Steve Jobs video in iPod lawsuit to stay under wraps, judge rules

After weeks of back-and-forth argument, the judge in the now-settled iPod antitrust suit says never-before-seen footage of the late Apple CEO won't be made available to the public.

Nick Statt Former Staff Reporter / News
Nick Statt was a staff reporter for CNET News covering Microsoft, gaming, and technology you sometimes wear. He previously wrote for ReadWrite, was a news associate at the social-news app Flipboard, and his work has appeared in Popular Science and Newsweek. When not complaining about Bay Area bagel quality, he can be found spending a questionable amount of time contemplating his relationship with video games.
Nick Statt
4 min read

The late Steve Jobs took the stand through a video monitor in antitrust court in Oakland, Calif., Friday, December 5, giving testimony from deposition taped on April 12, 2011. Courtroom sketch by Vicki Behringer

If you were hoping to get one last glimpse of former Apple CEO Steve Jobs, you missed your chance.

Rare video footage of Jobs shown during an antitrust trial in Oakland, Calif. this month won't be made available for public viewing. It was only shown once in court to those attending the antitrust trial over Apple's iPod media player and iTunes music software.

Judge Yvonne Gonzalez Rogers, who oversaw the class action case against Apple that wrapped up Tuesday with a non-guilty verdict, denied a request Wednesday on behalf of three news organizations -- the Associated Press, Bloomberg and CNN -- to obtain the video and distribute it over the Internet.

The footage is Jobs' second-to-last public appearance and was made six months before his death in October 2011. His last public appearance was at a Cupertino, Calif. city council meeting in June 2011 to ask for approval to build Apple's new doughnut-shaped headquarters. The video deposition of an obviously ailing Jobs was shown for half hour in court. Judge Gonzalez Rogers says that was enough after Apple pushed to stop distribution of the video.

Jobs continues to be a major source of interest for Apple fans and tech followers worldwide. More importantly for Apple, his words -- often via past emails -- have been surfaced in a number of high-profile legal tangles for the iPhone maker. That includes two other antitrust trials over e-book price fixing and a conspiracy to fix engineer salaries in the San Francisco Bay Area, both of which are still making their way through the courts.

The back-and-forth over the Jobs video began soon after the deposition, taped in April 2011, was shown on December 9 in court before the eight-member jury, lawyers for both sides, media and a small contingent of curious onlookers from the public. Apple was opposed to the video's release, despite the media organizations' plea that Jobs' filmed commentary was "invaluable."

"If the video had been introduced as a trial exhibit, or if no objection had been lodged, the ruling on this motion might be different," Judge Gonzalez Rogers wrote. "In light of the present circumstances and the lack of legal authority justifying the Media Intervenors' request, however, the Court will not authorize the copying of the Jobs Deposition."

Attorney Thomas Burke, who filed court motions on behalf of the media companies, was asked to argue why Jobs' video should differ from standard testimony. By law, standard commentary can't be filmed inside a courtroom, but transcripts are made available to the public.

A transcript of the two-hour video of Jobs, which was edited to 30 minutes for the court, has been available since the start of the trial.

"Given the substantial public interest in the rare posthumous appearance of Steve Jobs in this trial, there simply is no interest that justifies restricting the public's access to his video deposition," Burke wrote in his initial request. Burke was later asked to provide case precedent but was again challenged by Apple.

"The marginal value of seeing him again, in his black turtleneck, this time very sick, is small," Apple lawyer Jonathan Sherman, a partner at law firm Boies, Schiller, and Flexner, countered in court last week. "What they want is a dead man, and they want to show him to the rest of the world, because it's a judicial record."

Judge Gonzalez Rogers didn't buy Burke's arguments. "To employ such a rule as called for by the Media Intervenors could create anomalous results. For example, the public would have special access to video that would not even be available to the court of appeals in the appellate record," she wrote. "And snippets of previously recorded impeachment testimony played at trial would be publicly available for copying and distribution, while the direct live testimony of witness would remain sheltered from audiovisual recording."

The media outlets plan to appeal the decision and expect to file a motion in the coming month.

Jobs' deposition didn't play a crucial role in the trial when compared with live testimony from Apple executives and the aggressive arguments of Apple lawyers Bill Isaacson and Karen Dunn. Apple successfully fended off claims that it used iTunes software updates to quash competition in the digital music market to so it could exercise monopolistic control over iPod pricing. The jury sided with Apple early Tuesday after fewer than four hours of deliberation.

Had Apple lost, it may have been asked to pay up to $1 billion in damages to the more than 8 million people who purchased iPods between September 2006 and March 2009.

Update at 3:50 p.m. PT: A previous version of this article misidentified the co-counsel for Apple in the antitrust case. She is Karen Dunn, not Rebecca Dunn.