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Old Sep 10, 2013, 09:00 AM   #151
cmChimera
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Quote:
Originally Posted by 0x0x0x0 View Post
If the PS3 box said "includes everything you need to play games" and it was missing the controllers, action would still lie against BestBuy and not Sony, as your contract is with BestBuy.
That's simply false. Unless Best Buy does something to be at fault, such as misrepresents the contents of the box, the fault is on Sony (If any fault at all. I would say there is none). Best Buy does not have an obligation to make sure each of their customers is not an idiot.



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Originally Posted by 0x0x0x0 View Post
Really? When you buy a car from the dealership and the car is not as described, does the action lie against the dealership or the car manufacturer?..
Described by who? Did the dealership misdescribe the car? Manufacturer? What is the relationship between the dealership and the manufacturer? These things matter, and I think that's a point that you seem to not understand.


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Originally Posted by 0x0x0x0 View Post
Whatever the terms might be, it would be for Apple to rely on them by way of a defence. In any event, most, if not all, common law jurisdiction do not enforce misrepresentation disclaimers save in very few certain situations.
They don't have to have a waiver for misrepresentation. There could be an arbitration clause, or a clause that the item's description is set by the distributor, or whatever.
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Old Sep 10, 2013, 10:08 AM   #152
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Originally Posted by cmChimera View Post
That's simply false. Unless Best Buy does something to be at fault, such as misrepresents the contents of the box, the fault is on Sony (If any fault at all. I would say there is none). Best Buy does not have an obligation to make sure each of their customers is not an idiot.
Not how contract law works, I'm afraid... You buy from BestBuy, and unless BestBuy expressly tells you that they are acting as an agent and your contract, at the time of its inception, is with Sony, your action for breach of contract lies with BestBuy, as it relies on the manufacturer's description to describe the item to you. It is open to BestBuy to verify that description prior to selling the item to you.

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Originally Posted by cmChimera View Post
Described by who? Did the dealership misdescribe the car? Manufacturer? What is the relationship between the dealership and the manufacturer? These things matter, and I think that's a point that you seem to not understand.
Actually the dealerships uses manufacturer's materials to do the describing... What matters is the parties to a contract, you buy from Apple's iTunes store- the contract is with Apple and yourself, not yourself and the distributor/channel/etc. In fact, if you brought a suit against AMC they have the best defence- they're not a party to contract, and that would end your suit straight away. Apple chose to a) rely on AMC's (let's assume it was AMC who was doing the typing there) description, b) not to verify that description, and c) present that description to the purchaser whereby making that description part of the contract.

To be perfectly frank, the case seems really so trivial that I doubt a problem like that would even be set as an exam question. My guess is that Apple is being (yet again) so stubborn in failing to recognise the law that the only action the wronged party is left with is to sue Apple.

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Originally Posted by cmChimera View Post
They don't have to have a waiver for misrepresentation. There could be an arbitration clause, or a clause that the item's description is set by the distributor, or whatever.
Do you seriously think that a lawyer would be so stupid as to overlook an arbitration clause??? I've already addressed the other point you raised and it's irrelevant in this case.

Last edited by 0x0x0x0; Sep 10, 2013 at 10:18 AM. Reason: typos
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Old Sep 10, 2013, 10:35 AM   #153
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Originally Posted by 0x0x0x0 View Post
Not how contract law works, I'm afraid... You buy from BestBuy, and unless BestBuy expressly tells you that they are acting as an agent and your contract, at the time of its inception, is with Sony, your action for breach of contract lies with BestBuy, as it relies on the manufacturer's description to describe the item to you. It is open to BestBuy to verify that description prior to selling the item to you.
Breach of contract? Are you kidding yourself? Best Buy does not make a contract with you that states that the customer understands what he bought. Best Buy's "contract" is an offer to sell you a product, and you can either accept or not. They don't have a duty to make sure you know what you bought unless they make further statements.

Also, by your logic, Best Buy is also responsible for product defects. Is Best Buy obligated to repair a broken PS3 3 months down the road? Since the answer is an obvious NO, your logic doesn't hold up.



