"The Apple iPod iTunes Anti-Trust Litigation"

Filing 740

Administrative Motion to File Under Seal filed by Apple Inc.. (Attachments: # 1 Declaration Kiernan Declaration ISO Administrative Motion to Seal, # 2 Proposed Order Granting Motion to Seal, # 3 Exhibit Rdacted Version of Defendant's Notice of Motion and Motion for Summary Judgment and to Exclude Expert Testimony of Roger G. Noll, # 4 Exhibit SEALED Version of Motion for Summary Judgment and to Exclude Testimony, # 5 Exhibit REDACTED - Separate Statement ISO MSJ, # 6 Exhibit SEALED - Separate Statement ISO MSJ, # 7 Exhibit REDACTED - Exhibit 3 to Amiri Decl., # 8 Exhibit SEALED - Exhibit 3 to Amiri Dec, # 9 Exhibit REDACTED - Exhibit 4 to Amiri Dec, # 10 Exhibit SEALED - Exhibit 4 to Amiri Dec, # 11 Exhibit REDACTED - Exhibit 5 to Amiri Dec, # 12 Exhibit SEALED - Exhibit 5 to Amiri Dec, # 13 Exhibit REDACTED - Exhibit 6 to 8 to Amiri Dec, # 14 Exhibit SEALED - Exhibits 6 to 8 to Amiri Dec, # 15 Exhibit REDACTED - Exh 9 to Amiri Dec, # 16 Exhibit SEALED - Exh 9 to Amiri Dec, # 17 Exhibit REDACTED - Exh 10 to Amiri Dec, # 18 Exhibit SEALED - Exh 10 to Amiri Dec, # 19 Exhibit REDACTED - Exh 11 to Amiri Dec, # 20 Exhibit SEALED - Exh 11 to Amiri Dec, # 21 Exhibit SEALED - Exh 13 to Amiri Dec, # 22 Exhibit REDACTED - Exh 14 to Amiri Dec, # 23 Exhibit SEALED - Exh 14 to Amiri Dec, # 24 Exhibit SEALED - Exh 15 to Amiri Dec, # 25 Exhibit SEALED - Exh 16 to Amiri Dec, # 26 Exhibit SEALED - Exh 17 to Amiri Dec, # 27 Exhibit SEALED - Exh 18 to Amiri Dec, # 28 Exhibit SEALED - Exh 19 to Amiri Dec)(Kiernan, David) (Filed on 12/21/2013)

Exhibit 5
[PUBLIC VERSION - REDACTED]

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Robert A. Mittelstaedt #60359
[e-mail]
Craig E. Stewart #129530
[e-mail]
David C. Kiernan #215335
[e-mail]
JONES DAY
555 California Street, 26th Floor
San Francisco, CA 94104
Telephone:
[phone]
Facsimile:
[phone]
Attorneys for Defendant
APPLE INC.

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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THE APPLE iPOD iTUNES ANTI-TRUST
LITIGATION.

Lead Case No. C 05-00037 YGR

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This Document Relates To:

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ALL ACTIONS

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[CLASS ACTION]

EXPERT REPORT OF DR. JOHN P.
J. KELLY

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CONFIDENTIAL ATTORNEYS EYES
ONLY

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I. 

A. 

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II. 

Background ............................................................................................................. 1 

B. 

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INTRODUCTION .............................................................................................................. 1 

Assignment.............................................................................................................. 1 

TECHNICAL OVERVIEW ................................................................................................ 5 

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A. 

The iTunes Ecosystem ............................................................................................ 5 

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B. 

FairPlay ................................................................................................................. 15 
1. 
2. 
3. 

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C. 

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iTunes Database .................................................................................................... 36 
1. 
2. 

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FairPlay in iTunes 4.5.0 and 4.6.0 ............................................................ 17 
FairPlay in iTunes 4.7.0 ............................................................................ 20 
FairPlay Introduced With iTunes 7.0 ........................................................ 26 

Overview of the iTunes Database ............................................................. 37 
Improvements to the iTunes Database Introduced With iTunes 7.4 ......... 41 

D. 

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...................................... 43 
1. 
2. 

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E. 

.................................................................................. 43 
................................................................................ 46 

Attacks on FairPlay Continued After iTunes 4.7 .................................................. 50 

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III. 

HARMONY ...................................................................................................................... 51 

IV. 

THIRD PARTY JUKEBOX COMPATIBILITY PROBLEMS ....................................... 56 

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A. 

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V. 

Overview Of Software Development Process ...................................................... 56 

B. 

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There Is Overwhelming Evidence Of Third Party Jukebox Bugs......................... 62 

WINAMP COMPATIBILITY ISSUES............................................................................ 65 
A. 

ml_ipod Plugin ...................................................................................................... 67 

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1. 
2. 
3. 
4. 
5. 

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6. 

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B. 

ml_ipod Plugin Overwrites iTunes Data ................................................... 67 
ml_ipod Plugin Deletes iTunes Playlists................................................... 69 
ml_ipod Plugin Prevents The iPod From Playing Videos ........................ 70 
ml_ipod Plugin Deletes On-The-Go Playlists ........................................... 72 
ml_ipod Plugin Truncates The iTunes Database When The Disk Is
Full ............................................................................................................ 74 
Other Issues and Customer Complaints About ml_ipod ........................... 75 

pmp_ipod Plugin ................................................................................................... 76 

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Expert Report Of Dr. John P. J. Kelly

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1. 
2. 

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3. 

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VI. 

pmp_ipod Plugin Deletes On-The-Go Playlists ........................................ 76 
pmp_ipod Plugin May Leave The iTunes Database In An
Inconsistent State ...................................................................................... 79 
Other Issues and Customer Complaints About pmp_ipod ........................ 79 

REALPLAYER WITH HARMONY COMPATIBILITY ISSUES ................................. 81 

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A. 

iTunes Database Contents Are Inconsistent.......................................................... 84 

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B. 

Playlists Are Corrupted ......................................................................................... 85 

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C. 

RealPlayer Deletes On-The-Go Playlists .............................................................. 89 

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D. 

RealPlayer Creates Zero Length Database When Disk Is Full ............................. 93 

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E. 

RealPlayer Crashes Cause Music To Disappear ................................................... 96 

F. 

RealPlayer does not handle special characters in song tags .................................. 97 

G. 

RealPlayer Leaves Orphan Files On The iPod ...................................................... 99 

H. 

RealPlayer Does Not Support The iPod Video ................................................... 100 

I. 

Other Customer Complaints................................................................................ 103 

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VII. 

APPLE AND THIRD PARTIES WOULD HAVE HAD TO WORK TOGETHER ..... 104 

VIII.  ADVANTAGES OF A “WALLED GARDEN” ............................................................ 107 
IX. 

OTHER TOPICS............................................................................................................. 111 

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Expert Report Of Dr. John P. J. Kelly

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I.

Introduction

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I, Dr. John P. J. Kelly, declare as follows:
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1.

I have been retained by counsel for Apple Inc. (“Apple”), to provide assistance in

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the above-captioned case. I am the principal of Kelly Computing, Inc. (d/b/a Kelly Technology

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Group), 830 Park Lane, Santa Barbara, CA 93108.

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A.

BACKGROUND

2.

I previously submitted a declaration in this matter: Declaration of Dr. John P. J.

Kelly In Support of Defendant’s Renewed Motion For Summary Judgment (hereinafter the

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“Kelly Declaration”). I have described my background and qualifications in the Kelly
Declaration. Attached hereto as Exhibit A is a true and correct copy of my Curriculum Vitae.
3.

A listing of testimony that I have provided in the last four years and my

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compensation is attached hereto as Exhibit B. I am being compensated for my time spent in

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connection with this case. I have no financial interest in the outcome of this case.

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B.

ASSIGNMENT

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Counsel for Apple asked me to examine (1) the changes made to Apple’s FairPlay

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DRM technology introduced through iTunes 4.7,

and

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analyze (i) whether those changes made FairPlay less susceptible to attack and (ii) why they

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blocked RealNetworks’ Harmony technology; (2)

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(3) the risks that third-party applications like RealPlayer with Harmony,
Winamp and others created for the proper operation of the iPod and iTunes; and (4) what it would

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Expert Report Of Dr. John P. J. Kelly

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entail for Apple to ensure that RealPlayer with Harmony technology would continue to work in

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light of the changes to FairPlay including those in iTunes 4.7. In addition, counsel for Apple

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asked me to evaluate and respond to the opinions set forth the in the Declaration Of David F.

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Martin In Support Of Plaintiffs’ Opposition To Apple’s Motion For Summary Judgment and
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Expert Report of David M. Martin.
5.

I considered the following materials in preparing this declaration:
•

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Source code and change logs for FairPlay included in iTunes 4.5.0, 4.6.0, 4.7.0,
4.7.1, 4.8.0, 4.9.0, 5.0.0, 5.0.1;

•

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Technical descriptions of FairPlay;

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•

Source code for iTunes 4.5.0, 4.6.0, 4.7.0, 4.7.1, 4.8.0, 4.9.0, 5.0.0, 5.0.1, 6.0.0,

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6.0.1, 6.0.2, 6.0.3, 6.0.4, 6.0.5, 7.0.0, 7.0.1, 7.0.2, 7.1.0, 7.1.1, 7.2.0, 7.3.0, 7.3.1,
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7.3.2, 7.4.0;

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•

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;
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Source code for versions 1.1.4 and 1.1.5 of the firmware for the iPod shuffle 1st
generation (Q98), versions 1.0.1, 1.0.2, 1.0.3 and 1.0.4 of the firmware for the

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Expert Report Of Dr. John P. J. Kelly

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iPod shuffle 2nd generation (N98), and versions 1.0 and 1.0.1 of the firmware for

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the iPod shuffle 3rd generation (D98);

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Declaration of Jeffrey Robbin in Support of Defendant’s Motion to Dismiss or in

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The Alternative Motion For Summary Judgment dated February 11, 2010;
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Summary Judgment (“Robbin Decl.”);

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Declaration of Jeffrey Robbin in Support of Defendant’s Renewed Motion For

Declaration of Augustin Farrugia in Support of Defendant’s Renewed Motion For
Summary Judgment (“Farrugia Decl.”);

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Supplemental Declaration of Augustin Farrugia dated July 2, 2013 (“Farrugia

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Suppl. Decl.”);

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Deposition Of Jeffrey L. Robbin On Behalf Of Apple, Inc., December 3, 2010

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(“Robbin Dep. Tr.”); Deposition Of David K. Heller On Behalf Of Apple, Inc.,

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December 15, 2010 (“Heller Dep. Tr.”); Deposition Of Augustin J. Farrugia On

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Behalf Of Apple, Inc., December 8, 2010 (“Farrugia Dep. Tr.”);

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Discussion with Dave Heller on 02/17/2011;

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Discussion with Augustin Farrugia and G.P. Fasoli on 02/17/2011;

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Declaration Of David F. Martin In Support Of Plaintiffs’ Opposition To Apple’s

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Motion For Summary Judgment (hereinafter the “Martin Decl.”) and the materials

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cited therein;

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•

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Expert Report of David M. Martin Jr., Ph.D. dated April 8, 2013 (“Martin Report”)
and the materials cited therein;

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Deposition of David Martin on March 18, 2011;

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Deposition of David Martin on May 9, 2013;

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Plaintiffs’ Memorandum In Opposition To Apple’s Motion For Summary

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Expert Report Of Dr. John P. J. Kelly

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II. Technical Overview

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A.

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THE ITUNES ECOSYSTEM

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Apple’s iTunes Store (“iTS”) offers customers the ability to purchase music,

videos, and other content over the Internet.2 Customers access iTS through Apple’s iTunes
Software application, a free “jukebox” application that organizes and plays digital music stored
on the local computer. Among other things, the iTunes Software allows users to import music

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stored on CDs and other sources into their music collection.3 The iTunes Software organizes
music in a library on the computer’s hard drive that can be viewed and searched in multiple ways.

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For example, music can be viewed by reference to various categories, such as the song or artist

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name.4 Users can also use the iTunes Software to transfer digital music and video to iPods. The

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iTunes Software saves the music to the iPod’s internal storage and writes a database that

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organizes that music.

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8.

The iPod, iTunes Software (“iTunes client”) and the iTS have changed as Apple

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has added new features for its customers. In the following paragraphs, I list a some of the
features added from October 2004 to March 2009.
9.

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In general, iPods have become smaller even as their storage capacity was

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increased. In addition, several other enhancements have been added to successive generations

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and models of iPod, including the ability to display photos, play audio books, play videos and

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podcasts and play games. For example:

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See, e.g., http://www.apple.com/itunes/whats-on/; http://www.apple.com/itunes/features/.

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See, e.g., http://www.apple.com/itunes/what-is/player.html.

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I have used the iTunes Software to purchase content from iTS, import music from CDs, manage music, and transfer
music to an iPod and other Apple devices. I have used every major release of iTunes from version 1 to the current
version.

