back to article Wheels fall off bid to sue Apple over iTunes anti-piracy shenanigans

The status of the class-action lawsuit against Apple over its iTunes store is in doubt, after it appeared that the plaintiffs were not actually eligible to sue. On Friday, Apple filed a motion [PDF] to dismiss the suit on the grounds that the plaintiffs listed didn't actually own an iPod during the period for which they are …

  1. ptmmac
    Happy

    Barrister, Lawyer, Thief, Oh you pick a name.

    The best part of this story is that Apple let them spend 10 years of their own money and legal efforts and only now is bringing out the lack of standing. Nothing can be better than seeing a lawyer hoist by his own petard. Petard is a small primative bomb whose name is derived from the middle french term for a fart. Great pun and fun to be had by all.

    1. solo

      Re: Barrister, Lawyer, Thief, Oh you pick a name.

      "..let them spend 10 years .."

      The plaintiff had bought the device after the 2009 model that is the subject of the case. So, it seems, somewhere in near past they found this loophole.

    2. Anonymous Coward
      Anonymous Coward

      Re: Barrister, Lawyer, Thief, Oh you pick a name.

      What actually happened is that until the trial begun the serial numbers of the iPods in question were not provided to Apple, so there was no way they could have known until now whether the plaintiff had standing or not.

      Once they were provided, Apple checked their records and found they were all either purchased outside the time in question, or not purchased by the plaintiff (instead purchased by the plaintiff's husbands' law firm - which just so happens to be the one representing the plaintiff) This law firm obviously didn't do their homework on their way to thinking they were going to cash in on a juicy class action fee.

      If Apple gets it thrown out it won't be with prejudice, so they'd be able to re-file, but it would undoubtedly take several years to make it back on the docket and be heard. By the time it is finally heard, accepted for class action, all the litigants signed up, goes to trial and all appeals are exhausted the iPod product line may no longer exist.

    3. depicus

      Re: Barrister, Lawyer, Thief, Oh you pick a name.

      So they were working on the case 2 years before it even happened ? 2014 - 10 = 2004 and the actions happened between 2006-9.

    4. Cipher
      FAIL

      Re: Barrister, Lawyer, Thief, Oh you pick a name.

      I wish the article had named the lawyers, I could add them to my list of people never to call when needing legal counsel...

  2. mafoo
    Joke

    Oh the humanity

    Think of the poor lawyers!

    1. Someone Else Silver badge
      Coat

      Re: Oh the humanity

      "Poor lawyers"...Now there's a concept....

  3. Len
    FAIL

    They're suing the wrong company

    The actual problem is that these people suggest they bought RealNetworks music protected by RN Harmony DRM. Harmony was based on a hack to trick iPods into thinking it was actually purchased from the iTunes Music Store. When Apple closed that hack these people's files suddenly didn't work any more.

    If these people would have used standard MP3s or AACs there would not have been any problem because iPods have always allowed non-DRM files to be played. If RealNetworks hadn't falsely stated these files were iPod compatible, or better yet, had sold those files without their own hacked DRM scheme, this whole problem wouldn't have existed.

    They need to sue RealNetworks for selling them music files that did not live up to the promise made by the seller. I don't know why but somehow I feel Apple's wallet might be ever so slightly bigger than RealNetwork's and that might have something to do with suing Apple instead of RN...

    1. solo

      Re: They're suing the wrong company

      Hacking is not wrong if there is no victim. Here, the customer has bought a device. Like you buy a car. If you want to put some aftermarket wheels and the car manufacturer puts a nut intended just to prevent that, would you still feel it justified?

      1. Anonymous Coward
        Anonymous Coward

        Re: They're suing the wrong company

        It's not a good analogy to say the wheels don't work because of a special nut; as has been stated, non-DRM protected MP3 files worked on these iPods fine...

        A better analogy is that this company found that by shorting pins 3 and 4 of the ODB-II connector they could convince the cars onboard computer it had been serviced by an authorised dealer. So they said they were doing an authorised service on the vehicle when really they were doing a substandard job and resetting the service counter themselves.

        When something has gone wrong and the customer has complained to the manufacturer, they've said "tough luck" because it wasn't an authorised service. It's quite clear that the issue isn't with Apple here, but with the company that mid-sold DRM protected files as iPod compatible when they clearly weren't...

        1. solo

          Re: They're suing the wrong company

          Unauthorized service should cause void of warranty, not them forcefully removing your new shiny (unauthorized) wheels :)

    2. A J Stiles

      Re: They're suing the wrong company

      But RealNetworks were in the same position as Apple, and couldn't get the authority to distribute DRM-free files. So they exercised their legally-protected right to interoperate with the Apple iPod, by persuading it to play their own DRM-encumbered files.

