Judge in Apple Case Says Plaintiffs May Not Have Bought iPods--Update

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 [e-mail]

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