Originally Posted by aegisdesign
I walk in to a record shop and talk to Jeremy behind the counter who sells me Kylie Minogue's latest album on the Parlephone label. As I've used above, Jeremy is the 'shop keeper', Parlephone are the 'manufacturer'. In European law my contract of sale is between the shop keeper and me, not Parlephone or Kylie Minoque. Parlephone are under no obligation to me and neither is Kylie.
I get home and find the CD won't play on my CD player. Since the contract is between myself and the shop keeper I take it back to the shop to exchange.
I get another CD but that doesn't play either.
It turns out the CD has some kind of DRM on it that my CD player doesn't like. I take it back to the shop and explain that the CD isn't following the spec for CDs and doesn't play on my CD player which only plays proper red book CDs like Phillips designed it to. Clearly* the manufacturer of the CD, Parlephone, is at fault but that is irrelevant between me and the shop keeper who have a contract. He is supposed to sell goods that are legal and fit for the purpose intended. He in turn has a contract with Parlephone but that's for him to argue about, not me. And much as I'd like to chastise Kylie, it's not her fault either.
This example is not a good one. Obviously, Parlephone is selling goods fraudulently. The cd spec cannot be worked around, and it is licensed out to be done the way it is. This was one of Sony's problems. If someone sued them for that, they would have had a decent chance of winning. No one has reason to expect that a cd will have either DRM, or content protection.
Of course, since this is hypothetical, we can assume that the cd CAN have this. If so, one must then look to the cd player. Why doesn't it play that cd? If others do, then it could be the cd player that is at fault
It also would depend on the applicable law. Would the protection on that cd be legal, or not? If the law says nothing either way, then the presumption would be that it is legal.
Naturally, they could change the law.
So, moving to Apple, Apple here is the shop keeper and the only contract in dispute is between the consumer and Apple. That's what the Norwegians are saying. It's up to Apple to argue with the record companies and that's what Jobs is doing. It's not really the Norwegian Consumer Council's issue which legally is with the shop selling goods. The Norwegian Consumer Council are arguing that the goods sold (iTunes songs) are illegal in Norway. If it goes to court it'd have to be Apple in the dock, not the record companies.
This can get ticklish. If a referendum were to be held, and the question asked was:
Would you rather have music sold online with DRM, or have no music sold online? The answer could be interesting indeed.
Apple is certainly not deceiving their customers, as they are forthright about telling what will work with what, unlike the case you mentioned about the cd.
It seems to me that the authorities had plenty of time to decide to not allow Apple and Sony to set up their stores there. As they have, it appears to be hypocritical to try to change the rules that most people are quite happy about, to curry favor with the few who are not.
I assume they will not allow MS to sell the Zune with it's exclusive rights DRM, and that MS knows that.
No. it's a matter of legal process. They can only go after the party that has the contract with the consumer. It's got nothing to do with protecting EU companies. Norway aren't even in the EU.
Well, I find this to be very odd. The companies who sell the "deficient" products are fine, but the stores are not. Very odd.
So, If a small car dealer sells a car model that later proves to be defective, or of poor design, something that a dealer is in no way qualified to determine, that dealer, and all of the other dealers selling that model get in trouble, but the car manufacturer gets off the hook?
Because that's exactly what you are saying here.
Somehow, I don't think that's true. It doesn't have to be a defect, or poor design, it could be deceptive. Say an engine rated at 200 horsepower that turns out to be only 150 instead.
* ok smartarses, I had the choice of buying a Debbie Gibson CD with no DRM on that would play but that's not the point.
Well now, that destroys your credibility, doesn't it?