Norway To Pressure Apple To Change iTunes EULA?

[MacRumors]

http://www.macrumors.com/images/macrumorsthreadlogo.gif

Norwegian consumer advocacy group The Consumer Council has announced that the Consumer Ombudsman (CO) in Norway (an independent Norwegian administrative body tasked with enforcing the Marketing Control Act and supervising consumer issues) has given its support to many of the complaints that were brought in the Consumer Council's January 25th complaint against Apple's Norwegian iTunes Music Store.

Highlights of the decision
-It is unreasonable that the consumer must give consent to an agreement regulated by English law.
-It is unreasonable for iTunes to disclaim all liability for possible damage the software may cause.
-It is unreasonable that rights to music already downloaded by the consumer may change after purchase.

The decision appears to not agree with the Consumer Council's attempt to force Apple to allow customers to circumvent Fairplay. The original complaint (pdf) listed the fact that consumers were prevented under the license agreement from circumventing Apple's Fairplay DRM.

The Consumer Council is now waiting for Apple's response before proceeding. While it is still voluntary for Apple to comply with the CO's decision, the CO can forward the case to the Market Council (the Norwegian court of law in the field). The CO and the Market Council have the authority to ban unlawful contract terms and conditions.

The iTunes Music Store has come under attack in recent months by France, who originally proposed to demand that Apple open up its music store to allow other competing media players to play music downloaded from the iTunes Music Store. The bill was later gutted in committee and no longer issued those specific requirements.

Background Information: Background Information on Norwegian Consumer Groups

Update: A local Norwegian news site reports that iTunes interoperability does seem to be at issue. In addition, corresponding groups in Sweden and Denmark appear to also be following suit.

Update 2: CO Statement (Raw Data)

[iGary]

Most Norwegians don't seem to care. Gekko?

[ChrisA]

Originally Posted by Macrumors

-It is unreasonable that the consumer must give consent to an agreement regulated by English law.
-It is unreasonable for iTunes to disclaim all liability for possible damage the software may cause.
-It is unreasonable that rights to music already downloaded by the consumer may change after purchase.

Here in the US I think the same might apply. Can a contract say that it is enforced by the laws of some other contry. For example can a contract here in the US state that in case of dispute it will be settled by some court in Russia or Mexico. Can you disclain all product liability?

[Steven1621]

This will go the same way was the French case...

[nsjoker]

i hope they win the case. maybe iTMS will change for the better in the future. for example, downloading a track and accidentally deleting it and having to pay for it again stinks. a subscription service ala apple style would be very nice, and lossless aac downloads over the current crappy 128 aac. i'm no audiophile but i can tell the difference easily.

[Neuro]

I don't see how anyone can disagree with that. Seems fair enough.

The fact that Apple can change the terms of the license at any point, kind of makes the ITMS a subscription model anyway. The main difference being that the 'bought' content is hosted on customer's machines and iPods....

[whatever]

Originally Posted by nsjoker

i hope they win the case. maybe iTMS will change for the better in the future. for example, downloading a track and accidentally deleting it and having to pay for it again stinks. a subscription service ala apple style would be very nice, and lossless aac downloads over the current crappy 128 aac. i'm no audiophile but i can tell the difference easily.

Let's see, if I buy a CD in the store and lose it or break it, then the store I bought it from should replace it?

I don't think so.

Whatever

[Hunts121]

Originally Posted by whatever

Let's see, if I buy a CD in the store and lose it or break it, then the store I bought it from should replace it?

I don't think so.

Whatever

Napster used to allow this....not saying I like it as I use iTunes myself but for the brief period that I used the napster paid system (before I got an iPod...and a mac for that matter) I know that was a feature.

[SeaFox]

I don't thnak Apple should be able to change the terms of the iTunes DRM after you buy it, either. That would be like the dealer revising the terms of the warranty on your new car after you bought it.

They're welcome to extend it, and Apple did in the "number of computers you can simultaneously play songs on way", but they lowered the number of burns from 10 to 7.

[WorldMage]

So all this talk about users should be able to circumvent FairPlay
has always seems fairly silly to me, after all can't you burn any
song you want to a CD without any DRM of any sort?

I do this about once a year with the new songs I've bought.

[Some_Big_Spoon]

I know that the powers that be won't let things like this pass, even when it's not any of their damn business, but it's reassuring that somewhere on the planet societies are smart enough to actually debate these sorts of things.. debate anything for that matter.. cept for American Idol, but I digress.

