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.

Hide this

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: buying, class action, digital goods, licensing, ownership, purchase, renting, truth in advertising
Companies: amazon, apple


Reader Comments

Subscribe: RSS

View by: Thread


  • icon
    ECA (profile), 23 Apr 2021 @ 12:26pm

    Long ago

    I received an advert to attend a property meeting and get #1 AND #2 as a prize.
    I instantly called them, and suggested they had a problem.
    That 'And' and 'Or' are different words, and the one they used Meant I would get both prizes.
    They demanded that I was not correct, and I suggested they contact a lawyer and a Dictionary.

    reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 23 Apr 2021 @ 12:46pm

    '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.

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 23 Apr 2021 @ 12:50pm

    another one-liners only day

    YOU falsely advertise "open to all"

    reply to this | link to this | view in chronology ]

    • This comment has been flagged by the community. Click here to show it
      identicon
      Anonymous Coward, 23 Apr 2021 @ 12:50pm

      Re: another one-liners only day

      and a switch was clicked!

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 23 Apr 2021 @ 12:55pm

    Perhaps I can sell my digital music after all?

    Could be interesting - when something in bought and you own this item, it can be sold by you (https://en.wikipedia.org/wiki/First-sale_doctrine). Movie and sound groups will not be happy.. but I will.

    reply to this | link to this | view in chronology ]

    • icon
      PaulT (profile), 24 Apr 2021 @ 12:13am

      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.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 23 Apr 2021 @ 1:05pm

    Well shit, we might get to see an Apple rot as settlements and judgements worm their way through that cash-rich pulp of their financial reserves.

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 23 Apr 2021 @ 1:19pm

    Still wondering why one-liners sometimes get in...

    And then can get in a couple IF quick...

    reply to this | link to this | view in chronology ]

    • This comment has been flagged by the community. Click here to show it
      identicon
      Anonymous Coward, 23 Apr 2021 @ 1:20pm

      Re: Still wondering why one-liners sometimes get in...

      SEE? Here I am again! Is that Admin action -- speculating without seeing the comment because I'm not using javascript? HMM.

      reply to this | link to this | view in chronology ]

    • This comment has been flagged by the community. Click here to show it
      identicon
      Anonymous Coward, 23 Apr 2021 @ 1:20pm

      Re: Still wondering why one-liners sometimes get in...

      And then I can get a few in, IF short and quick!

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 23 Apr 2021 @ 1:33pm

        Re: Re: Still wondering why one-liners sometimes get in...

        Why don't you get your clever quip in, then, instead of spam posting a lot of meta about nothing?

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 26 Apr 2021 @ 8:50pm

          Re: Re: Re:

          You presume blue has a "clever" quip about anything, never mind a "clever" quip focused on his inability to not be a spammy fuckbucket.

          reply to this | link to this | view in chronology ]

  • icon
    united9198 (profile), 23 Apr 2021 @ 2:11pm

    Hmmmm. I wonder what the car companies will have to say on this subject. They "sell" you a vehicle, but you don't own the digital content that it produces. They don't even have to disclose what content they are gathering or who they are selling it to. You cannot opt out.
    Slightly different, but somewhat comparable.

    reply to this | link to this | view in chronology ]

  • icon
    mrtraver (profile), 23 Apr 2021 @ 2:14pm

    I always find it amusing when large companies say ""no reasonable consumer would believe..." Those companies are so disconnected from the consumers that in some cases they probably actually believe it, rather than knowingly lying to the courts.

    reply to this | link to this | view in chronology ]

  • icon
    united9198 (profile), 23 Apr 2021 @ 2:15pm

    This could have consequences beyond Apple. How about Netflix? Do we "buy" HBO?

    reply to this | link to this | view in chronology ]

    • icon
      Stephen T. Stone (profile), 23 Apr 2021 @ 2:19pm

      How about Netflix?

      Anyone with any reason knows a subscription to Netflix doesn’t entitle them to a copy of every movie/TV show on the service.

      reply to this | link to this | view in chronology ]

    • icon
      PaulT (profile), 24 Apr 2021 @ 12:08am

      Re:

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

      Neither service advertises their content as something you purchase, so they will be fine.

      reply to this | link to this | view in chronology ]

    • identicon
      Peter, 24 Apr 2021 @ 3:58am

      Re:

      You don't. Any more confusion we can help you with?

      reply to this | link to this | view in chronology ]

    • icon
      Scary Devil Monastery (profile), 27 Apr 2021 @ 6:03am

      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.

      reply to this | link to this | view in chronology ]

    • icon
      John85851 (profile), 27 Apr 2021 @ 11:24am

      Re:

      When we "buy" Netflix and HBO, it's marked very clearly that we're buying a subscription service to watch whatever they offer.
      There's no offer of owning a movie or TV show.

      reply to this | link to this | view in chronology ]

      • icon
        PaulT (profile), 27 Apr 2021 @ 2:27pm

        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.

        reply to this | link to this | view in chronology ]

  • icon
    PeterScott (profile), 23 Apr 2021 @ 2:27pm

    Didn't Apple remove music DRM ages ago?

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

    I can see the problem for DRM laden files, but not for DRM free files.

    In the past decade. I have only purcahsed games from GOG, precisely because of the DRM issue.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 23 Apr 2021 @ 3:51pm

      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.

      reply to this | link to this | view in chronology ]

      • icon
        PaulT (profile), 24 Apr 2021 @ 12:10am

        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.

        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 26 Apr 2021 @ 12:30am

        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.

        reply to this | link to this | view in chronology ]

  • identicon
    Bobvious, 23 Apr 2021 @ 2:29pm

    "no reasonable consumer would believe"

    I'll take Sidney Powell Defenses for $5000, Alex.

    And can I buy "Bye, Bye, Blackbird" from Apple Corps?

    reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 23 Apr 2021 @ 3:56pm

    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?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 23 Apr 2021 @ 3:58pm

    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

    reply to this | link to this | view in chronology ]

  • icon
    John85851 (profile), 27 Apr 2021 @ 11:30am

    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?

    reply to this | link to this | view in chronology ]

    • icon
      PaulT (profile), 27 Apr 2021 @ 2:38pm

      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.

      reply to this | link to this | view in chronology ]


Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here



Subscribe to the Techdirt Daily newsletter




Comment Options:

  • Use markdown. Use plain text.
  • Remember name/email/url (set a cookie)

Close

Add A Reply

Have a Techdirt Account? Sign in now. Want one? Register here



Subscribe to the Techdirt Daily newsletter




Comment Options:

  • Use markdown. Use plain text.
  • Remember name/email/url (set a cookie)

Follow Techdirt
Special Affiliate Offer

Essential Reading
Techdirt Deals
Report this ad  |  Hide Techdirt ads
Techdirt Insider Chat
Recent Stories
.

This site, like most other sites on the web, uses cookies. For more information, see our privacy policy. Got it
Close

Email This

This feature is only available to registered users. Register or sign in to use it.