Quote:
Actually the dealerships uses manufacturer's materials to do the describing... What matters is the parties to a contract, you buy from Apple's iTunes store- the contract is with Apple and yourself, not yourself and the distributor/channel/etc. In fact, if you brought a suit against AMC they have the best defence- they're not a party to contract, and that would end your suit straight away. Apple chose to a) rely on AMC's (let's assume it was AMC who was doing the typing there) description, b) not to verify that description, and c) present that description to the purchaser whereby making that description part of the contract.
Your concept of privity of contract is simply wrong. Again, as I said before your logic flies in the face of any such thing as product liability. If a dealership in good faith describes a product by way of the manufacturer's materials, and then the user comes to find out that the MANUFACTURER lied, the dealership (unless that dealership is simply an alter ego of the manufacturer, or holds themselves out to be a manufacturer etc.), the dealership is not liable.

Quote:
To be perfectly frank, the case seems really so trivial that I doubt a problem like that would even be set as an exam question. My guess is that Apple is being (yet again) so stubborn in failing to recognise the law that the only action the wronged party is left with is to sue Apple.
You'd be surprised how many trivial matters end up on an exam.


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Do you seriously think that a lawyer would be so stupid as to overlook an arbitration clause??? I've already addressed the other point you raised and it's irrelevant in this case.
I think the lawyer would attempt to circumvent it.
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Old Sep 10, 2013, 11:00 AM   #154
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Originally Posted by cmChimera View Post
Breach of contract? Are you kidding yourself? Best Buy does not make a contract with you that states that the customer understands what he bought. Best Buy's "contract" is an offer to sell you a product, and you can either accept or not. They don't have a duty to make sure you know what you bought unless they make further statements.

Also, by your logic, Best Buy is also responsible for product defects. Is Best Buy obligated to repair a broken PS3 3 months down the road? Since the answer is an obvious NO, your logic doesn't hold up.
Please go and spend a few bucks on a contract law book, read and try to understand it; otherwise there's no point carrying on this discussion...

Incidentally, nobody is obligated to repair your broken PS3 3 months down the road. "Warranty" that Sony provide is a separate unilateral contract that you can sue on, totally different from the sale contract. Furthermore, in England & Wales, the seller (so BestBuy) is under obligation to repair, replace or refund if the thing is found to be broken within six months of delivery (but that's statute law as opposed to common law).

Quote:
Originally Posted by cmChimera View Post
Your concept of privity of contract is simply wrong. Again, as I said before your logic flies in the face of any such thing as product liability. If a dealership in good faith describes a product by way of the manufacturer's materials, and then the user comes to find out that the MANUFACTURER lied, the dealership (unless that dealership is simply an alter ego of the manufacturer, or holds themselves out to be a manufacturer etc.), the dealership is not liable.

Product liability is an action in tort, nothing to do with an action in contract... The reset of the quote simply is wrong in law.

Quote:
Originally Posted by cmChimera View Post
You'd be surprised how many trivial matters end up on an exam.
Quote:
Originally Posted by cmChimera View Post
I think the lawyer would attempt to circumvent it.
Doubt I would be- I sat them and passed them rather well a while ago!..*

perhaps you should read the filing, or the T&Cs:
Quote:
You expressly agree that exclusive jurisdiction for any claim or dispute with Apple or relating in any way to your use of the iTunes Service resides in the courts in the State of California.
just stop being such a nauseatingly patent fanboy!

Last edited by 0x0x0x0; Sep 10, 2013 at 11:07 AM.
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Old Sep 10, 2013, 11:23 AM   #155
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Originally Posted by 0x0x0x0 View Post
Please go and spend a few bucks on a contract law book, read and try to understand it; otherwise there's no point carrying on this discussion...
I spent a few bucks on a legal education, don't patronize me.

Quote:
Incidentally, nobody is obligated to repair your broken PS3 3 months down the road. "Warranty" that Sony provide is a separate unilateral contract that you can sue on, totally different from the sale contract. Furthermore, in England & Wales, the seller (so BestBuy) is under obligation to repair, replace or refund if the thing is found to be broken within six months of delivery (but that's statute law as opposed to common law).
However not for error on the buyer's part.


Quote:
Product liability is an action in tort, nothing to do with an action in contract... The reset of the quote simply is wrong in law.
Except that it is not wrong.




Quote:
Doubt I would be- I sat them and passed them rather well a while ago!..*
Cool story.

