If possession is nine-tenths of the law, what happens when possession gets slippery?
That’s a question for a federal courtroom in Sacramento, California, where Apple is facing a putative class action over the way consumers can “buy” or “rent” movies, TV shows and other content in the iTunes Store. David Andino, the lead plaintiff in this case, argues the distinction is deceptive. He alleges Apple reserves the right to terminate access to what consumers have “purchased,” and in fact, has done so on numerous occasions.
This week, U.S. District Court Judge John Mendez made clear he isn’t ready to buy into Apple’s view of consumer expectations in the digital marketplace.
“Apple contends that ‘[n]o reasonable consumer would believe’ that purchased content would remain on the iTunes platform indefinitely,” writes Mendez. “But in common usage, the term ‘buy’ means to acquire possession over something. It seems plausible, at least at the motion to dismiss stage, that reasonable consumers would expect their access couldn’t be revoked.”
Apple tried other ways to slip away from claims of false advertising and unfair competition. For example, it tried the time-tested approach of challenging Andino’s “injury” to knock his potential standing as a plaintiff.
“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,” sums Mendez, responding, “[T]he injury Plaintiff alleges is not, as Apple contends, that he may someday lose access to his purchased content. Rather, the injury is that at the time of purchase, he paid either too much for the product or spent money he would not have but for the misrepresentation. This economic injury is concrete and actual, not speculative as Apple contends, satisfying the injury in fact requirement of Article III.”
The lawsuit does lose its unjust enrichment claim, but Mendez does leave open the possibility of injunctive relief that could force Apple to change the way it sells content. We’ll see if the suit really gets there or is settled. Meanwhile, Amazon is facing a similar lawsuit over Prime Video purchases.
