Norway declares iTunes Illegal

January 25th, 2007
by Craig Childs

In a bold move against iTunes’ DRM, called Fairplay, the Norwegian Consumer Council has deemed it illegal in Norway, with France and Germany possibly following suit.

Norway isn’t happy with Apple’s DRM technology that restricts play of files downloaded from it’s iTunes Store to only iPods [when away from the computer]. Because other portable players are not allowed to play the files, Norwegian Consumer Ombudsman Bjørn Erik Thon has declared Apple’s Fairplay technology is anything but.

“I understand that a company feels the need to protect its products from piracy,” said Thon in 2006. “However, this should not negatively affect customers who through lawful means have obtained downloaded files. Today, iTunes´ use of DRM-technology renders the customers without rights in dealing with a company which on a whim can dictate what kind of access customers will have to products they have already paid for.”

The main complaints of iTunes’ software license agreement [EULA], in regards to Norwegian law, are as follows:

• Scandinavian law requires any written agreement to favor both parties. The weak party also enjoys protection from exploitation according to Norwegian consumer laws. Itunes’ EULA is unbalanced in this regard.

• Fairplay limits the number of devices purchased songs can be played on.

• iTunes’ contract entitles the company to at any time change the terms of the contract without notice, including the selection of players or software that must be used for iTunes files, and also the number of times a customer can change or copy already purchased files. Although this is considers standard practice for EULAs, Norway doesn’t agree with it.

• The EULA is both vague and hard to understand for the customers.

• The EULA states that the legal relationship between the company and customers is regulated by English contract law. It is unreasonable to expect Norwegian consumers to have comprehensive knowledge of English law. Products marketed to Norwegian consumers in Norway are subject to Norwegian law—a right that cannot be waived by a clause in a company’s standard customer contract.

• The EULA removes iTunes’ responsibility regarding damage to the consumers computer due to software errors even though responsibility cannot be waived in Scandinavian Law. (Again, this is standard practice in many EULAs.) [Src: Wikipedia]

The Norwegian Consumer Council is giving Apple until October 1st to alter Fairplay and the allowed use of iTunes Store files, or pay fines and close iTunes in Norway. Sweden and Finland are also behind the decision, but are yet to take any action.
Torgeir Waterhouse, senior adviser to the Norwegian Consumer Council, said, “We are satisfied the Federation of German Consumer Organisations and the French UFC Que Choisir are addressing this important issue. It means that iTunes is now being told by more than 100m European consumers to offer them a fair deal.”

Like Brussels’ suit against Microsoft in 2004, the support from the rest of Europe might be too little to sway Apple. Unlike the case against Microsoft, Apple face accusations of directly forcing iTunes shoppers to use an iPod, whereas Microsoft were only really suggesting use of their Windows Media Player.

If the whole of Europe gets on board, Apple may be forced to switch up their game plan. However, iTunes Store sales don’t count for a large enough percentage of the consumer market to garner more countries’ support.

As long as there are competitive and successful alternatives to buying music online, Apple will be allowed to continue use of Fairplay.