Judge Throws Out Lawsuit Against Apple Over ‘iBrick’

A California woman accused Apple (NSDQ: AAPL) last year of using an underhanded trick to force iPhone users to buy a newer model. This week she struck out in court after a federal judge concluded that Apple’s software upgrades are free and do not qualify as a sale.
Bianca Wofford of San Diego sued Apple last year after downloading the company’s iOS 4 operating system to her iPhone. She claimed that this software upgrade was actually a “downgrade” for her and others using the company’s older model 3G phone. In a colorful complaint, she accused Apple of deliberately turning consumers’ 3G iPhones into slow-running “iBricks” in order to induce them to buy the newer iPhone 4.
According to reports last year, Apple’s iOS 4 update in summer of 2010 created serious problems such as freezing and crashing for users of the older phones. In response, Steve Jobs himself promised to issue a fix that Apple released a few weeks later.
Not satisfied with this solution, Wofford went forward with a lawsuit seeking $5,000 for every iPhone 3G owner in California who had been affected by the upgrade.
In his order issued yesterday, Judge Anthony J. Battaglia ruled that the free software upgrade did not amount to a “sale or lease” under California’s Consumer Legal Remedy Act, and therefore the act did not apply:

Here, the Plaintiffs’ original purchase of the iPhone is a separate transaction from their free upgrade of the iPhone’s operating system, which occurred about a year later. The iPhone’s software upgrade was not intended to result in a “sale or lease” because it was provided free of charge.

The judge also found that software did not qualify as a “good or service” under the law, and that Wofford’s related claims for false advertising and deceptive business practices were not valid either.
He concluded that the claim should be dismissed but did allow Wofford thirty days to submit an amended complaint. This appears to be a long shot opportunity, however, because the judge also decided that Wofford was bound by a download license agreement and that any amended claim would have to be outside the scope of that contract.
The upshot is that the case is a clear win for Apple which earlier this week announced that it had settled another class action over fraying computer cables.
iBrick Order
var docstoc_docid=”102342098″;var docstoc_title=”iBrick Order”;var docstoc_urltitle=”iBrick Order”;