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Expert Report Of Dr. John P. J. Kelly

•

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July 2002 – Apple introduced the second-generation iPod, which was compatible
with Microsoft Windows and quadrupled storage space to 20gb allowing a user to

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store about 4,000 songs (the original iPod contained 5gb of storage for about 1,000

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songs). The second-generation iPod replaced the first-generation’s mechanical
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scroll wheel with the industry’s first solid-state touch wheel allowing for increased

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precision, accuracy and durability;5

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April 2003 – Apple introduced the third-generation iPod that was thinner and
doubled the storage capacity of the second-generation to 40gb and included Auto-

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Sync, a new feature that automatically downloads an entire digital music library

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into the iPod and keeps it up-to-date whenever the iPod is plugged into a Mac or
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Windows PC;6

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January 2004 – Apple introduced the iPod mini, available in five metallic colors,

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which provided eight hours of battery life in Apple’s smallest form factor to date,

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constructed of an anodized aluminum body. The first-generation iPod mini was

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the first iPod to utilize the touch sensitive Click Wheel, containing mechanical

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switches beneath the wheel itself. To use any of the four included buttons, the user

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physically pushes the edge of the wheel inward over one of the four labels;7

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July 2004 – Apple introduced the fourth-generation iPod which adopted the touch
sensitive Click Wheel and improved battery life to 12 hours, adding approximately

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Apple Press Release, “Apple Unveils New iPods,” July 17, 2012,
http://www.apple.com/pr/library/2002/07/17Apple-Unveils-New-iPods.html (accessed July 16, 2013).

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Apple Press Release, “Apple Introduces New iPods,” April 28,
2003http://www.apple.com/pr/library/2003/04/28Apple-Introduces-New-iPods.html (accessed July 16, 2013).

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Apple Press Release, “Apple Introduces iPod Mini,” January 6, 2004
http://www.apple.com/pr/library/2004/01/06Apple-Introduces-iPod-mini html (accessed July 16, 2013).

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Expert Report Of Dr. John P. J. Kelly

4 hours of play time over the previous model;8

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October 2004 – Apple introduced the iPod photo, the first iPod to feature a color
screen and slideshow photo viewing. Apple further increased battery life to 15

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hours. Storage space was increased to 60gb;9

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•

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January 2005 – Apple introduced the iPod shuffle, Apple’s smallest music player

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(which was smaller and lighter than a pack of gum) and the first to feature flash-

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based storage;10

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February 2005 – Apple introduced the second-generation iPod mini, offering a
richer color palette and featuring an 18-hour battery (making it the longest lasting

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iPod at the time);11

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June 2005 – Apple introduced the iPod color, doing away with the black and white

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screen available on non-photo models and upgrading all iPods to a full color

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display;12

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September 2005 – Apple introduced the iPod nano, the slimmest, full-featured
iPod Apple had created to date – thinner than a standard #2 pencil. The iPod nano

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replaced the iPod mini and featured flash-based storage instead of the iPod mini’s
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Apple Press Release, “Apple Introduces the New iPod,” July 19, 2004
http://www.apple.com/pr/library/2004/07/19Apple-Introduces-the-New-iPod.html (accessed July 16, 2013).

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Apple Press Release, “Apple Introduces the iPod Photo,” October 26, 2004,
http://www.apple.com/pr/library/2004/10/26Apple-Introduces-iPod-Photo.html (accessed July 16, 2013).

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Apple Press Release, “Apple Introduces iPod Shuffle,” January 11, 2005
http://www.apple.com/pr/library/2005/01/11Apple-Introduces-iPod-shuffle.html (accessed July 16, 2013).

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Apple Press Release, “Apple Unveils New iPod Mini,” February 23, 2005
http://www.apple.com/pr/library/2005/02/23Apple-Unveils-New-iPod-mini-Starting-at-Just-199 html (accessed July
16, 2013).
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Apple Press Release, “Apple Merges iPod-iPod Photo Lines,” June 28, 2005
http://www.apple.com/pr/library/2005/06/28Apple-Merges-iPod-iPod-photo-Lines.html (accessed July 16, 2013).

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Expert Report Of Dr. John P. J. Kelly

microdrive;13

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October 2005 – Apple introduced the fifth-generation iPod, further reducing the
size and weight of the unit and introducing video support. With the fifth-

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generation, users could play music, listen to audio books, view photos and watch
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videos from a single portable device with up to 20 hours of battery life;14

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•

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May 2006 – Apple teamed with Nike to introduce Nike+iPod, utilizing an in-shoe
sensor to help track a user’s workout regime and progress on the iPod;15

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September 2006 – Apple introduced aluminum bodies for the iPod nano, further
reducing the size of its slimmest full-featured music player while increasing

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battery life to 24 hours.16 Apple also redesigned the iPod shuffle to feature an

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aluminum body, built-in clip, and double the storage capacity of the previous

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model. The new shuffle measured just half a cubic inch in volume and weighed

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half an ounce.17 The fifth-generation iPod also received an increase in storage

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capability to 80gb, allowing the user to store up to 20,000 songs and an upgraded

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2.5 inch display that was 60% brighter and designed to display TV shows and

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Apple Press Release, “Apple Introduces iPod Nano,” September 7, 2005
http://www.apple.com/pr/library/2005/09/07Apple-Introduces-iPod-nano html (accessed July 16, 2013).
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Apple Press Release, “Apple Unveils the New iPod,” October 12, 2005
http://www.apple.com/pr/library/2005/10/12Apple-Unveils-the-New-iPod html (accessed July 16, 2013).

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Apple Press Release, “Nike and Apple Team Up to Launch Nike+iPod,” May 23, 2006
http://www.apple.com/pr/library/2006/05/23Nike-and-Apple-Team-Up-to-Launch-Nike-iPod.html (accessed July 16,
2013).
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Apple Press Release, “Apple Introduces the New iPod Nano,” September 12, 2006
http://www.apple.com/pr/library/2006/09/12Apple-Introduces-the-New-iPod-nano html (accessed July 16, 2013).

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Apple Press Release, “Apple Unveils the New iPod Shuffle,” September 12, 2006
http://www.apple.com/pr/library/2006/09/12Apple-Unveils-the-New-iPod-shuffle html (accessed July 16, 2013).

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Expert Report Of Dr. John P. J. Kelly

Hollywood movies from the palm of a user’s hand;18

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September 2007 – Apple introduced the iPod touch, featuring a Multi-Touch
interface and Internet access via built-in Wi-Fi wireless networking.19 Apple also

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introduced the sixth-generation iPod, dubbing it the iPod classic. The classic also
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featured the all aluminum construction of the shuffle and nano and featured 40

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hours of battery life with 160gb of storage capacity, equivalent to 40,000 songs.20

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The iPod nano was redesigned to feature a larger display and support video

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playback for the first time;21

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September 2008 – Apple introduced the fourth-generation iPod nano, with an even

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larger screen to accommodate playback of widescreen videos. Apple also included
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a built-in accelerometer, allowing users to shake the Nano to shuffle songs on the

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fly. The storage capacity of the nano was increased to 16gb.22 Apple also

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refreshed its iPod touch to feature chrome construction, widescreen glass display,

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802.11 b/g Wi-Fi wireless networking, integrated volume control buttons, a built-

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in speaker, a built-in accelerometer and other advanced sensors;23

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September 2009 – Apple updated the iPod classic, reducing its size while adding

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Apple Press Release, “Apple Introduces the New iPod,” September 12, 2006
http://www.apple.com/pr/library/2006/09/12Apple-Introduces-the-New-iPod html (accessed July 16, 2013).
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Apple Press Release, “Apple Unveils iPod Touch,” September 5, 2007
http://www.apple.com/pr/library/2007/09/05Apple-Unveils-iPod-touch html (accessed July 16, 2013).

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Apple Press Release, “Apple Introduces New iPod Cassic,” September 5, 2007
http://www.apple.com/pr/library/2007/09/05Apple-Introduces-New-iPod-classic html (accessed July 16, 2013).

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Apple Press Release, “Apple Introduces All New iPod Nano,” September 9, 2007
http://www.apple.com/pr/library/2007/09/05Apple-Introduces-All-New-iPod-nano.html (accessed July 16, 2013).

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Apple Press Release, “Apple Introduces New iPod Nano,” September 9, 2008
http://www.apple.com/pr/library/2008/09/09Apple-Introduces-New-iPod-nano.html (accessed July 16, 2013).

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Apple Press Release, “Apple Introduces New iPod Touch,” September 9, 2008
http://www.apple.com/pr/library/2008/09/09Apple-Introduces-New-iPod-touch.html (accessed July 16, 2013).

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40gb of storage capacity.24 The iPod nano also received a major update, receiving

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an even larger screen, the addition of an FM radio, pedometer and built-in camera

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and microphone;25

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September 2010 – Apple introduced its most advanced iPod touch to date,
featuring a Retina Display, FaceTime video calling, HD video recording and a

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game center.26 Apple also introduced a redesigned iPod nano featuring a Multi-

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Touch interface, built-in FM radio with live pause and a built-in clip for instant

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wearability.27

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10.

New releases of the iTunes Software added support for new iPod models and also

included new features such as:

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•

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iTunes 2.0 (Oct. 2001) included support for MP3 CD burning, enabled a 10-band

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equalizer to bring robust, receiver-style audio customization to the desktop and

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added a cross fading function that allowed for gapless playback of tracks; 28

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iTunes 3.0 (July 2002) included support for audio books;29

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iTunes 4.0 (April 2003) included support for sharing music between iTunes

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http://www.ign.com/articles/2010/09/03/igns-history-of-the-ipod?page=6 (accessed July 16, 2013).

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Apple Press Release, “Apple Introduces New iPod Nano with Built-in Video Camera,” September 9, 2009
http://www.apple.com/pr/library/2009/09/09Apple-Introduces-New-iPod-nano-With-Built-in-Video-Camera.html
(accessed July 16, 2013).
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Apple Press Release, “Apple Introduces New iPod Touch,” September 1, 2010
http://www.apple.com/pr/library/2010/09/01Apple-Introduces-New-iPod-touch.html (accessed July 16, 2013).

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Apple Press Release, “Apple Reinvents iPod Nano with Multi-Touch Interface,” September 1, 2010
http://www.apple.com/pr/library/2010/09/01Apple-Reinvents-iPod-nano-With-Multi-Touch-Interface html (accessed
July 16, 2013).

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Apple Press Release, “Apple Announces iTunes 2,” October 23, 2001
http://www.apple.com/pr/library/2001/10/23Apple-Announces-iTunes-2.html (accessed July 18, 2013).

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Apple Press Release, “Apple Announces iTunes 3,” July 17, 2002
http://www.apple.com/pr/library/2002/07/17Apple-Announces-iTunes-3.html (accessed July 18, 2013).

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Expert Report Of Dr. John P. J. Kelly

users;30

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iTunes 4.1 (Oct. 2003) included support for On-The-Go playlists, which allows
users to create playlists directly from their iPod, rather than logging into iTunes

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from their computer;31

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iTunes 4.7 (Oct. 2004) included support for copying photos to an iPod photo and
showing duplicate songs in the iTunes library;32

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iTunes 4.8 (May 2005) included support for playing QuickTime movies,
synchronizing contacts and calendar appointments with the iPod, and several new

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worldwide music stores;33

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iTunes 4.9 (June 2005) included support for browsing and subscribing to podcasts
(multimedia content created exclusively for playback on iPod) from within the

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iTunes Music Store, and transferring podcasts to the iPod;34

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•

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iTunes 5.0 (Sept. 2005) included a new more powerful instant search including the
new Search Bar, the “smart shuffle” feature (which limited the repetition of the

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same tracks when shuffling through music), folders for organizing playlists, new

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Apple Press Release, “Apple Launches the iTunes Music Store,”
http://www.apple.com/pr/library/2003/04/28Apple-Launches-the-iTunes-Music-Store html (accessed July 18, 2013).

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Apple Press Release, “Apple Updates iPod,” October 16, 2003 http://www.apple.com/pr/library/2003/10/16AppleUpdates-iPod html (accessed July 18, 2013).

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26
27

See iTunes 4.7 help files. See also Apple Press Release, “Apple Introduces iPod Photo,” October 26, 2004
http://www.apple.com/pr/library/2004/10/26Apple-Introduces-iPod-Photo html;
http://www.oldapps.com/itunes.php?old itunes=4#changelog (both accessed July 18, 2013).
33

See iTunes 4.8 help files. See also GigaOM “iTunes 4.8 Released,” May 9, 2005
http://gigaom.com/2005/05/09/itunes-48-released/ (accessed July 18, 2013).

34

Apple Press Release, “Apple Takes Podcasting Mainstream,” June 28, 2005
http://www.apple.com/pr/library/2005/06/28Apple-Takes-Podcasting-Mainstream html (accessed July 18, 2013).

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Parental Controls, and allowing users the ability to enter and view song lyrics;35

1
2

•

3

iTunes 6.0 (Oct. 2005) included support for previewing, buying, and downloading
videos from the iTunes Music Store, synchronizing videos with the iPod video,

4

and giving songs or other multimedia items as gifts;36

5
•

6

iTunes 7.0 (Sept. 2006) included support for buying and downloading iPod games

7

from the iTunes Store (allowing users to use the iPod as a mobile gaming

8

platform), near-DVD quality video playback, gapless playback of albums, copying

9

purchased content from the iPod to the computer, and a complete redesign of the

10

iTunes graphical user interface, including the introduction of Cover Flow (an

11
animated three dimensional graphical user interface integrated within iTunes to
12
visually flip through albums, album artwork and other multimedia);37

13
•

14

iTunes 7.1 (March 2007) included support for playing content from the iTunes

15

library on a television using AppleTV, improved sorting and full-screen Cover

16

Flow;38

17

•

iTunes 7.2 (May 2007) included support for previewing and buying iTunes Plus

18
(256 kbps DRM-free music), iTunes U (providing educational content from
19
20
21
22
23
24
25
26
27

35

Apple Press Release, “Apple Introduces iTunes 5,” September 7, 2005 (accessed July 18, 2013).

