Buds Off at 11

As some of you likely know – it’s hard to miss the news on the web – on Dec 30, 2009, the U.S. Court of Appeals for the Ninth Circuit affirmed the dismissal of the class action suit which alleged that Apple iPods were defective in the manner alleged in the action: that the “iPod is defective because it poses an unreasonable risk of noise induced hearing loss to its users.”

In substance, the complaint was that the iPod should have been designed with better upper volume control or limits and had better warnings for when one feels, as Nigel put it, the urge for the “push over the cliff “.

The alleged “unreasonable” risk occurs, apparently (and anecdotally) because most members of Homo sapiens sapiens who use the iPod need to put (and indeed do put) the earbuds in their own ears in order to listen to the iPod. I note, not quite parenthetically, that (anecdotally) most people do so voluntarily, albeit there is certainly anecdotal evidence of some doing so whilst under the influence of recreational substances.

To the financial regret of those behind the class action, the USCA held the fact that the iPod could have been designed to not play as loud wasn’t an actionable complaint sufficient under applicable laws.

[3] In the present case, the plaintiffs make no allegations of
any history of malfunction, but merely suggest possible
changes to the iPod which they believe would make the product
safer: (1) earbuds with noise-reduction features; (2) volume
control software; (3) more and different warnings printed
onto the actual iPod; and (4) a digital meter to display the output
volume in decibels. The plaintiffs fail to allege, however,
how the absence of their suggested changes caused any user
an injury. The plaintiffs do not allege the iPods failed to do
anything they were designed to do nor do they allege that
they, or any others, have suffered or are substantially certain
to suffer inevitable hearing loss or other injury from iPod use.

Birdsong et al. v. Apple Inc. U.S. Court of Appeals for the Ninth Circuit, No. 08-18841.


A cynic would, and others might, note that the alleged defect would have g0t somebody a whole lot of money and somebody else a shekel or two when the class action settled or succeeded. On the other hand, this being the first day of the penultimate year of the 1st decade of the 3rd millennium, I suppose I could be generous and assume the intent was eleemosynary.


  1. Catherine Roberts

    Actually, 2009 was the penultimate year of the first decade of the third millenium…
    Otherwise, great post.

  2. Oops. thanks. fixing …. fixed.