Apple Computer founder and community speak on Tiger leak defendants

It's been a little over a month since I sat down with Vivek "Sunny" Sambhara (desicanuk) for an interview on the lawsuit he was faced with, and what led up to it. This is a separate set of lawsuits from Apple's other ongoing cases.

A lot of feedback flowed in from that interview, most notably from Steve Wozniak, co-founder of Apple Computer:

"I was shocked reading the interview. Everything fits into place that this is an unintentional oversight and the interviewed student appears to be one of the most honest people on this planet. I have to question who is most right in this case.

I wish that Apple could find some way to drop the matter. In my opinion, more than appropriate punishment has already been dealt out. In this age of professional spammers and telemarketers making fortunes, we're misusing our energies to pursue these types of small time wrongdoers. I will personally donate $1,000 to the Canadian student's defense."

To recap

Sunny is one of three defendants who have been named in the suit, along with 25 other "John Does", for leaking a pre-release build of the upcoming Mac OS 10.4 onto the internet. It must be noted that this lawsuit is separate from what is being brought against ThinkSecret.

Things are looking pretty grim for Sunny. In order to deal with this, he'd need an attorney in, or licensed to practice law in, the state of California. They'd also need to be an expert in the field of intellectual property, and he's exhausted public avenues of help. Those are primarily geared towards helping a tenant deal with a landlord, with the expectation that the person is in-state. Nothing like this.

Those attorneys he's been able to to return his emails or calls have given a requirement of a $7,500 minimum retainer just to try to mitigate damages. Most required drastically higher retainer fees. This is a civil jury case in a Federal Court, which means there are no such things as public defenders.

There are things you need to do when you've been sued, like responses to the court. If you don't do them, the case defaults into a win for the other side and it all comes down to what they ask for in damages. You're at their mercy. Going by what they're asking for in the court papers, they aren't planning on being particularly merciful when it comes to damages.

The community speaks

Steve Wozniak is one voice in the Apple community, with his own frame of reference. To get a better snapshot of where the community stands on what Apple is doing here, I'm bringing you the words of 24 others from the Macintosh community, from 23 separate companies and projects.

I've specifically talked to developers because they also have large interests in intellectual property in one form or another, and they're a reasonable microcosm of the communities they represent.

Brent Simmons of Ranchero Software, the authors NetNewsWire and MarsEdit:

"I sympathize completely with Apple and I understand that they need to make sure that this stops. I not only understand it, I support it.

However, I suspect that it's possible to pull back on the legal front and still accomplish the goal of stopping leaks. The company that I know and love is a humane company."

Will Shipley of Delicious Monster, the creators of Delicious Library:

"While I'm VERY strongly against software piracy and breaking non-disclosure agreements, I also believe that you have to look at the motivations behind what people did when meting out punishment.

I understand Apple wanting to send a strong message that it's serious about enforcing the agreements we've signed, but this seems like a marketing nightmare for Apple – in an era where Apple is presenting iTunes as an alternative to the witch-hunts done by the RIAA, this is going to make Apple's music customers less certain that Apple really wants to be 'the good guys.'

Apple needs to give these guys a good wrist-slap and be done with this before the story spins out of control against them."

Brian Wilson, the business manager of Unsanity, who make too many great OS X utilities to list here:

"I respect Apple's right to protect what is theirs. I respect their need to maintain a tight lid on the features of their unreleased software. I do not condone the distribution of the software and violation of the NDA. There is no excuse that can really cover that in my opinion.

Having said this however, I do think it's a sad situation when a few people have to pay the price for so many more who are doing the same thing. I also find any trend of "making an example" to be disturbing. The few that are made example of are often not the main cause of the problem.

I hope something can be resolved in this situation that allows each side of the issue to continue on with life/business."

Michael Tsai, the author of SpamSieve:

"Posting the Tiger build was stupid and wrong, and I think Apple is right to try to enforce its NDA. There should be consequences to breaking an agreement. Innocent intent is no excuse.

That said, I really hope that Apple can find a way to make its point without causing these individuals undue hardship. It's not possible to undo what they did, but they are cooperating and seem willing to do what they can.

Apple's products stand out because they're designed for people. I hope that its legal department can be similarly humane."

August Trometer, the author of iPodderX:

"While I don't condone what these students have done, I also don't think Steve Jobs can forget the not-so-legal beginnings of his own technology career.

