Apple’s attorneys argue that the two plaintiffs in the case over iTunes DRM, who represent about eight million iPod owners, don’t have standing to sue Apple because they didn’t even own affected iPod models, according to a motion for dismissal filed Friday.
Apple asked Melanie Tucker to produce proof that she purchased iPods between 2006 and 2009, before Apple ended use of DRM in iTunes. Tucker and co-plaintiff Marianna Rosen claim Apple prevented songs from rival music services from playing on iPods with firmware updates in iTunes 7.0 and 7.4. Tucker’s attorneys confirmed that she didn’t purchase iPods covered within the class, and removed her from the plaintiff list.
Apple is also questioning whether Rosen’s iPods are included in the class, which covers iPods purchased between 12 September, 2006 and 31 March, 2009. Rosen testified in January 2007 that just one of her iPods was purchased during that timeframe, but according to Apple’s motion for dismissal, Rosen’s fifth-generation iPod classic didn’t contain the iPod firmware released with iTunes 7.0 or 7.4. During the trial that began last week, Rosen said she bought two other iPods that she didn’t mention during her original deposition, an iPod nano and iPod Touch purchased in 2007 and 2008, respectively. Rosen didn’t have receipts for those purchases, but Apple used the serial numbers to determine that Rosen didn’t buy those iPods – her husband’s law firm did.
It’s unclear why none of these details came to light previously, considering the case has been almost 10 years in the making, but the trial could come to a quick conclusion if the Rosen’s attorneys can’t offer proof that they have standing in the case.
“I am concerned that I don’t have a plaintiff,” Judge Yvonne Gonzales Rogers said in court, according to a New York Times report. “That’s a problem.”
Why this matters: Apple introduced DRM with iTunes 4.7 in spring 2004 to prevent RealNetworks’ Harmony technology from translating songs not purchased in iTunes into files that essentially mimicked Apple’s FairPlay DRM. Apple compared RealNetworks’ effort to tactics used by hackers to break into computers. Making other music services’ music incompatible with iPods was a security measure to prevent hacking, Apple argued at trial last week. The major record labels required Apple to use DRM, but that ended in 2009. But now the actual facts of the case might be moot. Instead of Apple having to prove FairPlay didn’t violate antitrust laws, the trial is now focused on whether the plaintiffs were even injured. Join me in a collective shaking of heads.