Judge Lets False Advertising Case Against Apple Over 'Buying' Music You Didn't Buy Move Forward

from the you-don't-own-what-you-bought dept

A decade ago we wrote a post about what we called Schrodinger’s Download, which was that the big companies in the music space would refer to digital downloads as a sale or a license in varying ways depending on which benefited them the most. This was most evident in lawsuits between artists and labels, especially with contracts signed in the pre-digital era, where the royalties for “licensing” were much higher than the royalties for “sales.” In those cases, the labels tried to claim that MP3 downloads were “sales” in order to pay lower licensing fees — but, on the flip side, when there were cases about reselling those files, suddenly the labels would insist that wasn’t allowed, since it wasn’t actually a sale, but a license.

And, of course, over the years, we’ve seen this play out in many ways — especially with our never ending series of posts on how you don’t own what you’ve bought, as more and more companies try to use technology and DRM to retain control over things you’ve “purchased.” Last year, we wrote about someone suing Amazon for claiming that she had “purchased” movie downloads, but the fine print showing that she was merely “renting” them. The argument was that this was false advertising. That case is still going, but what we hadn’t realized was that someone else had filed a very similar case against Apple, arguing the same thing. And, yes, it’s the same lawyers on both cases…

And even though the Apple case was filed three months after the Amazon case, it’s actually seen more progress. This week the judge denied Apple’s motion to dismiss (first spotted on Courthouse News), saying that there’s enough of a case to move forward. Apple tried to argue that the harm here is merely speculative. It hasn’t actually removed the plaintiff’s downloads. But the court says that Apple’s wrong about that:

Apple argues that Plaintiff?s alleged injury ? which it describes as the possibility that the purchased content may one day disappear ? is not concrete but rather speculative…. This, however, as Plaintiff points out, misconstrues the injury. Plaintiff responds that his injury is not that he may one day lose access to his content…. Rather the injury Plaintiff asserts, is that he spent money purchasing the content that he wouldn?t have otherwise as a result of Apple?s misrepresentation…. This occurred at the time of purchase.

Another point raised by Apple is that “no reasonable consumer would believe” that when you buy a digital file, it means that it will always be available for you on iTunes. But the Court says, uh, yeah, actually, plenty of reasonable consumers probably would believe that, because that’s what “buy” means:

Apple contends that ?[n]o reasonable consumer would believe? that purchased content would remain on the iTunes platform indefinitely. Id. at 12. But in common usage, the term ?buy? means to acquire possession over something. Buy Definition, merriam-webster.com, https://www.merriamwebster.com/dictionary/buy (13 April 2021). It seems plausible, at least at the motion to dismiss stage, that reasonable consumers would expect their access couldn?t be revoked.

The court did dismiss a few extraneous claims, but the key ones can now move forward — and there’s a decent chance that this will eventually become a class action lawsuit.

While some might argue that it doesn’t really matter that much whether or not you’re “buying” or “renting” this content, it really does matter in the legal sense, and big companies have used the distinction to their own advantage (often swapping out the words when convenient, as noted up top). Forcing the companies to actually be upfront about this stuff would be much better — and might even get them to provide some more accurate descriptions of what they’re really providing.

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Companies: amazon, apple

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Comments on “Judge Lets False Advertising Case Against Apple Over 'Buying' Music You Didn't Buy Move Forward”

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31 Comments
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That One Guy (profile) says:

'People would never think that words mean what they mean.'

If you buy a physical CD then you can give it to someone else, you can sell it, and the store most certainly is not allowed to come to your house after the fact and take it back, so if a company wants to use the ‘Buy’ label then they should be forced to treat the transaction as a purchase, and conversely if they want to treat it as a license then they should be required to use that label.

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PaulT (profile) says:

Re: Perhaps I can sell my digital music after all?

This is the long ongoing argument – when you buy something digitally, are you buying the product, or are you just buying a licence to access the product? The music/movie industry’s arguments go back and forth depending on the subject at the time, in order to argue which rights are suggested by the term used. Maybe this will help settle the argument.

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Scary Devil Monastery (profile) says:

Re: Re:

"How about Netflix? Do we "buy" HBO?"

Apples and Oranges, really. There’s a mile wide difference between a subscription service and purchased property.

In most people’s minds "buying" means you now own what you purchased.
Whenever that purchase involves copyright you can bet that the "sellers" are instead defining "buying" as "leasing", and will insist what you paid money for is a license revocable at the will and whim of the copyright holder.

PaulT (profile) says:

Re: Re: Re:

We don’t "buy" Netflix, we clearly rent a month subscription to their catalogue at the time we rent it. HBO is a TV channel. The fact they operate nearly the same business now is secondary to what they advertise.

What iTunes advertised was "purchase", iTunes at some points advertised "buy". There’s the problem… It’s down to the industry now to decide what they mean by "license" and "purchase" and decide what the real product is that people paid for.

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Anonymous Coward says:

Re: Didn't Apple remove music DRM ages ago?

If it has no DRM, you can download it and keep it forever.

