Gag Order Clause Comes Back To Bite Apple In 'Exploding' iPod Case

from the ah-the-legalese dept

Mon, Aug 3rd 2009 5:00pm — Mike Masnick

We've been getting a bunch of submissions from people about a Times Online story concerning Apple's supposed attempt at "gagging" someone who had their iPod explode. The company agreed to give a replacement, but the terms of the deal made them agree never to talk about it. While this may seem draconian, I'm going to give Apple the benefit of the doubt here: this is pretty standard legal language on such things. I had a laptop whose hard drive died 5 times in six months a few years back, and when the manufacturer finally agreed to replace the laptop (after multiple escalations of the issue), it had a nearly identical clause. But, it was pretty straightforward. Before faxing the agreement back to the company, I just crossed out the clause that said I was barred from ever talking about it, and the guy from the company called me immediately and said: "I see you crossed it out -- our lawyers won't like it, but that's fine, I just want to get you a new machine." Who knows if Apple would be so accommodating, but I think this story is blown a bit out of proportion. This kind of language is standard legalese, rather than some nefarious attempt by Apple to shut up those who have had their iPods explode. Still, the fact that this clause is suddenly generating press attention should put corporate lawyers on warning. These standard clauses are PR nightmares waiting to happen. Take them out of such "replacement" agreements, or be ready to see a similar story appear in the press soon...

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Filed Under: gag order, ipods, replacements
Companies: apple

34 Comments

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scote, 3 Aug 2009 @ 5:11pm

It doesn't matter if such contracts are SOP, they are still an attempt to shut consumers up and keep the companies defective products secret. The consumer owes Apple nothing in return for Apple doing the right thing and taking responsibility for their defective product.

As to crossing lines out of a contract, you also have to cross out the part of the contract that says you can't cross lines out of the contract--and keep a copy. Companies may claim that crossing out those lines invalidates the contract in future and demand whatever compensation or remediation they gave you back, saying that the corporation did not agree to the terms.
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Anonymous Coward, 3 Aug 2009 @ 5:55pm

I have a complaint and I guess I never found a place to complain so I'll do it here.

I got a Gigabyte motherboard, the GA-MA74GM-S2 ( http://www.gigabyte.com.tw/Products/Motherboard/Products_Overview.aspx?ProductID=2813 ) and about a week or two after I got it it stopped reading data from drives correctly (CD's and hard drives) from the IDE port. I tried Sata using an adapter and same thing. The data was read correctly via USB (if I used an adapter) with the same CD roms and the same hard drives and the same CD roms read the same CD's correctly on other computers. I called them and they said upgrade the firmware. I did. Still didn't fix the problem. I called them again and they said to send it to them. I did. They sent it back and they didn't fix the problem. I give up, I won't keep hassling with it. It came with a motherboard/processor combo from Fry's and I didn't want to take it back there because I wanted the processor. Now I'm stuck with a useless motherboard.
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Anonymous Coward, 3 Aug 2009 @ 5:57pm

Re:
and it wasn't the ram either, I did ram tests (trust me, I did all sorts of tests to absolutely ensure it was the motherboard and nothing else, the above is just a brief brief summary of all the tests I conducted since I don't want to make it too wordy).
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DanOfSoCal, 3 Aug 2009 @ 6:09pm

Exploding iPods
I remember when I used one of Kodak's original digital cameras that would eat batteries. I used to carry spare batteries in my pocket, along with a lot of change and keys. One of the batteries shorted out against all those keys and coins one day and nearly set my pants on fire. :-)

The problem is that we are creating batteries with higher and higher energy densities. Well, that's a good thing, really, 'cause we won't have to recharge so often, and it's probably better for the environment. But with high energy densities comes an increasing danger of rapid overheating and venting (explosion). The fact that the iPod in the original story was dropped before it "exploded" leads me to believe that the battery got shorted when the unit was dropped, and the subsequent rapid release of energy could not be contained by the enclosure.

Personally, I wouldn't be too quick to let Apple off the hook on this one. They know the total energy of the batteries in their designs, so they should build an enclosure that could contain a catastrophic short. Instead, they try to quash the occasional customer that has problems. Just wait 'til something like this brings down a jetliner (God-forbid), and then there will be congressional inquiries and lawsuits galore. And then the new iPods will weigh 10 pounds with all that armor.
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Dark Helmet (profile), 3 Aug 2009 @ 6:10pm

Re: Re:
Wow, that really bytes...

