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Judge keeps Steve Jobs video testimony from public release

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Video recently shown during iTunes DRM trial won't be made available

A California judge has denied a request from a trio of media outlets to make video deposition of late Apple CEO Steve Jobs available to the public. The request was filed by the Associated Press, Bloomberg, and CNN during this month's trial over security measures Apple added to iTunes and iPods nearly a decade ago, where 27-minutes of the deposition was shown in court. The request prompted a heated three-way debate over whether making the video available outside the courtroom would run afoul with federal laws prohibiting the recording of courtroom proceedings.

The public would have "special access" if the video were to be made available

In a ruling today, US district court judge Yvonne Gonzalez Rogers said that the video should be treated just like any other testimony in that particular federal circuit, and thus unable to be made public as a recording. "The Jobs Deposition was merely presented in lieu of live testimony due to the witness's unavailability, and was and should be treated in the same manner as any other live testimony offered at trial," Rogers wrote. She added that by releasing it, "the public would have special access to videos that would not even be available to the court of appeals in the appellate record."

The testimony itself was filmed in early 2011, just months before Jobs died from cancer, and brought out by the plaintiffs in the case to paint the picture that Apple was a massive company by the time it started making changes to its software that potentially kept out competitors. A jury ultimately disagreed with that assessment, deciding yesterday that the version of iTunes that Apple released with those features in 2006 could be considered a "genuine product improvement" over the one that came before it.

In his deposition, Jobs explained that Apple was required to implement its FairPlay DRM software in iTunes and on iPods primarily because of its deals with record companies. He also said that any changes Apple made were because of "black and white" deals it had with the labels, and that the company "went to great pains" to make sure people couldn't hack its system.

"Steve Jobs is not your typical trial witness."

The media companies' lawyer had argued that "Steve Jobs is not your typical trial witness," and that what the late executive said during the video was "invaluable." Apple's own lawyers vehemently disagreed, calling the companies — though specifically CNN — opportunistic.

"The marginal value of seeing him again, in his black turtleneck — this time very sick — is small," Jonathan Sherman, a partner at law firm Boies, Schiller, and Flexner said. "What they 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 Rogers signaled her decision in earlier court proceedings when the matter was discussed, noting that she hadn't been recording any of the other witnesses, making the release of the Jobs testimony problematic. "The request you're asking for frankly is diametrically opposed from the rule that says I cannot allow the recording of these proceedings," she said. "So if I'm treating witnesses the same, I haven't recorded any of the experts, I haven't recorded anything — and none of that's going to go to the jury."

The video could ultimately end up being brought out again as part of an appeal, which the plaintiffs in the case said they plan to file sometime within the next month.