Someone is suing Apple over their “Buy” button on iTunes, arguing it’s deceptive in light of the way they license content and reserve the right to stop hosting that content at any time. Apple filed a motion to dismiss on the grounds that no customer would reasonably expect otherwise, and questioned the plaintiff’s standing due to speculative injury, but a California district judge rejected that motion, meaning these arguments will see their day in court.
This article has the judge’s order embedded if you’d like to read it: https://www.hollywoodreporter.com/thr-esq/apple-must-face-lawsuit-for-telling-consumers-they-can-buy-movies-tv-shows
Copyright & Social Media
Communications Law
Thanks for sharing this, Josh! I saw this story and was going to post some commentary on it. Unfortunately, I’ve still got one final paper to grind out that needs my attention first. I’d love to hear what everyone else has to say, though.
Thanks Ian, I also didn’t have time to do anything in the way of commentary, and was hoping this might solicit some. All the best with the paper!
I’ve never bought a movie on iTunes. So question: when you “buy” on iTunes, I’m assuming you can watch the movies on an ongoing, indefinite basis within the software. But do you have any option to also/simultaneously download the file onto your computer in such a way that it is viewable offline, in a file format that will function outside of any Apple software?
My understanding is the 2014 case that led to Apple being forced to remove DRM on songs didn’t extend to movies, meaning that locally-stored movies would have similar TPMs to Netflix or Amazon Prime, only viewable in that app. This lawsuit is about Apple using the term “buy,” when the reality of their legal agreement is more of an “indefinite rent”.
There was just one line on page 11 in the judgment which suggests that Apple has a degree of actual buying built in to the “Buy” option.
“Apple also argues that because a user can download purchased content for full and irrevocable access, the “Buy” and “purchased” language is accurate. But the COurt cannot consider such factual contentions at the motion to dismiss stage.”
My personal opinion: when I see “buy” I would interpret that to mean I get to watch the movie for an indefinite length of time. I can see that a reasonable consumer might imagine that this capability might get lost if Apple were unable to continue to supply access because they went bankrupt, but I think it would be reasonable to assume that access will continue to be supplied by Apple for its lifetime as an entity.
[Sorry to be so late back to this discussion – I’ve been working in the bush all summer]
Reasonable to assume, perhaps, but I would contend Apple’s definition of irrevocable, and dig deeper into the concept of “supply access”. There is a difference between Apple providing indefinite download access to a file (which probably isn’t neccessary for ‘ownership’) and Apple maintaining control over a client’s access to those downloaded files (which throws the concept of ownership into question). This case is about the latter.
Even if Apple cannot and will not actively disable a client’s access to a downloaded file, the TPMs (again, to my best knowledge) can only be unlocked through iTunes while signed into an Apple account. Even with iTunes’ ability to watch offline after signing in, in the admittedly unlikely event Apple ceases to serve the login authentication for whatever reason, the files are only good so long as the client is able to save their installation of iTunes – they can’t transfer it to a new computer when they upgrade, or even the same computer after re-installing their OS.
The question here is whether the current state of affairs, being unlikely to change, is analogous to the client actually having ownership over the purchased media. I think there is still a strong argument that Apple’s narrow interpretation of ‘irrevocable’ is flawed, and that the dependency of a client’s perpetual use of a digital item on Apple’s continued infrastructure is distinct from society’s generally accepted concept of ownership.
However, I understand my views on TPMs and the generally heavy-handed use of IP law by big tech is potentially leading me into a tail-wags-the-dog kind of argument. I like to have control over the things I ‘own,’ but after years of TPM and right-to-repair battles maybe society’s definition of ownership is already changing. But it would be a neat boundary to draw if digitally locked services like this were required to be accurately labled as “Perpetual Access”, for example, instead of “Buy.”