Quote:
perhaps you should read the filing, or the T&Cs:


just stop being such a nauseatingly patent fanboy!
So Apple has a choice of law clause....I fail to see what point you are trying to make here.
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Old Sep 10, 2013, 11:35 AM   #156
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Originally Posted by cmChimera View Post
I spent a few bucks on a legal education, don't patronize me.

However not for error on the buyer's part.
WTF? You fail to even read the filing, there's no error on buyer's behalf, and it's polar opposite to what you've been arguing so far!

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Originally Posted by cmChimera View Post
Except that it is not wrong.
The dealership is liable because a) the contract is with the dealership not the manufacturer, b) the dealership had an opportunity to verify the information but chose not to and c) the dealership used that information for the basis of your bargain.

Let's say I sell you a black box that is branded X, I also present you with a sheet of information of what that box contains and that sheet is also branded X. You buy the box and discover that the contents are not what the sheet described. Your action would lie against me and not manufacturer X, it's so patently obvious!

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Originally Posted by cmChimera View Post
Cool story.
Indeed it is, and a true one too... You even get your name published in a major newspaper when you get called to the Bar here...

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Originally Posted by cmChimera View Post
So Apple has a choice of law clause....I fail to see what point you are trying to make here.
You fail to read it- disputes resolved by courts - what arbitration clause would the lawyers try to circumvent?.. for someone who
Quote:
Originally Posted by cmChimera View Post
... spent a few bucks on a legal education...
you really don't seem to be getting into the nitty-gritty details of the thing you're attempting to argue about...

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Old Sep 10, 2013, 11:47 AM   #157
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WTF? You fail to even read the filing, there's no error on buyer's behalf, and it's polar opposite to what you've been arguing so far!
Naturally, as the filing is AGAINST Apple. Why would I expect the plaintiff's filing to agree with me?



Quote:
The dealership is liable because a) the contract is with the dealership not the manufacturer, b) the dealership had an opportunity to verify the information but chose not to and c) the dealership used that information for the basis of your bargain.
Again, this is simply wrong. The dealership doesn't have to be a detective. So long as they make a good faith effort to do their job, they are not liable for a manufacturer's deception. (We've been speaking about this in black and white terms, but it is possible that some state may have different rules. I will clarify that in my state (Louisiana, not common law, but not as different as you think)

Quote:
Let's say I sell you a black box that is branded X, I also present you with a sheet of information of what that box contains and that sheet is also branded X. You buy the box and discover that the contents are not what the sheet described. Your action would lie against me and not manufacturer X, it's so patently obvious!
Your hypothetical is different than mine.


Quote:
Indeed it is, and a true one too...
Are you trying to imply I'm lying about something?

Quote:
You fail to read it- disputes resolved by courts - what arbitration clause would the lawyers try to circumvent?
i never made the claim that Apple certainly has an arbitration clause. I in fact clearly stated I'm not familiar with Apple's TOS. I simply gave an example of a way to safeguard.

Quote:
.. for someone who
you really don't seem to be getting into the nitty-gritty details of the thing you're attempting to argue about...
Because your posts are full of Westlaw citations?


Look, we can agree to disagree. You seem to be implying that Apple simply has no argument whatsoever so they should just settle to avoid an embarrassing loss in court. I can't agree with that. I imagine they will settle, as the money spent in court probably doesn't match up to the costs of just settling. That said, I think Apple could prove they did nothing wrong. If your a licensed attorney, you should know that legal matters are rarely black and white.

Last edited by cmChimera; Sep 10, 2013 at 11:53 AM.
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Old Sep 10, 2013, 04:26 PM   #158
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Wouldn't sue, but...

I was also under the impression that my purchase last summer was for the COMPLETE 5th season. It didn't say "Season 5: Part 1" or anything of the kind. Just for clarity, some cable shows have done this when their "season" was broken in half by a period of time. The producers of the show are calling this ONE season, or were last summer. Whether they decided to call it two seasons somewhere during the hiatus or not is immaterial. They marketed it and sold it as one season, and anyone who bought the season based on that marketing was misled. That is a crime in many states, not just a civil issue...
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Old Sep 10, 2013, 08:28 PM   #159
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This was first an "issue" at least a couple of years ago, I bought a Season Pass to The History Channel's second season of Top Gear. After THC broadcast the first half, the show went on hiatus. When it came back, I did not get notification of new episodes so I went to the iTunes Store and saw that my Season 2 pass was now Season 2, Part 1 and that the new episode was part of Season 2, Part 2.

