Analysis A US district judge has dismissed a false advertising lawsuit against Apple that tried to take the iGiant to task for its bloated mobile operating system.
Three Apple customers sued the iPhone maker in California back in 2014 after their 16GB iPhone 5s and iPads lost a significant amount of internal storage space when they upgraded to the memory-hungry iOS 8.
Rather than have the 16GB that had been advertised, the bloatware meant that "anywhere from 18.1-23.1 per cent of this capacity (2.9-3.7 GB) was used by iOS 8 and not available to Plaintiffs for personal storage."
The trio – Paul Orshan, Christopher Endara, and David Henderson – claimed they would not have bought the 16GB-sized devices, or have been willing to pay the price they did for a 16GB iThing, if they had known they were getting such little space.
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While that may sound a little hokey, the lawsuit makes a stronger point: Apple benefits from giving consumers less storage than they advertise: by selling iCloud services that vary from 99 cents to $29.99 a month to store stuff in the cloud, rather than on a device.
Apple is "exploiting the discrepancy between represented and available capacity for its own gain by offering to sell, and by selling, cloud storage capacity," the lawsuit complained. Underpinning the claim was the fact that Apple prevented users from downgrading from iOS 8 to iOS 7 – a smaller operating system that uses less space.
Anyone with an iOS handheld will likely have some sympathy for their case: Apple's pushy updates are often ridiculously big, running to gigabytes, and take such a long time to download and install, that the company goes out its way to get gadgets to do it when their owners are sleeping.
Plus, Cupertino's idiot-tax is especially noticeable when it comes to storage. Right now, the new iPhone XS costs $999 for its 64GB version but upgrade to 256GB and it costs an extra $150; the 512GB version another $200 on top of that.
That is a huge markup given how cheap storage is. You can buy a 256GB flash drive for $50. Given Apple's enormous purchasing power, it is likely making something like a 600 per cent profit on its storage offering. Plus, of course, Apple refuses to add SD card slots to its iOS devices so there's no way to easy upgrade an iPhone or iPad's capacity once you've bought it.
The lawsuit calls this approach "sharp business tactics" where users are given "less storage capacity than advertised, only to offer to sell that capacity in a desperate moment, e.g., when a consumer is trying to record or take photos at a child or grandchild’s recital, basketball game or wedding."
Despite all this, however, the judge overseeing the case in San Jose, USA, dismissed the complaint [PDF] – and made no bones about it. District Judge Edward Davila said on Tuesday it was "absurd" to imagine that Apple customers would imagine no space was taken up by the operating system.
And he complained that despite giving the plaintiffs leave to file an amended complaint to deal with his previous concerns over the case, they had returned the same "verbatim allegations the court previously found were insufficient to state a plausible claim of fraud under any of the consumer protection statutes." If a judge tells you to amend, you amend.
For one, the judge pointed out, Apple makes it plain that the "actual formatted capacity" of its devices will be "less" than the stated capacity. And he called out their "mistaken expectations" that they would get more capacity that they actually got.
"This court already explained that these allegations do not allow Apple to pinpoint which of its representations (or materials containing omissions) gave rise to the alleged mistaken expectations which underlie Plaintiffs’ theory of deception - i.e., that Apple deceived Plaintiffs into thinking that iOS 8 would not consume as much storage capacity as it did," the judge ruled, adding: "Plaintiffs still fail to explain how much storage space they actually expected iOS 8 would use, the basis for this expectation, or how any of Apple’s alleged misrepresentations or omissions created this expectation."
Of course it's not just Apple that has large operating system requirements: Android phones do too, and laptops running macOS, Windows, Linux, BSD, etc, always lose a certain percentage of their storage holding and running them – space that often gets bigger over time.
Also, anytime you format a drive and slap a file system on it, its capacity will be less than the maximum capacity advertised.
The lawsuit pointed out, however, that Samsung, for example, provides a disclaimer on this very point. When it comes to the Galaxy S8 smartphone, Samsung warned: "User memory is less than the total memory due to the storage of the operating system and software used to operate the features. Actual user memory will vary depending on the operator and may change after software upgrades are performed."
The judge wasn't having this either, saying that the plaintiffs "fail to explain how Samsung’s representations about storage capacity in the Galaxy S8 smartphone could have reasonably influenced" their expectations of the iPhone's memory. And, he pointed out, they don't claim to have seen or relied on Samsung's disclaimer when making their iPhone/iPad choice.
And so Judge Davila dismissed the second amended complaint, and refused to let them revisit it again, and so killed off the whole thing.
But, of course, this does make one wonder: can there ever be an unreasonable level of storage take-up? According to this judge's theory, you get what you're given.
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Yet people do make careful decisions about what size of storage to buy, especially when it comes to iOS devices and their ridiculous flash chip markup. If the judge says 20 per cent is fine, does that mean 50 per cent is OK too? Where's the cut-off? If you bought a new iPhone and a subsequent update meant that you literally ran out of room on your phone and were forced to pay for additional storage, would that be OK as well?
It's worth noting that under pressure from consumers, Apple finally stopped offering new 32GB iPhones because they were simply too small to be effective as smartphones.
And of course, Apple does have a long history of taking liberties. There was the time it decided to force everyone to download a huge update just so it could test out its new file system without anyone knowing.
And then there was the time it purposefully screwed over customers who weren't using the latest iPhone and operating system because it didn't want to pay royalty payments to a company that had shown it was infringing their patents.
And, of course, there is that fact that Apple's operating systems have actually got unbearably big. The company just keeps piling code on top of code. Where iOS can be 3GB or larger, Android is typically under 1GB.
When you are charging premium prices for additional storage, pushing people to pay more for your cloud storage, and refusing to let users add their own storage, at what point is a tech giant like Apple responsible for keeping its bloatware down to a reasonable size?
Well, it's not today. And, of course, it can just keep bumping up the specs each time, effectively forcing old iPhone and iPad users to buy new versions every few years to keep their devices functional. And, like idiots, we all do it and even imagine that it's fine and just what happens.
But if Apple does want to claim some of its Jobsian heritage, perhaps it should consider what brought the entire biz back from the brink in the first place: Steve Jobs' insistence that the iPod would have massive amounts of storage at a time when Microsoft and others were trying to use incremental storage as a money maker. ®