AOL says subscribers have no right to damages for software problems

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.