Potentially ruining the lives of three students over what seems to be an innocent mistake is, at best, over-aggressive and, at worst, tragic. Surely, Apple can find a better, more appropriate resolution."

Evan Schoenberg, co-lead of the AdiumX project for OS X:

"Sunny is not a "pirate," a "thief," or an "example." He is not abstract; I've spoken with him, and I know that he is, like me, a college student with plans to pursue a career in medicine. It is simply wrong -- no matter the legal ramifications of the situation -- of Apple to use the law to burden him with extreme financial hardship which will set back his life without even a chance of such action having any real bearing on Apple itself.

He made a mistake, and while I do not condone his actions, I fully support Sunny and the other defendants as they stay the course of what I hope will not be Apple making an even bigger mistake."

John Gruber, the author of DaringFireball.net:

"What these guys did was both foolish and wrong, and stupidity is not an excuse for wrongdoing. Apple has every right to pursue and punish individuals who are bootlegging their software.

However, I believe that everyone involved, including Apple, sees that no good would come of pursuing their legal remedies to the maximum possible extent. While these misdeeds warrant punishment, a protracted legal case could well cause the personal and financial ruin of these individuals. I think that would be incommensurate with the nature of the infraction, and I would hope that Apple realizes that, too."

Jason Harris, also of Unsanity is the author of ShapeShifter, Mighty Mouse, ThemePark, and the project manager for Chicken of the VNC:

"I think these guys are getting screwed, but I don't really see a better option.

The main problem is that Apple as a company survives by being innovative. They figure out new trends before they've hit, and capitalize on them. This means that they need to be the first (large) mover in their markets. If they're not, they sink.

This, in turn, means that they need to keep their plans secret until they hit the world with 'em. So they need to always make sure that their leak-enforcement has "teeth", so that people don't leak their stuff, which would (slowly but surely) kill them as a company.

If these kids had leaked hardware or strategy plans, I'd say that Apple should throw the book at 'em.

But they didn't. They leaked a build of an operating system that has already had all of its features publicly announced - in fact, they're all viewable by the general public on Apple's web pages. In fact, any member of the general public can pay $500 to get into Apple's "Early Adopter" program and get a copy of their own, legally.

So this is not at all a situation in which Apple needs to protect their IP from being harvested by other companies - it's just a situation in which they're enforcing their copyright and making sure that people pay for their product. Which means that violators should be punished, but they should be punished the same way that a shoplifter (someone who steals physical goods) would be punished. These guys don't need to have their lives ruined."

Rory Prior, creator of NewsMac for OS X:

"As a software developer I understand Apple’s desire to protect its intellectual property. Nevertheless I feel that Apple in a way encourages its customers to want to misappropriate their software because of the hype and fervour it whips up, often many months prior to the release of these products.

This can cloud the judgement of the company’s ardent fans who feel they are doing no real harm by getting just a little bit more of a sneak peak than what they were shown already at public events like Macworld Expo and the WWDC. Of course that doesn’t condone the actions of these individuals, what they did was clearly wrong and violated Apple's NDAs. The punishment they face – essentially the ruining of their lives both financially and professionally, does seem too much however.

There was no malicious intent involved from what I can see having read their interviews and I’m sure the fear and pain they have already experienced at the prospect of being sued by a huge corporation is punishment enough. It is my hope that Apple will drop these lawsuits before the damage to these individual’s lives becomes irreparable."

Adriaan Tijsseling, author of Ecto for OS X and Windows:

"It's obvious that sharing a preview build of a MacOS is a bad idea. You're young, you want to be part of the cutting edge, but your budget won't allow you. So what you do? You try to get your share of the cake via the underground.

Is it a mistake? Yes. Is it forgivable? Of course! Mistakes are there to learn from. What Apple is doing now, however, is payback of the worst kind. I don't think sharing a Tiger build should cost you your career, your full income, and your dignity.

Let it go, Apple. You cracked down on the sharing and sent a message. But you can't undo the damage and those three individuals have learned their lesson well. Forgive them and let them go back to their normal lives."

Allan Odgaard, of TextMate:

"Even the best of us do things we're not supposed to do. Steve himself indicated that he had tried P2P when he introduced the iTunes Music Store.

If I were to give Apple any advice [it would be] to involve the marketing department so that this can be spun into something possitive. I think a headline like: 'Apple fans commit to community service for getting a preview of Tiger' is to be preferred over: 'Apple ruins the future for students who pirated Tiger'."

