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Apple Defendants Interviewed
evands writes "There's an interview with Desicanuk, one of three named defendants in the Apple lawsuit alleging illegal distribution of a Tiger developer build, and Nessence, one of two administrators of MacTKA, the Mac BitTorrent tracker site where the build was initially posted, up at DrunkenBlog. The interview tells the whole story as a press release can not, from how Apple determined the kids to sue, to lawyers knocking on doors on Christmas Eve, and beyond. 'Collateral Damage' is a fascinating read which humanizes the whole messy situation."
"Some companies view a buggy leak as an opportunity to generate free buzz about the final product. Some view it as an opportunity to use the legal system to bludgeon extreme enthusiasts that have allegedly crossed the line."
And maybe some have so little respect for others that they'll violate the rules at every turn. Would it really have killed the Mac community to wait?
Distinguish "accepting responsibility" from "letting yourself be at the mercy of the plaintiffs."
This issues aren't whether he did it or not--they have him nailed cold; nothing he's said will dig him in deeper. This is all extenuation and mitigation in advance of the trial.
He's not putting himself at Apple's mercy--he's trying to get mercy from Apple. There's a difference.
And the "calculated PR" inference will be shown to the jury as evidence of a malicious wrong-doer trying to escape his due.
Note that for many civil offenses that harken back to the old "chancery" courts, you are not even entitled a trial by jury. A judge is far less likely to be swayed by this kind of "MEA CULPA!"
Apple will just ask the court the simple question "If this guy really wanted to accept responsibility and not grandstand, why didn't he quietly admit his liability to us and humbly accept the damages and permanent injunction that we would formulate for him?"
What can they gain? They can put a stop to the leak-like-a-sieve nature of the developer community, for starters. Of course, the community does not really leak like a sieve; the vast majority of developers stick to their NDAs. But because some done, and because really sophisticated technology has been developed to enable piracy on a vast scale, it looks like the developer community leaks like a sieve.
...friend, there is no such thing as bad publicity. As the old saying goes, the only way a company could be damaged in the press is if its CEO is found in bed with a dead girl or a live boy.
And as for this "bad publicity" thing of which you speak
This story has gotten Apple on the front page of newspapers --well, their business sections, anyway --worldwide, and has generated public awareness of the upcoming "Tiger" release, all essentially for free. It's good news for Apple as far as PR is concerned.
It's not a matter of pleading guilty or not guilty. It's a matter of Apple being able to show that this person is liable for some loss to them (as a tort - negligent or willful misconduct - or in breach of contract via the NDA and Terms of Use).
On the one hand, what he's said in this interview may be exactly (or no more than) what he said when he conferred with Apple at the beginning (apparently without a lawyer), and this may not be any sort of "admission".
On the other hand, if Apple is determined to get a jury trial, this kid may be trying to create a record of how sweet and noble he is (which he may, in fact, be) so that his lawyers can present the jury with this record of his public confession and apology, his moral innocence, and his overall contributions to the world. After all, if you were on a jury and you had the big, mean corporation going after the noble pre-med student who's never gotten a speeding ticket in his life, would you typically award the big, mean company a million dollars?
They may be willing to stipulate to fault or breach (if it goes that far), meaning that the only real issue will be damages, and, if I were a lawyer, I'd be doing everything I could to paint my client as noble, honest, and good so when the jury had to retire to calculate intangible damages, they'd come down on my side.
Anyway, it's not about guilt or innocence. It's about liability and proving loss.
Oh, IANAL, and you shouldn't rely on this as legal advice. Go get a lawyer.
i'm a member of the site, and have been for a while. it's interesting that apple didn't try to shut down the site at all. they merely wanted to make sure that tiger betas didn't appear on the site.
we have all their software well seeded with people downloading, and they didn't give a damn. it was just the prerelease software.
it seems apple doesn't care too much about piracy and "lost sales"- they just don't want people judging them by prerelease software and getting the wrong impression.
Here's a link to an article at Forbes that questions the wisdowm of suing your own fans:d _0107apple.html
http://forbes.com/home/technology/2005/01/07/cx_l
Brent Simmons (a well known and respected Mac developer) released a "buggy" version of NetNewsWire 2.0, presumably to "generate free buzz about the final product."
What did he get for his trouble? How about being publically berated because a clueless user didn't know the definition of "beta."
As another poster put it, "you don't get to decide Apple's strategy for them." You're not the one that's going to have to deal with complaints from clueless users that don't understand why the pre-release version of Tiger has borked their mission-critical data.