      Now, obviously this required some hacking. However, this almost certainly did not exceed the bounds of "reasonable force" -- which is your right, when someone is blocking you from doing something which the law of the land says you are allowed to do and keeps ignoring polite requests. And bear in mind that in some states of the USA, you can actually legally pull a gun on someone who is calling you names, so RealNetworks must have plenty of wiggle-room. And proper old-fashioned tinkering with files is a lot less potentially harmful than, say, kidnapping and torturing an Apple engineer to get them to tell you how to get your media files to play on their player.

      It also raises serious questions about the way that Apple's and RN's DRM schemes were sold, if the work-around was so easy to pull off. The Record Labels were evidently sold a pup. If it was known back in the days that copy-prevention was mathematically impossible rather than just very difficult (I've said this all along, but never actually bothered with a proper, formal, rigorous proof, as it's so self-evident.)

      It might be intetesting, if the record labels (who might legitimately be expected not to be as intimately acquainted with matters of esoteric mathematics as a computer company hiring advanced mathematicians) successfully sued Apple, Microsoft, RealNetworks, Cactus et al for selling them DRM schemes they must have known would not work.

    3. Franklin

      Re: They're suing the wrong company

      Yours is the first cogent description of the problem I've actually seen. I keep hearing about how "Apple wiped out non-iTunes music!!!111!1!" but I've had an iPod for quite some time and have never experienced this issue. I've never downloaded music from RealNetworks, either.

  4. Anonymous Coward
    Facepalm

    how long?

    I hope Apple has known that for 10 years, patiently waiting for the perfect opportunity.

    1. circuitguy

      Re: how long?

      check these individuals accounts and credit cards for change in spending, many lawyers buy off witnesses and apple has too much to lose in its image of being untouchable legally, they don't want a couple hundred cases that they didn't start being filed.

      1. ThomH Silver badge

        Re: how long? @circuitguy

        I don't think Apple had much left in its witness buying off fund this month, since it overspent on helping to cover up the faked moon landings, sheltering the person that really shot JFK and pretending that Obama was born in the US.

  5. Anonymous Coward
    Anonymous Coward

    From what I've read of this case it looks like Apple were using their dominant position in an unfair way but having said that throwing this case out is absolutely the correct thing to do. If the plaintiffs can't even get the basics right they don't deserve to have their case heard.

    1. Anonymous Coward
      Anonymous Coward

      Apple & DRM

      They had to put DRM into iTunes. The Record Companies were afraid of another Napster. So they said DRM or no Music.

      So Apple put DRM into iTunes. Real were trying to hack their DRM which is could be a breach of the DMCA. Apple closed the loopholes.

      However Apple still let into iTunes/iPod any musing that was ripped from CD or came via non DRM MP3.

      There was a way to do the "buy music from Real and get it into iTunes" legally. All Real had to do was provide a way to extract the song in their system into MP3 format without any DRM but no, they had to try to break the iTunes DRM.

      Apple should have sued Real for attepmting to break their DRM and thus the DMCA but they didn't. Instead they closed the loopholes.

      Personally, I hope that the lawyers for these so called plaintifs get hit with all of Apple's costs.

      I don't mind valid lawsuits but this one seemed a bit far fetched right from the start (IMHO)

  6. Toothpick

    I had to Google .....

    .... Real Networks to see if they still existed. I thought they shut down years ago

    1. Anonymous Coward
      Anonymous Coward

      Re: I had to Google .....

      " they shut down years ago"

      That makes them (RN) the real and proper plaintiff.

  7. Anonymous Coward
    Anonymous Coward

    Only lawyers benefit from delay like this

    Let's face it, it isn't going to be difficult to find a couple of plaintiffs who did buy an iPod at the requisite time, and file the claim again. Increasing both sides' legal bills doesn't benefit either side, just the lawyers; in fact a cynic might say that it's in their interests to have a flaw in the case that's then discovered years down the line...

    1. James O'Shea

      Re: Only lawyers benefit from delay like this

      They'll need to find plaintiffs who

      1 bought an iPod during the period in question

      2 got music from Real Networks and attempted to put it on their iPods

      3 didn't de-DRM their RN music once they realised that there was a problem

      4 still give a damn.

      Just owning an iPod isn't enough. They'd have to show that they were 'injured'. And that means that they have to show that they also got RN music _and tried to use it on their iPods_. Proving that at this late date may be a tad difficult. It was possible to de-DRM RN music; those who seriously wanted to, could, and did. They would probably keep their mouths shut now, 'cause they'd be telling the world that they breached the DMCA if they spoke up. This means that the real hard core RN users will be absent. And, finally, given the passage of time... most users simply don't care anymore.

