sounds bizarre, but...

We know that to buy a PS3 at launch with a couple of games etc. is going to cost £500 - £600 anyway. Maybe the HMV rationale is that if someone is prepared to spend that kind of money then they probably won't baulk at paying £675.... Especially if they know that by doing it they can jump to the front of the queue! And they'll get a PSP in the bundle, which they could always sell if they don't want to keep it.

I guess it all comes down to whether the PS3 is going to be a 'must have' sell-out, or whether the shelves will be groaning with the weight of unsold PS3s for months to come. Have HMV judged the market well, knowing that the initial limited release stocks will sell out, and their crazy PS3/PSP bundles will be flying out the doors. Or in 3 months time will we see a special HMV bundle where in order to buy a Wii you have to hand over £800 but it also includes a PS3 and a PSP! Bargain!! :)

I can't wait to find out :(

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