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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."
Maybe it's time to look at OS marketshare to see how the different strategies work out.
Try not. Do or do not, there is no try.
-- Dr. Spock, stardate 2822-3.
Releasing a Tiger into the wild is never a good idea, even if you're an experienced Safari user.
What an idiot. This interview will become evidence against him.
When charged with a criminal or civil offense:
1. remain silent;
2. talk to an attorney;
3. if case unresolved, goto 1
Of course in the United States you do not have the right to an attorney if charged with a civil offense.
You also do not have the right to be silent at trial, unless your statement may tend to incriminate you.
Note that in the above program, there is no "grandstand / justify / brag to a blogger" statement.
"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?
The guy lied, violated his NDA and posted valuable copyrighted material which he did not own to a public site. Let him twist in the wind.
When I mentioned it to a few people in various IRC chat rooms, they had asked if they could get a copy too. I made the foolish assumption that since I wasn't a developer, and I had a copy that it would be ok if I shared it with 5 or 6 fellow mac fanatics.
And then he's surprised when it escapes out in the wild. Don't they teach kids the safe sex warnings anymore? You're not just sharing with all your friends, you're sharing with all their friends too.
A steaming cup of soykaf would be real wiz right now.
here: http://www.ramdac.org/article/id/256.html I remember 3 weeks ago when Nessence told me Apple called him on his cell, that this would get nasty. He sent me the legal documents Apple had sent before he came over last night to talk about it.
Whence came this sense of entitlement?
You can't release those to people outside the company. He should be the one targetted in this suit, not some poor college student. He should face disciplinary action (and hopefully fired!). Keeping this guy around will just mean it will happen again! He has no problems handing out seed-keys, as mentioned in the article.
Apple really should fire the dev.
Well, for all we know, maybe they already have. But really, this case is like breaking the bottle after the Genie has left it.
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.
He wrote a lengthy rant about interface scalability in Mac OS X, bemoaning the fact that Tiger doesn't do Thing X that he thinks is really incredibly important, and explaining why everybody at Apple who disagrees with him is obviously an idiot.
Then along came the commenters who, probably by bending their NDAs, explained to him that Tiger does, in fact, do X, and that the author doesn't have the first idea what he's talking about.
Is this relevant to the subject at hand? Almost certainly not. But I'm a big believer in context, so I felt like maybe somebody would appreciate it if I shared what I knew of it.
so he goes through all the trouble of finding out about ADC to get the seed, but as soon as the torrent is disabled by a mod, he "assumes" that the file is messed up and deletes it? sounds more like he deleted it because he got fearful in getting an indirect confirmation that leaking it was wrong...
It always amazes me how Apple gets treated on /.
/. crowd, that would tear any other company apart if it engaged in anything similar.
Let me play devils advocate here for a minute.
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.
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 a side aimed at their fans because the site spreads some rumors about new products.
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.
We have a company that is heavily promoting software patents and is heavily involved in fileing trivial software patents.
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.
And yet it seems, Apple is still loved by the
I'm wondering -- does this have anything to do with the screenshots of Tiger that were released on Macrumors a few months back? Some of you may remember this; I think Slashdot even ran a story about it (although unfortunately I can't find it at the moment).
What happened was this: Someone sent what they claimed to be Tiger screenshots to Macrumors.com. However, the article said "courtesy of Gary Niger from GNAA" or some such, so everyone assumed they were fake. But then they turned out to be real. The GNAA has been bragging ever since.
I guess what I'm really wondering is, are the defendants in this case GNAA members who got caught obtaining and posting these screenshots? Or is this something else, completely unrelated?
Hear recorded Slashdot headlines on your phone! New service beta testing. Just call (248) 434-5508
For $500 per year anyone who agrees to follow Apple's ADC NDA agreement has access to 5 "Software Seed Keys". Anyone can join can and obtain an ADC account for free and what are called "assets" can be passed to other ADC account holders in the same company. That way a company can have 5 developers directly downloading prerelease software with only 1 membership.
There are other, less secretive assets such as the right to buy a Mac system at a discount, albeit for development purposes and not for resale.
Apple also has much more tightly controlled seeds to key developers, these exist but the procedures and those who are involved are a tightly guarded secret. They used to be only distributed on physical media by private carrier.
The lawsuit involved the regular seeded software only, not the uber-secret stuff. To my knowledge that has rarely, if ever, made it into the wild.
The parent here is somewhat correct, but I feel like I should clarify:
The fifth amendment prohibition against compelled testimony only applies to criminal liability, and only applies to "persons."
If an elicited response in a civil case might tend to incriminate you in a criminal action, a witness can invoke the privilege against self-incrimination and refuse to answer that question. Remember, though, that if you waive the privilege, it is lost forever - so if you're not sure, SHUT YOUR MOUTH and find a way to consult with a lawyer. If you're at a loss for how to get an attorney, many state and local bar associations have lawyer referral services that are free to the public, usually with a free or cheap 30-minute interview or something.
In a civil case, just because a statement may tend to make you more liable for money damages in a civil action doesn't mean that you can make a blanket refusal to testify if called as a witness by the opposing party. To do so would not only nullify your defense and force the court to take your opponent's views at face value, but would also mean that individuals could escape liability in most cases by simply refusing to acknowledge it.