EULA's are sinister. Clicking "agree" to actually see that body of the EULA? That's ridiculous, but it happens all the time. I hope the EU as a whole does something to stem the tide of media as a pure rental model so at least I have some place inviting to move eventually :-)

[swingerofbirch]

Originally Posted by SeaFox

I don't thnak Apple should be able to change the terms of the iTunes DRM after you buy it, either. That would be like the dealer revising the terms of the warranty on your new car after you bought it.

They're welcome to extend it, and Apple did in the "number of computers you can simultaneously play songs on way", but they lowered the number of burns from 10 to 7.

I don't agree it's right either, but the difference is that with iTunes you buy music, but you never actually own it as property. It would be more comparable to say you are leasing music from iTunes for limited, personal use.

[Neuro]

Originally Posted by whatever

Let's see, if I buy a CD in the store and lose it or break it, then the store I bought it from should replace it?

I don't think so.

Whatever

Well, just the same as software - you are buying a license to access the music/software (record companies make a big thing about this) - not the physical medium. So yes, the shop/provider that sold you the data should provide a replacement if the data can no longer be read. Otherwise, buying a license is meaningless. Obviously you need to prove you bought it via a receipt.

You seriously think that's unreasonable?

It's no big deal at all for Apple to provide this. Whenever I've 'lost' digital data from other music download stores, they have been happy to provide me with a replacement. As someone who buys their product, I'm hardly likely to try to con them.

Surely a product should be about customer satisfaction?

[mcarnes]

Crazy Swedes. (in kurt russel voice)

[theBB]

Originally Posted by Macrumors

-It is unreasonable that the consumer must give consent to an agreement regulated by English law.
-It is unreasonable for iTunes to disclaim all liability for possible damage the software may cause.
-It is unreasonable that rights to music already downloaded by the consumer may change after purchase.

I don't know what they mean by the first line exactly, but second line is standard disclaimer in all software. I don't think it is reasonable, but if there was major damage and if you can show that software company had known about it and could have fixed it with reasonable effort, you might still be able to sue them. Kind of like all these liability release forms filled before participating in any sporting activities, I am pretty sure you could still sue in egregious cases. There are a few lawyers on this site, anyone with more expertise care to comment?

The third one is definitely unreasonable. What if they just say you need to pay us 5cents each time you play the songs you have paid for already? Need more competition in music to keep Apple in check.

[Makosuke]

Doubt it'll get anywhere, but it's sure nice to see SOMETHING resembling a government body standing up to ridiculous licencing rules. And the sad part is, Apple is probably the most reasonable of these services (well, except for the subscription services--I don't like them based on how I listen to music, but you get exactly what you pay for).

This isn't to say that I don't buy stuff off the iTMS--I do, because it's often cheap and incredibly convienent--but really the RIAA and its international counterparts are like a plague on basic use rights. I somehow think they'd be happiest if we just paid them a monthly fee and they let us listen to whatever musc they thought those slimy would-be-pirate "consumers" deserve to hear.

And I only half blame Apple for the iTMS restrictions--since they're not really making any money off it they don't have a huge interest in restricting your rights, but no restriction, no sale from the RIAA et al. I'm sure Apple would have been quite happy to leave in that feature in early versions of iTunes that didn't restrict sharing to your local subnet--it would have made iTunes just that much more popular. But they were forced--quietly, no doubt--to shut it down. Not unreasonable, but unfortunate.

Anyway, go Norway!

[theBB]

Originally Posted by Neuro

Well, just the same as software - you are buying a license to access the music/software (record companies make a big thing about this) - not the physical medium. So yes, the shop/provider that sold you the data should provide a replacement if the data can no longer be read. Otherwise, buying a license is meaningless.

I agree. They want to have their cake and eat it too. I'd understand it if they charge you for bandwidth costs, but that should be almost negligible.

Anyways, eMusic lets you do it, but it is somewhere between a store and a subscription service.

[theBB]

Originally Posted by swingerofbirch

I don't agree it's right either, but the difference is that with iTunes you buy music, but you never actually own it as property. It would be more comparable to say you are leasing music from iTunes for limited, personal use.

Still, when I lease a car they cannot change the terms of the lease without my approval, can they? In this case, I am supposed to be leasing for perpetuity.

