.3the plaintiff was an indirect purchaser of the iPod. Inaddition, she lacked standing to bring this claim because shealleged that she purchased her iPod after Apple’s purportedanti-competitive conduct began. The panel concluded that because Apple used FairPlay from the beginning, when it firstlaunched the iTunes Music Store, its use of subsequentsoftware updates only served to maintain the status quo at thetime of purchase, and therefore could not plausibly be the basis for diminishing the value of the iPod.The panel held that the plaintiff failed to state amonopolization claim for damages based on overchargedmusic downloads because she failed to plead sufficient factsto state a plausible antitrust injury. The panel concluded thatthe fact that Apple continuously charged the same price for itsmusic irrespective of the absence or presence of a competitor rendered implausible the plaintiff’s assertion that Apple’ssoftware updates affected music prices.Finally, the panel held that the plaintiff failed to state aclaim for injunctive relief in the form of DRM-free musicfiles because her alleged inability to play her music freely, onnon-iPods, was not an “antitrust injury” that affectedcompetition.
Craig Briskin (argued) and Steven A. Skalet, Mehri & Skalet,PLLC, Washington, D.C.; Helen I. Zeldes, AlreenHaeggquist, and Aaron M. Olsen, Zeldes & Haeggquist, LLP,San Diego, California, for Plaintiff-Appellant.