      And, oh, yeah, given the current shenanigans, I'd say that the court will have a Very Close Look(tm) at any new plaintiffs. if, say, someone de-DRMed his RN music and still tried to claim 'injury', and the court finds out (and Apple will do their best to see that the court finds out) there might be Unexpected Results(tm). (How might Apple know? If the users were silly enough to use iTunes Match, for example, Apple would have a _very_ good idea as to what's in that music collection, when it got there, and where it came from. I use iTunes Match, but I really couldn't care less if Apple knows that I like Tina Turner songs. If a plaintiff claimed that he attempted to put RN music on his iPod but iTunes Match says that the track in question was first on the user's system in 2012, or that it was placed there during the time in question as a 256k MP3 which was generated by [insert name of popular ripping software here], someone will have to do a little explaining.)

  8. A J Stiles

    The damage is done anyway

    It doesn't even matter too much if the case is dismissed without prejudice. There is clearly a case for Apple to answer, if only somebody brings it. Apple exceeded their authority to sabotage RealNetworks' attempts to build an interoperable system; by breaking one law (tampering with someone else's property) and misusing another (claiming legal protection for their own unfair practices; copyright law specifically allows for interoperability).

    Even worse for Apple, in the mindset of the general public, only the guilty get off on technicalities. And if someone is already "guilty enough" in the public mind, even "I didn't do it" is a technicality; so "you weren't actually the one who got hurt" are mere weasel-words.

    Looking at the bigger picture, DRM on music is dead, buried and its grave resembles the site of a pop festival. No sensible manufacturer is going to get involved with it now. The future is open and interoperable, and the buying public know what they will and won't put up with.

    1. jonathanb Silver badge

      Re: The damage is done anyway

      Well the RIAA have got it in that respect now. Unfortunately the MPAA have not, and there is still DRM on videos, despite the fact that videos are more difficult to share than mp3s because they are so much bigger.

  9. Tom 7 Silver badge

    You dont get a plaintif in a murder case either

    just sayin...

    1. Blake St. Claire

      Re: You dont get a plaintif in a murder case either

      > You dont get a plaintif in a murder case either

      I don't believe that's true.

      In the criminal trial for the murder of Nichole Brown Simpson, the plaintiff was The People of the State of California.

      In the civil trial the plaintiffs were her family. And no, O.J. wasn't subject to double jeopardy.

      IANAL, and maybe where you live things are different.

  10. Anonymous Coward
    Anonymous Coward

    THE BONO EFFECT!

    Apple was a lovely little company making all kinds of quaint plastic electronic toys....and then came BONO!!! :(

    Can't help but feel that he and his other friends in U2 (War, Famine & Pestilence) should be sued for causing all the trouble in the first place.

  11. kainp121

    USA, you can actually legally pull a gun on someone who is calling you names

    It what state? That's called brandishing a fire arm and could be escalated to assault with a deadly weapon

  12. aurizon

    My Law Degree

    It is one of the best, it came in a box of Weetabix...

  13. StimuliC

    Don't you just love lawyers!

    It shows a lack of competence on the side of the lawyers that represented these two woman, a huge part of the legal system is called "Due Diligence", a legal case is like a fruit on a tree, it has to be ripe and ready for picking before you proceed. If the attorney's represented these women had taken the time to do proper background work they would have realized that the case was was a ripe fruit but a rotten one that was full of worm holes.

    Apple were smart to not even check the purchase dates of the devices that they women were basing their claims on until the trial had started. It means that they can prove that these women were not valid and not only were they not valid parties but the attorney's had not received contact with anyone that really though it was big enough deal to be concerned.

    After all, Apple has, with the iPhone devices there has been a similar issue with the "control of App's" and actively block third party app stores from operating. This again is on the basis of Security.

  14. stringyfloppy

    How does Apple know when the two people owned iPods? The could have been given as gifts, etc. How the hell would Apple know?

    1. Tom Samplonius

      "How does Apple know when the two people owned iPods? The could have been given as gifts, etc. How the hell would Apple know?"

      Because the manufacturing date is referenced to the serial number. So the iPod's that the plaintiffs claim to own, were manufactured after the alleged activity took place.

    2. James O'Shea

      "How the hell would Apple know?"

      If you go to sites like this one http://www.chipmunk.nl/klantenservice/applemodel.html you can enter your serial number and get back the basic info, including where and when it was manufactured. Apple _knows_ exactly when their kit was made, and exactly where. This means, for example, that they _know_ when the warranty expires on Device X. There are numerous sites around the internet which will tell Joe User and and all of that info, too. Apple doesn't make a secret of it. You could call Apple and ask them to tell you how to decode the serial number yourself, and they'll tell you. At least they told me. I assume that this is how the people behind the various sites figured out how to decrypt the serial number.

      Apple has been doing this kind of thing for at least twenty years, probably as much as 30 years, possibly longer still. It's not a secret. I suspect that most other major vendors do something of the kind. I _know_ that Dell and HP do something similar, for sure. Yes, they _know_ when someone's telling porkies about how long they've had that device, as they _know_ when it shipped. And, if they get sales data back (which they should) they'll _know_ when it sold.

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