[NewsPoster]

The Apple versus Real anti-trust trial centering around Apple's use of FairPlay Digital Rights Management (DRM) to prevent piracy (or block other music stores, as Real claims) has begun, as expected. Lawyers for the complainants continue to claim that changes in iTunes blocking other companies' music stores from functioning on the iPod allowed Apple to raise prices. Real's attorneys seek $350 million in damages in the long-postponed suit that dates back nearly a decade. The trial, expected to last three weeks, is being held in the Oakland, California federal courts.

The plaintiff's last chance at an antitrust ruling comes after a 2006 shift in iOS device management, which had the side effect of locking out a Real Networks DRM-oriented music store. Real had reverse-engineered Apple's DRM on iPods and incorporated it into its Harmony DRM wrapper tool, thus allowing music purchased from the Real Music store to be played on Apple's ubiquitous device temporarily. A later software patch to the iPod broke that functionality.

CEO Steve Jobs recorded a video deposition prior to his death in 2011, which the plaintiffs' lawyers intend to use alongside emails written by the CEO. Jobs said in an email from the competitive Real store that "we need to make sure that when Music Match [sic] launches their download music store, they cannot use iPod," Jobs writes. "Is this going to be an issue?"

Jury selection took place prior to the Thanksgiving holiday. Among the selectees are a Google engineer who calls DRM the death of sharing. Apple fans, as well as ardent detractors of the Cupertino company, were struck.

It can be argued that Apple's DRM was the main reason why the music labels agreed to a deal with Apple in the first place. Apple has since shifted to DRM-free music, and allows purchased music from other sources to be played through apps. The app concept on mobile devices didn't really exist a decade ago, during the time Real tried to force its way onto the iPod. Critics have pointed out that iPods were always able to play unprotected music files from any source, so there was always a way for Real's store to have files compatible with the iPod; however, the record companies were not, at the time, allowing any service to license digital songs without DRM.

The trial has seen many developments in its history, despite taking so long to fully develop. The remaining charge is the last of three, with the previous two tossed by a now-retired judge. While the current judge allowed the trial over strenuous objections by Apple, she took umbrage at the lack of consumer data complaining about the issue, and as of yet, little, if any, has been presented.

[DiabloConQueso]

"Real's attorneys seek $350 in damages in the long-postponed suit that dates back nearly a decade."

Whoa, let's not get too greedy, now. I think $300 is more than enough, Real. Sheesh.

[prl99]

Jury of their peers, doesn't include Apple fans but does include someone who's state he hates DRM. Makes perfect sense to me. /s Why should Apple have to defend themselves against a company that provided a product that broke the security of an Apple product? Apple's patch didn't break the Harmony software, it fixed iOS so people couldn't violate the conditions of the music industry's DRM requirements. There's no reason why Apple shouldn't win this trial. They were protecting the music from hackers, plain and simple. If they're found guilty, it would be like finding me guilty for putting a lock on my doors to keep buglers out.

[pairof9s]

Let's be real here (no pun intended)...Apple could easily afford to give Real the $350 million and that would help sustain Real for a few years, but the reality is this battle for the public's digital music is long over. What remains is simply a legal sideshow.

[Flying Meat]

Apple never intended for third party music stores to be available on their shipped iPods. This was a closed system. Because someone can hack into your wireless router doesn't mean they get to freeload forever, and you have the option to disable their access. Can they then take you to court? Yes. Will they win? They should not.

[chimaera]

Originally Posted by Flying Meat 

Apple never intended for third party music stores to be available on their shipped iPods. This was a closed system.

This reasoning path always bugs me. Shipped iPods are not Apple's, they belong to the customers who bought them. The current owner controls what they are used for, not the previous owner. DRM is incompatible with customer ownership rights for this very reason. The seller demands real money, but refuses to let go of the product. Imagine if that happened at the grocery store.

DRM stores can also shut down their authentication servers a few year later, while keeping the real money. I've yet to see a guarantee the DRM will expire after a reasonable time, releasing normal rights to the customer.

[DiabloConQueso]

You mention iPods and DRM, but you're talking about two different things.

Yes, shipped iPods belong to the consumer. They're free to do with them as they wish.

The DRM-protected content, on the other hand, is a separate product under separate licensing rules.

You're free to do whatever you want with an iPod, within limits -- for example, you're not allowed to reverse-engineer the operating system of the iPod then distribute your reverse-engineered code, and especially not if you intend to make a profit off of it.

You're mistakenly looking at the entire iPod/iTunes ecosystem as a single product, when, in fact, it's many different products all sold or leased under different licensing rules and restrictions.