Not that I'm endorsing what he's done, but he's wasting a golden opportunity to turn this into a question of the validity of click-through licencing.
p
In Korea, long hair is for old people!
You're right -- but what they can do is agree to a non-punitive settlement: they let him admit guilt and then enter into a agreement. Something along the lines of turn in anyone that you know is trading Mac software, and then if you do it again then agree to pay so much money. The advantage to it is that Mac gets the good publicity of not burying some med-student and having a forgiving heart, yet they will still have the teeth to protect their intellectual property and trade secrets. Mac fans are usually extremely loyal; Mac has it's own software culture. Even in the Windows culture, Macs are know to be user friendly and stable. So why not capitalize on that image by being a friendly company to a repentent sinner? With a little cleaver legal manuevuering, Apple could walk away looking good and the kid could be pardoned. But that is if they want to. Apple doesn't need, and hopefully doesn't want to look like RIAA/MPAA/Microsoft/BSA, et al.
The views expressed are mine own and do not express the views of my employer.
While I agree that it is always a good idea to have a lawyer at your side in any situation like this, I am picking up an undertone from you that seems to be establishing itself as the common mindset of U.S. citizens: I should not be responsible for my own actions.
Yes, he has the right to remain silent, and he has the right to an attorney, but he does NOT have to be flamed for freely waiving those rights. He violated the law (a non-frivolous law), admits his wrongdoing, and is ready to accept responsibility. I think a settlement would be the appropriate thing in a situation such as this, but nobody has the right to tell a company they shouldn't protect what is theirs. Unlike Microsoft, Apple has a good product beta that is probably worth every bit of time and money that has been poured into making if functional, reliable, and polished.
Maybe it was the sweet-talking of the Apple's lawyers. It could have been that he just isn't very bright, but that's doubtful. Or maybe ... just maybe ... it was that he had an ounce of dignity and didn't want to rape our already-abused justice system for his own benefit.
It's not a lot, but I feel better knowing that a little bit of taxpayer money can be better spent now. A lot of time in the courtroom has just been saved, which will be more well utilized by the next clown trying to claim that a black guy stole her baby at a stop light. Some detectives can examine online bank fraud now instead of tearing through this guy's hard drive looking for traces of a torrent that he could have claimed never existed there.
If and when sentencing time comes for him, this rare bit of uncowardice will most definitely be remembered by the judge/jury. Thankfully for him, Apple's lawyers do not determine the hard-time/fines/probation that he will receive. But if they could, I'd imagine they'd go lightly on him since, as you said, he did their jobs for them.
So, I was just about done writing this reply....when I noticed your very first statement which I had missed earlier (I didn't fully RTFP): Maybe it would not have turned out differently the following way, but at least you cost them more time and resources doing so: ARE YOU SERIOUS? That kind of belligerent attitude is surely going to bring you or anybody else bad tidings in the future.
He is 30 years old and still pre-med? He clearly isn't the brightest spark in the world.
This is proven by being so stupid as to think that spreading an NDA copy of copyrighted material would be okay. I mean, it is so obviously wrong, most 10 year olds understand that copying music and games is wrong (even if they do it because they can, and have no money to buy it anyway), so how a 30 year old can't understand that is beyond me.
Very interesting the leak is from 30-year-old pre-med student who doesn't understand confidentiality.
Wish his future patients well. It's not like there's any damage from letting loose a few bits of confidential patient history, right?
It makes awesome products (Dual G5, iPods, iLife, PowerBooks), some smart licensing movies (HP iPod, HP Tunes, Motorola iPhone), has a good open source policy (Darwin, KHTML, ZeroConf, Darwin Streaming Server) and STILL people bitch when Apple acts to defend itself!
/. crowd, that would tear any other company apart if it engaged in anything similar.
Let me refute your inaccurate points:
>We have a company here that's suing 21 year old mac fans for participating in the illegal sharing of a beta build of their OS.
No, we have a company here that's suing a 21 year old and others for violating a contractual agreement.
Would YOU not sue me if you paid me $2,000 to paint your car and then when you left the car overnight I sold it to someone else? There are two things that are of interest here:
Apple has an NDA, like many other companies. Intel has them, AMD has them, ATI has them. If you violate that license, you break your contractual agreement.
Apple, like any other technical company, can suffer harm from leaked technical information getting into the hands of competitors. In other words if a rival company ALSO downloads one of those builds they've got their hands on the 'crown jewels' so to speak.