36

Apple Press Release, “Apple Announces iTunes 6 with 2,000 Music Videos, Pizar Short Films & Hit TV Shows,”
October 12, 2005 http://www.apple.com/pr/library/2005/10/12Apple-Announces-iTunes-6-With-2-000-MusicVideos-Pixar-Short-Films-Hit-TV-Shows.html (accessed July 18, 2013).
37

Apple Press Release, “Apple Announces iTunes 7 with Amazing New Features,” September 12, 2006
http://www.apple.com/pr/library/2006/09/12Apple-Announces-iTunes-7-with-Amazing-New-Features html
(accessed July 18, 2013).
38

See iTunes 7.1 help files. See also Apple Insider, “Apple Releases iTunes 7.1, QuickTime 7.1.5,” March 5, 2007
http://appleinsider.com/articles/07/03/05/apple releases itunes 71 quicktime 715 more (accessed July 18, 2013).

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leading universities, including Stanford, Yale, UC Berkeley, MIT and Oxford);39

1
2

•

3

iTunes 7.3 (June 2007) included support for wirelessly streaming photos to an
Apple TV;40

4

•

5

iTunes 7.4 (September 2007) included support for iPod Touch, the sixthgeneration iPod Classic and the third-generation iPod Nano. The update also

6
7

provided support for watching videos at a larger size inside the iTunes window,

8

watching video with closed captioning and rating albums;41

9

•

10

iTunes 7.6 (Jan. 2008) included support for renting movies and copying purchased
content from Apple TV to the computer;42

11

•
•

12
13

iTunes 7.7 (July 2008) included support for the App Store;43
iTunes 8.0 (Sept. 2008) included support for Genius playlists and the Genius

14

sidebar (which automatically create playlists from a user’s content and

15

automatically recommend music based on user’s preferences, respectively), and

16
17
18
39

19
20
21
22
23
24
25
26
27

Apple Press Release, “Apple Announces iTunes U on the iTunes Store,” May 30, 2007
http://www.apple.com/pr/library/2007/05/30Apple-Announces-iTunes-U-on-the-iTunes-Store.html; Apple Press
Release, “Apple Launches iTunes Plus,” May 30, 2007 http://www.apple.com/pr/library/2007/05/30Apple-LaunchesiTunes-Plus.html (both accessed July 18, 2013).
40

See iTunes 7.3 help files. See also Apple Insider, “iTunes 7.3 Supports iPhone, Adds AppleTV Photo Streaming,”
June 29, 2007
http://appleinsider.com/articles/07/06/29/itunes 7 3 supports iphone adds apple tv photo streaming (accessed
July 18, 2013).

41

Apple Press Release, “Apple Unveils the iTunes Wi-Fi Music Store,” September 5, 2007
http://www.apple.com/pr/library/2007/09/05Apple-Unveils-the-iTunes-Wi-Fi-Music-Store html (accessed July 18,
2013).

42

Apple Press Release, “Apple Premieres iTunes Movie Rentals with All Major Film Studios,” January 15, 2008
http://www.apple.com/pr/library/2008/01/15Apple-Premieres-iTunes-Movie-Rentals-With-All-Major-FilmStudios.html (accessed July 18, 2013).

43

Apple Press Release, “iPhone 3G on Sale Tomorrow,” July 10, 2008
http://www.apple.com/pr/library/2008/07/10iPhone-3G-on-Sale-Tomorrow html (accessed July 18, 2013).

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HD-quality TV shows;44

1
2

•

3

iTunes 8.1 (March 2009) included support for allowing friends to request songs for
iTunes DJ, Genius sidebar for movies and TV shows and importing CDs at the

4

same sound quality as iTunes Plus;45

5
11.

6

Apple also added new features and content to the iTS, including among others:

7

•

iTunes Plus music (music at higher fidelity);

8

•

Music videos;

9

•

TV shows;

•

Movies;

•

Movie rentals;

13

•

iPod games;

14

•

iTunes U (which offers free content from some of the top universities around the

10
11
12

15

United States);

16

•
•

iOS apps;

•

17

Pod casts;

iMix playlists.

18
19
20
21
22
23
24
25
26
27

44

Apple Press Release, “Apple Announces iTunes 8,” September 9, 2008
http://www.apple.com/pr/library/2008/09/09Apple-Announces-iTunes-8.html (accessed July 18, 2013).

45

MacWorld “Apple Releases iTunes 8.1 Update,” March 11, 2009
http://www macworld.com/article/1139330/itunes.html (accessed July 18, 2013).

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1

B.

FAIRPLAY

12.

Apple protected the music offered on iTS with its proprietary digital rights

2
3
4

management (DRM) technology called FairPlay.46 FairPlay used encryption and other tools to

5

enforce certain usage rules, including restricting access to the keys necessary to play music

6

purchased from iTS on a customer’s computer. Encryption refers to the process of altering the

7

song so that only someone with the right “key” can decrypt the song and thus convert it to its

8

original, unencrypted form for playback.47

9

13.

10
11
12
13
14
15

14.

16
17
18
19
20
21
22

46

In 2007, EMI permitted Apple to distribute its music without DRM. See, e.g., Robbin Decl. at footnote 2.

47

23
24
25

Specifically, encryption uses a mathematical process (called a cipher) to scramble the information that is to be
protected (called the “plaintext”). Once the data has been encrypted, it is unintelligible except to the person (or
computer) who also has access to a special piece of information (called the “key”). The key is necessary to
unscramble the encrypted data and recover the plaintext. Encryption can be used to scramble actual text (such as a
secret military communication), digital music files or any other kind of data. The process of unscrambling encrypted
data (text or other data) is called decryption

27

48

See, e.g., Apple_AIIA_B_000096.

49

26

See, e.g., Apple_AIIA_B_000096.

50

See, e.g., Apple_AIIA_B_015553.

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15.

2
3
4
16.
5
6
7
8
9
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12
13
17.

14
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18
19
20
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22
23
24
25
26
27

51

See, e.g., Apple_AIIA_B_000096; see also Robbin Decl. ¶¶ 17 and Exhs. 4 and 5 thereto.

52

See, e.g., Source Code, Image File AdditionalCode_20101220.dmg,
iTunes/4.7.0/MPEG/Sources/iPod/MusicStore.cp; see also Robbin Decl. at ¶¶ 10-16 and Exhibits thereto; Exhibit 29
to Deposition of David Heller.

53

See, e.g., Dep. Tr. of David Heller on December 15, 2010 at 36:23-38:2, 77:16-79:1, 80:18-81:1; Robbin Decl. at
¶¶ 10-16 and Exhibits thereto.

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1

1.

2

18.

FairPlay in iTunes 4.5.0 and 4.6.0

I examined the source code and other technical descriptions of FairPlay included

3
in iTunes 4.5.0 and 4.6.0.
4
19.

5
6
7
8
9
10
11
12
13
14
15
16
17
18

20.
19
20
21
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23
24
25
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27

54

As I have used the term here, a transformation is sequence of mathematical operations performed on data. The
transformation is reversible if the original data can be recovered using a second transformation which is the inverse

(continued)

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21.

2
3
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22.

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26

of the first transformation.
55

27

See, e.g., Robbin Decl. at ¶¶ 24-25, 30-33 and exhibits.

56

See, e.g., Apple_AIIA00113141-51; Robbin Decl ¶ 31 and exhibits.

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2
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7
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9
10
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12
13
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17
2.

18

FairPlay in iTunes 4.7.0

19
20

23.

21
22

24.

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25.

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27.

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28.

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29.

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57

RSA is a type of asymmetric encryption, which uses two keys: a public key and a private key. Any person with the
public key can encrypt a message that only the holder of the private key can decrypt. The public key cannot be used
to decrypt such a message. This secures the transmission of messages in one direction, from holders of the public
key to the holder of the private key. Similarly, a message encrypted by the private key can only be decrypted by the
public key.

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30.

2
3
4
]
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9

31.

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20

32.

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3.

15
16

FairPlay Introduced With iTunes 7.0

33.

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21

34.

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35.

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36.

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37.

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41, 226, 285.] The goal of the chosen-ciphertext attack is to use the cipher-text/plain-text pairs to

2

deduce the encryption key.

3

41.

4
5
6
7
8
9
10
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13

42.

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43.

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C.

14

ITUNES DATABASE

44.

15
16
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18
19
20
21
22
23
24
60

25
26
27

61
62

The iTunes Software also maintained a media database on the user’s personal computer, but I will not discuss that
database in this report.

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1
2
3
4
5
I will provide a few examples here.

6
7

•

In iTunes 4.5, the database version was 1.10;

8

•

In iTunes 4.7, the database version was changed to 1.11.

•

In iTunes 4.7.1, the database version was changed to 1.12.

9
10
11
12
.

13
14

•

In iTunes 4.9, the database version was changed to 1.13.

•

In iTunes 5.0, the database version was changed to 1.14.

•

In iTunes 6.0, the database version was changed to 1.15.

•

In iTunes 6.0.1, the database version was changed to 1.16

•

In iTunes 6.0.2, the database version was changed to 1.17.

•

In iTunes 6.0.5, the database version was changed to 1.18.

15
16
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2
3
4

•

In iTunes 7.0, the database version was changed to 1.19.

•

In iTunes 7.1, the database version was changed to 1.20.

15

•

In iTunes 7.2, the database version was changed to 1.21.

16

•

In iTunes 7.3, the database version was changed to 1.23.

23

•

In iTunes 7.3.1, the database version was changed to 1.24.

24

•

In iTunes 7.3.2,

•

In iTunes 7.4, the database version was changed to 1.25.

5
6
7
8
9
10
11
12
13
14

17
18
19
20
21
22

25
26
27
28

Several of these changes included new files and folders on the iPod. For example, a new folder
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13

D.
50.

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1.

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24

51.

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5
6
.

7
54.

8
9
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11
12
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14

55.

15
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21

56.

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73

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10

60.

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61.

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2
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7
62.

8
9
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63.

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75

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2
3

64.

4
5
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7
8
9
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13

65.

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15
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66.

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2
3
4

E.

ATTACKS ON FAIRPLAY CONTINUED AFTER ITUNES 4.7

67.

Hackers continued to attack FairPlay after the introduction of iTunes 4.7 with its

5
6
7

improvements to FairPlay.

8
9

[See, e.g., Robbin Decl. at ¶¶ 41-47.] After the release of iTunes 6.0, programs like QTFairUse6

10

and myFairTunes7 were developed to make a copy of the decrypted audio during playback of the

11

song. According to the documentation provided with the hacks, QTFairUse6 version 2.576 could

12

circumvent the protection in FairPlay versions that corresponded with iTunes 6.0.4, 6.0.5, 7.0.0,

13
14
15

7.0.1 and 7.0.2; and myFairTunes7 version 7.0.2c77 could circumvent the protection in FairPlay
versions that corresponded with iTunes 6.0.5, 7.1.1.5, 7.2.0.34, 7.2.0.35, 7.3.0.54, 7.3.1.3, 7.3.2.6,

16

7.4.0.28, 7.4.1.2, 7.4.2.4 and 7.4.3.1. [See also, e.g., Robbin Decl. at ¶ 48; Farrugia Decl. at

17

¶ 33.] Since hackers continued to attack all aspects of the FairPlay architecture, it was reasonable

18

for Apple to continue improving all aspects of the FairPlay architecture.

19
20
21
22
23
24
76

25
26
27

Downloaded from http://replay.waybackmachine.org/20070208062043/http://hymnproject.org/download/QTFairUse6-2.5-src.zip; http://replay.waybackmachine.org/20070208062043/http://hymnproject.org/download/QTFairUse6-2.5.zip.
77

Downloaded from http://www.freewarefiles.com/MyFairTunes-c program 23754.html;
http://web.archive.org/web/20080103044709/http://www.hymn-project.org/download/myFairTunes-v7.0.2cSource.rar.

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1

III. Harmony

2
3
4

68.

Harmony is what RealNetworks has described as a Digital Rights Management

translation system.

5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

Figure 15. “What is Harmony™ Technology” help page from RealPlayer 10.5 build
6.0.12.1212 (digital signature dated 2/16/2005). See also the Martin Report at Fig. 2.
The RealPlayer help explains that Harmony would let users “use any online music store to
purchase music;” would “convert your files to a format supported by your device automatically,

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1

translating the DRM to one supported by your device;” and “[n]o matter what format your content

2

is in, or what digital rights management (DRM) software is used, RealPlayer with Harmony™

3

Technology can convert and support the transfer of your content to your portable device.”

4
69.

With respect to transferring music from the RealPlayer Music Store to iPods,

5
6
7

Harmony attempted to make songs protected by RealNetworks’ DRM falsely appear to the iPod
like they were files protected by FairPlay DRM.

8
9
10
11
12
13
14

70.

However, this description of Harmony suggests that Harmony could do much

15

more. Users could purchase music from “any online music store” and transfer the music to

16

portable devices from “Apple, Rio, Panasonic, PalmOne and more.” Harmony could accomplish

17

this transfer because it would “translat[e] the DRM to one supported by your device.”