Could you have purchased an iPod back in the day and never encountered any kind of DRM restrictions? Sure! Just buy an empty iPod, then rip all your CDs to MP3 and load them on there of your own free will and volition.

Confusing the issue by stating that the end-user owns the iPod then immediately segueing into something about DRM restrictions is dishonest -- the iPod itself doesn't have any DRM limitations governing its use whatsoever. The music that you "bought" back then, though -- from Apple, from Real, from whomever -- does. They're two different things.

[chimaera]

Not dishonest, the lawsuit does focus on the iPods. From the article:

Real had figured out a way around Apple's DRM on iPods with its Harmony DRM wrapper tool, and music purchased from the Real Music store was temporarily able to play on Apple's ubiquitous device. A software patch to the iPod broke that functionality.

Apple altered customer-owned iPods to lock out a DRM-music competitor. If Apple were not selling DRMed music, they'd have little motivation to bother another store serving iPod owners. The customers own their iPods, and this behavior only happens because of DRM issues.

[DiabloConQueso]

Correct, but it would only be an issue when trying to load DRM-protected media onto the iPod, and it did not break any previously-advertised or expected functionality.

If Apple had advertised the ability to play DRM music that came from a source other than their own store, and then subsequently removed that ability, I'd think the case would have more merit than it actually does. Still, the issue revolves around the media loaded onto the iPod, not the iPod itself -- and the fact that Real "tricked" the iPod into thinking that its own DRM music was Apple-approved DRM music should weight into the decision as well.

I do see your point that the issues might be more closely related than I insinuated, but I still believe this is largely a "music-protected-by-DRM-issue" and less an "iPod-issue."

Are we saying that the fact that Apple locked out Real because Real was using nefarious tactics to get their music onto the iPod is at the core of the argument? That the real issue is Apple's change to the iPod software, rather than Real's "sneaky" way of getting their music onto the iPod?

I see it like this:

Apple: "Our new iPod plays all unprotected music, as well as protected music from our store alone."

Real: "No, we've found a way around that, and now your iPod plays unprotected music as well as protected music from both the Apple store as well as Real's store!"

Apple: "Nope, firmware change: APPLIED! Suck it, Real!"

[pairof9s]

Originally Posted by chimaera 

The customers own their iPods, and this behavior only happens because of DRM issues.

There in may lie the motive (or justification) for Apple's actions. Music labels would more than likely protest, perhaps even legally, to Apple if it allowed DRM "hacks" to go unchecked.

[Mike Wuerthele]

Originally Posted by DiabloConQueso 

Are we saying that the fact that Apple locked out Real because Real was using nefarious tactics to get their music onto the iPod is at the core of the argument? That the real issue is Apple's change to the iPod software, rather than Real's "sneaky" way of getting their music onto the iPod?

I see it like this:

Apple: "Our new iPod plays all unprotected music, as well as protected music from our store alone."

Real: "No, we've found a way around that, and now your iPod plays unprotected music as well as protected music from both the Apple store as well as Real's store!"

Apple: "Nope, firmware change: APPLIED! Suck it, Real!"

This is the crux of the trial. Real is arguing that Apple's lockdown hampers the free market, and admittedly hacked around Apple software to do so. Apple is saying "suck it, Real' (and allowing non-DRM files to play from other sources). Why Apple didn't sue them into the ground for doing so, post DMCA, is beyond me. Aereo hacked the broadcast industry in effect, making a workaround to the rebroadcast law, and got hammered as a result. I really, really don't see how this is any different.

I think this will come down to judicial interest. If the judge doesn't care, or understand, this is going to go wonky, quickly. It's great that there's engineers and whatnot on the jury, but the judge still sets the tone.

[Flying Meat]

Real's argument that Apple's lockdown hampers the free market is incorrect. Opening up a vender's popular product to every other company to make a profit from isn't going to do anything for the vender. In fact it will drive up costs to the vender and diminish it's brand.

The free market, in this argument is not free in the least.

[shawnde]

@chimaera

The iPod belongs to the customer, but the OS does not; it's been "licensed" (i.e. you're allowed to use it under the End User License Agreement, which explicitly prohibits any kind of circumvention). iPods, iPhones, iPads, all have an operating system, which is tightly governed by the EULA; I think you should read it next time :-) Yes, the iPhone [hardware] belongs to you, but iOS does NOT, and you are required by law to abide to their terms when you say "accept". This has nothing to do with DRM. Real Networks was NOT allowed to mess with the iPod OS, and therefore they have no case.