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.

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

Amazon Sued For Saying You've 'Bought' Movies That It Can Take Away From You

from the this-could-be-interesting dept

For well over a decade we've talked about the many problems that arise when copyright is compared to "property" -- and people try to simply move over concepts from physical, tangible property into the world of digital. A key aspect of this: when you "purchase" something digital online, is it really a "purchase" or is it a "license" (especially a license that could be revoked)? If it was a true "purchase" then you should own it and the seller shouldn't be able to take it back. But in practice, over and over and over again, we've seen stories of people having things they supposedly "bought" disappear. The situation is so crazy that we've referred to it as Schrödinger's Download, in that many copyright holders and retailers would like the very same thing to be a "sale" some of the time, and a "license" some of the time (the "times" for each tend to be when it hurts the consumers the most). This has, at times, seeped into physical goods, where they've tried to add "license agreements" to physical products. Or, worse, when some copyright folks claimed that buying a DVD means you don't actually own what you bought, but rather are merely "purchasing access" to the content, and that could be revoked.

Anyway, I'm amazed that we don't see more lawsuits about this kind of thing -- but one was recently filed in California. Someone named Amanda Caudel is suing Amazon for saying that you've "purchased" a video download, which Amazon might disappear from your library whenever it wants. As the lawsuit makes clear, Amazon directly says that you are buying the movie (as opposed to renting it). From the lawsuit filing itself:

And, they point out, in your account there's a listing of "Your Video Purchases & Rentals." But, the lawsuit claims, what you purchase doesn't seem to behave like a real purchase:

Reasonable consumers will expect that the use of a “Buy” button and the representation that their Video Content is a “Purchase” means that the consumer has paid for full access to the Video Content and, like any bought product, that access cannot be revoked.

Unfortunately for consumers who chose the “Buy” option, this is deceptive and untrue. Rather, the ugly truth is that Defendant secretly reserves the right to terminate the consumers’ access and use of the Video Content at any time, and has done so on numerous occasions, leaving the consumer without the ability to enjoy their already-bought Video Content.

Defendant’s representations are misleading because they give the impression that the Video Content is purchased – i.e. the person owns it - when in fact that is not true because Defendant or others may revoke access to the Video Content at any time and for any reason.

In so representing the “Purchase” of Video Content as true ownership of the content, Defendant took advantage of the (1) cognitive shortcuts made at the point-of-sale, e.g. Rent v. Buy and (2) price of the Video Content, which is akin to an outright purchase versus a rental.

Though some consumers may get lucky and never lose access to any of their paid-for media, others may one day find that their Video Content is now completely inaccessible. Regardless, all consumers have overpaid for the Video Content because they are not in fact owners of the Video Content, despite have paid extra money to “Buy” the product.

The plaintiff (or rather, her lawyers) are trying to make this a class action lawsuit, and are arguing that (among other things) this is false advertising. I am, not surprisingly, sympathetic to the plaintiff -- and remain disappointed at how copyright and similar restrictions are being used to chip away at ownership and actual property rights. That said... I'm not that optimistic the case will get very far. In the past, companies have been able to wiggle out of similar claims, and I'm pretty sure that Amazon tries to push disputes like this to binding arbitration, meaning that the lawsuit may be dead on arrival.

Still, it's yet another reminder of how copyright is chipping away at real property.

Filed Under: amanda caudel, buy, class action, copyright, digital goods, end of ownership, false advertising, ownership, property, property rights, purchase, rent
Companies: amazon