I mean getting burned like that must hurt.

No...it megahertz...
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Sean, 3 Aug 2009 @ 6:29pm

Hey Mike
Mike, it's interesting you have a similar experience with these clauses, but your 'problem' was also much different - you didn't have electronics exploding.

You got a lemon, meaning, it stopped working a few times and didn't explode with its acid going everywhere.

She got a product that exploded with acid inside it, a much different 'lemon' kind of experience.

Seem to be very different circumstances leading to the same place.
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Anonymous Coward, 3 Aug 2009 @ 6:42pm

apple can eat my shit
if you want to play dirty (shutting up your consumers when shit goes wrong, banning apps that compete with your software or partner's service, requiring licensing fees just so someone can make a pair of headphones for your "standard" music device), you deserve every minute of bad press. fuck apple.

personally, i can't wait until apt (or a similar system) makes it to android for native apps (yes, i know you can run debian on android). then you just edit your repo list and you're golden. things would show up in your apt-cache and it transparently gives you the path of least resistance.
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tracker1 (profile), 3 Aug 2009 @ 6:56pm

re: android
Android apps are fairly easy to get installed.. get one of the file browsers and you can get 3rd party apps not in the market installed easily. In fact even the official market has lots of apps for rooted phones. I love the wifi tether, it's my backup connection.
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bigpicture, 3 Aug 2009 @ 7:26pm

Who is the clause for?
The normal consumer, if they feel that they were treated fairly will not need the clause in the agreement. In other words it is understood that one in so many produced will have some kind of a problem, and if the manufacturer steps up to the plate and "makes that problem go away" then all is well.

But if the customer happens to be a lawyer then that could be a whole different game. These kinds of agreements are written for lawyers.
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MostInterestingMan (profile), 3 Aug 2009 @ 7:48pm

Re: apple can eat my shit
Perhaps no one has told you that you're worthless.

173,000,000 iPods sold. One blows up. Better odds this happening than being struck by lightning, or winning both Megabucks and Powerball jackpots on the same day.

I'll take Apple's odds.

Stay Thirsty, My Friend.
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MostInterestingMan (profile), 3 Aug 2009 @ 7:48pm

Re: Re: Re:
Hmm.
Megahertz. Sounds I believe that rhymes with the sound of my hand backslapping your face.

Stay Thirsty, My Friend.
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dustin, 3 Aug 2009 @ 7:55pm

Re: apple can eat my shit
You wouldn't be saying that if you were Apple or ATT. Oh and lets face it, almost all companies play dirty.
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Eric (profile), 3 Aug 2009 @ 8:59pm

Out of Warranty iPod
I also read somewhere else (http://www.tuaw.com/2009/08/03/apple-most-assuredly-not-slapping-family-with-gagging-order-ov/) that the iPod in question was out of warranty.

So....
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PrometheeFeu (profile), 3 Aug 2009 @ 9:05pm

I think the fact it's standard legalese is itself a problem. But whatever... The real problem seems to be that guy did not read the contract. Don't sign before you read. It's that simple...
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PrometheeFeu (profile), 3 Aug 2009 @ 9:10pm

Re:
Sorry, my bad, I should have read the external article. Apple was definitely inappropriate in seeking an NDA in this case. Their product malfunctioned, they have a duty to replace it. The most they should be asking for would be a receipt for the reimbursement. If they want an NDA they should have to pay extra for it. And quite honestly, consumer protection laws should make such an NDA illegal. Markets only work if there is information available for you to make decisions.
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Anonymous Coward, 3 Aug 2009 @ 10:32pm

Re: Re: apple can eat my shit
go find shelter because i'm about to drop some knowledge on your ass. apple is already protected by indignation/trade laws (defamation, false light, trademark dilution, etc), so the consumer can't make shit up about the product. apple is basically saying that the consumer is not even allowed to tell the truth (i've actually read NDAs that required people to perjur themselves if they are ever called to testify on an issue). it's all bullshit and apple deserves every ounce of shit that comes from this.

i couldn't care about the damage the device causes (fuck, you clean it up and file an RMA). what i'm up in arms about is the fact that they don't want you to talk about their product being defective. that's a load of shit, and apple deserves every ounce of bad will for making such an outrageous demand. also, this is NOT standard for warranty issues. IBM and Dell have never demanded anything like this and i've done business with them many times (business and personal).

