Apple iPod Suit at Risk Over Challenge to Plaintiffs' Qualifications
RealNetworks later released an update to Harmony that made it work on iPods again, but another Apple update again made Harmony incompatible. Eventually, RealNetworks gave up trying to play on the iPod, which had quickly established itself as the world's most popular music player. Apple claims its software updates weren't targeted at Harmony, but designed to offer improvements like the ability to play video and movies. In opening statements to the jury Apple called the improvements groundbreaking. The San Jose Mercury News reported earlier this week that lawyers representing consumers in the case have already shown the jury some of Apple's internal communications after RealNetworks launched Harmony including a draft of a news release in which Jobs compared Harmony to "the tactics and ethics of a hacker and breaking into the iPod." If Apple loses, it can well afford even a billion dollar judgment, but it's still a lot of money and the tech giant is mounting a vigorous defense. Gartner analyst Mike McGuire said he's surprised the case has gone on so long, and while he's reluctant to predict the outcome of a jury trial, he thinks Apple has a few trump cards.McGuire also noted the key argument in Apple's favor is Fairplay, the DRM software designed to keep songs downloaded on the iPod from being illegally copied. Fairplay (ironically, given its name) was incompatible with the anti-copying code used by other online music sellers and you could not play songs purchased on iTunes on, for example, non-iPod devices like Microsoft's Zune music player or the Diamond Multimedia Rio. "All those contracts Apple had with music labels at the time required them to put protection on the music files," said McGuire. "Anything that breaks that protection is a hack of the DRM, he noted. Apple's intent in keeping the DRM in place isn't relevant, McGuire contended. "It had the right to fix any holes in the DRM, and if that means Harmony wouldn't work, oh well." Marc Canter, a pioneering developer of multimedia technology and music fan, said there's no question in his mind that Apple wanted to stop RealNetworks Harmony from playing on the iPod, but he also agreed that consumers then had no expectation of interoperability. But he said that inevitably we will get to a point where you'll be able to mix and match your music regardless of how you bought it because that's what consumers want. "The notion of intermixing to this day is still not possible. It's been the holy grail of the industry," Canter told eWEEK. "I have songs I bought on iTunes and now on other services like Pono for high res and Spotify. I'd like to mix and match, but I can't—but that's where the world wants to go."
"I'm kind of surprised this reached class-action status," McGuire told eWEEK. "The impetus I guess at the time was to ask 'why can't I get my [non-Apple] stuff on this device?' But the reality was the industry was hoping for but never really tried to enforce interoperability and Apple never set that expectation. As a consumer, I never expected my RealNetworks subscription would run on all devices; I'd use it on my PC."