Smurfberry

The Smurfberry Problem

Stewart Griffin is 8 years old and loves the game Smurfs Village (made by Cap-com) which he plays on his mother Lois’s iPad (made by Apple). He asked his mother if he could buy some Smurfberries so he could expand his village. Thinking that this would be a $2 or $5 in-game purchase like some of the other items she’d bought Stewart in the past, Lois told Stewart her iTunes Store password (“stewie123”). But a wagon of smurfberries (the largest amount one can buy at once) costs $100, and in the next twelve days, Stewart bought $2700 worth of Smurfberries. Then Lois’s credit card bill came, and she took away the iPad and changed her password. It is undisputed that when Lois activated her account she tapped “I agree” to the iTunes Store terms and conditions, which include the statement: You are solely responsible for maintaining the confidentiality and security of your Account, and for all activities that occur on or through your Account, and you agree to immediately notify Apple of any security breach of your Account. Apple shall not be responsible for any losses arising out of the unauthorized use of your Account. Lois and Stewart have sued Apple and Capcom, seeking to void the Smurfberry sale. What result?

Lois will likely not succeed against Apple and Capcom because she explicitly agreed to the iTunes Store terms and conditions which included the statement that “You are solely responsible for maintaining the confidentiality and security of your Account.” Lois however, did not do this, but instead gave her password to Stewart. Although she may not have thought she was authorizing Stewart to purchase $2700 worth of Smurfberries, she still did by giving him her password. She also never told Stewart how much he was allowed to spend so she would not be able to argue that he exceeded his authority. Not to mention, who gives an 8 year old the ability to purchase anything on their own? Lois accepted the terms and conditions and therefore is bound to those. Additionally included in these terms is that “Apple shall not be responsible for any losses arising out of the unauthorized use of your Account.” Lois also agreed to be bound to this statement.