Technically true, but it’s not quite that simple. Even if the file is not DRM-encumbered, the vendor may make it difficult (or even officially unsupported) to obtain the purchase as a raw file, and instead push people to use a "helper" application (such as iTunes) to download the data. If that helper understands commands from the server to delete a previously downloaded purchase, and the user didn’t think to export that download as a raw file, then the vendor can effectively revoke the purchase by issuing that delete command, regardless of whether the purchase was a bare mp3 or a DRM-encumbered proprietary file. They won’t be able to take it away from the cautious customer who exported the purchase to mp3/flac/ogg and copied that exported file to a directory the helper does not see, but how many people will think to do that for every purchase they make? A vendor inclined to do this would almost certainly rig the helper application with "helpful" features that only work on the non-exported files, so that users are discouraged from trying to protect their purchase. They might also avoid providing any export-related functionality not required by law/contract, so as to further inconvenience customers who want to protect their purchases.

PaulT (profile) says:

Re: Re: Didn't Apple remove music DRM ages ago?

"instead push people to use a "helper" application (such as iTunes) to download the data"

The downloaded files can be easily moved out of iTunes and played elsewhere.

"the vendor can effectively revoke the purchase by issuing that delete command, regardless of whether the purchase was a bare mp3 or a DRM-encumbered proprietary file"

The difference is that the DRM infected file can be made unplayable anywhere, whereas the original vendor can’t do anything about an MP3 you’ve already downloaded.

Anonymous Coward says:

Re: Re: Didn't Apple remove music DRM ages ago?

There’s already been one big scandal over this when people have ripped their physical copies of obscure recordings of well known pieces by bands, and then later these applications have overwritten them with a generic studio version of the same track available on their server.

That Anonymous Coward (profile) says:

America where the little people injured can file class action lawsuits and WIN* 0.000000000000001% of 1 day of profits from the big guy and turn over 99.9999% of that amount to the lawyers running the case.

    • win defined as up to 10 more years of credit monitoring (yes I know it makes no sense in this case, but it makes just as much sense that hitting a button that says buy really means rent until we get bored of offering it or our contract says we need to deny you access to push sales during seasonal events.)

Isn’t the answer, at least towards Apple, about reasonable consumers to submit every legal action has taken against businesses in markets hugely removed from tech because of the use of a piece of fruit that if you squint & turn in the right light might kinda sorta look like their logo if you have glaucoma?

Anonymous Coward says:

Netflix is a streaming service you are paying for the right to view the programs on the service hence the term now leaving Netflix,
IF a company advertises rent a film that means. I can view the film at least once for a limited time,
Cost usually a few euros,
If I see an ad buy a TV show or film that means I can view the film anytime I want as long as the video service exists
And the cost will be higher than a one time rental fee
Many people buy games like madden football or call of duty
for online play against other players
Usually after 4 years the servers are turned off
and you can no longer play online
Say you buy a film from iTunes if your apple computer or
Ipad eventually stops working as far as I know you can’t watch the film
from a browser on a non apple device
This becomes more important as more people just buy digital files film and music
The no of people buying media on physical discs is falling
If I can only view a film for a limited time it should be clearly
shown to the customer
so I can choose how much I wish to spend
and people can still go to shops and buy dvds cheap
for 10 dollars or less
You can watch a dvd with no connection to an online server
and give it to a friend

John85851 (profile) says:

That word "indefinitely"

I wonder if lawyers will argue over the term "indefinitely" as it applies to digital files.

When you buy a physical good, like a CD or DVD, you literally have it forever: you can give it to your kids and they can give it to their kids, for hundreds of years, or until the DVD falls apart. Though whether you can play the DVD is another story.

But what about digital files? Should Apple keep an iTunes server up for 25 years or 50 years or 100 years? What happens when Apple is bought by Disney? Should Disney keep the iTunes server up and running?

And even if the server is still running in 25 years, does Apple (or their new owner) have an obligation to convert the file to other formats as technology changes?
Or would this fall under the idea that the media is there, but the maker isn’t responsible for providing a player?

PaulT (profile) says:

Re: That word "indefinitely"

"When you buy a physical good, like a CD or DVD, you literally have it forever"

Well, no, disc rot is a real problem. I have an early US import release of Terminator 2 that’s unplayable despite paying a premium for it.

What they need to decide is whether they are offering a purchase or a license. If they offer a license, you should have access to the title no matter the state of the original media. Disc is unplayable due to a pressing error that renders it unplayable after a few years? No problem, here’s a new copy. You bought the disc? Bad news, you need to buy another.

The main problem is they want it both ways depending on the price of the license or the value of the disc.

"And even if the server is still running in 25 years, does Apple (or their new owner) have an obligation to convert the file to other formats as technology changes?"

I’m of the opinion that if a DRM service goes down permanently, it should remove the DRM so that people who bought the product have access to it in the same way that pirates would. But, this requires access to servers in a limited amount of time, and as we saw with MS’s ironically named "Plays For Sure" service, it doesn’t necessarily work.

The only way to play this game is to do what happened in the era of the cassette tape, floppy disc and VHS – accept that some piracy will always happen and adjust your business accordingly. Entire industries have emerged when people have been forced to accept that times have changes.

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