Imagine buying a 1,200 square foot apartment.  There’s a kitchen, 2 lovely bathrooms, two bedrooms with closets, a living room, a family room, and even a small den.

But after you buy the apartment, you whip out a tape measure, and after a few calculations, you find that there are only 980 square feet of space.  You might feel — shortchanged.

Now you buy a brand new iPhone 6.  The manager asks if you want the 16, 32, 64 Gigabyte or other capacity phone.  But these capacities are not available to the consumer.

According to a recent class action lawsuit filed against Apple, Apple’s iOS8 reserves a sizeable portion of what it advertises as storage capacity for the operating system itself.  So your 16 Gb iPhone 6+ has only 11.8 Gb available.  A full 20% of your “storage” capacity is simply not available.  That’s a bit more than 1,500 high resolution pictures you can’t store.

Just as with the case of the apartment, Apple will undoubtedly respond that nobody actually believes that a 16 Gb phone has 16 Gb of storage.  What with plumbing, and closets, and stairways, and soffits, the true “living space” is much less.

In the “real” world, courts are mixed about such puffery.  In Carter v. Gugliuzzi, 716 A. 2d 17 – VT: Supreme Court 1998 the Court rejected a claim that a sale of a house marketing 1880 square feet above grade was deceptive because a den and bathroom were unheated even though the parties generally agreed that square footage represents the amount of finished living space. The court found that the unheated rooms were “livable,” if “chilly,” and that the 1880 measurement was accurate.

In John v. Robbins, 764 F. Supp. 379 – Dist. Court, MD North Carolina 1991 a listing agent advertised a residence with the Merrill Lynch multiple listing service. It e stated that there was 4,847 heated square feet, when the home in fact contained only 4,212 heated square feet, The listing agent argued that square footage was not material to Plaintiffs at the relevant time, and their failure to disclose the house contained only 4,212 square feet did meet the element of materiality necessary to state fraud.  The Court disagreed finding that a purchaser of a home advertised to have more than 4800 square feet of living space would be defrauded if the home had a fraction of that space.

This has been the general trend in real estate transactions.  In Duncan v. The McCaffrey Group, Inc., 200 Cal. App. 4th 346 – Cal: Court of Appeal, 5th Appellate Dist. 2011, the Court dismissed a claim that purchasers paid a premium price for their lots because the Development was marketed as one that would be limited to custom homes with at least 2,700 square feet of living space when the lots had much smaller square footage, because the plaintiffs couldn’t show evidence of the initial representation.

In Suzuki v. HITACHI GLOBAL STORAGE TECHNOLOGIES, INC., Dist. Court, ND California 2010 a class action settlement was approved as a result of Hitachi’s use of a decimal description of its hard drive storage capacity which it was alleged was designed to deceive people into believing that the hard drives could store more data than they actually could.

Similarly, in VROEGH v. Eastman Kodak Company, Cal: Court of Appeal, 1st Appellate Dist., 5th Div. 2007 the Court considered a class action lawsuit against Kodak alleging that manufacturers of l flash memory devices represented that each had a storage capacity measured in megabytes or gigabytes.

Using a decimal definition of the words megabyte and gigabyte under which a megabyte equals 1 million bytes and a gigabyte equals 1 billion bytes. The plaintiffs used a binary definition under which a megabyte equals 1,048,576 bytes, and a gigabyte equals 1,073,741,824 bytes. This difference resulted in a dispute over whether defendants overstated the capacity of their flash memory devices by 4 percent.   The parties similarly settled the case.

In the Apple case, the issue is not whether the phones had 16 Gb of binary or decimal storage.  It goes to the meaning of storage itself.  Can you “store” things in a part of the memory that is inaccessible to the user?  And does this really matter to the user?

It’s like the Subway “foot long” sub that was 11 inches long.   Where I come from, a foot isn’t 11 inches.  And that fact is material.

Piece of advice.  Tell people what they are getting and deliver it.  That’s not so hard, is it?

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