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Comment by bityard | Hacker News Reader

I hate to be so cynical, but here's exactly how this is going to play out, or I'll eat my hat:

1. Apple and Amazon will add language to their Terms and Conditions stating that regardless of the phrasing on their websites and apps, access to the media that customers purchase will be revoked if their account is terminated. And since it's in the agreement, it's binding: in general, you can't sue to get out of a contract just because you discover you don't like the terms later on. (Whether or not you actually read it before agreeing to it.)

2. Apple and the class action attorneys will settle this out of court. Apple will pay the attorney fees and reimburse the lead class member for the value of the media he "purchased". Everyone else who joined the class action as a member will get a $5 credit to their Apple account.

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In general, contracts can say literally whatever they want, and it doesn't mean they will stand up in court. If the court agrees that Apple selling $25k worth of stuff and denying access to it isn't "fair", then it isn't fair, end of story, regardless of what the contract says. The court might of course disagree, but you can't be certain until the case happens.

I do however believe that Apple will just settle this out of court, specifically to avoid such a ruling.

I think the courts are going to look for legality instead of fairness.

Both - because there are laws against unfair contracts, especially when the unfair portion is only explained to the less advantaged party (the customer) in hidden tiny text.

A reasonably degree of fairness is a requirement to be legal, otherwise the contract is deemed "unconscionable" and void.

Plus, this would a contract of adhesion—and courts hate contracts of adhesion and try to interpret them in favor of the consumer as far as possible.

I mean, yes, ultimately, but a contract that's aiming to be deceptive or one that imposes extremely punitive measures isn't going to be legal. You could write a contract that says that you can at any point terminate the contract and the other side has to buy you a latest Lamborghini. Like, there's nothing illegal about that in itself, but if the paragraph about the Lamborghini is just mentioned once on page 178 of the contract and not advertised anywhere, almost certainly any court will find it null and void, because people who have their contracts terminated usually don't have to buy people cars. Not illegal but unfair, which makes it deceptive which makes it illegal.

Your example would likely be unenforceable because contract terms must provide _consideration_ for both parties, or an element of fairness in the real assets being exchanged. Requiring one party to purchase a Lamborghini at the sole discretion of the other provides no consideration for the former.

An example of consideration in a penalty clause like this is AT&T's failed acquisition of T-Mobile US, where the contract forced AT&T to pay $3 billion and give up wireless spectrum when they abandoned the deal. In this case, the consideration was T-Mobile's time and money spent entering the deal in the first place vs. the penalty to AT&T.

It's also worth noting that "unfair" and "deceptive" are not synonymous in their legal definitions. An unfair practice involves terms that are not beneficial to one party and are unreasonable to avoid, while a deceptive practice is one that misleads the party into accepting unreasonable terms.

I'm not sure what you mean by "end of story," apple can tie this up in appeals for years

Presumably the person and more importantly the lawyer who have decided that it is worth suing Apple over just 25k worth of damages have the wherewithal to take this all the way to the supreme court. Incentives in class action suits work weirdly.

Well then Apple will win in the US but not in the EU when they get sued there. In the EU you cannot bind someone to have less rights by hiding it somewhere in an EULA. If the button says Buy then legally you buy no matter what any contract says in small letters somewhere.

I'm afraid you might be right about 2, but wrt 1 I think you can absolutely sue your way out of a contract if it was made after blatantly false advertising, no?

That’s correct. Am a lawyer, not giving legal advice.

A very common term in contracts is what is called a merger clause, and what it says essentially is that the contract forms the entire agreement of the parties, and that any oral representations not contained in the contract are irrelevant and to be completely disregarded. But there are courts that hold that a merger clause is not absolute and has its limits.

Make no mistake, contracts and their waivers are powerful. However, there are lots of court rulings where the courts have held that you can’t say X explicitly and have the contract say Y. In those situations, the courts will often enforce the X promise.

But then you get into a practical issue here. If you were an effected individual, you’re going to have to hire a lawyer to make that argument, and even with $25,000 on the line, that’s probably not a situation where the math works out.

That's what class actions are for. The lawyer and the class representative get paid for their work to pursue the case.

There are also places, like here in the UK, where statutory consumer rights law explicitly says that trying to hide behind those clauses doesn't stand up. You can't have a salesperson answer a consumer's questions about a product, and then when the consumer finds the product doesn't match the information they were given after buying it, argue that your Ts & Cs say anything the salesperson said before the purchase has no weight. Moreover, if you make a habit of trying, you're likely to attract not just action by the consumer themselves but also the attention of regulators who may be considerably more powerful than any individual consumer.

Well, that's what the court case is about. I would certainly _like_ for the result of the case to be either Apple (Amazon, et al) stops using the word "Buy" in their apps, or better yet but even more unlikely, for the companies to start providing media as DRM-free downloads.

But like I said: the cynic in me says neither is going to happen.

There is zero chance of DRM free downloads. Literally zero.

In which context? Services like Qobuz and Bandcamp support DRM-free downloads for your purchases so it is definitely possible.

IMHO chances for DRM-free downloads from Apple are very very slim. But not zero.

> In which context?

In the context of "as a direct consequence of this lawsuit." Which, y'know, is pretty obvious from the parent comment it's a reply to?

Given downloads are possible even with DRM, that isn't even raised in the suit itself. The lawsuit hinges on the loss of availability of further streaming of the titles.

There is literally zero chance.

To be fair, it did happen with music. I think DRM-free movies are unlikely to happen, but I wouldn't put the odds at zero.

You can buy movies on Vimeo 100% DRM free. It’s the only place I buy them.

> And since it's in the agreement, it's binding

Not where I live. You can’t sign away rights given to you by law.

You are almost certainly correct. It is not right or fair but it is probably legally defensible.

In the US, without legislation we rely on the contracts we sign. When we sign contracts with trillion dollar companies we don’t get to negotiate.

(I think this issue is related to right to repair, which is continuing to gain steam and might be a good effort to join forces with.)

That's why we have laws about "contracts of adhesion" that limit the one-sided news of contracts. The law has a general protection against "unconscionable" contracts, to be decided by judge or jury.

Click wrapped Terms of Service like that need to be ruled as Unenforceable Unconscionable contracts as they are clearly soo one sided they can not be seen by any reasonable person to be enforceable

In an ideal world, the FTC and attorneys general around the US would hold Apple and Amazon accountable for screwing over consumers this blatantly if they did this.

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