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Apple insists FBT case submissions should remain a secret

By | Published on Wednesday 2 May 2012


In an interesting side show to the ongoing digital royalties battle in the US record industry, Apple Inc is trying to block various bits of evidence it provided to an earlier trial, including a deposition by the late Steve Jobs, from being made public, or even shared with plaintiffs in newer similar cases.

As much previously reported, various heritage artists with pre-iTunes record contracts with major labels are suing for a bigger cut of the monies record companies receive from download stores. The record companies claim that downloads should be treated as record sales, but some artists say download revenues should actually be treated as licensing income. The distinction is key because most artists are due a much higher cut of licensing revenue than they are record sale money.

The highest profile case based on this dispute so far was between Eminem collaborators FBT Productions and Universal’s Interscope, relating to the producers’ cut of Slim Shady download sales. FBT won, and a court hearing is pending to decide how much more digital money the production outfit should be receiving.

While Universal insists the FBT case does not set a precedent, a stack of artists with similar contracts are now suing for a bigger cut of digital money, and all four majors are facing such lawsuits. The main litigation now being pursued against Universal on the digital royalties issue is being led by Rob Zombie and the Rick James estate, and their lawyers have demanded to see various bits of evidence presented in the FBT Productions case to help them prepare their arguments.

Amongst the key evidence they want to see is submissions made by Apple Inc, including the deposition from the firm’s founder Jobs. But the IT giant has hit out at the suggestion that evidence it provided for one case should be shared with lawyers involved in another, insisting that the information it submitted to the FBT court hearing included “highly confidential and proprietary trade secrets”, and that the company provided such information on the condition it would only be shared with a small number of key people involved in FBT v Interscope.

Indeed it turns out that when that information was shared with the court during the FBT hearings, the judge insisted that nearly everyone present leave the courtroom, including a bunch of Universal Music staffers, so that only the jury and some key legal types and court officials got to hear what Jobs had to say. Which makes you wonder what exactly the late Apple chief had to share.

Apple Inc is now using the fact the judge treated its submissions with such sensitivity in the FBT hearings as justification for not sharing any of that information with lawyers involved in new digital royalty cases now. It adds that attorneys for the Zombie/James team have not demonstrated that the Apple evidence is essential for their lawsuit, adding that the new litigation is too broadly worded for the IT firm’s previous submissions to be of use.

It remains to be seen if lawyers for Zombie et al continue to push for access to the Apple testimonies and, if so, whether anything within them will every actually be made public.

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