Class Action Lawsuit Over Apple DRM Stumbles Because Plaintiffs Aren't Actually In The Class

Legal Issues

from the you-had-one-job... dept

Fri, Dec 5th 2014 1:33pm — Mike Masnick

We've written a few times about the long-running class action lawsuit against Apple alleging that its use of DRM on music (the "FairPlay" system) violated antitrust laws by locking users into Apple's platform. The case is interesting on a few different levels -- including the question of whether or not DRM could lead to antitrust violations (very interesting...) and showing how quickly the technology world changes (music DRM is basically long gone). However, with the trial being held this week, a new stumbling block arose late in the game. Apple lawyers have pointed out to the judge in the case, Yvonne Gonzalez Rogers, that neither of the two women named as plaintiffs actually qualify to be in the class.

As you might imagine, that makes for a difficult class action lawsuit, when you don't have any actual plaintiffs.

Specifically, after testimony this week, Apple realized that the iPod that one of the plaintiffs owned was purchased outside of the period of time covered by the class action lawsuit. Apple stopped using Fairplay in March 2009, so the class action lawsuit only applies to iPods bought between September 2006 and March 2009. That's a problem when the main plaintiff actually bought hers in... July 2009.

After plaintiff Marianna Rosen testified on Wednesday, Apple attorneys said they checked the serial number on her iPod Touch and found it was purchased in July 2009. In a letter sent to the court late Wednesday night, Apple lawyer William Isaacson said it appears the other plaintiff, Melanie Wilson, bought iPods outside the relevant time frame or, in one instance, purchased a model that didn't have the specific version of software at issue in the case.

Isaacson, who suggested the lawsuit can't proceed without a plaintiff, said he's asked for proof that either woman had purchased an iPod covered by the case. Plaintiffs' attorney Bonny Sweeney said her side is checking for other receipts. She conceded that Wilson's iPods may not be covered, but she also noted that an estimated 8 million consumers are believed to have been purchased the affected iPods.

In other words, the class action lawyers are admitting that they may not have a plaintiff, but say it doesn't matter because they can find another one without too much trouble.

And of course, this just reinforces what a total scam so many class action lawsuits are. We've written about this for years. While the basic idea may seem sound, the reality is that most class action lawsuits are just about ways for class action lawyers to get super wealthy. They seek out anything they can sue over, find a stand-in plaintiff whose only job is basically to be the name on the lawsuit, and then when the final payout comes, the lawyers take a huge chunk, the stand-in plaintiff gets a small amount, and the rest of the class splits a further tiny amount. It's not about righting wrongs. It's about enriching class action lawyers. The very fact that the lawyers in this case admit that they can toss out their plaintiffs and bring in others seems to highlight what a total joke this whole thing is.

Still, someone really, really, screwed up on the lawyers' side. How the hell do you set up a class action lawsuit without first confirming that your plaintiff is in the class? That seems like a total and complete fuck up.

Thankfully, Judge Rogers seems to recognize that this is not a good situation:

"I am concerned that I don't have a plaintiff. That's a problem," the judge said in court Thursday afternoon at the end of the trial's third day of testimony in Oakland.

As interested as I am in the idea that DRM might be anticompetitive, I'm still troubled by the abuse of class action lawsuits (and related antitrust efforts in general as well). This particular case just seems like a total mess.

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Filed Under: antitrust, class, class action, class action lawsuits, class action lawyers, competition, drm, plaintiffs
Companies: apple

21 Comments

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Anonymous Coward, 5 Dec 2014 @ 1:41pm

Class Action Trolls
So is this just another form of NPE? Instead of Non-Practicing Entity we have a No Plaintiff Esquire.
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Mason Wheeler (profile), 5 Dec 2014 @ 1:51pm

The lesser of two evils
As bad as class-action lawsuits may be sometimes, what's the alternative? Make every individual person who was wronged by a giant country with a legal budget a few orders of magnitude larger than the victim's entire salary take them on alone?
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Mason Wheeler (profile), 5 Dec 2014 @ 1:51pm

Re: The lesser of two evils
Argh. Giant *company* even.

Once more, why oh why do we not have an Edit function for comments?
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Roger Strong (profile), 5 Dec 2014 @ 1:53pm

It's Tradition
This is STILL a step up from the iPod scratch lawsuit, where the class action lawyers filed on behalf of a "plaintiff" against his will, without authorization, then sued him and filed an Anti-SLAPP motion against him when he refused to take part.

Slashdot: iPod Lawsuit Lawyers Sue Their Own Plaintiff?
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Dismembered3po (profile), 5 Dec 2014 @ 1:56pm

Apple checked...
Um...they checked the serial and it wasn't purchased until...

Wait a minute.

Apple would not have been able to track the serial between the time it left to go to the retailer until the user registered it to iTunes. I mean, the UPC they scanned at Best Buy didn't communicate the serial at time of sale, right?
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elemecca (profile), 5 Dec 2014 @ 2:05pm

Re: Apple checked...
I assume that what they actually checked was the date of manufacture or the date the lot was shipped to the retailer. If either of those is after the cutoff their point stands.
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Anonymous Coward, 5 Dec 2014 @ 2:14pm

Only encryption-based DRM is gone. Scribbling identifying purchaser information all over both music and ebook files IS a form of DRM and is just short of universal in downloaded music sales.
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Anonymous Coward, 5 Dec 2014 @ 2:18pm

Um... I see another problem here
Aren't the plaintiffs supposed to swear under penalty of perjury that they were harmed by the inclusion of FairPlay DRM?

