Legal actions against industry: Note: the decisions described hereunder are binding only for the actual parties of these concrete proceedings.


The Consumer Council of Norway has brought a complaint against iTunes for using unfair contract terms and conditions. The Consumer Council is arguing that the following terms are unfair: - Limitations on liability
- The application of English law
- The restriction of competition through both the terms and the DRM (Fairplay)
- The ability for iTunes to unilaterally change the terms and conditions
- Geographical discrimination

The complaint is brought before an administrative body, the Consumer Ombudsman, which can prohibit terms and conditions that are considered unfair on consumers.

For more information see http://forbrukerportalen.no/Artikler/2006/1138119849.71



Altroconsumo, the Italian member of BEUC, warned Sony BMG Music Entertainment against distributing and marketing any musical CDs in Italy containing “XCP DRM Software” Digital Rights Management systems, or any software resembling so-called “rootkit” software, which is invasive and hazardous to user computer systems. In September/November 2005, press reported that some Sony-BMG music CDs install secret rootkit software on consumers’ computers if they listen to a CD with the XCP software. The software, created by First 4 Internet and known as XCP2, seemingly "protects" the music from illegal copying. But in fact, it blocks a number of legal uses - like listening to songs on iPods. The software also makes it more susceptible to crashes and third-party attacks. And since the program is designed to hide itself, users may have trouble diagnosing the problem. It refuses to respect the consumers’ personal property rights.

The letter sent to Sony BMG is preliminary to a possible injunction against their behaviour which adversely affects consumer protection.


 Warning under the provisions of Article 140,
sub-paragraph 5, of the Consumer Protection Code, Legislative Decree no. 206/2005


Buyers who bought the CD from Liane Foly “Au fur et a mesure”, distributed by music publisher EMI Music France, found that the CD would not play on the CD player of their Peugeot
The reason was the technical anti-copy protection mechanisms in place. Several consumers turned to the French consumer organization CLCV (Association Consommation Logement et Cadre de vie) and complained. CLCV initialized a proceeding against EMI Music France. The Tribunal de Grande Instance de Nanterre found that the nature of a CD is that it can be listened to on all devices that are able to play CDs, including computers and car radios. The judges decided that not informing consumers about the fact that certain CDs cannot be played on some devices can result in fines or sanctions for the producers or distributors of such CDs, according French consumer protection law. The court imposed on EMI Music France a fine as well as the obligation to label its CDs in readable 2.5 mm characters: "Attention cannot be listened on all players or car radios".

What does it mean for consumers? Examine closely the CDs you buy. If the CD does not indicate that anti-copying protection measures are in place and that, as a consequence, the CD cannot be played on all players, consumer protection law applies, at least in France, but most likely also in other member states. If it is indicated on the CD that it has anti-copying mechanisms that restrict its usage and you buy that CD anyway, you will probably not be able to complain. Technological anti-copying measures that prevent a CD to be played on some devices affect the normal use of a CD. Producers of such CDs are obliged to label them accordingly in order to avoid misleading consumers about the performance of the CD.

Cour d’appel de Versailles, 1ère Chambre, 1ère section, 30 septembre 2004 EMI c/ CLCV – format pdf

Tribunal de grande instance de Nanterre, 6ème Chambre, Jugement du 24 juin 2003


Francoise M. bought a CD from the singer Alain Souchon “J’Veux du Live”, distributed by EMI Music, which would not play in the CD player in her Renault Clio because of technical anti-copying measures in place
The Tribunal de Grande Instance de Nanterre decided that a CD that could not be played on all CD players would restrict consumers using that CD in a way they use CDs normally. The court called this a “hidden flaw” (vice caché). It ordered EMI Music to return 9,30 Euros to Francoise M., the price that she paid for the CD.

What does it mean for consumers? If you buy a CD, and this CD cannot be played on all your CD players, go back to the shop and ask your money back. It is true that if a CD can be listened to on some devices but not on others, it affects the normal use of a CD. But act carefully, however. If it is indicated on the CD that it has anti-copying mechanisms that restrict its usage and you buy that CD anyway, you might be not able to complain successfully afterwards that you could not use the CD in that way.

Tribunal de Grande Instance de Nanterre 6ème chambre Jugement, 2 septembre 2003, Françoise M. c/ EMI France, Auchan France.


A consumer complained about not being able to play the CD “Après l’orage” from the group “Les Sages Poetes de la Rue” in the car CD player of a Peugeot
In this case, the Tribunal de Grande Instance de Paris was not convinced that technical protection measures in place were the reason why the CD could not be played in the Peugeot’s car radio. According to the court, a reason could also have been mistakes in handling the CD player. Moreover, the CD would play on other car radios. The applicant (the consumer organization representing the consumer) was not able to prove the intention to mislead consumers.

What does it mean for consumers? It is up to the consumer to prove that technological anti-copying measures are the reason that a CD does not play in a car CD player, and that mistakes in handling the car CD player itself are not the reason. It is also up to consumers to prove that the producer and distributor of the CD failed to point towards a possible un-playability of a CD in order to mislead the consumer.
In practice, this can mean that even where, in theory, the law may be on the side of consumers, enforcing the legal requirements in front of courts can fail for other reasons, for example, the failure to bring proof. Cases against CD producers or distributors therefore require careful preparation.


Tribunal de grande instance de Paris, 4ème chambre, 2ème section, Jugement du 2 octobre 2003, Association CLCV / BMG France


One of our UK member, Which?, has complained to the competition regulators because of very high prices charged to download music tracks in UK
In the UK iTunes charges consumers 79 pence (approximately 1,15 euro) to download one track. In both France and Germany the cost is just 99 euro cents, meaning UK consumers have to pay around 20% more for an identical service.
Which? wrote to the Office of Fair Trading (OFT) on 15th September 2004 to highlight the possible anti-competitive practice of the music download service, iTunes.

Read more : http://www.which.net/campaigns/other/competition/itunes.html


1. Mr Stéphane P. in France bought the DVD of Mulholland Drive. He realized later that technical protection prevented him from making a copy of this film for his parents
Together with the French consumer organization UFC-Que Choisir he started a proceeding against the producer and distributor of the DVD. The court of appeals decided that producers and distributors of DVDs are not entitled to prevent private copying. The court said that it is up to the legislator to formulate limitations to the private copying exception or the modalities of limiting the private copying exception, not to private parties. Moreover, consumers could reasonably expect to be able to make copies of a DVD that they buy, strictly for private use. The French court said that making a copy for one’s parents is private use.

What does it mean for consumers? In France, consumers can expect being able to make copies of a DVD for strictly private uses. In case technological protection measures prevent them from doing so, consumers can invoke the provisions of copyright law, as well as of general consumer protection law. Technological anti-copying measures may not block the possibility to make copies for strictly private use.

COUR D'APPEL de Paris, 4ème Chambre B, 22 avril 2005 (décision en format pdf)
TRIBUNAL DE GRANDE INSTANCE de Paris, 30 avril 2004 (décision en format pdf) Legal action against consumers:
1. Sylvia P. has to pay £4000 in compensation to the music industry after her daughter was caught illegally downloading songs by her favourite artists
The 14-year-old daughter had been using file-sharing to download 1400 songs for free. The British Phonographic industry which represents record companies has taken legal action against her. She said she did not know that it was wrong, and that everyone at her school does the same. Because of her daughter’s age, Mrs P. is legally responsible to pay any penalty. If she was not able to pay the amount after a few months, Mrs Price would have to face a civil action.