and if apple is doing this with NDAs, you have no idea what the defect rates on these are. you don't even supply an estimated failure rate (because you're full of shit... typical anecdotal moron mentality) and apple was gaming the system to prevent people from making requests on failure rates (RTFA... it says this in the paragraph just above where you pulled the 173m figure).

as for worthlessness, the fact that 2 of your 5 last comments are solely "Hmm." says wonders about how valuable your amazing commentary is. Another 1 is solely what you used as a sig in another, and it also begins with "Hmm." You're at 60% worthlessness and that's ignoring your unfunny joke and your completely unsupported attack on me. grab a spoon because i've left a shitpile for you to share with apple.
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Big Al, 3 Aug 2009 @ 10:34pm

Re: Re:
Add to that the fact that it was in the UK where consumer laws are somewhat more rigid - Apple has NO RIGHT WHATSOEVER to ask for anything other than possibly a receipt when the new item arrives (although registered post or a countersigned courier note will do that for them).
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Glitch, 3 Aug 2009 @ 10:59pm

You should always read more than one source
Like a previous commenter said. READ THIS ARTICLE:
http://www.tuaw.com/2009/08/03/apple-most-assuredly-not-slapping-family-with-gagging-order -ov/

Also I find it quite intriguing that another Apple article is getting major press today.
A commenter 3 days ago, Number 27 and 28: http://techdirt.com/articles/20090731/1748485734.shtml

Also noticed that for some strange reason every little thing Apple has recently done is all over the blogosphere, and repeated everywhere with sensational headlines. If you dig deep enough you will notice that the majority of the stories pull only from one source. This is not true for the Google Voice issue, and it has been revealed that it was definitely AT&T's doing and not Apple's.

http://www.seankovacs.com/index.php/2009/07/apple-admits-att-pulled-all-gv-apps/

But these stories, the rebuttals, if you will, are not spread so wildly about but have just as much or even more information than the original articles.
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Mike Masnick (profile), 3 Aug 2009 @ 11:06pm

Re: You should always read more than one source
Like a previous commenter said. READ THIS ARTICLE:
http://www.tuaw.com/2009/08/03/apple-most-assuredly-not-slapping-family-with-gagging-order -ov/

Hmm. That article basically repeats exactly what we wrote. That this wasn't a big deal, but standard legal language. I'm not sure what your point is.

Also I find it quite intriguing that another Apple article is getting major press today.
A commenter 3 days ago, Number 27 and 28: http://techdirt.com/articles/20090731/1748485734.shtml

Um. We also post pro Apple stories too. We talk about the action, not the company.

If you dig deep enough you will notice that the majority of the stories pull only from one source.

What? What source would that be?!?

This is not true for the Google Voice issue, and it has been revealed that it was definitely AT&T's doing and not Apple's.

Actually, AT&T came out today and denied they had anything to do with it.
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asdf, 3 Aug 2009 @ 11:06pm

Guantanamo
If it is standard practice at Guantanamo Bay prison to torture inmates does that make it OK?
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Glitch, 3 Aug 2009 @ 11:34pm

Re: Re: You should always read more than one source
Actually Mike I agree with you 100%. My comment was directed at others who are up in arms about a sensationalized headline from the Times UK, but for the most part never read past the first article they see. I was telling them to read more than one source, as in more then the Times article.

As far as Apple getting an unusual amount of press lately, I specifically mentioned post number 28, along with 27 because the articles he listed are all non-Techdirt articles. I took that specific action to mean he wasn't referring to Techdirt posting anti-Apple news all over the web, but that certain news sites and blogs were going crazy about the same things.

Lastly, in my experience with any service provider, they will always point the finger of blame at anyone but themselves. My favorite example was the Lotus Notes/Comcast fiasco.
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pjhenry1216 (profile), 4 Aug 2009 @ 3:41am

Re: You should always read more than one source
Seriously? That blog is your source that Apple admits AT&T is the one that pulled Google Voice? A screenshot? A lowly tech talking about things he probably doesn't even have access to?

I find it intriguing that any time more than one ad thats even remotely bad about Apple shows up, people assume its a conspiracy. Get a grip, maybe the company you so thoroughly love and try to protect is actually just like any other company.

Every little thing, good or bad, is all over the blogosphere. If people are going to post articles every other second about how awesome the iPhone is, you can expect the same thing when the company does something stupid. Yea, it may be standard legalese for some companies, but nonetheless, its still stupid and people finally brought it to the world's attention that companies are doing this.

