Apple Can’t Duck False Advertising Claims Over ITunes Content

Angry Apple customers say they wouldn’t have “bought” digital content had they known their access to movies and music could suddenly vanish.

SACRAMENTO, Calif. (CN) — A squabble over whether Apple dupes customers into thinking they own movies and music “bought” on iTunes will continue after a federal judge on Tuesday denied the tech giant’s attempt to dismiss a class action false advertising lawsuit.

The class of angry Apple customers claims they were misled by the company’s “Buy” option for digital content, arguing buying is more like renting on the company’s popular iTunes and Apple TV platforms. The customers say they were tricked into choosing the more expensive “Buy” option and didn’t know Apple “secretly” reserves the right to revoke access at will.  

“Though some consumers may get lucky and never lose access to any of their paid for media, others may one day find that their digital content is now gone forever,” the customers say in their federal lawsuit. “Regardless, all consumers have overpaid for the digital content because they are not in fact owners of the digital content as represented by defendant.”

Apple attempted to squash the case filed in the Eastern District of California this past August by saying their customers’ complaints were speculative and sparked by a misleading news report.  The tech giant claims the plaintiffs never actually lost access to the purchased content and cast the case as flimsy and hypothetical.

“The complaint does not allege that anything of the sort actually happened to this plaintiff,” Apple countered in a dismissal motion. “Instead, the complaint selectively quotes a part of a Forbes article stating that digital content may disappear for some users.”

While Apple was ultimately able to crush the false advertising and unfair competition claims, it couldn’t fully convince U.S. District Judge John Mendez.  

The George W. Bush appointee said though the class hasn’t yet lost access to the content, the possibility is still there. He ruled the customers have standing to pursue injunctive relief against Apple’s “Buy” and “Rent” functions and gave Apple 20 days to respond to his order.

“But in common usage, the term ‘buy’ means to acquire possession over something,” Mendez wrote in his order, citing the Merriam-Webster definition. “It seems plausible, at least at the motion to dismiss stage, that reasonable consumers would expect their access couldn’t be revoked.”

At issue is how Apple customers access and pay for popular movies, songs and live performances.

Customers generally pay for Apple’s content in two ways: a “Rent” option which gives a limited access window, and a more expensive “Buy” option that sends content to a user’s “purchased” library. For example, renting an individual episode of a television series often runs $3.99 and can be viewed over a few days, while buying a full season can cost $29.99.

As noted by both parties in court documents, the possibility exists that Apple could lose the rights to a film or television series and have to restrict digital access.

Thus, the class contends Apple is defrauding its millions of customers because they are not in fact able to own content.

“Just like Best Buy cannot come into a person’s home to repossess the movie DVD that such person purchased from it, defendant should not be able to remove, or permit the removal by others of, digital content from its customers’,” the class continues.

Apple claims there is an obvious workaround as customers can obtain “irrevocable access” by merely downloading the purchased content to their computer or devices. It adds there is no need for an injunction as the case continues.

“There is no equitable basis for entering an injunction because the plaintiff can readily prevent the speculative injury of which he complains by downloading the digital content,” Apple argued.

For now, Mendez appears skeptical of Apple’s explanation and ruled the class action can proceed.

“Plaintiff alleges here that he would not have been willing to pay as much for the content, if anything, if he had not been misled by Apple’s misrepresentations about his ability to indefinitely access that content,” Mendez wrote. “This economic injury is concrete and actual, not speculative as Apple contends.”

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