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| Psystar Makes Its Case In Bankruptcy Court, but Stay is Lifted Anyway |
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Tuesday, June 23 2009 @ 02:26 AM EDT
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The bankruptcy court in Florida has granted [PDF] Apple's motion to lift the automatic stay, to allow the Apple v. Psystar case to continue to resolution in California:
The automatic stay imposed by 11 U.S.C. §362 (a) is lifted to allow the Infringement Action to proceed for all purposes through final judgment; provided that Apple must seek further relief from this Court before executing any money judgment obtained in the Infringement Action against the Debtor’s estate.
Psystar had filed an opposition [PDF] to Apple's motion to lift the stay. Attached as Exhibit C [PDF] was an affidavit from Psystar's President, setting forth Psystar's position. To no avail, alas. So, it's off to the races. I'm sure Psystar just can't wait to make its EULA arguments. Of course, as is typical in bankruptcy cases, even if Apple wins, no money can be handed over without the bankruptcy court OKing it first. But that isn't, I suspect, Apple's primary goal anyway. They want the copyright infringement, as they see it, to stop.
Here's the docket entry:
06/15/2009 - 38 - Motion to Appear pro hac vice by James G Gilliland, Jr. Filed by Creditor Apple, Inc. . (Oriol-Bennett, Alexandra) (Entered: 06/18/2009)
06/17/2009 - 39 - Order Granting Motion To Appear pro hac vice (Re: # 38 ) (Pittman, Linda) (Entered: 06/19/2009)
06/19/2009 - 40 - Order Granting Motion For Relief From Stay Re: # 25 (Covington, Katrinka) (Entered: 06/22/2009)
By the way, do you remember that alleged "Open Source" blog where gumout, otherwise known as Daniel Wallace, and Terekhov used to hang out and plot strategy to undermine the GPL? You remember Daniel Wallace. The blog's gone now, noticed by Robert Ambrogio:Not all these biglaw blogs are active. LexBlog describes a blog from Morris Manning & Martin that deals with the law surrounding open source software as dormant. To me, it appears dead. The link for the blog leads to an Italian-language blog about online gambling. This might suggest that even as some large law firms take small steps towards blogging, others are stepping away. Of course there's always Internet Archive. It's weird, kind of like watching some of Psystar's arguments being born, y'all.
Here's the meat of Psystar President Rudy Pedraza's Declaration:
I, Rodolfo Pedraza, declare and state as follows:
1. I am the President and Co-Founder of Psystar Corporation, the Debtor and also
one of the largest creditors in this matter.
2. On April 14th 2008 Psystar gained national attention, as it became the only
competitor to Apple in providing hardware capable of running the OS X 10.5 Leopard operating
system, hereafter referred to as Leopard.
3. Psystar Corporation legally purchases the Leopard software and resells it in
unmodified form along with the Open Computers it manufactures (during the course of Apple's
litigation Psystar has provided proof of legal purchase of these items).
4. In addition to the hardware and software, purchased from Apple, we also provide
special software that allows our computers to understand how to run the Leopard operating
system software (unmodified).
5. On July 3, 2008 Apple, Inc. filed a complaint against Psystar Corporation in the
Northern District of California. Case No. CV 08-03251 WH.
6. Attached hereto as Exhibit A is a true and correct copy of Apple's EULA for Mac
OS X 10.5.
7. Apple Inc.'s End User License Agreement (EULA) aims to prohibit the use of
legitimately bought software on commodity hardware with a clause stating said software may
only be installed on an "Apple-labeled computer". Apple, Inc., by and through their counsel, set
out in a Goliath vs. David battle with the sole purpose of overwhelming Psystar's resources, with
excessive motion practice and demands for discovery, in an attempt to remove competition with
respect to OS X - compatible computers.
8. Attached hereto as Exhibit B is a true and correct copy of Psystar's Counter Suit.
9. Psystar Corporation in its counter suit against Apple, Inc., contests the legality of
said agreement (EULA) on grounds that it violates the same copyright laws Apple is attempting
to assert (copyright misuse). Additionally, we strongly believe Apple is also violating antitrust
law (tying), which is unlawful in the State of Florida and many others states. Florida Antitrust
Act of 1980, § 542.15 Florida Statutes. However, the latter argument was dismissed by the
federal court and Psystar Corporation is not in a position to appeal at this point in time, but has
considered addressing this issue on appeal and/or at a State level.
