By Jeff Elder
A federal judge Thursday questioned whether any of the
plaintiffs in a long-running antitrust suit against Apple Inc. had
actually bought the iPods at issue in the case.
"What am I supposed to do if I don't have a plaintiff?" asked a
concerned U.S. District Judge Yvonne Gonzalez Rogers after the jury
left the courtroom at the end of Thursday's proceedings.
Judge Rogers said that in a letter submitted to her late
Wednesday night, Apple's lawyers said there is no evidence that the
plaintiffs' two class representatives purchased the models of iPods
focused on in the trial.
Judge Rogers' comments raised the prospect that the 10-year-old
case, in which the plaintiffs are seeking $350 million in damages,
could end quickly in Apple's favor.
"I am concerned that I don't have a plaintiff," Judge Rogers
told a stunned gallery. "That is a problem."
The judge urged attorneys to submit filings suggesting next
moves. "I'm not interested in waiting," Judge Rogers said.
Plaintiffs claim that Apple acted illegally by suppressing other
music services and players in the previous decade. Testimony
Wednesday revealed that from 2007 to 2009 Apple deleted music on
some users' iPods, if it had been downloaded from other
services.
Earlier Thursday, testimony focused on how Apple co-founder
Steve Jobs and other executives defined their territory in a new
kind of music market.
"We are mighty upset," Jobs wrote in 2004 to a music label that
praised an iTunes competitor, in an email presented Thursday. In
another, Mr. Jobs wrote that "we need to take a bright, hard line
on theft," referring to a file-sharing service.
Two longtime Apple executives, software chief Eddy Cue and
marketing chief Phillip Schiller, also testified.
Apple argues that the company couldn't work with rival music
players, such as Realplayer, for security reasons. "We were getting
trounced," Mr. Cue testified, "by this constant hacking."
Mr. Cue said, "Steve (Jobs) was mighty upset" with Apple
executives "whenever we got hacked."
The plaintiffs argue that Apple chose to make iPods not operate
with other companies' products, and that this drove up the cost of
the devices.
Thursday's testimony also revealed how Apple and Microsoft Corp.
wrangled for control of the digital-music market. "They can't beat
us on product, so they're trying to shift the battleground to
'strategy,'" Mr. Jobs wrote of Microsoft in a 2004 email about
mobile-music players.
Universal Music executive Amanda Marks told the court that
trying to work with both Apple and Microsoft in the new digital
music field was "like getting two porcupines to dance
together."
Mr. Cue drew laughs from the gallery when computer monitors in
the court failed and he quipped, "I was hoping it wasn't just
Windows."
If the case continues, a videotaped 2011 deposition of Mr. Jobs
is expected to be played Friday. Testimony was expected to last
another week.
Write to Jeff Elder at jeff.elder@wsj.com
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