Apple Defends Charges for Duplicate Downloads

     SAN JOSE (CN) - ITunes clearly discloses that multiple charges accompany multiple downloads of the same song, Apple said, urging a federal judge to toss a class action.
     Robert Herskowitz and Phoebe Juel purport to represent a class of customers who made repeated downloads of the same song from iTunes, only to discover that Apple charged them every time.
     Juel says Apple charged her when she downloaded a song from Apple that she had already downloaded but could not locate on her computer. Herskowitz alleges he was charged more than once for the same product.
     A federal judge consolidated their cases, which allege breach of contract, bad faith, violations of the Consumers Legal Remedies Act, fraud and unjust enrichment.
     Apple moved to dismiss Tuesday, saying that the plaintiffs "do not and cannot point to any legal obligation requiring Apple to provide them with a second download of the same song free of charge. To the contrary, their agreement with Apple expressly bars that claim, and provided an express and exclusive remedy that plaintiffs ignore."
     While the plaintiffs admit that the iTunes agreements governed their purchases, they "ignore the provisions of the agreement that make clear that their claims are without merit," according to the Apple motion, authored by Morrison & Foerster attorney Penelope Preovolos. "The agreement expressly states that iTunes songs 'may be downloaded only once and cannot be replaced if lost for any reason.'"
     If a song is not delivered or is unreasonably delayed, the agreement says that a consumer's "exclusive and sole remedy is either replacement or refund of the price paid, as determined by Apple," Preovolos added (emphasis in original).
     But rather than contacting Apple, each plaintiff allegedly downloaded the song again and then complained that they were charged again.
     Apple says Juel's inability to find the song on her computer "was almost certainly due to user error and not any fault of Apple's." Juel "never contacted Apple or attempted to take advantage of her contractual remedy," according to the motion.
     Herskowitz meanwhile "seeks to avoid the agreement's terms by ambiguous pleading, alleging that he was "charged more than once for the same [iTunes song]," Apple says. But he too simply downloaded "the same song a second time without first contacting Apple to take advantage of the exclusive contractual remedy," the motion states.
     The bad faith claims are also "contrary to the express terms of the contract," Apple says, quoting precedent that says "the implied covenant of good faith and fair dealing cannot, as a matter of law, extend to 'conduct expressly disclaimed by the express terms of the contract.'"
     Apple says the bad faith claims are also "an inappropriate reiteration of their breach of contract claims and are superfluous."
     As for the claim under the Consumers Legal Remedies Act, Apple says this law does not apply to software such as iTunes. The CLRA provides civil remedies for conduct in the sale of "goods" or "services," but Apple says software is neither a "good" nor a "service" within the meaning of the CLRA.
     This law also requires the allegations to establish "either procedural or substantive unconscionability," but Herskowitz does not adequately allege that he suffered "surprise" or "oppression" in his dealings with Apple, according to the motion.
     Apple says Herskowitz could not be surprised at the terms of the contract because "the provision that songs could be downloaded only once was prominently disclosed in the first section of the agreement as well as set forth in all upper case letters in the section limiting liabilities. The provision that all sales are final and no refunds are available was also prominently disclosed on the first page of the agreement."
     Herskowitz was also not oppressed because he could have simply chosen to buy digital music from a different source, according to the brief.
     His unfair competition claims, which also rely on Apple's alleged "unconscionability," Apple says, noting that "there is nothing 'unfair' about Apple's clear and contractual provision that purchasers may download an iTunes song only once."
     Juel "does not come close to meeting Rule 9(b)'s heightened pleading requirement that she allege facts establishing the 'who, what, when and where' of the alleged fraud," according to the motion. "Juel does not allege any representation regarding the supposed right to redownload a song onto the device for free. Rather, Juel purports to rely on alleged representations that iTunes purchasers could 'burn' iTunes songs to multiple CDs, play songs, on multiple devices or store songs from multiple accounts. But none of these representations in any way suggests that a song can be downloaded multiple times to a single device, as Juel did, without additional payment."
     Juel also never alleges that she ever tried to burn a song to multiple CDs, play a song on more than one device, or store songs from multiple accounts, let alone that she was unable to do so, Apple says.
     "She offers only conclusory assertions, not facts, regarding the required elements of reliance, knowledge and falsity, and intent to defraud," the motion states.
     Herskowitz is represented by Joseph Tabacco Jr. of Berman DeValerio in San Francisco, and Juel by Christopher Land of San Francisco's Law Offices of John A. Kithas.