10. The pending issue before the federal court is not a matter of fact but rather a
matter of law. Hence Psystar's counter suit seeking declaratory relief aims to resolve this dispute
without further unnecessary and expensive discovery processes.
11. Unfortunately, Apple has been busy burying us in discovery in defense of their
claim in an attempt to bankrupt us before getting to trial. This has overwhelmed our resources
and prevented us from pushing forward with our declaratory relief claim.
12. Attached hereto as Exhibit C is a true and correct copy of Apple's responses to
said discovery.
13. Attached hereto as Exhibit D is a true and correct copy of the complete docket in
U.S. District Court, California Northern District (San Francisco) Case # 3:08-cv-03251-WHA.
14. During the course of the discovery period, Apple has failed to answer and instead
has objected to all Interrogatories and/or Requests for Admissions in an attempt to further bury
Psystar in legal bills without providing any information. This has incapacitated Psystar from
continuing to dispute Apple's objections as all our resources have been utilized to defend their
discovery disputes, as you can see from the docket. Apple has conducted extensive and
unnecessary motion practice in this case not in the interest of judicial economy but rather in
attempt to bankrupt Psystar. The same is true for its discovery practices.
15. Apple's intention is to overwhelm Psystar in order to circumvent the addressing of
our counter suit. Our success in said counter suit would simultaneously dismiss Apple's pending
litigation in view of the fact that all its causes of action stem from the EULA claim.
16. Several times this court has inquired as to whether or not Apple has gotten
injunctive relief and the answer to this is No. It has been unable to seek such in over eleven (11)
months of litigation. If their case is so cut and dried we would not be allowed to sell our
computers.
17. Apple has asked for the stay in this case to be lifted in the interest of judicial
economy and the interest of both parties. This is completely contradictory to its prior practices in
the course of the case as its focus has been to stonewall our discovery and bleed us to death with
frivolous discovery requests after we have made every effort to provide them all documents in
our possession.
18. Apple, Inc.'s Motion for Relief from Stay incorrectly cites SCO, which filed for
bankruptcy after an order entered on a motion for summary judgment. There has been no
summary judgment motion filed or order entered in Apple v. Psystar, nor in Psystar v. Apple.
He sounds just like SCO, doesn't he? Psystar is David fighting Goliath, and their very excellent chances in litigation are being overwhelmed by big bad Apple, but given their chance, all Apple's claims will melt like snow on a summer day.Weird.
Can one of you brainiacs explain what in the world he might mean in number 4 by "special software that allows our computers to understand how to run the Leopard operating
system software (unmodified)"? Update: Please factor in Netka's article on where their code was taken from. Also, I thought I'd just note that whether or not they modify the software isn't the issue with a DMCA allegation. The issue there is access, not modification. If there is a system in place blocking access and you access anyway, then the DMCA jumps in, and Apple has such a claim. It doesn't even have to be a great system, by the way, from the cases I've read anyway.
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| Authored by: Ed L. on Tuesday, June 23 2009 @ 03:06 AM EDT |
| Please indicate proposed correction in title of your post.
---
Once
they have you asking the wrong questions, they don't have to worry about the
answers - Slothrup's Third Proverb
[ Reply to This | # ]
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- Broken links - Authored by: Anonymous on Tuesday, June 23 2009 @ 11:49 AM EDT
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| Authored by: Ed L. on Tuesday, June 23 2009 @ 03:09 AM EDT |
| Please indicate which newspick in the title of your post. And please make your
links clickable. Thanks!
---
Once they have you asking the wrong
questions, they don't have to worry about the answers - Slothrup's Third
Proverb
[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, June 23 2009 @ 03:12 AM EDT |
What's different in principle between Apple's EULAs and Microsoft's EULAs?