Apple got more coverage on the week leading up to AND on the day the Pre was released. I didn't hear you complaining about it then.
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Anonymous Coward, 4 Aug 2009 @ 3:57am

Re: Re: Re: Re:
Stay thirst, my friend...? Friends wouldn't want you to be thirsty. That's why you drink something, so you aren't thirsty.
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Luci, 4 Aug 2009 @ 3:59am

Re: Hey Mike
I fail to see the point of your comment. The post wasn't about the 'experience,' but about the contract clause...
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..., 4 Aug 2009 @ 4:13am

Re: Re: apple can eat my shit
One ?
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Matt, 4 Aug 2009 @ 5:42am

Re: Exploding iPods
Have you seen the power of LiPo Batteries Exploding? They can Burn through steel, and obviously plastics and other things, People who really put these batteries through their paces charge them in concrete bunkers

See: http://www.youtube.com/watch?v=odxR1lkfiEI&eurl=http://www.utahflyers.org/index.php%3Foption%3Dc om_content%26task%3Dview%26id%3D21%26Itemid%3D28&feature=player_embedded

People don't want to carry around heavy bulky devices (thats partly why we moved away from NiCad and NiMh batteries), I think you will be hard pressed to find a portable device that can really contain the massive amounts of energy, mainly because it will weigh 10 pounds. there are other mediums that somewhat protect that are lighter called "LiPo Sacks" which at the scale of an Ipod or Iphone might help reduce venting.

Instead of trying to contain the venting, giving users more of warning would be easily posssible. These batterys often "Puff up" before they vent / explode, If manufacturers allowed users more access to the batteries a panel could pop out and the user would know that something bad was about to happen.
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The Cenobyte, 4 Aug 2009 @ 5:45am

being a jerk is standard?
Oh so using the legal system as a weapon to be a bully is Ok cause everyone else does it? Really? Didn't your mother ever tell you that just because everyone else was doing it doesn't make it ok? I don't care if this is legal lang that is injected into every single contract ever writen, it goes against the very foundations of this country to try and gag someone just because you don't like what they have to say.

I am not saying that Apple is any worst than the next guy, just that we should be pissed at all of them, not excepting.
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Anonymous Coward, 4 Aug 2009 @ 6:09am

So, if this happened to most of the people here, they would refuse to sign the contract and settle for losing their ipod as a matter of principle?

If you answer yes, then please go ahead and feel that righteous indignation. The rest, stfu.
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Designerfx (profile), 4 Aug 2009 @ 7:33am

Re: re: android
what?

there's a checkbox that says "do not allow unsigned apps".

uncheck it, and install whatever the heck you want. Problem is, you still have to root your phone to get some stuff because tmobile is blocking things from the G1. *THAT* is different.
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Mike Masnick (profile), 4 Aug 2009 @ 10:25am

Re: being a jerk is standard?
Oh so using the legal system as a weapon to be a bully is Ok cause everyone else does it? Really? Didn't your mother ever tell you that just because everyone else was doing it doesn't make it ok?

Um. Did I say it was ok? No. I said: "the fact that this clause is suddenly generating press attention should put corporate lawyers on warning. These standard clauses are PR nightmares waiting to happen. Take them out of such "replacement" agreements, or be ready to see a similar story appear in the press soon..."

It helps to read the post you're bashing before you start bashing.

My point was that this wasn't some special case, as implied by many commenting on this. But that doesn't make it ok, and I didn't say it was ok.
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Anonymous Coward, 4 Aug 2009 @ 12:45pm

Re:
Personally, I would settle for not signing the contract, and getting the iPod replaced.
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Make ipod safe, 12 Aug 2009 @ 4:39am

Apple must make ipod safe for the users
Its their responsibnility and Apple must make ipod safe for the users.
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Mark, 28 Aug 2009 @ 8:36pm

Gag Order Clause Comes Back To Bite Apple In 'Exploding' iPod Case
Simple solution to this. Stay away from apple products and even better quit using mp3 players, cellular phone with too many applications, cheap low quality digital cameras, etc. Obtain a real hifi system and use a good quality 35mm or medium format SLR camera instead. You'll have a better sound as far as music is concerned and the photographs taken on a real camera can't be beat. Besides, don't people enjoy their lives better when they are not chained to crappy disposable consumer driven technologies?
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Ryan, 22 Aug 2011 @ 2:26pm

Exploding case
How does an iPod case explode? That just seems crazy to me. Almost like the person made ti up and just wanted someone to sue. Maybe I'm wrong but really how could that happen?
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