Christopher Forsythe, of the Growl project:

"I used to think that Apple was oriented on the user. It's part of what caused me switch over to the mac -- a corporate backing with a conscience. I am now reevaluating my previous conclusions regarding this company.

I'm going to stick with Apple, but if Apple continues in this trend of attacking users who are only trying to preview new cool toys, it really does worry me for the long term."

Pieter Van den Abeele, the lead of Gentoo Mac OS and Gentoo Linux PowerPC:

"I am one of the lucky ones with a developer scholarship sponsored by Apple. Before the launch of Gentoo for Mac OS X, Apple invited me to WWDC last year and honestly I had a great time speaking with the Apple engineers on various aspects of their Operating System. Some of these Apple engineers were people from the open-source community.

One of the developers I had the pleasure of speaking with was the mod_rendezvous developer that was hired by Apple shortly after his work made slashdot. So, I can account from first hand experience that Apple maintains a close relationship with developers from the open-source community. Apple did a lot to expose developers that write innovating software to Mac OS X seeds.

The developers that seeded the torrent made a bad decision that should not be applauded. Nevertheless, I have to agree with Steve Wozniak that the students who participated have been punished more than enough. I'm convinced Apple is and will stay a cool company that works with brilliant people on innovating products."

Jonathan ‘Wolf’ Rentzsch, of Red Shed Software:

"If Apple is indeed silently attacking these kids, that's not cool. Nobody wins that way. Obviously, the kids don't win.

But Apple doesn't win either. If Apple's intent is to make an example of these kids -- to scare the pirates -- that requires publicize their legal lynching, not hiding it. Perhaps Apple doesn't want to suffer the inevitable negative press/RIAA analogies. If that's the case, then it's really the worst of both worlds. Apple spends cycles making a bad thing worse, yet nobody hears about it."

Steven Gehrman, author of PathFinder for OS X:

"These actions remind us all that Apple is more than just Steve Job's and his team of insanely talented engineers. They have their share of corporate goons like any other big company. I don't condone the actions of the individuals involved. They should have respected the NDA, but in this case I don't believe Apple was harmed.

It's incredibly simple for anyone to legally obtain a prerelease of Tiger, so I don't feel that uploading it to Bittorrent was a crime worthy of such a harsh reaction from Apple legal."

Kristofer Szymanski, author of Cocktail for OS X:

"I read the interview, and [Sunny] broke the agreement with Apple and did something they shouldn't have. There is no question about it...

But I think Apple want to sacrifice their lives to show other people who are sharing the software online that they can be punished. I think this is the right thing to do but not the right way to do it. I simply think that they deserve a second chance."

Foad Afshari, owner of Defaultware, the makers Proteus:

"As the owner of a software company, I understand the reason for NDAs and confidentiality in a highly competitive world, but I honestly think that this was just a misunderstanding.

I am not condoning the fact that a pre-release version of Tiger was released, but I think the fact that Apple is taking such a harsh stance on individuals that seem to realize that what they did was wrong is going a little overboard. I don't think that they would make the same mistake twice."

Paul Kafasis, CEO of Rogue Amoeba, makers of too many great audio utilities for OS X to list here:

"This is a complex case -- there's no cut and dried way of looking at it. It's just not black and white. Agreements were broken, and whether this was done maliciously or not, punishment should be meted out.

However, this punishment should certainly fit the crime. Was major damage caused to Apple? Was it done with malicious intent? Sunny certainly has an interest in coming across as a simple Apple fan who got a bit overzealous, and that certainly seems likely. But without hearing both sides, without seeing the real data, I can't say that this is how things really are.

Certainly, I can't condone what Sunny did, but does it make sense for Apple to use his actions to ruin the lives of several of their most fervent followers? Apple should be careful to avoid turning its own fans into enemies.

They need to balance their interest in protecting intellectual property and unreleased software against both the personal impact of their actions and the way their actions will be perceived by the world. Hopefully this will end better than it has begun."

Timothy Hatcher, lead developer of Colloquy:

"For Apple to start sinking to this level is very troubling to me (with the recent lawsuit against the rumor-mills as well). Growing up with Apple products I have always had pride to be an Apple user.

Actions like this have made me wonder really who is running things, Steve Jobs or bloodthirsty lawyers. It's painful to watch a company grow up like this. From the final days of Woz up until now it has been a bumpy ride."

Wilfried de Kerchove de Denterghem, author of MacReporter:

"Going after individuals who misevaluated the consequences of their acts and proceeded with no financial intentions will not stop malicious troublemakers from going on unnoticed and can only result in a tarnished brand image.