>We have a company here that's extracting information from someone they are about to sue under false pretence.
We have a company here that's suing to ensure future leaks are minimized. Why do you think this is false pretenses? Their OS is almost as much their bread and butter as their desktops! You can't run any Mac without the OS.
If this were a case where someone stole 5 prototype future PowerBooks, Apple would SURELY prosecute the perpetrator for exactly the same reasons.
>We have a company here that's suing a side aimed at their fans because the site spreads some rumors about new products.
Leaks can hurt you. Osbourne computer found out the hard way when they announced a product too early in the life cycle of the current product and went bankrupt because people were waiting for the next version!
Other ways leaks can hurt you: A competitor can copy you, or clone a good enough solution to nullify any special advantages your product has.
>We have a company that refuses to use an open standard, or even simply to license their technology to other companies, in order to leverage the huge market share they have in one area to boost sales in an other area.
You mean like how HP has their HP iPod (which has a tiny HP logo on the back)?
How HP ALSO has Fairplay decoding built into their version of the HP Media Center PC (under the technology HP Tunes) so that songs purchased from the iTMS can be played back OUTSIDE of iTunes?
How Motorola will have a phone that plays Fairplay encoded AACs that can be purchased through the iTMS?
Are you advocating that Apple should be licensing indiscriminately? Because it sure seems to be that Apple IS licensing, but just not licensing to companies you care about, perhaps.
Like to Real software.
>We have a company that is heavily promoting software patents and is heavily involved in fileing trivial software patents.
I must have missed this. Point out some examples please?
>We have a company here that is taking open source technology for their new browser, but then refuse to give the changes they make back in a way that might be useful to the original open source developers.
Someone else already made a rebuttal, but I want to know what you think the "solution" is because I certainly don't see the "problem". Maybe you know something I don't?
>And yet it seems, Apple is still loved by the
As I said earlier, Apple makes great products, makes great software, and in turn allows you, in using those products and software, to enjoy yourself.
About the only other company I can think of that has similar characteristics are:
Coke
Hershey's
Nintendo
GPL Deconstructed
I don't know about you guys, but I'm not very sympathetic to a pre-med student without any ethics. It makes you wonder what kind of physician he'll become.
I have a website. It's about Macs.
...how Apple plays this one.
Was the kid a bit naive? Sure. I'm occasionally on invitation-only torrents in the Mac, and multi-platform, scenes, and the trackers are adamant about people NOT distributing the torrent files, themselves, on other trackers. Always lots of warnings regarding "Don't share torrents, outside." So, I give the kid the benefit of the doubt regarding his belief that the buggy beta would stay 'inside' somewhat. He made, as Nixon put it, 'an error in judgment', no question of that.
I also believe that the real asshole in this situation was the 'paid-up' ADC Member who had the 'seed' of Tiger, in the first place, and 'gave' it to the kid with the freebie ADC account. (Trust me, the 'free' ADC accounts never see 'seeds' of an OS. Period.) He's the one who should be taken to the cleaners, not the kids.
Apple Computer is also made up of 'smart' people, with history and experience. And they should know, (as well as most of us here) that 'good' people do 'bad' things, and smart people are capable of doing the stupidest things.
I did some freelance work in the Securities industry (as an investment analyst for a small group of fellows), and one of the truisms in Markets and market interventions is this: The mechanisms put in place after a crisis, stock crash, etc, are never sufficient to prevent the next shock, and what is more, the mechanisms, themselves, almost invariably guarantee that the next 'event' will be far worse than the one that precipitated the intervention, and its so-called 'protection'. We'll just see... the ball is in Apple's court... for the time being.
I don't want to get accused of shooting the messenger here, but it's worth noting that the author of "Drunken Blog" has, in the recent past, been caught posting lengthy tracts of stuff that just isn't true.
:)
This seems to be about High PPI problem, a blog post I put up about increasing pixel density and resolution independence and the problems faced with moving to the new models. There was one part that I considered to be wrong: which was that Apple didn't seem to be working on it going by what had been released publicly and what I knew to be in Longhorn and newer versions of X.
Is this relevant to the subject at hand? Almost certainly not. But I'm a big believer in context..
This line was from my "Yin and Yang" post, which means I probably pissed you off somehow. No problem if you have a problem with me, but using it to take shots at a kid probably isn't kosher.
Personally, I'm kinda honored to have my own hate club.