Mr. Jobs Would Be Happy to Respond if Someone Could Please Remind Him What FairPlay Was

“We are stunned that RealNetworks has adopted the tactics and ethics of a hacker to break into the iPod, and we are investigating the implications of their actions under the DMCA and other laws. We strongly caution Real and their customers that when we update our iPod software from time to time it is highly likely that Real’s Harmony technology will cease to work with current and future iPods.”

–Apple July 2004

Has the dispute over the FairPlay Digital Rights Management technology Apple once used in iTunes really dragged on this long? Impossibly, it seems it has. More than three years after the company discontinued its use, the now six-year-old lawsuit is back in the headlines again. The judge hearing the case on Monday ordered Apple CEO Steve Jobs to testify, Bloomberg reports.

Under the terms of the mandate, Jobs must sit for a two-hour deposition, answering questions about a 2004 software update that that made songs purchased from RealNetworks unplayable on the iPod, thwarting Harmony, the software RealNetworks developed to mimic FairPlay and outraging iTunes user Thomas Slattery who sued Apple in 2005 (for further detail, see the ancient posts I wrote about these issues for GMSV below). “The court finds that Jobs has unique, non-repetitive, firsthand knowledge about the issues at the center of the dispute over RealNetworks software,” U.S. Magistrate Judge Howard R. Lloyd wrote in a court filing.

Which is almost certainly true.

But at this point, who cares? Aside, that is, from the folks who in 2005 accused Apple of “rigging” the iPod so that only music purchased from iTunes could be played on it. Evidently, they’d still like to be able to play RealNetworks files on their iPods.

Reached for comment, Apple declined. Below, some very dusty background on the case …

Yeah, you’re Real alright … real annoying …

In a recent e-mail to Steve Jobs, RealNetworks CEO Rob Glaser asked the Apple CEO to consider a “tactical alliance” with his company. License us your Fairplay digital rights management system, allow our customers to play their digital music collections on the iPod, wrote Glaser, and we’ll make the iPod our primary device for the RealNetworks store and for RealPlayer software.

It was an astonishing offer, especially coming from Glaser, who had been a vocal critic of Apple and its decision to make digital music sold through its iTunes store playable only on iPod (“I bought an iPod and can only shop at one store,” Glaser once said. “What is this? The Soviet Union?”) But it was an offer that Jobs found unappealing. The Apple CEO rebuffed Glaser, declining even to meet with him over lunch to discuss it. So Real’s announcement today of a new technology that makes its online music service compatible with the iPod isn’t likely to go over well at Apple HQ. This morning Real rolled out RealPlayer 10.5 and with it Harmony, technology that will allow people to play music purchased at its Rhapsody store on Apple’s iPod as well as music players that support only Microsoft’s WMA (Windows Media Audio) format.

For Real this is quite a coup, and one that, assuming it’s not thwarted by Apple, may well give it a much needed leg up in the online music market. “This is very important for RealNetworks, because it overcomes one of the biggest issues they have had: lack of popular device support,” said Michael Gartenberg, an analyst with Jupiter Research. “It’s the device that drives the music store, not the other way around. Now the challenge is for Real to provide a compelling reason for users to come over–an extended catalog, more attractive pricing. It has solved the technological problem. Now it has to persuade customers from a content perspective.”

Hey, I’ve got a great idea! Let’s do an online petition!
When Real Networks’ launched its “Hey Apple, Don’t Break My iPod!” petition, it hoped for an outpouring of support for its new Harmony technology, which allows consumers to download music to all new music devices, including the iPod. What it got instead was a merciless tarring and feathering that will no doubt give the Real PR team nightmares for years to come. Appended to the hundreds of digital signatures on petition were hundreds of comments, most of them critical of Real, its technology and its business practices.

“When Real makes their songs available for sale to Mac users, then we can talk about limiting choice,” wrote one signatory. “Hulk smash Real player!!! Apple good for strong bones!!!! Glaser weak, Hulk Strong. Hulk smash Glasers head with fist for insulting Hulks intelligence!!! Hulk Smart!!! Glaser Dumb!!!,” wrote another. Not all of the comments added to the petition were so staid or tongue in cheek. “Selling on a loss to gain market share might work for large profitable giants with money to burn,” wrote one signatory. “But for a worthless company like Real, with history of losses quarter after quarter, it is a short-cut to Chapter 11. And I say more power to Real, please spend your way to bankruptcy ASAP. The whole market will heave a collective sigh of relief and your 49c customers will get what they paid for, support or rather lack thereof, from a bankrupt company.”

Its first petition gone horribly awry, Real launched a second, this one with comments disabled. But it too drew the ire of those viewing it and inspired an alternate petition that pretty much captured the spirit of the entire debacle.