Apple Inc and Eminem have failed to settle a lawsuit over whether the rapper's songs can be downloaded on the iTunes music service, paving the way for a federal trial to begin on Thursday.
Eight Mile Style LLC, Eminem's music publisher, had accused iPod maker Apple in a 2007 lawsuit of having used 93 songs in a downloadable format on iTunes without permission.
It also sued Aftermath Records, saying it had no right to approve digital downloads, despite having control of Eminem recordings under agreements entered into in 1998 and 2003.
The non-jury trial is expected to be held in federal court in Detroit, Eminem's hometown.
Last-ditch talks held on Wednesday before a federal magistrate judge in Ann Arbor, Michigan, broke down after three different mediators had previously been unable to broker a settlement.
The case did not settle today and we are expecting to start trial first thing tomorrow morning, Howard Hertz, a lawyer for Eight Mile Style, said on Wednesday.
Apple spokeswoman Susan Lundgren said the Cupertino, California company does not discuss pending litigation. Lawyers for Apple and Aftermath could not immediately be reached.
Another plaintiff in the case is Martin Affiliated LLC, which has a portion of Eight Mile Style's interests.
It is not clear how much money the plaintiffs are trying to recover. They contend Apple wrongfully gained $2.58 million from iTunes downloads, including $466,916 from Lose Yourself, a hit from Eminem's 2002 film 8 Mile.
The plaintiffs also want part of what they say is Apple's $16 million of profit from iPod sales that could be attributed to the 93 songs, as well as $4.03 million from Aftermath.
Eminem's given name is Marshall Mathers.
In court papers, the plaintiffs contended that Apple has provided and continues to provide digital downloading of recordings of compositions which Eight Mile and Martin are owners of, or have copyright ownership interest in, without obtaining permission or providing compensation.
In contrast, the defendants have said there was authorization for the downloads and that Eminem's publisher has received substantial royalties on the songs.
The plaintiffs expect the trial to last five to seven days. It is not clear whether Eminem would testify, but he is not on the plaintiffs' witness list.
Apple shares closed up $1.02 at $185.50 on Wednesday on the Nasdaq.
The case is Eight Mile Style LLC v. Apple Computer Inc, U.S. District Court, Eastern District of Michigan (Detroit), No. 07-13164.
(Reporting by Jonathan Stempel, additional reporting by Bernie Woodall in Detroit; editing by Maureen Bavdek and Andre Grenon)