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Apple lawyers would claim the moon is made of cheese if they thought it would get their clients off. I've seen other appeals cases in the news before that made me think "that's what they are going with?". It doesn't mean what the lawyers claim is exactly the truth. I don't know which way this case will go, but to me claiming you shouldn't be punished because you think someone else is doing/will do more wrong is plain stupid.
"Johnny, why did you destroy Julie's backpack?" "Because Bobby is a poopyhead and would have done it first, so I kept her from being hurt by him"
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