[BRLawyer]

Originally Posted by theBB

I don't know what they mean by the first line exactly, but second line is standard disclaimer in all software. I don't think it is reasonable, but if there was major damage and if you can show that software company had known about it and could have fixed it with reasonable effort, you might still be able to sue them. Kind of like all these liability release forms filled before participating in any sporting activities, I am pretty sure you could still sue in egregious cases. There are a few lawyers on this site, anyone with more expertise care to comment?

The third one is definitely unreasonable. What if they just say you need to pay us 5cents each time you play the songs you have paid for already? Need more competition in music to keep Apple in check.

You seem to forget that the Norwegian analysis is made from the perspective of consumer law, not standard civil or commercial law.

In many jurisdictions (notably in most of Europe, Brazil and other Roman Law systems) there are specific codes enacted to protect consumer's rights, so the norwegian claim is not that far-fetched.

The iTMS, as well as most online services, may be equated with adhesion contracts where the consumer has much less bargaining power (or none at all) than the offeror/supplier of a service.

Consequently, considering that the Norwegian iTMS is served in Norwegian and supposedly bound by Norwegian laws, one may infer that any consumer-related adhesion contract must use Norwegian courts as well.

In the second case, I agree with you that such contractual provisions may be easily nullified in case of, again, adhesion contracts and egregious situations. Most reasonable judges would rule in favor of a lawsuit that can prove the "causality nexus" between the service and the damage.

In the third point, it's definitely unreasonable from a consumer's point of view, especially since you agreed to specific DRM rights in the first place. Any contract is formed by price, object and mutual consent at a given time. These elements cannot be unilaterally changed by one party, particularly when the service/good has been already delivered in its final form, be it just a license or not.

I hope this clarifies some of your doubts...

[Fiveos22]

Never underestimate the power of neutrality.

Norwegian muscle, or apathy? Personally, I don't think this is anything more than a buzzing fly.

[shigzeo]

Originally Posted by Steven1621

This will go the same way was the French case...

i reckon not, because this time, the argument is for the consumer rather than making available music to DRM'less sourcing. the france fiasco was about opening up the source songs to be able to play on other machines while this one just gives the user more proper rights. but, then im wrong about 70% of the time!

[081440]

Apple doesn't have to be liable for iTunes software do they!? I mean if they say it is at your own risk, then well the consumer is doing it at their own risk, they already agreed to the terms. (And don't give me any crap about how people don't read the contract, it's their own fault if they don't! (yes I do skim them before agreeing, but take responsibility if I miss something))

And the point about only 7 burns, well just change the playlist you burn from and WOW you have another 7 burns, or if your making a huge number of copies (which your not allowed to) then invest in an external CD/DVD duplicator, takes the ware and tare off your Mac and they are very reliable.

[bretm]

Originally Posted by Hunts121

Napster used to allow this....not saying I like it as I use iTunes myself but for the brief period that I used the napster paid system (before I got an iPod...and a mac for that matter) I know that was a feature.

Yeah, and how's Napster doing these days? They keep trying different stuff. Most of it bait and switch tactics like their current FREE concept. Their ploys just get you hyped and excited until you find out they're screwing you. THAT's the way to win customers!

We have brought Norway iTunes. What has Norway done for us lately? EVER?

[bretm]

Originally Posted by theBB

Still, when I lease a car they cannot change the terms of the lease without my approval, can they? In this case, I am supposed to be leasing for perpetuity.

I have a mortgage. It does change without my consent. Of course, I consented to it changing without my consent, so I guess it doesn't.

Your cell phone contract can change without your consent. But it is then breach of contract and you can then remove yourself from the contract. Of course, that's all in the contract, so it's not a breach of contract...

[shigzeo]

Originally Posted by bretm

Yeah, and how's Napster doing these days? They keep trying different stuff. Most of it bait and switch tactics like their current FREE concept. Their ploys just get you hyped and excited until you find out they're screwing you. THAT's the way to win customers!

We have brought Norway iTunes. What has Norway done for us lately? EVER?

well, let me assume that by 'we' you mean that you live, love and were born south of the longest friendly border in the world. meaning that you eat hamburgers and cheeseburgers morning, noon and night. well, if not for the norwegians, the americans would be less dependent on the one meal that is probably causing obeisity in their population since the 1940's or 1950's. if there were no obeise americans then there would be no need for itunes since you could still walk to the music store and carry the records home. in effect, itunes owes norway much more than it thinks.

the bestower of this american propensity? the norwegian cheese slicer (and we swedes took the idea as well and used metal!)
http://www.cyberclip.com/Katrine/Nor...nv/slicer.html