Yeah I see this ending in Apple's favor when they point out that they never said buy ALL songs for 99 cents, but buy SONGS for 99 cents.
I could say, here's $50 gift card for best buy where you can buy games for $10 and I wouldn't be misleading. There are games there for $10! There's also games for $50 a piece, but I simply didn't mention those.
There are a lot of misconceptions about what is going on here.
First, I'm 99% certain that the claim is based on the following:
1) Many of the older iTunes gift cards did contain the language "download songs for $.99"
2) Notably this isn't an explicit promise of a number of songs. The plaintiffs are construing this language to mean a promise that "all songs are available for purchase at $.99"
3) I'd have to read the specific claim, but I'm guessing they're trying to say that the language on the card lead them to believe that the card allowed them to buy songs for $.99, despite the pricing stated on iTunes. Or at least they thought that when they bought it.
The claim is very unlikely to succeed for a number of reasons, some of which have been laid out already.
1) From my understanding of "bait and switch" precedent, the advertised product has to be completely unavailable. This is likely completely damning, because there clearly are plenty of songs available for $.99. The reason they're going for bait and switch is because its considered an egregious act by companies, and thus opens Apple up for punitive damages.
2) The facts brought up about taxes and the fact that other vendors sell the cards are irrelevant though. A) companies are never bound to reflect taxes in their advertisements and as already stated, the problem wasn't that the card guaranteed a specific number of songs, its that it advertised songs for $.99. Gift cards, under the law, have been taken to be simultaneously advertisements and contracts. Thus the seller of the gift card technically isn't even a part of the transaction. Gift cards, to a reseller like walmart, are the exact same thing as cash. They're much like stamps in that regard. So when you buy a gift card, you're buying it from Apple, regardless of what store you actually buy it from. Walmart has nothing to do with the transaction other than facilitator. As far as the law goes, it would be like suing FedEx because your new iMac you ordered from the apple store was shipped without a screen.
3) Likely there is a second charge of a contract violation. This would be based on songs costing only $.99 being part of the contract. If successful, this would lead to some form of restitution. Restitution is problematic in this case though, because it would be too difficult to erase the songs they've already downloaded and then refund their money. In its place would be forced specific performance, which would mean giving a refund for all the songs over $.99 (minus the difference of any songs under $.99 bought) to get them back to costing $.99 per song. However, courts hate specific performance, as a general rule.
So, in my opinion the most likely scenario is that the court takes the language in the card to mean that songs are available for purchase at $.99, not that all songs will cost only $.99. Furthermore, most courts would then say that any confusion in this regard should have been cleared up when prices in iTunes for some songs clearly reflected the new $1.29 pricing. As a further point, apple can claim that its always been clear that not every song is available for $.99, as many songs have always been "album only." I think it would take an extremely consumer sympathetic court to stretch the language "buy songs for $.99" to mean "this card gives you the right to buy any song available in the iTunes music store for $.99." Likely they'll just interpret it to mean "it is possible to buy millions of songs for $.99" which is still true, as only a relatively small percentage of songs actually cost more than $.99 now.
Two words, pain and suffering, now if there were NO songs available for .99 cents, she might have a case (but really over under .30 cents, talk about trying to get something for almost nothing). The pain and suffering should be these people with idiot class action suits are taken out and stoned, the kind with people throwing rocks at you.
While we are at it we should take the guy out that is suing the A's baseball team because on Mother's Day he didn't get a floppy plaid sun hat from Macy's, which while being interviewed he referred to as a "fishing hat", because .. wait for it ... HE WASN'T A FEMALE!!!!!
Turns out the same guy has sued 11+ times around the country for the same thing, he want's the freebies that females (and small children, one suit was because he didn't get a bobble head doll of a player because he wasn't under 10 yrs old) get on freebie night, and when he doesn't he files class action lawsuits, and yes he's a lawyer.
Turns out Rava is a lawyer. In fact, this is not his first men-inism lawsuit. He's been part of more than 40 male anti-discrimination lawsuits, sometimes as the plaintiff, like in Oakland, and sometimes as the plaintiff's attorney. He has sued Club Med for a ladies-only promotion. He's sued the Angels for giving away a $1.45 tote bag to women in 2005. He has sued restaurants and nightclubs and theater companies. Mr. Rava gets incensed a lot.
It should be noted here that in America anyone, for any reason, can file a lawsuit. That does not mean it will be settled before the court agrees it's not frivolous. Junk filings like this one never see the inside of a court room and when they do sneak in, the plaintiffs get charge for the court fees.
Apple should get an injunction preventing these people from ever using an Apple service or product ever again. No iTunes, no iPod, and no macs! Go ahead and use the Zune service! This should include everyone in their direct family.
You see, I think some of the confusion here is being caused by different wording Apple has used.
In some cases they did indeed say "buy songs for 99 cents", which yes one could say that doesn't mean all.
On the other hand, on the gift cards themselves they've said "songs are 99 cents".
How can one say not all then? You really can't. It has to be all then.
