Apple's "buy" button that doesn't result in ownership may mislead consumers

Andino v. Apple, Inc., 2021 WL 1549667, No. 2:20-cv-01628-JAM-AC (E.D. Cal. Apr. 20, 2021)

iTunes allows consumers to “Rent” or “Buy” movies, television shows, music and other content. Renting is less expensive; buying leads the content to appear in a consumer’s “Purchased” folder.

Plaintiff alleged that this was deceptive, given that “Apple reserves the right to terminate the consumers’ access and use of content at any time, and in fact, has done so on numerous occasions.” He brought the usual California claims and the court declined to dismiss the claim in full.

Injury in fact: The issue was not whether he might one day lose the content in full, but whether he spent money he wouldn’t have spent on something he didn’t “own.” That was sufficiently alleged injury. Likewise, failure to rely on the “buy” representation in the future was continuing threatened injury for injunctive relief.

The court also agreed—consistent with the persuasive article by Aaron Perzanowski and Chris Hoofnagle—that “buy” was plausibly deceptive. It commonly means to acquire possession. “It seems plausible, at least at the motion to dismiss stage, that reasonable consumers would expect their access couldn’t be revoked.” Apple also argued that, because a user could download purchased content for full and irrevocable access, the “Buy” and “Purchased” language was accurate. That was a factual dispute inappropriate at the motion to dismiss stage.

While Sonner directed the dismissal of CLRA etc. claims for equitable relief, money damages weren’t an adequate remedy for future harm, so the inunctive relief claim survived.