I'm surprised Apple didn't perma-Activation Lock the phones after sending them off. They do that with the demo phones in the stores, although that might be a MDM policy or something.
Why would they do that? Apple still earns some money from these devices via the app store. Locking the device will just piss the users and may harm Apple's reputation. And they can still get more money if they win the lawsuit, which is very likely. It's all win for Apple.