18

Translating the DRM means removing from the music file the current DRM protection, which is

19
not supported by the music player, and then adding to the music file a different DRM protection,
20
21

which is supported by the music player. When Dr. Martin says that he has “seen no evidence that

22

RealPlayer and Harmony were ever intended or able to strip FairPlay encryption from any songs

23

purchased through the iTunes Store” [Martin Report at ¶30], he is ignoring the evidence from this

24

help page that he included in his report [see Martin Report at Fig. 2]. The help page says that

25

Harmony was, in fact, intended to remove the DRM protection placed on a music file by “any

26

online music store” as part of the DRM translation process. Furthermore, Dr. Martin never says

27
that he used the Harmony technology (for example, to transfer a Helix-protected song to an iPod).
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1

Consequently, Dr. Martin is no position to say with any certainty what Harmony could or could

2

not do.

3

71.

Harmony was included as a part of the RealPlayer jukebox application. Users

4
could use RealPlayer to transfer music, including RealNetworks’ DRM-protected music, to iPods.
5
6

[See Figure 16.] To load and play RealNetworks’ DRM-protected music on an iPod, iPod owners

7

had to use RealPlayer with Harmony, which “translated” the RealNetworks’ DRM to FairPlay-

8

like protection that an iPod could recognize and use to decrypt the music. I have used RealPlayer

9

10.5 (with Harmony) to transfer songs to an iPod. When RealPlayer transfers music to an iPod, it

10
11

modifies the internal iPod

. In addition, RealPlayer

creates a new directory on the iPod

and stores several files therein.

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13

[See Table 1.]

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Figure 16. Screen shot of RealPlayer 10.5 running on Windows XP. An iPod is connected
to the computer and the iPod’s contents are shown in the right hand pane under the caption
“All Music On Device (JOHN KELLY').” The one song on the iPod was copied by iTunes
4.6.0. The music in the RealPlayer library is shown in the left hand pane under the caption
“My Library.” Clicking the “Synchronize Device” button in the My Library pane causes
RealPlayer to copy the songs in the RealPlayer library onto the iPod.
Table 1. Files added to the iPod’s internal storage by RealPlayer 10.5 (with Harmony)
during synchronization of a single song from the RealPlayer music library to the iPod.
iPod
iPod
iPod
iPod
iPod
iPod
iPod
iPod
iPod
iPod
iPod
iPod
iPod
iPod
iPod

Control/Music/f02/04 Sonata in a Major K 322 .mp3
Control/Music/rndb/26.dat
Control/Music/rndb/Backup/000/000002.tmd
Control/Music/rndb/cd.cdx
Control/Music/rndb/cd.dbf
Control/Music/rndb/cdtrax.cdx
Control/Music/rndb/cdtrax.dbf
Control/Music/rndb/dbdata.txt
Control/Music/rndb/playgrps.cdx
Control/Music/rndb/playgrps.dbf
Control/Music/rndb/playlist.cdx
Control/Music/rndb/playlist.dbf
Control/Music/rndb/playlist.fpt
Control/Music/rndb/playtrax.cdx
Control/Music/rndb/playtrax.dbf

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iPod
iPod
iPod
iPod
iPod
iPod
iPod

Control/Music/rndb/property.map
Control/Music/rndb/tracks.dbf
Control/Music/rndb/tracks.fpt
Control/Music/rndb/tracks2.cdx
Control/Music/rndb/trakinfo.cdx
Control/Music/rndb/trakinfo.dbf
Control/Music/rndb/version
72.

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73.

Real Networks apparently updated RealPlayer with Harmony to
perhaps as early as April 26, 2005. [See, e.g.,

18
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21

http://news.cnet.com/RealNetworks-rekindles-iPod-tech-tussle/2100-1027 3-5685286.html;
Apple_AIIA00093862-63; Apple_AIIA00093860.]
74.

There were many changes introduced with the

that would have

22
23
24

prevented Harmony, as it existed in Sept. 2006, from operating on iPods that had the new
.

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would continue to write an older style keybag that was no longer used by iPods with the
. In short, Harmony would have no longer worked because it was based on an earlier
keybag format and encryption scheme that was no longer used by FairPlay.

4
5
6
7

IV. Third Party Jukebox Compatibility Problems
A.

OVERVIEW OF SOFTWARE DEVELOPMENT PROCESS

75.

As a general matter, hardware refers to the physical components and

8
9
10

interconnections of a system such as integrated circuits, circuit boards, fans, etc. The

11

functionality of these components is fixed at the time of their manufacture and assembly. Many

12

electronic devices contain programmable elements – microcontroller, microprocessor, multi-chip

13

processors, etc. – to increase their flexibility. Processors are designed to read instructions and

14
15

produce results based on those instructions. Typically processors implement instructions to
perform mathematical operations (addition, subtraction, multiplication, division, etc.), to perform

16
17
18
19
20
21
22

comparisons, to change the flow of execution of instructions, to manipulate memory, and to
produce output signals for use by other components. The ultimate function performed by the
electronic device is determined by the sequence of instructions executed by the processor.
76.

Software generally refers to the programs (instructions) executed by a computer

system. Since software is stored in a storage device (e.g., memory or disk drive), it can be
changed or replaced in a way that hardware cannot. For efficiency, instructions executed by a

23
processor are a sequence of numbers. It is not, however, efficient for humans to directly write
24
25

programs as microprocessor instructions. Instead, software is written as source code, which

26

refers to human readable statements written in a programming language. Source code is then

27

converted into instructions executable by the hardware device using another program called a

28

compiler.
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77.

Today, many hardware devices – not just computers – run software. Cars, VCRs

and ovens are a just a few examples. The software (the instructions) and the data that these
devices need to operate are stored in memory inside the hardware device (often inside the

4
processor itself). Memory is a piece of hardware used to store information. It is analogous to the
5
6

shelves in a library that store books (data), let a person take books off the shelves (read data from

7

the memory) and put books onto the shelves (write data to the memory). There is a special name

8

given to the software that operates such hardware devices and is stored in the memory inside the

9

hardware device. It is called firmware. Like other types of software, firmware is written by a

10
11

programmer as source code. Like other types of software, firmware source code is compiled to
produce the object code actually executed by the hardware.

12
78.

13
14

Software development is not a trivial exercise. It requires both skill and

experience to produce a program that operates correctly and efficiently. Software development is

15

not simply a matter of writing in a computer language. Software engineers have learned over the

16

years that writing source code actually falls in the middle of the development process. The

17

software development effort can be broadly divided into seven phases as discussed below.78 A

18

great deal of coordination, planning and communication is required to ensure that software

19
development projects are conducted properly and efficiently. The degree of planning involved in
20
21

developing even an update to existing software can be substantial.79

22
23
78

24
25
26
27

A few of the many references describing the software engineering process are Software Engineering Economics by
Barry W. Boehm (1981); Software Engineering: A Practitioner’s Approach by Roger Pressman, 2nd edition (1987);
and Rapid Development: Taming Wild Software Schedules by Steve McConnell (1996).
79

Apple’s work on iTunes provides a good illustration. Apple’s Schedule/Project Status updates are circulated
repeatedly throughout the software planning and development phase, distributed first several months before the
company plans to introduce the software update at issue. [See, e.g., Apple_AIIA00090668 and
Apple_AIIA00231215.] These schedules also demonstrate the various groups involved in developing a software
update and the necessary coordination between the disparate groups to ensure efficient progress.

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79.

First, specifications for the software product must be developed. This step

answers the questions of what hardware platform or platforms the product will run on, what
functions the product will include and, equally important, what functions the product will not

4
include. If the product must interact with other software and hardware products, those
5
6
7

requirements are also included.
80.

Next, the software must be designed. This is also referred to as defining the

8

software architecture. In this step the organization of the software is defined. Modern software

9

programs are not written as a single large unit. Instead, smaller units are defined to implement

10
11

discrete functions or sub-functions. The programmers must decide how to subdivide the program
and how each of the smaller units will communicate and interact.

12
13
14

81.

Next, the source code is written, documented and debugged. Although the

individual software units have been defined in terms of function and interface, this does not mean

15

that the source code to implement the units is defined or even obvious. Programmers use their

16

skill, experience and creativity to write source code that balances the conflicting demands for

17

execution speed, disk and memory use, readability, and many other factors. It is easy to

18

understand how effective utilization of the computer's hardware resources – everyone wants their

19
applications to run fast but use little disk or memory space and battery life – affects the eventual
20
21

success of the product. It may not be obvious, however, that readability of the source code – e.g.,

22

comments in the source code and good programming style – is also important to the success of a

23

software development effort. Since commercial programming efforts will generally involve more

24

than one programmer over the life of a project, it could be disastrous if one or more of the

25

programmers write source code that cannot be understood by the others or is very difficult to

26

understand. This could, for example, lead to misunderstandings that result in the incorrect

27
behavior of the program. This could also lead to duplication of effort if a programmer decides it
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is easier to write a new unit of source code rather than interface with existing units of source

2

code. Incorporating multiple versions of a source code unit into a program increases the

3

probability that bugs will be introduced that could interfere with the proper or intended operation

4
of the program or device.
5
82.

6

Next, each unit of source code is tested to make sure it operates as planned. This

7

step is called unit testing. The programmer or special test engineers may be responsible for unit

8

testing.

9
10
11

83.

Next, the various units of source code must be integrated. Although the software

architecture specifies how the units are to interact, the actual implementation may not behave as
the architect envisioned. This is of particular concern when multiple programmers are involved.

12
13
14

Programmers may have interpreted the interface specifications differently or may have made
different assumptions when the specifications were unclear or incomplete. Again, programming

15

style is an issue. All programmers must adhere to the same naming conventions for programming

16

units in order for the source code to properly work together.

17
18

84.

Next, the software product as a whole must be tested. Every defined function must

be operational and work as specified. All other actions should result in warning or error

19
messages, and undesirable behavior should be prevented. Every possible action available to the
20
21

user must be tested including sequences of actions that were not envisioned by the specification

22

or software architecture. This stage is called validation testing and is usually performed by test

23

engineers according a testing protocol.

24
25
26

85.

Finally, the software product is tested in real world conditions. This is often

accomplished by allowing a select group of customers to begin using the new software. Alpha
testing is the name given to the earliest round of field testing. Beta testing is the name given to

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the subsequent round of field testing. The alpha version of the software is expected to have more

2

problems than the beta version of the software.

3

86.

The problems uncovered during testing may have been introduced at any stage of

4
the development process. It may be a programming bug in a single software module, or a
5
6

problem with a module specification or a problem with the software architecture. After

7

identifying the nature of the problem, a solution must be developed and implemented. After the

8

problem is fixed, all subsequent development stages must usually be repeated. For example, a

9

problem with the software architecture may require repeating the design, writing, and testing

10
11

stages for the affected modules. Once testing determines that the product's quality has reached an
acceptable level, it is ready for sale or to be put into production.

12
13
14

87.

Even after all of these stages of review and testing, bugs may not appear until the

program is actually released and used by end users. This happens for a variety of reasons. In

15

particular, it is generally impossible, for all but the most trivial programs, to identify and test all

16

possible inputs to and uses of a program in the finite amount of time available for developing a

17

product. As Dr. Martin acknowledged, most programs have bugs. [Martin 03/18/2011 Dep. Tr.

18

at 51:22-52:3, 54:2-15, 61:13-16.]

19
88.

Let me provide a few examples of commercial software products and services

20
21

from well-established software companies that contained bugs after release to the public. First, as

22

documents relied on by Plaintiffs’ experts show, various versions of iTunes contained bugs that

23

could interfere with the operation of iTunes or iPods. iTunes 7, for example, had bugs such as

24

stuttering playback, problems with the automatic download of cover art, problems with gapless

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playback, and stability issues.80 This reflects that bugs may exist even where two pieces of

2

software (here iTunes and iPod firmware) are designed to work together and where the

3

developers designing and testing the programs work for the same company. As a second

4
example, Intuit fixed numerous bugs in Quicken Essentials for Mac from version 1.2.0 through
5
6

1.7.4, such as bugs that caused the program to unexpectedly quit, perform the incorrect “Market

7

Value calculation for bonds,” and prevented the search feature from finding “dollar amounts that

8

contain more than three digits.”81 As a third example, Google recently experienced a bug in their

9

Gmail service. According to Google, “We released a storage software update that introduced the

10
11
12
13
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15

unexpected bug, which caused 0.02% of Gmail users to temporarily lose access to their email.”
The customer data was so thoroughly compromised on Google's servers that Google had to
restore affected accounts from backup tapes.82 These are merely examples. I could have selected
examples from any company that provides details of the changes for each software release or has
an active online user community where product problems are discussed.

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80

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See, e.g., http://pogue.blogs.nytimes.com/2006/09/18/18pogues-posts-2/;
http://appleinsider.com/articles/06/09/27/apple_looks_to_squash_bugs_with_itunes_701; see also Declaration of
Roger G. Noll on Liability And Damages dated April 3, 2013, Appendix B, references 843, 854-856, 894, 906-907,
909-926.

81

See, e.g., http://quicken.intuit.com/support/help/patching/quicken-essentials-for-mac-releasenotes/GEN82912 html.
82

See, e.g., http://www.computerworld.com/s/article/9212178/Google_still_working_to_restore_Gmail_service.

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B.

THERE IS OVERWHELMING EVIDENCE OF THIRD PARTY JUKEBOX
BUGS

89.

In the remainder of this section I will describe many errors that were present in

2
3
4
5

third party jukebox programs and describe how they prevented the iPod from functioning as
intended and expected.83

6
90.