Also important is that civil liability has varying degrees of standards of proof, with ultimate responsibility generally relying on a preponderance of the evidence - both sides have an obligation to plead their cases, and the factfinder decides what "truth" is. Criminal liability, however, requires that the prosecution prove its case beyond a reasonable doubt. The criminal defendant can remain silent and the burden for the prosecution remains unchanged.
However, even in a criminal case, you can't use the defendant's silence as both a sword and a shield; once the defendant has chosen to take the stand and testify, they can't choose to only answer questions that would tend to prove their innocence.
I know I went a little overboard, but I always see people confusing the fifth amendment privilege and thinking that they can apply it where they can't. Just wanted to clarify.
In a criminal case, the prosecution has the burden of proving beyond a reasonable doubt each of the elements of the criminal offense, which may include intent (mens rea), and various components of criminal acts (actus reus). In the U.S., the criminal defendant has a fundamental right to a jury trial (but can choose to waive that right).
In a civil case, the plaintiff is the master of her claim. If the plaintiff demands a jury trial on all issues, it's not like the defendant can waive the jury demand that the plaintiff has made. If all of the facts are agreed by both parties, and the facts as agreed constitute civil liability, the plaintiff will likely move for summary judgment - which basically tells the judge "look - we don't have to go to the jury, because according to these facts, we've satisfied our burden of proving that he did what we said he did, and nothing that the defendant could show would make any difference."
There is no jury nullification or "nice guy" exception or "oops, I didn't MEAN to do it" way out in strict liability.
Adding to my earlier post, because he could be liable for criminal copyright violations or possibly other criminal sanctions, he probably does have a fifth amendment privilege with respect to what he's done. He needs to get a competent 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.
Maybe it would not have turned out differently the following way, but at least you cost them more time and resources doing so:
Before I found out I was being sued, they(lawyers) called me up to let me know they were doing an investigation. To be perfectly honest, the individuals who contacted me were polite and respectful. When I asked them if they were suing me, they let me know that if I cooperate, that Apple has a history of being a generous company.
I answered all the questions they asked regarding how I got the torrent, how long I had seeded it for etc. I was honest and as helpful as I possibly could be.
Wrong. Lawyers are not your friend. Their job is to help prosecute you.
We were given 'Door #1': "If you don't co-operate we'll sue you". We replied and upon replying received 'Door #2': "We understand it's P2P, but if you don't co-operate we'll sue you" or 'Door #3': "We are all adults here, cooperate and we assure you we won't sue all your users but we can't tell you what might happen to the uploaders".
How about the front door? You don't have to answer anybody's questions for any reason. In order for you to "co-operate" they need 2 other things:
1. An officer of the law holding a warrant
2. Your lawyer present.
This is a classic case of citizens giving up thier rights guaranteed under the Constitution. Even the Canadian has rights on foreign American soil. These guys just gave up all those rights, did the Apple lawyers and police officers jobs for them, and now they are getting sued!
The links seem to indicate that Apple is in fact returning changes back to the KDE folks, just not in the format they want. Many of the posts also allude to there not being sufficient resources in the KHTML group to keep up with Apple's changes. Well, that's really not Apple's fault - it looks like Apple is in fact upholding their end of the bargain. If this isn't a correct interpretation, could someone please clarify?
Please stand clear of the doors, por favor mantenganse alejado de las puertas
Not to mention the fact that when GCC 4 is released with Objective-C++ support (by the way, the Apple developers have been very helpful in modifying their GCC changes so that they can be incorporated into the main trunk) we are likely to see at least one GNUstep web browser based on webkit.
I am TheRaven on Soylent News
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!
The Fifth Amendment 'can be asserted in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory; and it protects against any disclosures which the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used.' Kastigar v. U.S., 406 U.S. 441, 44-45 ('72).
A reasonable belief that information concerning income or assets might be used to establish criminal failure to file a tax return can support a claim of Fifth Amendment privilege. See U.S. v. Rendahl, 746 F.2d 553, 55-56 (9th Cir.'84).
You know what? Just because you have a *right* to remain silent doesn't mean you should always do so!
Perhaps there is sometimes far greater value in getting things "off your chest" and publicly clarifying a situation before the rumor-mongers go wild, twisting it into something completely different than it is?
When you're just a student with limited finances and limited personal property, you already *know* there's not too much financial damage a corporation can do to you. (Can't get blood from a turnip, as they say.) So where's the only *true* damage coming from in a case like this? Usually, your personal credibility and respect - if you remain silent and let people run around the Internet tossing out wild accusations about you.
In fact, letting the public know the true nature of this type of situation can prove to be your best "counter-measure" against the corporation. Any sympathy you earn may do you no good in the courtroom directly, but it very well MIGHT influence the future purchasing desicions others make. (EG. If you used to support Apple products because of a belief they were a more "moral" company than competitors like Microsoft, maybe now, you'll change your mind?)
Apple shares the source for their open source derivatives, and even ported them to x86.
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
It's hard to be sympathetic for this guy. He signed an NDA, didn't read it, then did something incredibly stupid, and is getting sued for it. He even admits it -- but seems to think it's unfair that he should have to face the consequences of his actions. Why should we care, exactly?
This isn't Big Brother, this isn't Evil Corporate America, this is someone explicitly and knowingly entering into a contract and then flagrantly violating it. That he didn't read the NDA, or apply the tinyiest inkling of common sense, makes that his fault, and no one elses.
What does he think the appropriate resolution should be, exactly? Getting a cookie?
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.