One of the two plaintiffs in the iTunes DRM case has withdrawn after it was revealed that neither of the two may be a member of the class that they represent.
Apple has filed a motion for the case to be dismissed following the revelation, charging neither plaintiff owns an affected iPod model.
The remaining plaintiff, Mariana Rosen, testified in 2007 that she owned an affected iPod model. However, according to Apple's motion for dismissal, the iPod she purchased does not contain iPod firmware released with iTunes 7.0 or 7.4, which would be required for Rosen's claims to stand.
Earlier this week, Rosen claimed she bought two other iPods during the September 2006 to March 2009 time frame. However, Apple determined, using the device's serial numbers, the iPods were both purchased by her husband's law firm, and one of them was purchased in July 2009, just months after the period in question.
"Ms. Rosen's trial testimony with regard to her alleged purchase of the two iPods in 2007 and 2008 was not credible," said Apple in its filing.
It is interesting none of these points has come to light until now, especially since the case is 10 years in the making. The trial is likely to end quickly if Rosen's attorneys are unable to offer proof they have standing in the case.
Claims by Melanie Tucker, the other plaintiff in the case, were quickly withdrawn after it was discovered she purchased two iPods, an iPod Touch in 2010 and an iPod in 2005, neither of which fall in the time frame of Sept. 12, 2006, to March 31, 2009.
Bonny Sweeney, the lead attorney for the plaintiffs, has told Yvonne Gonzalez Rogers, the federal judge overseeing the case, that Rosen purchased another iPod Touch in 2008, and she would respond to Apple's letter on Saturday. The judge has not yet made a ruling on Apple's motion.
"I am concerned that I don't have a plaintiff," said the judge on Thursday. "That's a problem."
There is no word on when the judge will make a ruling on Apple's motion and Rosen's eligibility in the case. The class action lawsuit is currently seeking $350 million in damages, which triples under antitrust laws to over $1 billion.
According to Apple, the digital rights management software was introduced to prevent users from being able to use RealNetworks' Harmony technology, which converts audio not purchased from iTunes into a file that mimics a file that was purchased in iTunes. The DRM software came with firmware updates in iTunes 7.0 and 7.4.
