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iTunes’ questionable terms and conditions

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If you buy music from iTunes, iTunes can without further ado change your rights to the music you have already bought. This is one of the reasons that the Consumer Council of Norway is now lodging a complaint against iTunes with the Consumer Ombudsman for breach of the Marketing Control Act.

The Consumer Council sees iTunes’ terms and conditions as an example of a general trend which is increasingly restricting consumer rights.

Apple-owned iTunes Music Store is the biggest player in the music download market. Music bought from iTunes can only be used on iPod MP3 players.

Unreasonable terms and conditions

In order to start using iTunes, consumers must agree to a number of terms and conditions. When the Consumer Council investigated these terms and conditions, it found a number of questionable clauses.

“iTunes’ terms and conditions are unreasonable. We are now therefore asking the Consumer Ombudsman to use Section 9a of the Marketing Control Act to have the terms changed,” says Senior Adviser Torgeir Waterhouse.

“iTunes is able to alter your rights to music that you have already bought. This is breach of fundamental principles of contract law. iTunes also blocks consumers from breaking the copy protection, or DRM, if they want to use other MP3 players than Apple’s iPod. This is a clear breach of the Copyright Act,” says Waterhouse.

iTunes is also breaking the Cooling-off Period Act by failing to provide information that consumers are entitled to when shopping on the Internet. On account of this, consumers are entitled to a cooling-off period when they download files from iTunes.

The Consumer Council feels that in general the terms and conditions are unbalanced and one-sided.

“Consumers are given few or no rights, whilst the vendor, iTunes, reserves a number of rights, some of which are unreasonable,” says Waterhouse.

English law

iTunes Europe is located in Luxembourg and is, according to the terms and conditions, subject to English law. The Consumer Council of Norway is in complete disagreement with this.

“iTunes.no can only be used by Norwegian consumers. The domain name and language are Norwegian, and prices are stated in Norwegian kroner. All of these factors indicate that iTunes may be subject to Norwegian consumer protection legislation, and that the service may be governed by the Norwegian Marketing Control Act,” says Waterhouse.

It is on the basis of this that the Consumer Council is now asking the Consumer Ombudsman to investigate iTunes’ terms and conditions.

Entitlement to compensation

iTunes’ terms also restrict consumers’ entitlement to compensation. The Terms of Service state that:

Apple does not represent or guarantee that the service will be free from loss, corruption, attack, viruses, interference, hacking, or other security intrusion, and apple disclaims any liability relating thereto. You shall be responsible for backing up your own system.

“Consumers are barred from lodging compensation claims if iTunes’ software creates security holes that can be exploited by computer viruses. This is a very real issue, which was most recently highlighted by the case of Sony BMG’s latest DRM, XCP,” says Waterhouse.

This kind of limitation on iTunes’ liability for compensation is in breach of the general principles of contract law, and the Consumer Council of Norway believes that it is unreasonable.

Not just iTunes

Many other music download services operate with similar terms and conditions. “CDON.com, prefueled.com and MSN.no are examples of other affected services. We are therefore asking the Consumer Ombudsman to investigate the terms and conditions of these download services,” says Torgeir Waterhouse.

Digital rights under pressure

The Consumer Council will be watching the trends in the download market carefully.

“We must work to make the balance of power between the industry and the consumers more equitable,” says Waterhouse.

It will be equally important to work towards the use of open standards for all interfaces between consumers and information technology.

“Consumers must be free to choose the equipment and software they want to use. Access to content should not be limited by accidental choices of technology. If your next MP3 player is not an iPod, you will be unable to play the music you bought from iTunes,” says Waterhouse.

Contact:

Torgeir Waterhouse

+47 41612096

torgeir.waterhouse@forbrukerradet.no

Sist oppdatert: 06.06.06 15:57

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