Class Calls Apple ITunes Contract Invalid

SAN JOSE (CN) — Apple forces iTunes users to agree to terms of service that exempt it from liability and violate consumer protection laws, a class action claims in Federal Court.

Lead plaintiff Thomas Silkowski sued Apple on April 28, claiming the iTunes agreement to which every user must consent violates a New Jersey law on deceptive contracts.

The iTunes terms of service state in part: "In no case shall Apple, its directors, officers, employees, affiliates, agents, contractors or licensors be liable for any direct, indirect, incidental, punitive, special, or consequential damages arising from your use of any of the iTunes service or for any other claim related in any way to your use of the iTunes service."

That contract is forbidden by New Jersey's Truth-in-Consumer Contract, Warranty and Notice Act (TCCWNA), which prohibits agreements that violate "any clearly established legal right of a consumer or responsibility of a seller," Silkowski says.

The law allows consumers to collect $100 in damages or civil penalties from anyone who violates the consumer protection.

The iTunes contract also states: "Some jurisdictions do not allow the limitation of liability for personal injury... so this limitation may not apply to you."

Silkowski says the contract still runs afoul of the law because it fails to state that Apple's claim for liability exemption does not apply in New Jersey.

"Because these provisions fail to state whether they are inapplicable, void or unenforceable in New Jersey, the Terms and Conditions violate the TCCWNA," the complaint states.

Silkowski seeks class certification, declaratory judgment, an injunction to remove the contract language and at least $100 in damages for each class member.

He is represented by Todd Carpenter with Carlson Lynch Sweet Kilpela & Carpenter in San Diego.

Apple did not immediately respond to a phone call seeking comment Friday.

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