I see your point. Actually, perhaps they are in a little trouble then now that I think of it. By saying "songs are 99 cents" they are addressing all their songs entirely, where saying "buy songs for 99 cents" is pointing out specific situations where you can buy songs for 99 cents
Comments
I could say, here's $50 gift card for best buy where you can buy games for $10 and I wouldn't be misleading. There are games there for $10! There's also games for $50 a piece, but I simply didn't mention those.
This lawsuit is retarded.
First, I'm 99% certain that the claim is based on the following:
1) Many of the older iTunes gift cards did contain the language "download songs for $.99"
2) Notably this isn't an explicit promise of a number of songs. The plaintiffs are construing this language to mean a promise that "all songs are available for purchase at $.99"
3) I'd have to read the specific claim, but I'm guessing they're trying to say that the language on the card lead them to believe that the card allowed them to buy songs for $.99, despite the pricing stated on iTunes. Or at least they thought that when they bought it.
The claim is very unlikely to succeed for a number of reasons, some of which have been laid out already.
1) From my understanding of "bait and switch" precedent, the advertised product has to be completely unavailable. This is likely completely damning, because there clearly are plenty of songs available for $.99. The reason they're going for bait and switch is because its considered an egregious act by companies, and thus opens Apple up for punitive damages.
2) The facts brought up about taxes and the fact that other vendors sell the cards are irrelevant though. A) companies are never bound to reflect taxes in their advertisements and as already stated, the problem wasn't that the card guaranteed a specific number of songs, its that it advertised songs for $.99.
3) Likely there is a second charge of a contract violation. This would be based on songs costing only $.99 being part of the contract. If successful, this would lead to some form of restitution. Restitution is problematic in this case though, because it would be too difficult to erase the songs they've already downloaded and then refund their money. In its place would be forced specific performance, which would mean giving a refund for all the songs over $.99 (minus the difference of any songs under $.99 bought) to get them back to costing $.99 per song. However, courts hate specific performance, as a general rule.
So, in my opinion the most likely scenario is that the court takes the language in the card to mean that songs are available for purchase at $.99, not that all songs will cost only $.99. Furthermore, most courts would then say that any confusion in this regard should have been cleared up when prices in iTunes for some songs clearly reflected the new $1.29 pricing. As a further point, apple can claim that its always been clear that not every song is available for $.99, as many songs have always been "album only." I think it would take an extremely consumer sympathetic court to stretch the language "buy songs for $.99" to mean "this card gives you the right to buy any song available in the iTunes music store for $.99." Likely they'll just interpret it to mean "it is possible to buy millions of songs for $.99" which is still true, as only a relatively small percentage of songs actually cost more than $.99 now.
While we are at it we should take the guy out that is suing the A's baseball team because on Mother's Day he didn't get a floppy plaid sun hat from Macy's, which while being interviewed he referred to as a "fishing hat", because .. wait for it ... HE WASN'T A FEMALE!!!!!
Turns out the same guy has sued 11+ times around the country for the same thing, he want's the freebies that females (and small children, one suit was because he didn't get a bobble head doll of a player because he wasn't under 10 yrs old) get on freebie night, and when he doesn't he files class action lawsuits, and yes he's a lawyer.
F- these people.
http://forums.motivemag.com/zerothread?id=4433874
Turns out Rava is a lawyer. In fact, this is not his first men-inism lawsuit. He's been part of more than 40 male anti-discrimination lawsuits, sometimes as the plaintiff, like in Oakland, and sometimes as the plaintiff's attorney. He has sued Club Med for a ladies-only promotion. He's sued the Angels for giving away a $1.45 tote bag to women in 2005. He has sued restaurants and nightclubs and theater companies. Mr. Rava gets incensed a lot.
http://tech.yahoo.com/news/zd/20090626/tc_zd/241806
"Songs are 99 cents and videos start at $1.99."
At issue is the part in bold.
So, did Apple knowingly and fraudulently misrepresent, conceal, omit, and/or supress the cost to purchase individual songs from iTunes?
Yes.
Apple bears full responsibility for this. "Old cards" and "just a mistake" are terrible excuses, with respect of course.
So do I think they should win?
Yes.
Now do I think these folks will win?
No.
Yeah I see this ending in Apple's favor when they point out that they never said buy ALL songs for 99 cents, but buy SONGS for 99 cents.
Except they did.
You see, I think some of the confusion here is being caused by different wording Apple has used.
In some cases they did indeed say "buy songs for 99 cents", which yes one could say that doesn't mean all.
On the other hand, on the gift cards themselves they've said "songs are 99 cents".
How can one say not all then? You really can't. It has to be all then.
Except they did.
You see, I think some of the confusion here is being caused by different wording Apple has used.
In some cases they did indeed say "buy songs for 99 cents", which yes one could say that doesn't mean all.
On the other hand, on the gift cards themselves they've said "songs are 99 cents".
How can one say not all then? You really can't. It has to be all then.
I see your point. Actually, perhaps they are in a little trouble then now that I think of it. By saying "songs are 99 cents" they are addressing all their songs entirely, where saying "buy songs for 99 cents" is pointing out specific situations where you can buy songs for 99 cents