We seem a smidgin less constant than the Northern star in this regard.[ Reply to This | # ]
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| Authored by: Ed L. on Tuesday, June 23 2009 @ 03:13 AM EDT |
| Please indicate your off-topic in the title of your post. Describe how far off
your off-topic is in your post's body. And please make links clickable.
Thanks!
---
Once they have you asking the wrong questions, they don't
have to worry about the answers - Slothrup's Third Proverb
[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, June 23 2009 @ 03:28 AM EDT |
>>> Can one of you brainiacs explain what in the world he
might mean in number 4 by "special software that allows our
computers to understand how to run the Leopard operating
system software (unmodified)"? <<<
PJ -- it's called a hack.
In this case the ROM code is changed to fool OS X (Leopard)
into believing he hardware is "genuine".
[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, June 23 2009 @ 03:30 AM EDT |
'special software that allows mac os x run unmodified on their machines'
possibly - a software implementation of a patented hardware that is supposed to
stop people from running mac os x on normal i386 machines
[ Reply to This | # ]
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- point 4 guess - Authored by: Anonymous on Tuesday, June 23 2009 @ 03:46 AM EDT
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| Authored by: Ed L. on Tuesday, June 23 2009 @ 04:04 AM EDT |
Can one of you brainiacs explain what in the world he might mean in
number 4 by "special software that allows our computers to understand how to run
the Leopard operating system software (unmodified)"?
Well, I'm a
bear of very little brain, and no Mac, but I'll take a stab at one hypothetical
possibility.
Start by assuming that Leopard wants to verify that it is
indeed running on Apple hardware. How can it do this?
Cryptography, of
course. But keep in mind that under these circumstances, wherein a supposed
attacker has access to both sides of the transaction, all possible cryptographic
solutions are in principle crackable. So Apple might keep it fairly simple,
nothing more than is necessary to satisfy the basic encryption requirement of
DMCA.
Any PC OS interacts with the PC hardware, at least at boot time,
through the PC Bios. So one possibility is that Apple simply placed a public-key
encrypted message on a special ROM chip soldered to the PC mainboard, and wrote
a simple Bios routine that would return that message upon request by the
OS.
(Another possibility is that Intel already had a similar provision as
part of its mainboard identification code that prevents a Bios from being
flashed onto the wrong mainboard, and was willing to accommodate any minor
additions requested by Apple.)
Either way, the corresponding private key is
encrypted in the OS, which upon boot-up decrypts its private key, queries the
Bios for the special message, verifies the message and thereby determines it is
running on Apple hardware, and proceeds on its way.
The method is simple
enough to crack: simply observe the operation of the Leopard bios call that
retrieves that message, then write your own Sooper-Special-Bios (SSB) that will
return the same message when requested by Leopard.
SSB is software that
starts life as a stock Bios provided by the mainboard vendor. Its only change is
the addition of the message-key function. It can then be flashed back into the
PC Bios and Leopard is none the wiser.
I don't know this is what Apple did,
or is how (the hypothetical) Psystar allegedly circumvented it. I suspect Apple
was a bit more devious, and the hypothetical Psystar had to work a bit harder.
Doesn't matter, because as mentioned, no matter how devious Apple is with their
cryptographic Apple-hardware verification keys, a sufficiently motivated
(hypothetical) Psystar can always crack it.
But that is what that particular
section of DMCA is for: Apple incorporated a cryptographic scheme to enforce
their EULA, and the (hypothetical) Psystar (allegedly) cracked it. Apple's EULA
enforcement may be cracked, but Apple's lawyer's have their case.
"See you
in court."
:-)
---
Once they have you asking the wrong questions,
they don't have to worry about the answers - Slothrup's Third Proverb
[ Reply to This | # ]
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| Authored by: Doghouse on Tuesday, June 23 2009 @ 05:03 AM EDT |
I know little about either the Mac or Psystar's product, but this looks to
come down to bridging the gap between how the operating system expects the
hardware to behave and what the hardware actually does. In principle it could be
anything from a full-blown emulator at the one end (giving the OS an environment
that looks like the native one it expects, whilst actually being something
completely different under the covers) to the sort of microcode approach used on
mainframes at the other (where a layer of software turns what appear to be
machine-level instructions into the actual behaviour needed to best exploit the
features of the hardware).
