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Monday, April 14, 2008



I actually think that Professor Sebok's hypothetical is a poor one, and I have some personal experience with the situation he describes. I once bought a software program that said it was Macintosh compatible on the box, and it turned out not to be. I ended up giving it to my brother, who had a Windows machine, and he was completely happy with it, while I was highly disappointed.

The bottom line is that in the software market, buyers really only care whether the software is compatible with the machine they plan to us it on (and/or on an upgraded machine they plan to purchase in the future). A Macintosh user doesn't care about Windows compatibility and vice versa, and a Windows XP user doesn't care about Windows 2000 compatibility. I do see this as a "material variation" in the expectations and reliance of different buyers.

And in general, for any product, unless there is a significant secondary/used-product market, I don't think that buyers would put value on functionality they never intend to use.

That being said, I agree that the test in this case is not an end to consumer class actions. What it may well portend though is smaller classes and/or more use of subclasses. In the example from my own personal experience, I think a class of purchasers of the software who also owned Macintosh computers would probably be proper, but I don't see how owners of Windows machines would be similarly situated.

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