Shouldn't they have already done so prior to giving their statements? Doesn't Apple's response mean there's no possible way they could actually have been harmed?

The only thing I can envision here is that the plaintiffs bought music on iTMS that they only played on their computer, and then later bought iPods (because other music players wouldn't play the music?) not realizing that their older purchased music could have the DRM removed and would work fine in any music player now.

Then there's the fact that there has always been a legal way to strip FairPlay DRM from iTunes tracks from within iTunes, making the entire argument moot. Apple even had it documented in the Support portion of their website at the time, which back then was a pretty gutsy move (on the same level as their original iTunes "Rip Mix Burn" campaign).
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Anonymous Coward, 5 Dec 2014 @ 2:30pm

Re:
This is a good point -- Digital Rights Management is still going strong; it's just the part where you end up with a worthless product if the supplier goes out of business or changes their business model or expires your purchases that's slowly faded away.

If you buy music from iTunes Store today, it has all sorts of metadata stuffed into the files that links the purchase directly to you. It's possible to remove this data, but this also removes all the tie-ins with iCloud, Match, and media management. Of course, it's also possible to keep this data and play the music in an unauthorized manner -- but it's simple enough for such uses to make their way back to Apple if they're flagrant enough.

All this to say that DRM isn't really evil -- it's all in how it is implemented and to what/whose purpose (I actually like being able to see where all my music came from and whether I have it properly licensed -- to manage my digital rights).
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Anonymous Coward, 5 Dec 2014 @ 2:34pm

...someone really, really, screwed up on the lawyers' side.
Walking into court with your fly unzipped is a screw-up.
Saying "My dog ate the depo" is a screw-up.
Having a judge say "I am concerned that I don't have a plaintiff. That's a problem." after 3 days of testimony is an Extinction Level Event.
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James Burkhardt (profile), 5 Dec 2014 @ 3:40pm

Re: Um... I see another problem here
YOu see, thats what bothers me about the lawsuit. As far as I can tell, onr of the arguments is about keeping realmedia from being played on an ipod, and somehow that improved the value of the ipod. Its about the ipod's DRM from what ive read, not the Music's
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scotts13 (profile), 5 Dec 2014 @ 4:14pm

Re: Apple checked...
I don't know about back then, but when I worked for an Apple-authorized reseller a couple of years ago, purchases were immediately and electronically reported to Apple.
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thisismyboomstick, 5 Dec 2014 @ 6:07pm

new plaintiffs...
The lawsuit will shortly be amended to show plaintiffs as John Does 1 through 8,000,000.

Problem solved.
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orbitalinsertion (profile), 5 Dec 2014 @ 6:44pm

How does one have a class action lawsuit with two plaintiffs in the first place?
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tqk (profile), 5 Dec 2014 @ 7:19pm

Holy angels dancing on the heads of pins, Batman!
How dreary.
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Anonymous Coward, 5 Dec 2014 @ 7:48pm

Have you seen those ads?
Have you ever seen those ads asking for victims to call a law firm about injuries from drugs or defective products? These are law firms trolling for plaintiffs in potential class action lawsuits. The lead law firms, the one with the largest number of plaintiffs, get much, much higher hourly rates than other law firms in class actions.
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Atkray (profile), 5 Dec 2014 @ 8:48pm

Re: Re: The lesser of two evils
Do you really want AJ to be able to edit?
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madasahatter (profile), 6 Dec 2014 @ 8:45am

Re: The lesser of two evils
Actually class action lawsuits are beneficial to the companies. They get one settlement that covers everyone in the class whether they registered for the suit or not with one payment amount. The alternative is to be nickeled and dimed by smallish lawsuits filed in various courts around the country. While the company does have more resources, it costs money to handle any lawsuit even if you settle out of court.
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Anonymous Coward, 6 Dec 2014 @ 2:04pm

'the main plaintiff actually bought hers in... July 2009.'

may well be the case but it could have had the software on it, couldn't it? i have bought things that were 'out of date', for want of a term.

the case may not be as it should be now and Apple are going to jump all over the lack of plaintiffs now, but it doesn't alter what happened. Apple want out now and probably more because of what it was forced to do by the music industries and if what has happened is ruled as being illegal, the music studios will be livid! i mean, how dare anyone complain about being ripped off by the record labels!! and even worse, how dare anyone expect to get money out of them!! there will be people running around the corridors of power like scalt cats, trying to get an immediate change in the law that allows whatever the entertainment industries do what they want, charge what they want , under whatever circumstances they want, with the extra bit being no one is ever allowed to sue them or have money back!!
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Anonymous Coward, 6 Dec 2014 @ 3:58pm

Just another frivolous lawsuit by anti-DRM tinfoil hat nutters.

Nothing to see here. It's getting silly now.
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Bergman (profile), 7 Dec 2014 @ 10:26am

Re:
The same way you have any class action lawsuit. You bring one or more plaintiffs to the court, convince a judge that while the plaintiff(s) have a valid complaint they're not alone in it, and get the judge to declare the case a class action.

Then once it becomes a class action, members of the class it represents register themselves with the court. Class action lawsuits never start out that way, someone has to file the papers first.

Doing it the other way around is absurd at best -- think about it, how would you fit a class containing thousands or millions of people into a small court room?
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