Although in this case I suspect it's more of a
halfway house case of patching places that don't quite fit unaided. [ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, June 23 2009 @ 05:23 AM EDT |
Dear PJ,
Although you seem to dislike Psystar very much, I think that the text above is
much more close to reality than SCO has ever been. He notes for example that he
views the condition in the EULA as only allowing it to run on Apple labeled
hardware as illegal tying, but that the court ruled otherwise and that he is not
in a position to appeal (though he would very much like to and is seeing what he
can do.)
That is a universe apart from SCO claiming that Kimball was wrong and it is only
waiting on the appeal to get everything sorted out the way they want it. Or
ignoring things have been ruled on unfavourably and bringing it up again.
Actually, I don't think that Psystar are morally wrong in providing choice for
MacOS customers (yes, I think it is a separate market and therefore left alone
by MS), but they seem to be legally wrong.
And yes, I can see why someone would like to be protected from costly discovery
demands if his business is very short on cash. If the judge were allowed to
first rule on who is right and sort out the damages afterwards, that would save
the defendant a lot of money in discovery if he's found right. If he's found
wrong, there's no need for CH11, go to CH7 immediately.[ Reply to This | # ]
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| Authored by: s65_sean on Tuesday, June 23 2009 @ 06:10 AM EDT |
PJ, I tried to explain this to you a few Psystar articles ago. You were claiming
that Psystar had somehow modified Apple's OS/X code to get it to run on
Psystar's hardware and had thus violated Apple's copyrights.
As I tried to point out at the time, and as you can see from his declaration,
they created their own code that runs on the computer at bootup time that makes
the OS/X software think that it is running on Apple hardware.
The way that OS/X knows (or assumes) that it is running on Apple hardware is
that it relies on some code stored in the firmware of the machine to run during
bootup that tells the OS/X software that it is indeed an Apple branded hardware
device.
Psyster has reverse engineered the firmware code from the Apple hardware and put
into their own software that runs at bootup time and basically lies to the OS/X
software and claims that it is running on Apple branded hardware.[ Reply to This | # ]
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- Point 4 - Authored by: PJ on Tuesday, June 23 2009 @ 06:15 AM EDT
- Point 4 - Authored by: s65_sean on Tuesday, June 23 2009 @ 10:27 AM EDT
- Point 4 - Fail - Authored by: Anonymous on Tuesday, June 23 2009 @ 03:20 PM EDT
- Point 4 - Authored by: Anonymous on Tuesday, June 23 2009 @ 10:28 AM EDT
- Point 4 - Authored by: Doghouse on Tuesday, June 23 2009 @ 11:28 AM EDT
- Point 4 - Authored by: Anonymous on Tuesday, June 23 2009 @ 08:52 AM EDT
- Point 4 - Authored by: s65_sean on Tuesday, June 23 2009 @ 10:14 AM EDT
- Point 4 - Authored by: Anonymous on Tuesday, June 23 2009 @ 10:18 AM EDT
- Point 4 - Authored by: Anonymous on Tuesday, June 23 2009 @ 01:51 PM EDT
- Point 4 - Authored by: Anonymous on Tuesday, June 23 2009 @ 09:45 PM EDT
- Point 4 - Authored by: Anonymous on Thursday, July 02 2009 @ 01:03 PM EDT
- Point 4 - Authored by: proceng on Tuesday, June 23 2009 @ 03:03 PM EDT
- Point 4 - Authored by: Anonymous on Tuesday, June 23 2009 @ 04:46 PM EDT
- Point 4 - Authored by: Anonymous on Tuesday, June 23 2009 @ 06:14 PM EDT
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| Authored by: bugstomper on Tuesday, June 23 2009 @ 10:36 AM EDT |
| PJ, I did some digging about his point number 4, and have some conjectures, with
links to back them up. Bear with me, it is a bit tangled.
As an Anonymous
mentioned in a comment here, it does seem to be related to an open source EFI
emulator, but that comment was all wrong about it being GPv3.
