ITunes Antitrust Case in Jury’s Hands At Last


     OAKLAND, Calif. (CN) – It’s now up to a jury to decide whether Apple created a music-player monopoly that allowed the company to overcharge iPod buyers by $350 million.
     Attorneys gave closing arguments Monday afternoon, the final day of a two-week trial over whether Apple iTunes updates between 2006 and 2009 kept iPods from playing music purchased from competing music stores. Attorneys for consumers say the updates kept users locked in to using Apple products, allowing the company to sell iPods for inflated prices.
     The decade-old case has gone through a number of twists since beginning on Dec. 4.
     In the middle of the trial, the two class representatives who brought the suit were dismissed because they did not purchase iPods during the class period.
     Class attorneys substituted a new class representative, Barbara Bennett, last week. She represents an estimated eight million consumers and 500 businesses.
     In another shift, U.S. District Judge Yvonne Gonzalez Rogers instructed jurors this afternoon to focus on only one software update to iTunes, iTunes 7.0. Initially, the case revolved around both the 7.0 and 7.4 software updates.
     Nevertheless, the heart of the case remains the same – jurors must determine whether the update in question was a “genuine product improvement.”
     Rogers reminded jurors that under antitrust law a “genuine product improvement” cannot be considered anticompetitive, regardless of its impact on a competitor.
     “A company has no general legal duty to assist its competitors, including by making products interoperable, licensing to competitors, or sharing information,” Rogers told the jury.
     Much of the case centers around a program called Harmony, which allowed songs purchased from the RealPlayer Music Store – an Apple competitor – to be played on iPods by bypassing Apple’s music protection code. Updates to iTunes later made it impossible for those songs to work on iPods.
     In closing arguments, Apple attorney William Isaacson, of the firm Boies, Schiller & Flexner, maintained that iTunes 7.0 was the single most significant update since iTunes launched in 2001. It included a variety of features including a cover-art gallery and the ability to play movies, as well as sorely needed security upgrades, he said.
     But class attorney Patrick Coughlin, of Robbins Geller Rudman & Dowd, used an analogy to remind jurors the real issue rests in coding that prevented access to music from third parties.
     “If a Snickers bar came out and it had more chocolate would it be better? Naturally you’d say ‘yes.’ But if that Snickers bar had a preservative in it that was toxic, that would not be an improved Snickers bar,” Coughlin said.
     Isaacson countered that there is no evidence that Harmony users ever complained about how songs interacted with the iPod.
     “This is all made up at this point,” the Apple attorney said. “It’s lawyer argument, that’s what it is.”

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