Season 2 did end up being 16 episodes (as opposed to the 10 of Season 1).
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Old Sep 10, 2013, 10:08 PM   #160
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Originally Posted by cmChimera View Post
Again, this is simply wrong. The dealership doesn't have to be a detective. So long as they make a good faith effort to do their job, they are not liable for a manufacturer's deception. (We've been speaking about this in black and white terms, but it is possible that some state may have different rules. I will clarify that in my state (Louisiana, not common law, but not as different as you think)

You should probably just stop playing lawyer. Literally nothing you've said has been correct. I mean, you brought up products liability to disprove a contract claim and seem to have no idea a contract is.

Apple made a contract, an agreement to sell season 5 of Breaking Bad, to the customer for a set price. Any first year law student would be able to tell you that's a valid contract and if it's breached (by not supplying all of season 5), Apple is liable. There's some gray in whether the contract was supposed to be for season 5 or season 5 part 1, but whether Apple is a valid litigant isn't really an issue.
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Old Sep 10, 2013, 10:30 PM   #161
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You should probably just stop playing lawyer. Literally nothing you've said has been correct. I mean, you brought up products liability to disprove a contract claim and seem to have no idea a contract is.

Apple made a contract, an agreement to sell season 5 of Breaking Bad, to the customer for a set price. Any first year law student would be able to tell you that's a valid contract and if it's breached (by not supplying all of season 5), Apple is liable. There's some gray in whether the contract was supposed to be for season 5 or season 5 part 1, but whether Apple is a valid litigant isn't really an issue.
Yep, you caught me. I'm just pretending to know what I'm talking about. I said I would agree to disagree. Let's just do that. I'm not going to have some stranger on the internet pretend to know what sort of education I have.
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Old Sep 11, 2013, 12:43 AM   #162
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Yep, you caught me. I'm just pretending to know what I'm talking about. I said I would agree to disagree. Let's just do that. I'm not going to have some stranger on the internet pretend to know what sort of education I have.
"Ron Burgundy: Discovered by the Germans in 1904, they named it San Diego, which of course in German means a whale's vagina.
Veronica Corningstone: No, there's no way that's correct.
Ron Burgundy: I'm sorry, I was trying to impress you. I don't know what it means. I'll be honest, I don't think anyone knows what it means anymore. Scholars maintain that the translation was lost hundreds of years ago.
Veronica Corningstone: Doesn't it mean Saint Diego?
Ron Burgundy: No. No.
Veronica Corningstone: No, that's - that's what it means. Really.
Ron Burgundy: Agree to disagree."

Honestly, I thought that movie was unrealistic, but you continue to amaze.
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Old Sep 11, 2013, 02:09 AM   #163
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Old Sep 11, 2013, 02:10 AM   #164
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Old Sep 11, 2013, 07:04 AM   #165
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Originally Posted by gco212 View Post
"Ron Burgundy: Discovered by the Germans in 1904, they named it San Diego, which of course in German means a whale's vagina.
Veronica Corningstone: No, there's no way that's correct.
Ron Burgundy: I'm sorry, I was trying to impress you. I don't know what it means. I'll be honest, I don't think anyone knows what it means anymore. Scholars maintain that the translation was lost hundreds of years ago.
Veronica Corningstone: Doesn't it mean Saint Diego?
Ron Burgundy: No. No.
Veronica Corningstone: No, that's - that's what it means. Really.
Ron Burgundy: Agree to disagree."

Honestly, I thought that movie was unrealistic, but you continue to amaze.
I've now twice said let's agree to disagree, but you'd rather continue being a jackass. You'll go far in life.
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Old Sep 11, 2013, 03:39 PM   #166
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Originally Posted by Eraserhead View Post
So? It seems pretty straightforward that this guy is right.

I have no idea why he wasn't given a refund before getting anywhere close to court though.

----------



Why shouldn't he sue for (material) breech of contract?
Note this is a class action suit. Typically, the guy who is named on the lawsuit wouldn't come up with the idea to sue; more likely it was the lawyers, who then went searching for a "victim" who would agree to have the suit filed in his name. If the plaintiff had been acting alone, he could have just gone to small claims court. If the class action suit wins, the damages awarded to this guy will be pathetically small; however, the lawyers will get a share of the overall class award or settlement.