There is an
OSx86 project that resulted in the "Hackintosh", details on Wikipedia where it
says
In early November 2007, a group of hackers (fronted by a
Russian hacker known as Netkas), using an already modified boot-132 source root
from David Elliot (also known as dfe),[9] developed a method[10] of emulating an
EFI environment using a specially modified Darwin bootloader.[11] In practical
terms, this meant that regular PCs meeting a minimum set of hardware
requirements could now be "seen" as real Macintosh computers by the OS, allowing
the use of unmodified, "stock" Apple kernels
The idea is that one
installs the EFI emulator and some kext files (system kernel extension files) on
a computer with suitable Intel x86 hardware, and it is supposed to make it
possible to install MacOS X from the Apple DVD. Whether that is enough to be
able to say that you aren't violating Apple's copyright I would have to leave to
a lawyer to say. Likewise what the implications are regarding the DMCA
anti-circumvention provisions, or any questions about EULAs.
As for the
indications that Psystar used software from this project, there were articles in
April 2008 about that, which all seem to derive from a blog posting by the
person referred to in that Wikipedia article as "a Russian hacker known as
Netkas". (Warning, there's some crude language in the comments in the blog entry
I'm about to link to). Netkas said, in "psystar - liars" That guys said
they sell computers with efi v8 emulator..
They forgot to mention author of
emulator, so it’s looks like they made efi v8.
But u know who did it [...]
So, this is violation of my authorship rights on pc efi v8.
Nektas
then posts the text of a license for EFI V1 to V8 that begins with
"Redistribution and use in binary form for direct or indirect commercial
purposes, with or without modification, is stricktly [sic] forbidden." and
continues, obviously a pastiche made up by a naive non-lawyer, trying to
retroactively license code he had been distributing for years with no license or
copyright notice included, and which according the Wikipedia article is based on
David Elliot's modification of Apple's boot-132 code.
Oh, now this really
gets tangled. But before I go there, I'll finish up with evidence regarding
Nektas and Psystar. A comment on that blog post refers to a page on Psystar's
web site that references Nektas. That page no longer exist on their site, nor in
Google cache or Wayback. It is quoted in yet a later comment to the blog post,
but I could not prove its authenticity. According to that comment, the former
contents of http://www.psystar.com/open_source.html were Psystar
embraces the Open Source community. We’re all about open computing and the idea
that software should be customizable, portable, and available. We use Open
Source software in the Open Computers like PC EFI by Netkas, the GRUB
bootloader, Ubuntu Linux, and many other Open Source efforts out there. We use
Open software in our PsyStor SAN by Sun and IBM. We use the Linux kernel in the
Psystar Gateway Router. Psystar will promote Open Source projects in every way
possible. To the Open Source community: thank you.
There is some
verification of that text in that it is also quoted in a comment in thi
s thread on InsanelyMac, which calls itself "the home of OSx86".
An
interesting item from one of the comments in that InsanelyMac thread
points out that even when using the EFI boot loader to allow one to install
MacOS X, you have to install modified copies of kernel extension files (kexts)
including one called dsmos.kext which is a reverse engineering of the file you
can see on your Mac named
/System/Library/Extensions/Dont Steal Mac OS
X.kext
Anyway, the Psystar website replaced that notice with a slightly
different one at a slightly
different URL that now says Psystar embraces the Open Source
community. We're all about open computing and the idea that software should be
customizable, portable, and available. We use Open Source software in the Open
Computers like the GRUB bootloader, the Linux kernel and distributions, BSD
software, and many other Open Source efforts out there. We also host and develop
several public source projects which you can visit below. Our Psystor SAN uses
software created by Sun and IBM. We use the Linux kernel in the Psystar Gateway
Router. Psystar will promote Open Source projects in every way possible,
including releasing projects of our own under the Psystar Public
License.
with no longer any mention of EFI by Netkas.
Now that
I established that Psystar might be using pc-EFI from Nektas, on to the tangle
regarding what it means to be using it :-)
Nektas says in his what is PC EFI? page
PC EFI
is a technology to run Mac OS X on any pc with close to macs specs, without any
modifications to osx kernel.
Is it legal ?
Yes, it’s legal to have this
files, because it’s built from sources apple provided, before apsl2 was changed
a year ago.
