The ISP America Online, now a division of the media giant AOL Time
Warner, says that millions of its subscribers have no right to
compensation for damages they suffered as a result of installing
AOL 5.0 software on their computers.
Consumers sued for damages because the software stopped them
connecting to the internet through ISP's other than AOL. They also
alleged that AOL 5.0 caused repeated system crashes and other
instability and operating problems.
In its reply brief filed with a US District Court in Miami on
Friday, AOL requested the Court throw out all of plaintiffs' claims
related to AOL 5.0. AOL claims subscribers have contracted away
their legal remedies. AOL argues consumers who installed AOL 5.0 on
their computers for a “free” trial are precluded from any relief
under AOL's terms and conditions.
AOL argues that their subscribers' “sole right and remedy with
respect to any dispute with AOL” is cancellation of their account.
AOL further argues under its terms and conditions, consumers “use
of... AOL software... is at the member's sole risk.”
Milberg Weiss, a US law firm representing consumers in their
class action, has pointed out that the terms and conditions do not
actually appear until after AOL 5.0 installs on the computer and
modifies the computer's systems and settings.
AOL also argues that consumers’ claims under the US federal
Computer Fraud and Abuse Act must also be dismissed because
subscribers purportedly “authorised” AOL's actions that damaged
subscribers' computers. AOL argues that a minimum of $5,000 in
damages must occur to an individual's computer before the CFAA
applies. Thus, AOL argues it cannot be held liable under the CFAA
even if AOL 5.0 caused $4,999 worth of damage to each computer of
its 27 million subscribers – or over $134 billion dollars in
damages.
These consolidated actions stem from over 40 cases filed in the
country by consumers and ISPs against AOL for damages caused by AOL
5.0. The consolidated complaint states AOL 5.0, distributed to
millions of consumers, deceptively was marketed as “risk free” and
“easy to use,” and as providing “superior benefits” when in fact
AOL 5.0 actually harmed computers by causing material instability
in consumers' computer systems and applications resulting in system
crashes.
The case also states that AOL 5.0 prevented consumers from
connecting to the internet via competing ISPs, disrupted consumer's
local area network connections, caused numerous confusing
instructions or messages to pop-up which also inhibited or
interfered with the use of alternative ISPs for accessing the
internet.
