Terms of Service

How we sued Apple Computer, and you can too

In 2018 and 2019, I wrote a couple pieces for the New Yorker about sound and music. Chatting with my editor, I mentioned that I’d just been to small claims court with Apple Computer, and won. He enjoyed the story and asked me to write it up; accepted it, copyedited it, and then I guess sent it up the ladder to legal or some other office at Condé Nast and… it was killed.

I didn’t think too much about it again, but this month Google asserted in court that YouTube’s terms of service allow it to mine music on the platform for use in AI models, and I remembered our experience with Apple. Maybe we can all take Google to small claims court?

Originally prepared for publication and killed by The New Yorker (March 2019)

Naomi (plaintiff) and Justin from the Genius Bar representing Apple Computer, Inc. (defendant)

Perhaps you have read the terms of service for one of the many digital subscriptions and memberships that we all manage these days? I know I haven’t. Even if you did find something objectionable in them, who is there to tell about it anyway? You would still be looking at the same two options, the only ones presented to us as digital consumers: accept or decline. And given the central role that some of these services play in our lives today, those buttons may as well read: accept a place in contemporary society or just try to hide. And so we click and click until one day, say last December, when you and your wife are looking at an unusually high credit card bill, you start to wonder: What is all this that we’ve “accepted”? And why is iTunes charging us $35.05 every month, since . . . oh my goodness, could it be last year, too? Where did we put those tax receipts? Which is how Naomi and I ended up, on Valentine’s Day morning, in small-claims court, suing the richest corporation in the world for $490.70, plus forty dollars in court costs.

The facts of the case, if you are willing to accept a summary from the plaintiff, are simple: one day back in June, 2017, Naomi wanted to read a Wall Street Journal article that was behind a paywall. So she took a free thirty-day-trial digital subscription, read the article, and promptly cancelled the account. Done and dusted. Meanwhile, some gremlin in those terms of service went to work. It seems that iTunes was in charge of billing that digital subscription to the Wall Street Journal. And, although Naomi told the Journal that she no longer wanted the service before the free trial was up, no one told iTunes. Indeed, no one even spoke to iTunes about it until eighteen months later, when, after scrutinizing our credit-card bill, we contacted their customer-service department to ask why we were being charged $35.05 every month.

They knew exactly why. And they were, in fact, quick to acknowledge the problem and refund the five most recent charges to our credit card. But iTunes refused to go any further back than that. What is the difference between a wrongful charge five months ago and six months ago? we asked. There was no reply. So we spent forty dollars more to file a claim for the balance they had charged us. We asked the Wall Street Journal’s customer-service department to provide written confirmation that Naomi had cancelled her subscription in July, 2017, and submitted that document with our claim.

A court date was set, and we assumed Apple would never show up to defend themselves. After all, they had already admitted that the charges were wrong and refunded us five months of them. But even more screamingly obvious: what is $490.70 to Apple Computer, Inc.? But then we started getting calls from Cupertino. First from a legal assistant asking to see the evidence that we had submitted to the court that proved we had cancelled the subscription. Why not get that from the court themselves? we asked. It doesn’t work like that in small claims, was the reply; they won’t show it to us until the hearing. If we share it with you now, could you settle the claim and save us all a trip to court? we asked. Not exactly, he said. So we didn’t.

Then one of Apple’s lawyers started to call. She left us multiple messages, and managed to reach each of us directly. Her request was the same: that we share the evidence we had filed with the court, in advance of the hearing. Again we asked if she could then save us all the trip to court, and again the answer was no. But, by now, what we really wanted to ask was: what makes $490.70 worth her billable hours? The last time Apple’s lawyer called was 4:30 P.M. the afternoon before our 8:30 A.M. hearing. At this point, we simply said, See you in court, all the while figuring that we wouldn’t — why would Apple bother to send a lawyer in person for this, on top of these phone calls? The result was the two of us sitting in Cambridge District Court on Valentine’s Day morning, waiting to have our case settled by default when Apple didn’t answer the roll call from the clerk. But someone did.

We turned to see who said “present” for the defense, and met the eyes of a friendly, bearded millennial dressed, not for court, but for his regular job: a “genius” at the Genius Bar, in the Apple Store at the CambridgeSide Mall. The legal clerk asked us if we would agree to arbitration. We said yes. “Sure!” said Apple’s representative. He smiled as we shook hands, and made friendly, Genius Bar-style small talk as we accompanied the mediators assigned to our case into a private conference room. This being Cambridge, three observers from Harvard Law School also joined. What followed was, I’m sure, the least contentious hearing those students will ever witness in their careers. We stated the facts of the case as we saw them. And Jordan — this was our Genius Bar friend’s name — agreed with them all. He said he had relatives who had faced the same problem, and that he was “happy” Apple had given him the chance to respond personally to our concern.

The mediators seemed nonplussed by this customer-service approach to litigation. “Are you saying Apple agrees to pay the full claim?” they asked Jordan. He said yes — even with the forty dollar court costs included. There’s just one thing, he said, pulling out a huge sheaf of printed paper. It was the iTunes terms of service we had undoubtedly agreed to, as you have too. “You see, technically . . .” he said, gesturing toward the papers, which we saw had certain paragraphs that were highlighted in yellow.

There was no need for Jordan to explain further. All of us in the room immediately understood that he meant that, technically, there was a massive contract there, with who knows what permissions granted to Apple — probably the right to charge us for a subscription we had cancelled eighteen months prior, or maybe even the right to make up a new subscription to a new service that didn’t exist and charge us for that too. Who knows? But Jordan was not there to be nitpicky about these highlighted terms of service. He magnanimously waved them away, and made Apple’s same request that they see the evidence we had given to the court, documenting our cancelled subscription from the Wall Street Journal (what was it about this piece of paper?). We gave him a copy, and he said Apple was satisfied and now willing to pay the full settlement, with the proviso that the case be settled “with prejudice.”

We looked helplessly at the mediators. “I didn’t know what it meant either, I had to Google it before coming here!” Jordan cheerfully volunteered. The mediators explained that “with prejudice,” in this legal context, means the agreement between us and Apple would be final. Translation: we can’t now hire a fancy-pants lawyer and sue them in a higher court for the same swindle. But you can! So check your active subscriptions on iTunes by using this link. If they aren’t legit, you know the drill. And say hi to Jordan from the Genius Bar for me, he’s a nice guy.

Listening to: The Ground Above by Beth Orton

Cooking: Rhubarb with vanilla and dried orange peel