I think we've established his lack of legal credentials
or knowledge. But now we know where Psystar got the idea that their method for
installing MacOS X on their machine is legal and does not modify MacOS X in a
way that would involve copyright infringement. Personally, I would want to
consult a lawyer rather than believe Nektas' claim on his web site. Leaving
aside his post hoc attempt to create a license for the code, I looked up the
original boot-132 code that David Elliot modified that Nektas started from and
found it posted by Apple with a copy of the Apple Public License, which you can
see on the OSI
site and which has an article on
Wikipedia.
That license seems to imply that Nektas and Psystar are both
supposed to include a notice to distribute and to use PC EFI.
Again, I'm not
making any claims about how any of this does or does not have to do with Psystar
infringing on any copyrights or violating terms of the DMCA, as I, as always,
remain Not A Lawyer.
[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, June 23 2009 @ 03:56 PM EDT |
1) Original developer machines for OSX-Intel were not built by Apple, in fact,
OSX-Intel has been running since 1995 on x386. Thus anything added to the
system to tie Leopard to Apple hardware can't be that extreme of a solution.
But again, that's what the DMCA is for.
2) Apple is a software company. Its genius is in developing solutions that
make complex technical capabilities easy to use by non-wizards. Based on
OSX update data, a huge portion of OSX users have pirated copies of the
system. You will note, however, that Apple really doesn't spend many
resources going after end-user pirates. That's because:
3) Apple is a hardware company. Anyone using the software is an Apple
customer, either new or used. Even if you are a poor student using a $400
used computer with pirated software, Apple figures eventually you will be a
paying customer years later, and it's better to create good customers than
engender bad will. Even if you personally don't become a paying customer,
enough eventually do to make it unwise to generate bad publicity. But,
something like Psystar screws up this balance. Apple never really gets a
paying customer (and any OS money is really not worth it). Apple spends
millions on R&D, employing thousands of engineers. The money has to come
from somewhere. Think of a Mac, iPhone, or iPod as a high-end software
dongle.
4) It just works. Apple has built a reputation on that, and it's because of
using
high-end parts where necessary, and testing known knowns. Anything that
may jeopardize that reputation Apple will go after.
5) Individual customers. You don't see many times when Apple goes after
individuals, including the osx86 crowd. My personal opinion, is that Apple
engineers, from a scientific perspective, sortof enjoy the cat and mouse game
with crypto breakers, it helps them make a better system. I think they've even
hired some. If they didn't allow some of this, they'd squash finding talent.
Apple doesn't really care what its individual customers do with their hardware,
even to the point of almost encouraging people to void their warranties with
mini-mods.
But from a legal and business perspective, the minute any of this becomes
commercial, Apple must protect its rights, and can't actually blatantly say any
of this.[ Reply to This | # ]
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- So in a nutshell - Authored by: Anonymous on Tuesday, June 23 2009 @ 04:39 PM EDT
- So in a nutshell - Authored by: Anonymous on Tuesday, June 23 2009 @ 04:53 PM EDT
- So in a nutshell - Authored by: Anonymous on Friday, June 26 2009 @ 08:29 PM EDT
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| Authored by: Anonymous on Tuesday, June 23 2009 @ 04:09 PM EDT |
Psystar's counter suit seeking declaratory relief aims to resolve
this dispute without further unnecessary and expensive discovery
processes.
If Apple is misusing the discovery phase to request
unnecessary discovery, how come Psystar haven't filed an appropriate complaint
with the Court? If they have, why wasn't it granted? If it was granted, why
not reference it in the BK Court?
Apple has failed to answer and
instead has objected to all Interrogatories and/or Requests for Admissions in an
attempt to further bury Psystar in legal bills without providing any
information.
Umm... isn't that the whole point of a lawsuit? That
two sides do not agree on at least one fact? Didn't Psystar itself object to
Requests for Admissions and deny interrogatories which lead to a Court Order to
turn over their basic accounting documents?
Apple has conducted
extensive and unnecessary motion practice in this case ... same is true for its
discovery practices.
Ok... so why hasn't Psystar filed an
appropriate objection with the Court itself?
