Court: iPod hearing loss your fault, not Apple's

'What? What??'

A US court has turned back an appeal of a 2008 ruling that declared that if you blow out your ears by listening to your iPod too loudly, it's your own damn fault.

In a victory for common sense and personal responsibility, the court sided with the iPod manufacturer in the case of Birdsong v. Apple, Inc, originally filed in the Western District of Louisiana by one Joseph Birdsong, who was later joined by Californian Bruce Waggoner.

Both plaintiffs sought to elevate the case to nationwide class-action status. Instead, the US District Court of Northern California, to which the case had been transferred, dismissed their complaint. Birdsong and Waggoner appealed.

In Wednesday's ruling (PDF), Judge David R. Thompson of the Ninth Circuit notes that: "The plaintiffs argue the district court erred... They alleged that the iPod (1) comes with 'stock ear buds...designed to be placed deep into the ear canal rather than over the ears, which increases the danger of hearing damage,' (2) lacks 'noise isolating or cancelling properties,' and (3) lacks any volume meter."

Ignoring the mischaracterization of iPod earbuds as being "designed to be placed deep into the ear canal," Judge Thompson's ruling gets right to the point: "The district court did not err."

Thompson's reasoning is straightforward: "The plaintiffs recognize that iPods play music, have an adjustable volume, and transmit sound through earbuds," he writes, adding that their complaint states that - and the italics are Judge Thompson's: "(1) the iPod is capable of playing 115 decibels of sound; (2) consumers may listen at unsafe levels; and (3) iPod batteries can last 12 to 14 hours and are rechargeable, giving users the opportunity to listen for long periods of time."

Summing up his argument, Thompson writes: "Taken as true, such statements suggest only that users have the option of using an iPod in a risky manner..."

In other words, the law isn't responsible for stopping an idiot from being an idiot.

Thompson goes on to write that "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," such as noise-reducing earbuds, warnings beyond the Apple's existing 60-word Avoid Hearing Damage tips, a digital decibel meter, and "volume-control software" - whatever that might entail.

"The plaintiffs fail to allege, however, how the absence of their suggested changes caused any user an injury," Thompson writes,

In fact, he writes, the plaintiffs didn't even claim to have been injured, nor did they cite any injuries to other. "The plaintiffs simply do not plead facts showing that hearing loss from iPod use is actual or imminent."

Judge Thompson's ruling is akin to the commonsense understanding that if you put your hand down a garbage disposal, then turn it on, you can't blame the disposal's manufacturer if your new nickname is "Stumpy" - especially if that manufacturer had warned you not to be such a thorough chowderhead.

Apple is off the hook, and the nanny state takes one in the teeth thanks to the levelheadedness of one Northern California judge.



source:http://www.theregister.co.uk/2009/12/30/ipod_hearing_loss_appeal/