Una breve analisi delle condizioni di acquisto sul negozio online iTunes Store.
Parte prima: considerazioni preliminari .
La straordinaria velocità con la quale prodotti come l’iPod, l’iPhone ed, infine, l’iPad, tutti della società americana Apple, si sono diffusi anche tra un pubblico di utenti solitamente ‘profano’ di oggettistica e servizi tecnologicamente avanzati, distoglie spesso l’attenzione dalle reali condizioni di natura giuridica (determinate unilateralmente ed irrevocabilmente dal soggetto ‘professionista’) to which the user-consumer agrees.
As often happens, however, until all we say, 'smoothly', we tend to ignore these issues, but instead emerge when failures and / or delusions or other matters not referred to by the good faith of the consumer in general or waiver prior to challenge anything (' Oh well, I'll be more careful next time ' when the loss is limited to a few €), or, at best, no one knows what to do ... Write a mail? But to whom? Which language? Or go to a lawyer? But how much is it? Or go by association? Yes, but which one? And there's one in my city? But to do something, then ...?
In this brief analysis, we therefore will address some of the essential elements of the general conditions of sale and use of products and the Apple iTunes store, and specifically those that may regulate the procedures for protest and / or action against the parent, to emerge as the 'terms and conditions' force the iTunes Store (found on www.apple.com / legal / itunes / uk / terms.html ).
first element to consider: the 'jewels' electronic above (iPod, iPhone and iPad) can not be used without the software 'iTunes', which is free to download from the Apple website. However, to make operational the iTunes software (and therefore the products purchased), you must open an 'account' by providing their data, among which is the (necessary to make a purchase) the number of your credit card.
So, to use any 'gadget' for Apple, we will also need a cd 'Apple ID' (through which the U.S. plays its home market analysis, tracking your purchases and your preferences and video music, especially with the recent sub-programs of iTunes, 'Table' and 'Genius', but these are switched off) and, in case you want to shop, a credit card valid, on which will be charged automatically and instantly your purchases in-1-single-click.
Already these elements may pose some problems, of which suggest someone
1) If you do not agree to the terms of iTunes, I do Can I return my purchase and get my money (the initial withdrawal)?
2) If at some time, having initially accepted the terms of purchase of iTunes, this change (as they often do), in terms that no longer want to accept, what about my purchase (right of withdrawal meantime )?
3) If you no longer want to purchase applications through the iTunes service, I have alternatives?
Beyond the answers to these questions (apparently negative, except perhaps the last), is in any case already remarkable that these issues are not addressed in any way in 'terms and conditions' of the iTunes software, and are not explicitly communicated, let alone signed, first purchase of the 'jewels' of electronic Apple, which actually forces its users to accept its conditions or having to withdraw after only the purchase of their devices, and only imagine what difficulties!
perhaps remember something, it forced insertion of a software for the use of a technology product? A suggestion: perhaps the Cyber-War of the EU against Microsoft?
But these observations are even more meaningful, where it is considered that, according to the 'terms' in the iTunes Store, the service " is available for individuals aged 13 years . Why, one might say, what kid of 13 years own a credit card (please note: necessary to activate the service)? But iTunes specific, "s and you are aged 13 years or older but under 18, should review these conditions with the assistance of a parent or guardian to make sure that both you and your parent or guardian you understand these conditions. "
But even after the specification of contract the iTunes Store, the main problems remain unanswered, namely:
a) contract conditions of iTunes may, by express provision of American society, be accepted by a boy of 13 years or more, and not even / or by his parent or guardian, who should only be 'called' by the child in them;
b) iTunes does not carry out any checks on the fact that parents or guardians of the child are effectively informed that their cost (and you are so sure that a child under 13 years or so, I feel like such a compelling moral precept pregnant, where there as known?)
c) this same child may, indeed should , enter your credit card is certainly not his own, without iTunes checks that there is prior consent of its owner (parent or relative, or who knows).
Since, by express contractual provision, " this Agreement and your use of the Service shall be governed by Italian law " (p. 7 terms and conditions iTunes Store), you are sure that, where there you will need and willingness to go 'bottom' on these issues, the companies 'iTunes Sarl' potrebbe trovarsi in serie difficoltà nel difendere le proprie, originali 'condizioni' in rapporto alla nostra comune disciplina codicistica e consumeristica...
Altro elemento fondamentale: iTunes non è Apple. Si ricorda infatti che, a seconda della contestazione che si vorrà effettuare, bisognerà capire nei confronti di chi rivolgersi. ITunes è società diversa dalla Apple, con autonomo numero di registrazione (RCS Luxembourg B 101120) ed autonoma sede legale (8, rue Heinrich Heine, L-1720 Lussemburgo) dalla casa madre americana (in Italia: Apple Retail Italia S.r.l., iscritta al registro imprese con numero 0493 5230 963, con sede in Milano, Via Monte Napoleone n.2, da http://www.apple.com/legal/sales_policies/retail_it.html ).
Therefore, we will pay attention not only to Apple in Italy in case of physical defect or malfunction of the product purchased (computer, iPhone, etc..), But also in the case, immediately after the purchase, does not intend or We can not accept the terms of use of the iTunes software (and iTunes Store), a fact which makes it effectively useless purchase. In this aspect, moreover, could also be made co-responsible for the retailer (so-called 'liability of the seller', art. 130 Consumer Code), but this, in this case, it is likely to further study does not directly affect the purposes of this paper, focusing on the responsibilities attributed to Apple-iTunes.
In contrast, for all individual purchases of the product and subsequent activation of the account 'Apple ID', played online through the iTunes software (music files, apps, videos ...), we you will have to pay to the Company iTunes Sarl, based in Luxembourg.
In any case, the judge and / or the administrative authority (conciliation, for example) asked, is that of the domicile or residence of the consumer, even if the purchase is made on-line, in virtù degli artt. 33 - 63 D.Lgs. 206/2005 (Codice del Consumo).
[ fine prima parte - continua ]
Mr. Antonio M. Polito
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