Apple's intention is to
overwhelm Psystar in order to circumvent the addressing of our counter suit. Our
success in said counter suit would simultaneously dismiss Apple's pending
litigation ...
So... let me get this straight. In order to cut
litigation costs, Psystar started a second litigation stream?
Okyyyyyy.......
16. Several times this court has inquired as to
whether or not Apple has gotten injunctive relief and the answer to this is No.
It has been unable to seek such in over eleven (11) months of litigation. If
their case is so cut and dried we would not be allowed to sell our
computers.
Surely the Judge is smart enough to know that just
because injunctive relief is not granted is no guarantee as to which side would
win. To think otherwise and make a statement that basically says one must not
be infringing because injunctive relief has not been granted seems
foolish.
This is completely contradictory to its prior practices in
the course of the case as its focus has been to stonewall our discovery and
bleed us to death with frivolous discovery requests after we have made every
effort to provide them all documents in our possession.
Wow. I
wonder if they're going for the record on "most things wrong in a single
sentence. To touch on two obvious:
- There's absolutely no evidence or
ruling indicating Apple is misusing the discovery process.
- If Psystar
was providing all documents in their possession, where did the missing
accounting documents go which the IRS will require for tax purposes and why was
Psystar given a Court Order to turn them over?
I think SCOG still has
the record for most things wrong in a single sentence. Two obvious items seems
a bit low in numbers to me.
18. Apple, Inc.'s Motion for Relief from
Stay incorrectly cites SCO, which filed for bankruptcy after an order entered on
a motion for summary judgment. There has been no summary judgment motion filed
or order entered in Apple v. Psystar, nor in Psystar v.
Apple.
Umm.... so.... let me get this straight. Apple used the SCOG vs
Novell case to state:
In In re The SCO Group, Inc., 395 B.R. 852
(Bankr. D. Del 2007), the Delaware bankruptcy court found cause to grant a
creditor’s motion for relief from stay so that a copyright infringement action
pending in federal district court in Utah could proceed.
So
granting cause for relief to deal with a copyright infringement action. Novell
also listed a few reasons the Judge decided so:
- The trial had already
been prepped for so no undue hardship would result.
- The court
recognized the critical importance
to the bankruptcy process of first resolving
any underlying infringement litigation
- Points out that litigation
expenses do not constitute irreperable injury providing reference to 8 previous
Court Cases
- Identifies the issues surrounding potential infringement of
Apple's intellectual property and the effect on what business Psystar has for a
reorganization.
As a result, he makes a statement that peripherally
touches on point 1 by stating PSJ's had been filed and completely ignores every
other point including the Cases cited.
Wow! I'll have to agree with P.J.
that Psystar appears to be following in SCOG's shoes with regards initiating
lawsuits and how they deal with those lawsuits in court. High on claims of
fault as though those claims were fact and surprisingly empty of any evidence to
support those claims while evidence of the opposite is readily
available.
RAS[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, June 23 2009 @ 08:43 PM EDT |
Someone previously mentioned carterphone case.
How is Pystar different than Compaq when they first reverse engineered IBM bios
to sell the first IBM PC clone?
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| Authored by: Placid on Thursday, June 25 2009 @ 05:41 PM EDT |
>what in the world he might mean in number 4 by "special
software that allows our computers to understand how to run
the Leopard operating system software (unmodified)"
Well, I am a Mac user and I've also tried to build a
hackintosh (i.e. to make MacOS X to run on a non-Apple PC).
MacOS X is not a stored in a single file. It consists of
modules. In order to run it on PC all you need to do is to
remove some of the Apple modules and add some extra
modules. That can be done physically - just by removing and
replacing files in MacOS X installation, or logically: by
starting (booting) some application first that will tell
MacOS to ignore some of the files and to use some other
files. In this "logical" case all the additions are stored
in a separate place. It has some great conviniences for the
user and also that means that MacOS X is stored unmodified.
Key word here is "stored". OS is *stored* unmodified, but is
*running* in the modified way, of cause. Not sure if there
is any difference from the legal standpoint.
Sorry for my English.[ Reply to This | # ]
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