I know that there are reasonable people at Apple and I do hope they'll spend some time reviewing this case, because as sure as they can seriously harm one's life, the bitter effect upon public opinion won't ultimately be worth it.

Having a solid intellectual property policy is a good thing, however being overzealous about it makes it look all the more feudal."

Maksim Rogov of Nullriver Software, creators of NewsTicker and MenuShade:

My opinion on it is that while indeed these students broke their contract (be it direct with Apple or through a third party like their educational institution), I don't think the penalty they are about to face for it is at all just.

We are looking at a test version of an operating system that has long been demonstrated to the public and is nearing release. It will likely become outdated and replaced in a year or two yet again, but these students, their lives are being kicked off track. Losing their hard work and commitments to such a minor mistake is really hard to agree with, especially because in the end there's no real loss for Apple here. Instead, persuing these cases legally in such a manner is not going to look good on them, no matter what kind of market power they may have.

I don't think Apple is losing money on these copies, as these people would not be buying an ADC account regardless, if they were, they would have done so already -- from my understanding, it is larger companies and schools that purcahse these licenses, not (usually) individuals. And as for IP, like I've already mentioned, the OS has been demoed, previewed and otherwise well documented all over the internet and at the recent Apple events.

Why take a student's future away for something like this? I am sure they've learned their lesson now, their lives need not be affected so harshly.

Zdzislaw Losvik, author of ViewIt:

Such incidents should not have huge impact on one future. It is common on Earth to punish prophets, but there would have been no prophets without their followers.

Aren't the followers: seeders and leachers equally responsible for this leak? Developers have to use legal software and they can afford to buy beta versions of software, others simply would never purchase it. Haven't these people actually encouraged people to buy retail version when it arrives?

Danny Espinoza of Mesa Dynamics, authors of Tickershock, Trapeze and other OS X utilities:

"In theory, what hurts Apple, often ends up hurting the development community and, conversely, what hurts the development community often ends up hurting Apple. So it’s troubling to see Apple pitted against its community.

To be fair, Apple may have felt backed into a corner, like it needed to set an example. But in this situation, where all our interests are so tightly aligned, a private resolution may be a better approach."

Peter N Lewis of Stairways Software, the authors of Interarchy and Keyboard Maestro:

"It seems clear that the people involved in breaking Apple's NDA by redistributing Tiger seeds did so without any malicious intent, and that if Apple's intention is to alert others in a similar situation to their obligations with regard to Apple's NDA and the wisdom of maintaining Apple's confidentiality, then that goal has already been accomplished.

Pursuing these individuals serves no further purpose other than alienating faithful Apple users and generating further bad publicity."

These voices aren't all-inclusive. I don't know everyone, and not everyone I talked to was willing to give a public comment, under the idea that many of them depend on Apple helping them in one form or another. Talking publicly about Apple's actions, even if it were favorably, could make it easy for Apple to decide not to provide that in the future.

They need that help and assistance, and without it they would be jeopardizing their livelihoods and company futures, and it should be noted that everyone who did speak did so with the knowledge that there could be repercussions in some form down the road because of it.

I trust, and hope in my heart, that Apple won't go there. While they may not be happy with what their community has to say, they live by community and developer feedback, and that is what this is.

What you can do

It's good to remember that Apple does have a history of being a compassionate company, but large corporations are not monolithic entities. They're segmented into different departments, which are often charged with wildly disparate goals.

Corporate legal departments have their own agendas, and their own metrics by which they judge success and failure. They have a charter to zealously protect corporate intellectual property in all its various forms. They are not paid to be compassionate.

There are a few ways you can help:

  • Tell Apple what you think
    Whether or not you agree with what Apple is doing, you need to tell them how you feel on the issue, or they will never know. Take a few minutes to send them feedback via their website, where they will hear you.
  • Tell others about the situation
    History tells us that egregious behavior often occurs because there just isn't enough awareness of what was going on in the first place. Make sure people know what is going on, in any form you can.
It's easy to feel that one person speaking up won't make a difference, but there is power in your voice. One voice is a whisper, but layered together they will be heard. However, for your voice to be heard, you have to speak.

You may not change IP law, but by adding your voice to the others in this situation, in this small way you can contribute to the world being a bit of a better place.

yummy alcohol posted button Posted by drunkenbatman
    February 21, 2005, at 06:54 PM


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