7

From 2001 (shortly after Apple introduced the iPod) to the present, various

8

developers have released dozens of third party jukebox programs that have attempted to add and

9

manage songs and other media to the iPod. These programs were not supported by Apple and

10

were developed without access to Apple’s source code and other confidential information

11

regarding iPod firmware, iTunes Software, etc. As one would expect, these programs have not

12

been trouble free. Many interfered with the proper operation of the iPod and/or iTunes. The

13
documentation for some of these programs listed known or fixed problems. Users of these
14
15

programs posted bug reports and sought help in forums on the program’s web site or elsewhere.

16

For example, there are reports of music disappearing from the iPod, playlists disappearing from

17

the iPod, songs not playing or skipping, iTunes not recognizing the iTunes database, duplicate

18

files, and artwork not displaying. These kinds of problems are very similar to the support

19
20

requests that were being made to Apple. [See, e.g., Table 2.] In §§ V and VI, I focus specifically
on problems caused by the use of Winamp and RealPlayer. In Exhibit C, I give a sample of

21
22

problem reports for other third party applications including Amarok, Anapod Explorer, EphPod,

23
24
25
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27

83

In my declaration submitted earlier in this case, I performed a simple experiment to show how sensitive the iTunes
database was. [See, e.g., Kelly Declaration at ¶ 39.] Dr. Martin, however, appears to misunderstand the purpose of
that experiment. [See Dr. Martin’s discussion in the Martin Report at ¶¶ 64-68] As I said in my declaration, I
“changed a single byte of the information added when the third song was transferred to the iPod in order to simulate
a bug in the program that transferred the third song to the iPod.” [See Kelly Declaration at ¶ 39 (emphasis added).]
As I also said in the declaration, this experiment shows that “the database structure is very sensitive and all errors
have the potential to prevent the iPod from functioning as intended and expected.” [See Kelly Declaration at ¶ 39.]

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Floola, iPod Manager for foobar2000, Media Center, MediaMonkey, MyPod, XPlay, Yamipod,

2

Banshee, GNUpod, and gtkpod.

3

91.

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92.

For the iPod to properly play songs and video, the iTunes database must be

correctly formatted, contain valid data and include all of the tracks that have been copied to the

16
iPod.
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93.

Furthermore, it is not sufficient for a third party jukebox application to write a

correctly formatted iTunes database and keybag in order to fully support the iPod’s music and
video features. It must also properly handle the other files and folders on the iPod such as the
artwork database, play counts file and On-The-Go playlist files. It must format the music files

24
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26

properly (including tags). It must correctly handle exceptional conditions such as filling the
iPod’s internal storage. It must correctly interact with the Firewire or USB connection. Failures

27

in each of these areas can be found in the problem reports of Exhibit C and Table 2. I will also

28

illustrate some of these problems in §§ Vand VI.
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94.

A third party jukebox application must also properly coordinate access to the iPod

with iTunes. First, a user may want to purchase songs and videos from iTS and then use iTunes
to copy the music and videos to the iPod. Second, the user may use iTunes to manage other iPod

4
features such as photographs, contacts, calendars, notes and voice memos. Thus, a third party
5
6

jukebox cannot assume that it is the only program reading and writing files on the iPod including

7

the iTunes database and keybag. In fact, certain versions of Winamp could not initialize a

8

freshly-formatted iPod and relied on the user using iTunes to perform this initialization. Failures

9

to operate properly with iTunes can be found in the problem reports in the discussion of §§ V and

10

VI.

11
12
13

V.

Winamp Compatibility Issues

14
95.

Winamp is a media player from Nullsoft that runs under Microsoft Windows.

15
16

Winamp supported playback of MP3 files in its initial release and has subsequently added support

17

for additional formats. The functionality of Winamp can be extended with Winamp plugins.

18

Two plugins have been developed to support transferring music to the iPod.

19
20
21

96.

The ml_ipod plugin is an open source project hosted on Source Forge

[http://mlipod.sourceforge.net/]. Version 1.0 of ml_ipod was released on 04/05/2004 [see, e.g.,
http://mlipod.sourceforge.net/?page=changelog]. When using ml_ipod, a connected iPod is

22
23

displayed under “Devices” in the Winamp Media Library window [see, e.g., Figure 17].
97.

24
25

The authors of ml_ipod produced two documents listing the releases of the

program: a version history84 and a change log85. The date on which each version was released is

26
27

84

http://mlipod.sourceforge net/index.php?page=home&show=all

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also provided in these documents. The version history also contains download links for many

2

releases of ml_ipod. The source code for ml_ipd – for both past and current releases – is

3

available at Source Forge.

4
5
6
7
8
9
10
11
12
13
14
Figure 17. Screen shot of Winamp 5.2 with ml_ipod showing the contents of a connected
iPod.

15
16

98.

The pmp_ipod plugin was written by Nullsoft and bundled with Winamp

17
18
19

beginning with Winamp version 5.2 in Feb. 2006. When using pmp_ipod, a connected iPod is
displayed under “Portables” in the Winamp Media Library window [see, e.g., Figure 18].

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21
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23
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85

http://mlipod.sourceforge net/?page=changelog

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Figure 18. Screen shot of Winamp 5.2 with pmp_ipod showing the contents of a connected
iPod.
99.

Both the ml_ipod and pmp_ipod plugins could interfere with the proper operation

of the iPod. Some of the problems were caused by incorrect modifications to the database. Other

14
problems were caused by other incorrect interactions between the plugin and the iPod.
15
16

A.

ML_IPOD PLUGIN

17
1.

18
19
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21

100.

ml ipod Plugin Overwrites iTunes Data

ml_ipod would fill many fields in iTunes database with zero or some other

constant value and would omit certain track and playlist objects from the database. [See Table 3.]
Ml_ipod would make these changes to all tracks and playlists on the iPod including tracks and

22
23

playlists that had been previously written by iTunes.

24
25
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27
28

101.

This bug was apparently fixed in version 1.40, which was released on 06/12/2006.

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six entire playlists written by iTunes were completely lost when Winamp rewrote the iTunes

2

database. [See Figure 19.]

3

105.

The changelog says that bug #1501220 (“Smart playlists created in iTunes get

4
destroyed”) was fixed in version 1.40 (released 06/12/2006).
5
6
7
8
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17
18

Figure 19. Playlist display on the iPod photo. The photograph on the left shows the
playlists on the iPod after iTunes synchronizes songs and playlists. The photograph on the
right shows the playlists on the iPod after Winamp transferred an additional song to the
iPod.

19
20

3.

21

106.

ml_ipod Plugin Prevents The iPod From Playing Videos

Customers reported that after an iPod video was connected to Winamp using

22
ml_ipod, the iPod would only play the audio portion of video tracks. [See
23
24
25
26
27
28

http://forums.winamp.com/showthread.php?t=234701; the first post to the thread was Jan. 4,
2006.]
107.

To illustrate this problem, I used iTunes 6.0.0.18 to copy three songs and two

video clips to a 60GB iPod video (i.e., iPod classic 5th generation) running firmware version 1.0.
The iPod displayed the three songs under the Songs menu and the video clips under the Movies
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menu as shown in Figure 20. The songs and video clips played as expected. Then I ran Winamp

2

version 5.12 with ml_ipod version 1.30 (released 9/23/2005). There were no songs or movies in

3

the Winamp library. Winamp recognized the iPod and displayed it under Devices. I then ejected

4
the iPod without displaying its contents, copying media to the iPod or otherwise changing its
5
6

contents. Nevertheless, Winamp rewrote the iTunes database deleting an entire playlist section.

7

As a result, the iPod video then displayed all five tracks under both the Songs menu and the

8

Movies menu as shown in Figure 21. In addition, the iPod video will only play the audio portion

9

of the video clips regardless of which menu is used to select the video clip.

10
11
12
13
14
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18

Figure 20. Contents of an iPod video after iTunes 6.0 transfers three songs and video clips.

19
20
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Figure 21. Contents of the iPod video after Winamp rewrites the iTunes database
containing both songs and video clips.

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108.

The change log for ml_ipod also mentions a problem with video files. The entry

for ml_ipod version 1.40 (released 6/12/2006) includes the following in the list of fixes:
“Handling of video files (*.mp4) for 5G iPods.” [See ml_ipod changelog.]

4
5

4.

ml ipod Plugin Deletes On-The-Go Playlists

6
7
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9

109.

An On-The-Go playlist is a playlist that can be created and saved on the iPod,

rather than in iTunes. Until a song has been added to the On-The-Go playlist, the iPod displays
instructions for creating the playlist instead of its contents. On a click wheel iPod such as the

10

iPod photo, the user creates an On-The-Go playlist by selecting a song, album, artist, or playlist

11

and holding down the center button until the display flashes indicating that the songs have been

12

added to the On-The-Go playlist. [See Figure 22.] After songs have been added to the On-The-

13
Go playlist, the iPod displays the contents of the playlist and controls for deleting and saving the
14
15

playlist. [See Figure 22.] When the user selects “Save playlist” on the iPod, the user is prompted

16

to confirm their selection. [See Figure 23.] Then a new playlist with an automatically generated

17

name such as “New Playlist 1” is created and the On-The-Go playlist is emptied. [See Figure 23.]

18

The user can create additional playlists in this fashion. The iPod will delete the On-The-Go

19

playlists (both saved and unsaved) when the iTunes database is next updated.

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Figure 22. The photograph on the left shows the instructions for creating an On-The-Go
playlist on an iPod photo. This screen is displayed when the user selects “On-The-Go” from
the Playlist menu but the On-The-Go playlist is empty. The photograph on the right is the
iPod photo after one song has been added to the On-The-Go playlist.

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Figure 23. The photograph on the left shows the confirmation screen displayed on the iPod
photo when the user chooses to save an On-The-Go playlist. [See also Figure 22.] The
photograph on the right shows the Playlists menu after the user saves an On-The-Go
playlist. Subsequent saved On-The-Go playlists will be named “New Playlist 2,” “New
Playlist 3,” etc.
110.

If iTunes is configured to automatically update the iPod, the On-The-Go playlists

(both saved and unsaved) will be copied to the iTunes library and preserved. iTunes names the

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On-The-Go playlists “On-The-Go 1”, “On-The-Go 2”, etc. The user can then use iTunes to

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synchronize these playlists to the iPod as desired.

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111.

In contrast, Winamp with ml_ipod plugin version 1.32 displays the unsaved On-

4
The-Go playlist but not the saved On-The-Go playlists when the iPod is connected. In addition,
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6

Winamp with ml_ipod plugin version 1.32 does not copy saved or unsaved On-The-Go playlists

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into the Winamp library. When the iPod is ejected from Winamp, both the saved and unsaved

8

On-The-Go playlists disappear from the iPod. Several users complained on the Winamp forums

9

about the loss of On-The-Go playlists. [See, e.g.,

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http://forums.winamp.com/showthread.php?t=195885.]
112.

Based on the changelog, the handling of On-The-Go playlists was apparently fixed

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13

in version 1.40 (released 06/12/2006).

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5.

ml ipod Plugin Truncates The iTunes Database When The Disk Is Full

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113.

Winamp with the ml_ipod plugin version 1.10 does not properly handle the iPod

17

database when the iPod disk is full. To illustrate this, I completely filled the iPod photo’s hard

18

drive by using Winamp to copy over 10 GB of songs to the iPod and using Windows Explorer to

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copy approximately 50 GB of data files to the root folder of the iPod. Then I connected the iPod

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to Winamp and created five playlists from the existing songs on the iPod. Winamp gave no

21
indication of error when creating the playlists. I ejected the iPod, again with no indication of
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23

error, but the playlist menu on the iPod shows that the iTunes database was truncated. Only one

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of the playlists I created using Winamp was displayed. In addition, a playlist with a “blank”

25

name and no contents was also shown. [See Figure 24.]

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Figure 24. iPod photo showing the playlist display after ejecting the iPod.
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6.

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114.

Other Issues and Customer Complaints About ml ipod

The ml_ipod version history and changelog summarize changes to the program,

including bug fixes. In addition, users reported bugs on the SourceForge web site

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[http://sourceforge.net/tracker/?group_id=106528&atid=644704] and Winamp forums
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21
22

[http://forums.winamp.com]. I will give a few examples below.
115.

A user reported that music files imported by ml_ipod with the .MP3 rather than

23

.mp3 (uppercase vs. lower case) file extension caused his iPod nano to “crash.” [See

24

http://sourceforge.net/tracker/?func=detail&aid=1566624&group_id=106528&atid=644704.]

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This “bug” was assigned ID 1566624 and was reported fixed in the ml_ipod change log for

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version 2.00. [See ml_ipod changelog.]

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116.

A user reported that deleting songs from the iPod did not work properly and that

the iPod accumulated multiple copies of some songs. [See, e.g.,
http://forums.winamp.com/showthread.php?t=175357.]

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117.

Many users of the ml_ipod plugin reported problems after upgrading to Winamp

5
6

5.2, which included the pmp_ipod plugin. Although the plugins were incompatible, Winamp

7

allowed both to be installed on the same computer and did not warn the user of the potential for

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problems. Symptoms included the corruption of the iTunes database and apparent loss of all the

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music files on the iPod. [See, e.g., http://forums.winamp.com/showthread.php?threadid=239074,

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http://forums.winamp.com/showthread.php?threadid=238970,
http://forums.winamp.com/showthread.php?t=239011.] ml_ipod version 1.40 contained the

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warning, “This iPod plugin can not [sic] coexist with pmp_ipod.dll which is found in your
Winamp directory. Using both DLLs together will result in loss of your iPod music files!!!” [See,

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e.g., warn_pmp_ipod.txt, revision 1.1.] The ml_ipod plugin was modified to prevent ml_ipod

16

from running if pmp_ipod was also installed on the user’s computer. [See, e.g., function init() in

17

view_ipod.cpp, revision 1.186.]

