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10-year-long lawsuit between Apple and Real in which the latter accuses the iPhone maker of deliberately altering its software solely to
block Real's hack of Apple's FairPlay DRM software might be terminated over a
previously-undiscovered legal issue found by Apple attorneys. Apple has informed the court that neither of the two women who represent the class of affected plaintiffs were, in fact, affected by the accused software change -- as they bought their iPods either before or after the software in question was in force.
As stipulated by the plaintiffs, the software that is accused of being designed solely to lock out competitors from having third-party DRM'd song files work with the iPod only affected consumers and businesses that bought certain iPod models between September 12, 2006 and March 31, 2009 -- the latter some
two years after Apple first started removing the DRM locks from its iTunes music files.
Although the only reason digital rights management "locks" were ever put on iTunes Store files in the first place was because the record companies insisted, Real has claimed for years that after it reverse-engineered Apple's FairPlay system to allow its own DRM music files to work on the iPod, Apple changed its software specifically to "break" the Real-purchased songs, and lock out competitors so that it could sell the iPod for higher prices.
Apple has said that updated its iPod software solely to protect it
from threats such as the flaw that Real found to "hack" its own solution. The same flaw Real used might also have been leveraged by malware makers, it said, and also endangered its contract with music labels, requiring Apple to fend off what it saw as an "attack" on the software.
New evidence presented to the court on Thursday has revealed that neither of the two plaintiffs representing the class in this case bought their iPods during the timeframe that the restrictive software was in place. After checking the serial number of one iPod put into evidence on Thursday, Apple discovered that plaintiff Marianna Rosen's three iPods were purchased in July 2009, well after the cutoff timeframe.
Rose bought a 15GB iPod and a 30GB Video iPod for herself, along with an iPod mini as a gift for someone else. The other plaintiff, Melanie Tucker, bought an iPod touch in 2010, and a 20GB iPod in 2005 -- but that model is before Apple instituted the iTunes Store and thus not qualified. She also claims to have bought a Video iPod, but it appears that her unit never had the software in question on it.
If both plaintiffs are excluded from the case, the judge may have no choice but to dismiss the long-running matter. "I am concerned that I don't have a plaintiff," Judge Gonzales Rogers said in response to Apple's filing. "That's a problem." The judge appeared unhappy at the eleventh-hour snag may undo the decade-long case, and the work that has been put into the trial, which concluded its third full day on Thursday.
Apple attorney William Isaacson said he has asked the plaintiffs for proof that they owned an iPod covered by the case. Defense attorney Bonny Sweeney conceded that the women's iPods might not be covered, but told the judge that some eight million potential other buyers are still out there. Isaacson argued that the case could not proceed without named plaintiffs.
The judge has said that she is not yet ready to decide on the fate of the case without further briefing, but indicated she will not leave the matter unresolved for long. She told both sides to file written arguments on whether the trial should even proceed, and said she would investigate the matter personally.
Real is asking for $350 million damages, but the potential award could conceivably be tripled if the judge ruled that Apple violated federal antitrust law. If the evidence uncovered by Apple's attorneys cannot be contradicted, the judge will have little choice but to dismiss.
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