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Old Sep 11, 2013, 06:22 PM   #167
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apple is sued for false advertisement.
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Old Sep 11, 2013, 08:06 PM   #168
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Didn't Apple also do this with Futurama? The season numbers on iTunes are out of sync with the official numbers.
I think Futurama is out of alignment with real season numbers, but not split AFAIK.

When the four movies were made available on iTunes, I think they are calling
that a season, even though they drop into your Futurama season one folder
if you buy any of them.
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Old Sep 11, 2013, 09:19 PM   #169
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I think Futurama is out of alignment with real season numbers, but not split AFAIK.

When the four movies were made available on iTunes, I think they are calling
that a season, even though they drop into your Futurama season one folder
if you buy any of them.
They were out of alignment but the last two official seasons were also split.

http://en.wikipedia.org/wiki/List_of_Futurama_episodes

Season 6 of Futurama which is officially composed of 26 episodes was split into 7 and 8 on iTunes as two 13 episodes seasons. Similarly the last season (7) was split into season 9 and 10 on iTunes, halving the number of episodes.
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Old Sep 11, 2013, 09:38 PM   #170
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Quote:
Originally Posted by gco212 View Post
You should probably just stop playing lawyer. Literally nothing you've said has been correct. I mean, you brought up products liability to disprove a contract claim and seem to have no idea a contract is.

Apple made a contract, an agreement to sell season 5 of Breaking Bad, to the customer for a set price. Any first year law student would be able to tell you that's a valid contract and if it's breached (by not supplying all of season 5), Apple is liable. There's some gray in whether the contract was supposed to be for season 5 or season 5 part 1, but whether Apple is a valid litigant isn't really an issue.
But here's the problem. Apple doesn't set what's a season. It's the content provider, all apple is doing is making an agreement to give you what the content provider calls "season 5".

At no point does Apple advertise how many episodes you'll get. I'm looking at the Season 6 page for Sons of Anarchy, it's $35. There's no mention how many episodes that buys. So this guy is making his lawsuit completely around an assumption he'd get 16 episodes for $22.

Hell, I bought Thundercats and it got cancelled. I got a refund for the handful of episodes that never aired, then got the last episodes anyway. They did the same thing with Caprica.
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Old Sep 11, 2013, 11:24 PM   #171
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Ok, I understand.

This is easily solved. Call them iSeasons.


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Originally Posted by Casiotone View Post
They were out of alignment but the last two official seasons were also split.

http://en.wikipedia.org/wiki/List_of_Futurama_episodes

Season 6 of Futurama which is officially composed of 26 episodes was split into 7 and 8 on iTunes as two 13 episodes seasons. Similarly the last season (7) was split into season 9 and 10 on iTunes, halving the number of episodes.
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Old Sep 12, 2013, 03:18 AM   #172
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This is definitely AMC's fault. There are physical copies on blu ray/DVD of the show being sold as season 5 with the same amount of content. Should every brick and mortar retailer be sued as well?

That being said, I am glad that the issue is being brought to light because I bought the season pass at the beginning of 5th season, and was definitely confused about what I was getting. I read a lot of articles ahead of time, and even the actors were saying season 5 was the final season.
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Old Sep 12, 2013, 07:47 AM   #173
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So it's Apple's chore to run after each and every piece of content and find out whether it's correct? You're nuts, to put it simply. The content provider is responsible for their own content, Apple is just the host and has nothing to do with it. Apple is only responsible that the customer gets the content they paid for and from my understanding in this case, this has been provided.
That's amazing how little apple has to provide for a 30% cut....
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Old Sep 12, 2013, 11:46 AM   #174
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Old Sep 13, 2013, 01:15 AM   #175
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Originally Posted by Casiotone View Post
They were out of alignment but the last two official seasons were also split.

http://en.wikipedia.org/wiki/List_of_Futurama_episodes

Season 6 of Futurama which is officially composed of 26 episodes was split into 7 and 8 on iTunes as two 13 episodes seasons. Similarly the last season (7) was split into season 9 and 10 on iTunes, halving the number of episodes.
Fox and Sky TV in the UK are the same company. They class episodes of Futurama as season 8 on their own on-demand services and in the listing descriptions. I think shows with a varied run pick and choose if it's a hiatus or a new series and that's where the vagary of season vs series comes into it.
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