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118.

ml_ipod could not initialize an iPod that was restored to factory condition and did

19
not contain an iTunesDB, amongst other important files and directories, until version 2.04
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(released 04/14/2007). [See change log.]

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B.

1.

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PMP_IPOD PLUGIN

119.

pmp ipod Plugin Deletes On-The-Go Playlists

The pmp_ipod plugin did not correctly handle saved On-The-Go playlists. When

an iPod containing a saved On-The-Go playlist is connected to Winamp version 5.2 with

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pmp_ipod version 0.3, Winamp displays an empty playlist named “On The Go”. [See Figure 25.]
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When the iPod is ejected, the On-The-Go playlist(s) on the iPod are lost. Either an empty playlist

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(named “On The Go” without dashes between the words) appears on the iPod [see Figure 26.], or

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the “On The Go” playlist disappears entirely [see Figure 27.].

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Figure 25. Screen shot of Winamp showing the contents of “On The Go” playlist.

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Figure 26. iPod photo showing the empy “On The Go” playlist created by Winamp with
pmp_ipod.

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Figure 27. iPod video showing that the “On The Go” (without dashes between the words)
playlist is not displayed.

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2.

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120.

pmp ipod Plugin May Leave The iTunes Database In An Inconsistent
State

If the transfer of songs from a Winamp media library using pmp_ipod to a

connected iPod is interrupted, for example, a power fault, the list of tracks in the iTunes database
may be inconsistent with the master playlist. To simulate this, I began a transfer of fifty-four
songs from Winamp 5.2 (with pmp_ipod version 0.3) to an iPod photo. I interrupted the transfer

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at about thirty-five songs by disconnecting the USB cable linking the iPod to the computer. The
track list on the iTunes database contained thirty-three items, but the number of items in the
master playlist was only thirty-two.

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3.

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121.

Other Issues and Customer Complaints About pmp ipod

The Winamp web site provides forums where users can discuss technical problems

and report bugs. [See http://forums.winamp.com/.] These forums contain many reports of
problems with pmp_ipod. I will discuss a few examples below.

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122.

As described above, the first version of Winamp including the pmp_ipod plugin

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was incompatible with ml_ipod and caused corruption of the iTunes database. [See, e.g.,

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http://forums.winamp.com/showthread.php?threadid=239074,

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http://forums.winamp.com/showthread.php?threadid=238970,

21

http://forums.winamp.com/showthread.php?t=239011.] According to the Winamp version

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history, this conflict was “fixed” in Winamp version 5.21. [See
http://www.winamp.com/help/Version_History.]

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25
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123.

A user reported that Winamp deleted all music from an iPod. [See

http://forums.winamp.com/showthread.php?t=238764.]
124.

Users also reported that the iPod shuffle would not play the tracks of an album in

order. [See, e.g., http://forums.winamp.com/showthread.php?t=240694&highlight=ipod.]
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125.

The Winamp version history lists several additional fixes for pmp_ipod including

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in very recent versions.

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•

“Fixed: [pmp_ipod] Artist list on iPod not sorting ‘The’ correctly” [version 5.3];

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“Fixed: [pmp_ipod] Incompatibility with iTunes 7.1” [version 5.34];

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“Fixed: [pmp_ipod] Potential incompatability issues with latest version of iTunes”

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5
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[verion 5.5];

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•

“Fixed: [pmp_ipod] Physical deletion of playing file” [version 5.53];

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•

“Fixed: [pmp_ipod] Filename length incompatibility with iPod Music Quiz v2”

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[version 5.53];

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•

“Fixed: [pmp_ipod] Various database, albumart, playback & disconnection issues”
[version 5.55];

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•

“Fixed: [pmp_ipod] Reading of Play Count statistics” [version 5.55];

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•

“Fixed: [pmp_ipod] Deletion of non-existent files from database” [version 5.55];

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•

“Fixed: [pmp_android/ipod/usb] Issue with forward slashes in playlist paths”

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[version 5.6];
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•

“Fixed: [pmp_ipod] Compilation flag when Album Artist is ‘Various Artists’”
[version 5.601];

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•

“Fixed: [pmp_ipod] Sync and Eject issues” [version 5.601];

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•

“Fixed: [pmp_ipod] Nano & Shuffle 4G sync issues” [version 5.61];

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•

“Fixed: [pmp_ipod] Database corruption on Eject with some iPod models”

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[version 5.61];
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126.

Versions of pmp_ipod (including Winamp 5.2 with iPod Plug-in 0.3) would not

display an iPod that was restored to factory condition and did not contain an iTunesDB, amongst

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other important files and directories. Thus, there was no way for pmp_ipod to initialize and

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manage such a factory-restored iPod.

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4
5

VI. RealPlayer With Harmony Compatibility Issues

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127.

RealPlayer 10.5 was the first version of RealPlayer to include Harmony

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8
9

Technology. RealPlayer with Harmony apparently enabled support for iPod and iTunes m4a and
m4p music files. [See Figure 28.] There were multiple versions of 10.5 released over several

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years, each version identified by a build number. I conducted experiments using builds

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6.0.12.1040 (dated 8/13/2004), 6.0.12.1235 (dated 06/30/2005), and 6.0.12.1741 (dated

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10/16/2006).87

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128.

RealPlayer 10.5 included a tab for the management of a music library stored on the

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local computer. [See Figure 29.] RealPlayer 10.5 also included a tab that enabled the transfer of
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16

songs to portable devices, including iPods. [See Figure 30.]

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87

Dates are part of the digital signature included with the install program.

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Figure 28. Screen shot of RealPlayer 10.5 Help topic discussing Harmony Technology.

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Figure 29. Screen shot of RealPlayer showing “My Library” of music tracks.
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Figure 30. Screen shot showing the Burn/Transfer tab with an iPod connected.

A.

ITUNES DATABASE CONTENTS ARE INCONSISTENT

129.

RealPlayer 10.5 (e.g., Build 6.0.12.1235 and Build 6.0.12.1741) created an

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inconsistent iTunes database.

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130.

In addition, RealPlayer (e.g., Build 6.0.12.1235 and Build 6.0.12.1741) fills certain

fields in the iTunes database differently than iTunes does.

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RealPlayer 10.5, on the other hand, rounds the size of the music file down to a multiple of 1

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kilobyte and uses a totalTimeInMS that may be less than, greater than or the same as the iTunes
4.6 time. In the experiments that I performed, the totalTimeInMS written by RealPlayer 10.5

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differed from the value written by iTunes 4.6 by as much as 673 milliseconds (more than 0.5

16

seconds).

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131.

As I discussed in the Kelly Declaration at ¶ 33, when RealPlayer transfers music to

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an iPod, it also creates a new directory on the iPod (iPod_Control/Music/rndb) and stores several
files therein.

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B.

PLAYLISTS ARE CORRUPTED

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132.

iTunes 4.6 and RealPlayer 10.5 with Harmony did not access the iTunes database

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in a compatible way based on my observations. When an iPod is connected to the customer’s
computer, as soon as iTunes runs, it will read and update the iTunes database as needed. If

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iTunes is configured to automatically update all songs and playlists [see Figure 31], it will erase

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all songs on the iPod and build a new iTunes database based on the customer’s iTunes Library. If

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iTunes is configured so that the customer can manually manage songs and playlists, iTunes may

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still modify the iTunes database even when it is not copying files or playlists to the iPod. If the
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customer also uses RealPlayer 10.5 with Harmony to add songs to the iPod, the two programs can
make conflicting changes to the database. The following experiment illustrates the conflict.
•

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English was chosen as the language. This deleted all files, created the base set of

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The iPod photo (firmware version 1.0) was restored to factory condition and

folders and files, and restored all settings to their default values.
•

The iPod was connected to a Windows XP computer that had both iTunes 4.6 and

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RealPlayer 10.5 with Harmony (Build 6.0.12.1235) installed. When iTunes

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opened, the iPod Setup Assistant was cancelled. Then iTunes was quit.

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15

•

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RealPlayer 10.5 with Harmony was then launched. Six songs were copied to the
iPod.

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iTunes was launched and one song was copied to the iPod. iTunes was then quit.

•

RealPlayer 10.5 with Harmony was then used to copy a playlist (named “My

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Playlist”) containing four of the songs already on the iPod. Then the iPod was

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disconnected from the computer.

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133.

The iPod Playlists menu displays “My Playlist,” a playlist without a name and On-

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The-Go. [See Figure 32.] Both “My Playlist” and the nameless playlist contain no songs. [See

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Figure 32.] The playlists section of the iTunes database was corrupted because iTunes 4.6 and

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RealPlayer 10.5 with Harmony did not properly coordinate their access to the database. The next

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time that the iPod is connected to the computer and iTunes runs, iTunes will tell the customer that
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the iPod is corrupted and needs to be restored. Thus, the customer will see content on the iPod
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appear and disappear seemingly at random depending on how and in what order they are using

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iTunes and RealPlayer 10.5 with Harmony. They may also be asked to repeatedly restore and

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resync their iPod.

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Figure 31. The left hand screen shot shows the iPod options for an iPod initialized to
“Automatically update my iPod” using the iPod Setup Assistant in iTunes 4.6. The right
hand screen shot shows the iPod options for an iPod initialized to not automatically update
using the iPod Setup Assistant.

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Figure 32. Photographs of the iPod photo (P98) after both iTunes and RealPlayer sync
content to it as described in ¶ 132. The photograph on the left shows the Playlists menu.
The photograph on the right empty shows that the “My Playlist” playlist is empty.
134.

Conflicts with iTunes Software apparently persisted. In March 2006,

RealNetworks told customers that “If you already have iTunes installed, it can cause some
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conflicts with RealPlayer and your iPod. To avoid these conflicts, we recommend setting up your

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iPod to be compatible with RealPlayer.” It also told users to turn off automatic song and podcast

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updating, noting that “every time you open iTunes with your iPod connected, non-iTunes tracks

4
are erased from the iPod” and that “RealPlayer can transfer the [Music Store] tracks over, but the
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6

iPod cannot play them once iTunes synchronizes with the device.” [See

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http://service.real.com/musicstore/support.html?section=iPodRPinstall, which is discussed in a

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March 2, 2006 email about RealPlayer with Harmony working with iPods at that time

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(Apple_AIIA00093860).] Even in the Oct. 2006 release of RealPlayer with Harmony (Build

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11

6.0.12.1741), the troubleshooting section of the help file informed customers that “iTunes can
cause issues when you attempt to use RealPlayer to download music to your iPod.” [See Figure

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33.]

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Figure 33. “iTunes, iPod, and RealPlayer Issues” page from the RealPlayer with Harmony
help file installed with RealPlayer 10.5 (Build 6.0.12.1741).

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C.

REALPLAYER DELETES ON-THE-GO PLAYLISTS

135.

On-the-Go playlists are improperly handled by RealPlayer with Harmony. To

illustrate this problem I used RealPlayer 10.5 build 6.0.12.1040 to restore an iPod photo (with
firmware version 1.0). [See Figure 34.] I then synchronized a library of three songs to the iPod.
Next, I ejected the iPod and created and saved an On-The-Go playlist. [See Figure 35.] When I

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opened the iPod in RealPlayer the saved playlist did not appear in the “Playlists On Device”
display for the iPod. [See Figure 36.] If the user performs an action that causes RealPlayer to
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update the iTunes database on the iPod – for example, rating a song [see Figure 37] – the saved

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On-The-Go playlist is deleted after the iPod is ejected. RealPlayer also does not preserve

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unsaved On-The-Go playlists. The unsaved On-The-Go playlist is lost from the iPod if

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RealPlayer updates the iTunes database on the iPod.
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Figure 34. Screen shot showing the “Restore iPod” option available with RealPlayer 10.5.

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Figure 35. iPod photo showing a saved On-The-Go playlist.
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Figure 36. Screen shot showing the playlists on the iPod is empty.
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Figure 37. Screen shot showing the “Edit Clip Info” dialog for a song stored on the iPod.
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D.

REALPLAYER CREATES ZERO LENGTH DATABASE WHEN DISK IS
FULL

136.

15

RealPlayer with Harmony does not properly handle the iPod database when the

16
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18

iPod disk is full.88 To illustrate this, I completely filled the iPod photo’s hard drive by using

19

RealPlayer to copy over 10 GB of songs (1320 tracks) to the iPod and using Windows Explorer to

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copy approximately 50 GB of data files to the root folder of the iPod. I connected the iPod to

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RealPlayer and created “My Playlist” and added 22 tracks from the existing songs on the iPod to
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the playlist. [See Figure 38.] I created a second playlist – “Rock” – and added 391 tracks to the

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device. [See Figure 39.] When I clicked “Eject Device,” RealPlayer reported that I could safely

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remove the device. [See Figure 40.] However, none of the 1320 tracks appeared in the song list

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88

I performed this experiment with builds 6.0.12.1040, 6.0.12.1235 and 6.0.12.1741. All three experiments
produced identical results.

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on the iPod, and it appeared that I had lost 10 GB of music. When I examined the iTunes

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database on the iPod, I discovered that it was zero bytes in length. RealPlayer had given no

3

indication of its failure to correctly write the iTunes database.

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Figure 38. Screen shot of RealPlayer showing the contents of “My Playlist” on the iPod.

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Figure 39. Screen shot of RealPlayer showing the contents of “Rock” playlist on the iPod.

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Figure 40. Screen shot of RealPlayer informing the user that it is safe to disconnect the
iPod.

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E.

REALPLAYER CRASHES CAUSE MUSIC TO DISAPPEAR

19

137.

During the course of one experiment using RealPlayer 10.5 Build 6.0.12.1040, I

20

attempted to copy the RealPlayer library of 1321 songs and two autoplaylists to the iPod photo.

21
RealPlayer “crashed” at 99% complete. In other words, it experienced an error that caused
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Microsoft Windows to immediately terminate the program. This left the iPod in a state in which

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it showed that there was no music on the iPod even though the Music folder contained over 10

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GB of music files.

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F.

TAGS

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3
4

REALPLAYER DOES NOT HANDLE SPECIAL CHARACTERS IN SONG

138.

RealPlayer improperly displays and causes the iPod to improperly display the

names of songs containing multi-byte UTF-8 characters. For example, RealPlayer Build

5
6.0.12.1040 does not correctly display the song title “Melõdiqúe.” [See Figure 41.] When
6
7

RealPlayer writes this song name to the iTunes database on an iPod photo (with firmware version

8

1.0), it does not correctly convert the UTF-8 characters to two byte Unicode, and the song display

9

on the iPod is also incorrect. [See Figure 42.] This song name is displayed correctly by iTunes

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4.7 [see Figure 43], and is correctly displayed on the iPod when it is written to the iPod using

11

iTunes 4.7 [see Figure 42].

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Figure 41. Screen shot showing incorrect display of song name containing multi-byte UTF8 characters.

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Figure 42. The photograph on the left shows a portion of the song list on the iPod photo
after using RealPlayer to transfer the songs. The song “Melõdiqúe” is displayed
incorrectly. The photograph on the right shows the same portion of the song list on the iPod
photo after using iTunes 4.7 to transfer the songs. The song “Melõdiqúe” is displayed
correctly.

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Figure 43. Screen shot showing iTunes correctly displays a song name containing multibyte UTF-8 characters.

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G.

REALPLAYER LEAVES ORPHAN FILES ON THE IPOD

139.

When using RealPlayer, if the transfer of songs from the media library to a

connected iPod is interrupted, for example, by a power fault, the iPod may appear to be empty
even though many songs have been copied to the Music folder on the iPod. To simulate this, I

22
initiated the transfer of a group of songs from the RealPlayer Build 6.0.12.1040 library to an iPod
23
24
25

photo, which contained no songs, but then interrupted the transfer by disconnecting the USB
cable linking the iPod to the computer. I performed experiments interrupting the transfer after

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about 25, 35 and 50 songs had been transferred.89 In all three cases the song list on the iPod

2

display was empty.90 The iTunes database on the iPod contained no track records. However, the

3

Music folder on the iPod contained the expected number of songs. When I attached the iPod to

4
the computer and used RealPlayer to transfer the songs again (this time allowing the transfer to
5
6

complete), there were duplicates of the music files because the songs that had been successfully

7

transferred but had not been added to the iTunes database were copied to the iPod a second time.

8

This reduces the available storage of the iPod.

9

H.

11
12

REALPLAYER DOES NOT SUPPORT THE IPOD VIDEO

140.

10

RealPlayer did not properly support the iPod video (i.e., iPod classic 5th

generation) for at least two reasons. First, all songs and videos that RealPlayer copies onto the

13
14
15

iPod video are displayed in both the Songs and the Movies lists on the iPod video. Second,
RealPlayer converts video clips to audio clips.
141.

16

I performed the following experiment using RealPlayer build 6.0.12.1741 (digital

17

signature dated 10/16/2006) to demonstrate these problems. First, I added two songs and three

18

videos to the RealPlayer library. [See Figure 44.] The songs are properly recognized as MP3

19

audio. The MPEG-4 video clip, which is in a format that can be played by the iPod video, is

20
imported as a song instead of a video. The Windows Media Video and AVI video clips are
21
22

imported as videos.
142.

23
24

I then connected the iPod video (firmware version 1.0) and initialized the iPod by

clicking RealPlayer’s “Restore iPod” button. Next, I copied the two songs to the iPod video and

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89

It appears that RealPlayer writes an iTunes database to the iPod every 100 files.

90

If the iPod already contained songs, those songs would still appear in the display, but none of the new songs would
be added to the Songs menu on the iPod.

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disconnected the iPod from the computer. As shown in Figure 45, the two songs appear in both

2

the Songs list and the Movies list in the iPod video user interface. The songs should only appear

3

in Songs list. My examination of the iTunes database created by RealPlayer shows that the

4
database is missing information required by the iPod video. In fact, the database is missing fields
5
6
7

added after iTunes 4.5 (released in April 2004).
143.

Then, I connected the iPod video to the computer once again and copied the three

8

video clips to the iPod video. RealPlayer only copied the MPEG-4 and Windows Media Video

9

clips. Although RealPlayer did not copy the AVI video clip, it did not display any error or

10
11

warning messages. Finally, I disconnected the iPod video from the computer. Both the songs and
videos are displayed in the Songs list and the Movies list in the iPod video user interface. [See

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Figure 46.] In addition, none of the videos are playable as videos on the iPod. The video clips
have been converted to MPEG-4 audio files by RealPlayer, again, without displaying an warning
messages.

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Figure 44. This RealPlayer library contains two songs in MP3 format, one video clip in
MP4 format (placed in the category Music instead of Videos), one video clip in Windows
Media Video format and one video clip in AVI video format.

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Figure 45. The two songs are listed as both songs and movies.
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Figure 46. All of the content is listed as both songs and movies.

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I.

14

OTHER CUSTOMER COMPLAINTS

144.

13

Some users reported that songs transferred to the iPod by RealPlayer are skipped

15

(either entirely or after playing a portion of the song) during playback on the iPod. [See, e.g.,

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http://forums.ilounge.com/ipod-classic-legacy-ipods/110673-ipod-mini-skipping-songs.html.]

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One user posted on his blog instructions that he received from Real Networks for fixing this issue.

18
[See http://johnbell.typepad.com/weblog/2006/04/real networks r.html.] One proposed solution
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21
22

was to disable optimized files. Another proposed solution was to delete the keybag files from the
iPod.
145.

Users have also reported that not all of the songs that Real Player says are on the

23

iPod are displayed in the iPod menus. [See, e.g., http://forums.ilounge.com/ipod-classic-legacy-

24

ipods/160006-music-shows-pc-not-ipod.html.]

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146.

Users reported that RealPlayer did not copy album art to the iPod. [See, e.g.,

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http://forums.ilounge.com/ipod-classic-legacy-ipods/156128-ipod-realplayer-album-art27
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problem.html.]
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147.

Some users found that multiple entries for an artist appear in the iPod Artist menu

when transferring songs using RealPlayer. [See, e.g., http://forums.ilounge.com/lounge/41210real-networks-ipod-disaster.html; http://forums.ilounge.com/third-party-software-mac-pc/113897-

4
real-player-problem.html.]
5
6

148.

Users also found that, after using RealPlayer, iTunes could not recognize the iPod

7

and informed the user that the iPod had to be restored. [See, e.g., http://forums.ilounge.com/ipod-

8

classic-legacy-ipods/82185-ipod-music-real-music-store.html;

9

http://forums.ilounge.com/windows-ipod-discussion-problems/44855-real-player.html.]

10
11

149.

A user also reported that, after using RealPlayer, the iPod would not “play the

music that I have bought from itunes.” [See http://forums.ilounge.com/windows-ipod-discussion-

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problems/44855-real-player.html.]
150.

In addition, users reported problems with RealPlayer loading music that could be

15

played on an iPod Shuffle. Although RealPlayer appeared to copy songs onto the iPod shuffle,

16

the iPod shuffle would not play any songs. [See, e.g., http://forums.ilounge.com/windows-ipod-

17

discussion-problems/97143-help-ipod-shuffle-major-problem.html.]

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22
23

VII. Apple and Third Parties Would Have Had To Work
Together
151.

Allowing third party jukeboxes to load and manage music on iPods in a way that

worked seamlessly without interfering with the intended operation or performance of iPods,

24
25
26

iTunes and iTS and without interfering with FairPlay would have required close cooperation
between Apple and the third party jukebox developers. Among other things, Apple would have

27

had to share confidential information (including specifications, design information, and perhaps

28

source code) with these third party developers. [See also Kelly Declaration at § IV.A.] And as
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Dr. Martin seems to recognize, Apple would also have to modify the iPod firmware and iTunes

2

Software to make the iPod firmware and iTunes software work seamlessly with the dozens of

3

third-party applications – including RealPlayer and Winamp – that were available to the public.

4
This would be an ongoing process as Apple changed iPod hardware and firmware, the iTunes
5
6

software, and iTS software and content. Developing software so that it is compatible with third-

7

party applications and then providing ongoing support to maintain that compatibility is more

8

burdensome than developing and maintaining one’s own products.

9
10
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152.

Dr. Martin says that “an effective way to help minimize incompatibilities or bugs

in third-party applications is to publish technical documents that accurately reflect the
requirements for interoperability.” [Martin Report at ¶ 111.] As a threshold matter, this would

12
13
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require Apple to incur the costs of drafting specifications and other documents that could be read
and understood by non-Apple developers. Such documents would have to be reviewed and

15

possibly updated with each change to iTunes, iPod firmware and other programs that work with

16

or affect iTunes or iPod firmware, including FairPlay. Aside from the burden on Apple to write

17

and maintain such documentation and to support the developers who would use the

18

documentation, there is no guarantee that this would lead to the requisite level of compatibility.

19
Indeed, as discussed above, bugs that interfere with the intended operation can occur even where
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21

the software is developed internally with full information (including highly confidential

22

proprietary information), developers have access to the relevant software and hardware as well as

23

the respective development teams, and where a company has an incentive to reduce bugs so that

24

customer satisfaction is enhanced. In addition, even with documentation, third-party developers

25

still wouldn’t have the same access that internal developers and engineers have. And since

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developers may interpret such documents in different ways, the various jukebox applications may

27
still not produce databases and keybags that are entirely compatible. In addition, in my
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experience developers sometimes ignore parts of such specifications. For example, developers

2

sometimes use fields that are “reserved for future expansion” to store information not contained

3

in existing fields. Even if this approach were effective, sharing highly confidential information –

4
especially related to the keybag – could reduce the security of FairPlay.
5
6

153.

Dr. Martin also believes that Apple could have written iTunes and the iPod

7

firmware to tolerate errors introduced by third party jukeboxes: “Another possibility would have

8

been for Apple to code for robustness rather than rapid failure due to the detection of third-party

9

software.” [See Martin Report at ¶ 108.] As with documentation, this would require Apple to

10
11

spend resources developing new code and programs to interoperate with the third-party programs.
Among other things, Dr. Martin would have Apple perform a full verification analysis of the

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iTunes database. This would require development effort by Apple for both the iTunes client and
the iPod. The additional processing to implement this solution could be significant on resource-

15

constrained devices such as the iPod and impact the responsiveness of the device, battery life, etc.

16

And it is wrong to suggest that making the device or software more “robust” would eliminate

17

bugs that could interfere with the operation of the iPod. As discussed above, creating a bug-free

18

program is nearly impossible.

19
154.

Dr. Martin also attempts to draw a parallel with the iPhone because Apple

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21

provides technical documentation to developers of third-party iPhone applications. [See Martin

22

Report at ¶ 48.] As an initial matter, Dr. Martin’s attempted analogy is too simplistic. The

23

developer documentation to which Dr. Martin refers is for programming interfaces to Apple

24

software on the iPhone, which third parties use to develop their own applications. This Apple

25

software was designed to be exposed to third party developers. There is no software interface for

26

syncing music and videos to the iPod that was designed to be exposed to third party developers.

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Therefore, carrying the analogy to the iPod, Dr. Martin would have Apple provide to the third
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party jukebox developers the software interface, which would consist of software on both the

2

iPod and the user’s computer to create the database and keybag, manage concurrent access by

3

multiple jukebox applications, etc., and the requisite interface documentation. All the flaws

4
related to providing documentation and making the software more robust, as discussed above,
5
6

apply equally here. There are a number of other problems with such a “solution.” First, unless

7

Apple employed techniques such as database and keybag verification, third party developers

8

would not be required to use the Apple supplied software. They could still write the database and

9

keybag directly. Second, iPhone software runs on a relatively small collection of devices easing

10
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the cost of development, support, testing, etc. The portion of the proposed interface software for
the user’s computer would have to at least run on versions of Microsoft Windows, Mac OS X and

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Linux since third party jukeboxes were developed for all of these operating systems. This is a
very significant challenge. Third, since such software would necessarily use FairPlay, providing
this type of access would make FairPlay less secure.

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VIII.

Advantages of a “Walled Garden”

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19

155.

One of the many choices confronting the designers of a software & hardware

20

platform is the choice between a “closed” platform (also called a “walled garden”) and an “open”

21

platform (also called an “open field”). The true walled garden approach, on the one hand, is one

22

in which the provider controls the software, hardware, and content in the ecosystem. Users

23

within the ecosystem cannot use non-approved or unsupported applications or content. Thus, the

24

user of the platform must adopt the entire system as provided by the designers. The open field

25
approach, on the other hand, allows any interested party to provide some or all of the software,
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some or all of the hardware, and some or all of the content. The user of the platform is free to
combine software and hardware from any collection of providers in order to create the system.
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Of course, a platform could be somewhere between the true walled garden and open field

2

extremes.

3
4

156.

The Apple Macintosh is an example of a system that is closer to a walled garden

5

than an open field. The customer must obtain the basic hardware and the operating system from

6

Apple; however, third parties can provide certain types of expansion devices and application

7

software. By contrast, the so-called Wintel PC is closer to an open field than a walled garden.

8
The customer must obtain the operating system from Microsoft but can obtain the hardware
9
10
11
12

(basic system and expansion devices) from any party and application software from any party.
157.

Apple’s iPod/iTunes/iTunes Store is closer to a walled garden than an open field.

Apple develops the hardware (iPod), the iPod firmware, the iTunes Software, and the iTS

13
14
15

software, and optimizes each component to work together. In addition, Apple provides some of
the content through iTS. By design, if the customer uses the iPod, they also use the iTunes

16

Software to load and manage content on the iPod and the iTS to obtain content. It is not a true

17

closed system because content (e.g., DRM-free music, videos, etc.) can also be acquired from

18

other parties and loaded onto an iPod using iTunes.

19
20

158.

Amazon/Kindle also has features of a walled garden. Amazon develops hardware

21

(Kindle), software (Kindle software for computers and smartphones), and the Amazon Store.

22

Although, as designed, the consumer purchases content from the Amazon Store and views the

23
24

content using the Kindle hardware or software, it is also possible to download content from the
Amazon Store to other devices.

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26
27

159.

Microsoft’s Xbox gaming system also has features of a walled garden. Microsoft

develops hardware (Xbox consoles and accessories), software (Xbox operating system) and an

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online store (Xbox Live Marketplace). Consumers must use the Xbox console and operating

2

system from Microsoft but can purchase some accessories and some content from other parties.

3

160.

A walled garden platform has certain perceived advantages compared to open field

4
platform, including ease of use, security and stability. These advantages come at some cost,
5
6

including potentially higher development and maintenance costs, less code portability and less

7

API access to third party developers. In the following paragraphs I will discuss in more detail the

8

advantages of the walled garden.

9
10
11

161.

One important benefit of the walled garden approach is that it enhances the

stability of hardware and software versions. 91 This is because there is a limited and controlled
population of hardware devices that will run the software and a limited and controlled number of

12
13
14

software applications that have to interoperate with each other. The developers, engineers and
others involved face a more manageable task of tailoring the software to the specific hardware

15

and other software with which it will interoperate. This translates to a benefit for consumers,

16

because the consumer does not have to worry about which version out of many potential versions

17

of the software is the correct one for a particular hardware device.

18

162.

A walled garden provides the benefit of a better user experience. As should be

19
apparent from the above, in a walled garden, since a company does not have to worry about
20
21

compatibility and optimization with multitudes of hardware devices and software programs, the

22

company and its developers and engineers can focus on product quality. Additionally, strict,

23

centralized verification and testing of the product can lead to higher product quality and enhanced

24

user experience.

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27

91

For an example in the field of industrial automation, see Walled Garden or Open Field? by John Berra
[http://www.automationworld.com/print/10058].

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163.

A walled garden also provides the benefit of more easily and quickly changing the

elements of the platform (e.g., hardware devices and software) because a single party controls all
the elements. The more diverse the hardware and software that comprise an open platform, the

4
harder it is to devise and implement changes that are satisfactory to all stakeholders given the
5
6

increased coordination that is required among the various actors. Having a single entity control

7

the constituent parts of the platform allows walled gardens to respond more quickly to consumer

8

demands and enables a more efficient allocation of resources when determining how to best effect

9

changes among both the hardware and software components of a system.

10
11

164.

A walled garden platform also provides a more centralized security structure to

protect end users. Since security is only as strong as the weakest link in the chain, the centralized

12
13
14

control that is the hallmark of a walled garden platform allows a company to fully vet security
risks prior to introducing new components into the system. By implementing centralized testing

15

and verification of components supplied by third parties, which pose potential security and other

16

risks, the company performs a gatekeeper function to protect the security of the system and end

17

user. However, the results are only as good as the verification process.

18

165.

A walled garden also provides the benefit of increased convenience for customers.

19
For example, ecosystems like Apple’s provide consumers one place to find and purchase content
20
21

(using iTunes to access iTS), manage and play content on the computer (using iTunes), and

22

manage content on the iPod (using iTunes to load and mange music). Commentators have

23

heralded the iPod’s convenience and ease of use as one of its most significant achievements,

24

stating “By exercising control over the hardware and the software, Apple has been able to

25

construct the easiest-to-use digital music system possible. Unlike the glitch-prone systems of its

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competitors, Apple’s three-way combination of hardware (iPod), software (iTunes), and online

2

service (music store) is about as seamless as a sophisticated tech product gets.”92

3

166.

Customer service is also enhanced. First, having a single customer support

4
organization is more convenient for the customer, who does not have to determine which of many
5
6

companies to call for support. Second, having a single customer support organization provides a

7

better customer experience. Since the customer support organization can service calls concerning

8

all elements of the platform (and interactions amongst the elements), customer support is more

9

likely to successfully resolve the problem. Third, the walled garden maximizes the support

10
11

resources available to the customer. As one Apple employee explained, misdirected support calls
(i.e., calls due to an unsupported product or service from another company) needlessly consume

12
13

limited customer support resources.
“We provide support to iPod customers for their hardware and iTunes as it pertains
to iPod syncing. If a customer damages their iPod because the (sic) used software
other than iTunes, then that should be outside the scope of support. For every
dollar we spend helping one of those customers, it’s one dollar less we can spend
on
supporting
our
customers
who
actually
need
our
help.”
[Apple_AIIA01025117]

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18

IX. Other Topics

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20
21

167.

If asked or to more fully explain my opinions as expressed in this report, I reserve

the right to rely on various portions of the references that I have discussed in this report that I

22
23

have not already explicitly cited to in this report.
168.

24
25

I reserve the right to supplement my report in light of any additional fact

discovery, opinions by Plaintiff’s experts, and/or trial testimony. I also reserve the right to

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27

92

The Cult of iPod by Leander Kahney (No Starch Press, Inc. 2005), p. 15

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provide rebuttal opinions and testimony in response to Plaintiff’s experts, and rebuttal testimony

2

in response to any of Plaintiff’s fact witnesses. Further, I reserve the right to use animations,

3

demonstratives, enlargements of actual exhibits, and other information in order to illustrate my

4
opinions.
5
6

169.

I expect to continue to develop my opinions discussed in this report. I also reserve

7

the right to supplement my opinions based on information obtained from additional discovery or

8

from Plaintiff’s experts, as indicated above.

9
10
11

170.

When called upon to do so, I will offer testimony at trial or otherwise regarding

these opinions and will offer rebuttal testimony as appropriate throughout the remainder of this
proceeding.

12
13
14

Executed this 19th day of July 2013 in Santa Barbara, California.

15
____________ __________ ______
John P. J. Kelly

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Exhibit A

Dr. John P. J. Kelly
Selected Industrial Professional Experience
HONEYWELL INC., ARIZONA, 1996 - 1997
Expert Consultant to the Honeywell Commercial Flight Systems Group on fault tolerant
computing in air transport systems in connection with the Federal Aviation
Administration (FAA.)
LOS ALAMOS NATIONAL LABORATORY, NEW MEXICO, 1991 - 1995
Collaborator to the Los Alamos National Laboratory (LANL). Performing systems
engineering and analysis of LANL environmental management programs including
program management, DOE interactions, business practices and overall technical
structure and organization. Developed computer systems and data warehouse for LANL
Environmental Restoration.
AT&T GIS, NCR, SYMBIOS LOGIC, LSI LOGIC 1985 - 1998
Member of the AT&T GIS Science Advisory Committee (SAC). The SAC is a group of
seven experts that evaluates AT&T's organization, technical direction and product
strategy and makes recommendations to the Vice President of Technology and
Development.
Expert Consultant performing systems engineering and analysis, system organization
and dynamics for various AT&T GIS divisions.
UNISYS CORPORATION, ST. PAUL, MN, 1988 - 1989
Expert Consultant performed systems engineering and analysis for an Air Force
program.
TELEDYNE CONTROLS 1983 -1984
Consulting Computer Scientist. Responsible for systems engineering, specification and
design of a data acquisition and control system for NASA.
JET PROPULSION LABORATORY 1978 - 1983
Group Manager, System Architect. Performed systems engineering and analysis for
distributed data communication networks and distributed database systems for the NASA
Deep Space Network.
MARTIN LUTHER KING HOSPITAL 1977
Consulting Computer Scientist. Specified, designed and implemented a transaction
oriented database management system for medical records.

Dr. John P. J. Kelly
Organization Membership
IEEE (Institute of Electrical and Electronic Engineers)
ACM (Association of Computer Machinery)
IFIP (International Federation of Information Processing) (1982-2000)

Editorial Activities
Editorial Board Member:
Springer-Verlag
Host and Local Organization Chairman:
First IFIP International Working Conference on Dependable Computing for Critical
Applications, University of California, Santa Barbara, August 23-25, 1989.
Program Committee Member:
Fault Tolerant Computing Symposium 1988, 1989, 1990, 1991, 1993
Fifth Symposium on Reliability in Distributed Systems and Database Systems, 1986
Eighth Symposium on Reliable Distributed Systems, 1989
1st IFIP Int'l Working Conference on Dependable Computing for Critical Applications
3rd IFIP Int'l Working Conference on Dependable Computing for Critical Applications
Reviewer:
National Science Foundation
IEEE Transactions on Software Engineering
IEEE Transactions on Computers
IEEE Transactions on Reliability
IEEE Computer
FTCS (Fault Tolerant Computing Symposium)
SRDSDS (Symposium on Reliability in Distributed Systems and Database Systems)
VLDB (Very Large Data Base Conference)
DCCA (Dependable Computing for Critical Applications)
DCS (Distributed Computing Symposium)
California MICRO Program

Exhibit B
Prior Testimony
Prior Expert Testimony

In the past four years I have testified as an expert witness by deposition or at trial in the
following cases:
Medtronic Minimed, Inc., et. al., v. Nova Biomedical Corporation, et. al., United States
District Court for the Central District of California, Western Division, No. CV0800788 SJO (PJWx)
Linear Technology Corp., et. al., v. Applied Materials, Inc., et. al., Santa Clara County
Superior Court, No. 1-02-CV806004
Microprocessor Enhancement Corporation, et. al., v. Texas Instruments Incorporated,
United States District Court for the Central District of California, No. SACV 081123 SVW (RNBx)
Transamerica Life Insurance Company et al. v. Lincoln National Life Insurance Company,
United States District Court for the Northern District of Iowa, Cedar Rapids
Division, No. C 06-110-MWB
ZapMedia Services, Inc., v. Apple Inc., United States District Court for the Eastern District
of Texas, Marshall Division, No. 2:08cv104
Sabre Inc. et. al., v. International Air Transport Association, et. al., Ontario Superior Court
of Justice, No. 07-CL-006825
Medtronic Sofamor Danek USA, Inc., et al., v. Nuvasive, Inc., United States District Court
Southern District of California, No. 3:08-CV-1512 MMA (AJB)
The Apple iPod iTunes Anti-Trust Litigation, United States District Court for the Northern
District of California, San Jose Division, No. C 05-00037 JW (HRL)
Affinity Labs of Texas, LLC v. Apple Inc., United States District Court for the Northern
District of California, Oakland Division, No. CV 09-4436-CW
Invesco Institutional (N.A.), Inc., v. Deutsche Investment Management Americas Inc.,
Supreme Court of the State of New York, County of New York, No. 650154/2007
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Delaware corporation, Superior Court of the State of California, County of Santa
Clara, No. 104 CV 031829
In the Matter of Certain DC-DC Controllers and Products Containing Same, United States
International Trade Commission, Washington D.C., Investigation No. 337-TA-698

Bose Corporation, v. SDI Technologies, Inc., et. al., United States Didstrict Court for the
District of Massachusetts, No. 09-cv-11439-PBS
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Delaware, No. 10-258-SLR
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Inc., United States District Court, Southern District of New York, Nos. 15430 (AJN)
and 1543 (AJN)
Cardsoft, Inc. et. al., v. Verifone Systems, Inc., et. al., United States District Court for the
Eastern District of Texas, Marshall Division, No. 2:08cv98
SSL Services, LLC, v. Citrix Systems, Inc. et. al, United States District Court for the
Eastern District of Texas, Marshall Division, No. 2:08-cv-158(TJW)
Ancora Technologies Inc., v. Apple Inc., United States District Court for the Central
District of California, No. 2:10-cv-10045-AG
International Air Transport Association vs. Travelport Global Distribution System BV, ICC
17129/JHN/CFG
VirnetX, Inc., v. Cisco Systems, Inc., et. al., United States District Court for the Eastern
District of Texas, Tyler Division, No. 6:10-cv-417-LED
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Components Thereof and Associated Software, United States International Trade
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District of Pennsylvania, No. 2:11-cv-01292-DWA
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Thereof, and Products Containing the Same, United States International Trade
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for the Eastern District of Texas, Marshall Division, No. 02:10-cv-91-LED-RP
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Central District of Illinois, Peoria Division, No. 07-cv-1141

For my work in connection with the analysis reflected in this report and for any time I spend
testifying about that study and my opinions, Kelly Computing, Inc. is being compensated at a
rate of $800 per hour and I am being reimbursed for my expenses.

EXHIBIT C
Problems With 3rd Party Applications