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Psystar Ramps Up Again, but Carr & Ferrell Says This Is Its Stop; Jammie Thomas' Final Lawyer Wants to Represent Psystar
Friday, July 17 2009 @ 03:31 PM EDT

Apple v. Psystar is going forward, whether Psystar enjoys it or not. The judge, US District Judge William Alsup, has set a date for trial, January 11, 2010, and the cut-off dates for discovery are set forth in the Second Case Management Order [PDF], after the parties filed a Second Joint Case Management Statement [PDF], which provides a kind of "state of the case" overview. The order also officially lifted the bankruptcy stay so this case can go forward. The last page is a suggestions form, where the judge asks the attorneys to provide any ideas for improvement by him or the court, to be offered anonymously. I've never seen that before, but then I have never been in a court in California.

Interestingly, it looks like Psystar will be going forward with new lawyers. There is a filing asking to substitute new lawyers for the Carr & Ferrell firm. The new lawyers Psystar wishes to substitute are Camara & Sibley, a Texas firm, and Welker & Rosario, a California firm, which agreed to serve as local counsel. They are all Harvard guys. As you may recall from Psystar filings in the bankruptcy, Carr & Ferrell's unpaid $88,468.84 bill is the largest debt that Psystar listed when seeking Chapter 11 bankruptcy protection. Camara & Sibley is the same firm that agreed to take on the Jammie Thomas case, when her first lawyer wanted out. And the firm presents itself as being willing to take on a case even very late in the process, even after adverse rulings. One can't help but recall, however, that the RIAA massacred Ms. Thomas-Rasset, or more accurately put her into perpetual, lifetime servitude.

Here are the two most recent documents in the docket:

07/10/2009 - 75 - ORDER SCHEDULING SETTLEMENT CONFERENCE. Signed by Magistrate Judge Bernard Zimmerman on 7/10/2009. (bzsec, COURT STAFF) (Filed on 7/10/2009) (Entered: 07/10/2009)

07/15/2009 - 76 - MOTION to Substitute Attorney filed by Psystar Corporation. (Grewe, Christopher) (Filed on 7/15/2009) (Entered: 07/15/2009)

The parties are told to hustle forward with all discovery needed to meaningfully participate in the settlement conference.

The transcript of the January 29, 2009 hearing about whether or not Psystar could amend its complaint is now available on, by the way. If you find Psystar's EULA arguments about copyright misuse fascinating, that is your document. The judge tells the Psystar lawyer, Colby Springer of Carr & Ferrell, on page 8, that the judge isn't a geek, even if he might look like one, so he asks the lawyer to explain it all clearly for him. In so doing, he explains its point of view to us as well. I have to say Springer does a fabulous job of presenting his client's case. Psystar is going to miss them, I think. I'd say it boils down to one idea, that copyright covers only expressions of ideas, not hardware, and Apple is trying to spread copyright restrictions to hardware. The problem with that concept is it assumes the only thing you can put in a EULA license is whatever copyright covers.

James Gilliland, Apple's lawyer, stands up on page 11, and Apple's position in its essence is that it owns the copyrights and that gives it the right to restrict who gets to copy its software and also who gets to distribute it. He uses the illustration that if it owned the copyright on a novel, it could license out the right to publish a book in paper form while restricting the right to publish an audiobook. Absent market power, that kind of restriction is common. Of course, Psystar claims Apple does have market power, and it claims cases support its position that you don't even need market power to find copyright misuse. The judge threw out the antitrust claims. The key question then, that this case will have to resolve, Gilliland states on page 12, then, can licensing restrictions be copyright misuse in the absence of market power? We'll get to find out, as the judge ultimately allowed Psystar to amend its counterclaims with regard to that question, while denying another proposed claim. By allowing it as a counterclaim, instead of just a copyright defense, it broadens the impact the final decision will likely have, which is no doubt why Apple opposed it as a counterclaim. But it is now.

What happens next is the case goes to the Magistrate Judge Bernard Zimmerman for mediation or settlement, if possible. Magistrate Judge Zimmerman issued an Order Scheduling Settlement Conference [PDF] setting a settlement conference for July 30 at 9 AM in San Francisco. The parties are told to finish all needed discovery in order to participate in the settlement conference. Seriously? So does Psystar have to turn over its financial records in discovery now? Oh, wait. I think the dog ate them, IIRC.

The judge asks the parties to file a report about the case, and a brief "candid evaluation of the parties' likelihood of prevailing on the claims and defenses", and "any other information that party wishes not to share with opposing counsel." I've never seen anything like that. California is a trip. I wonder if that would work with SCO lawyers? I'm thinking no. No one expects the case to settle that day, I gather from the instructions, but the parties are encouraged to highlight what stands in the way.

Some of you have wondered why there is this move to separate Apple's hardware and software. Daniel Eran Dilger's Roughly Drafted blog has an article that talks about why Microsoft is struggling against Apple, and lo and behold, Apple's integration of hardware and software plays a vital part:

This model worked well for Microsoft through the 90s. However, particularly since 2001, Microsoft has had trouble keeping up with Apple’s Mac OS X development, particularly in the consumer space. Apple’s tight hardware and software integration has enabled the company to deliver a differentiated product that can move faster, eschew Microsoft’s legacy limitations and security flaws, and deliver new hardware features in ways Microsoft can’t, because Microsoft can’t force hardware makers to follow its plans. These factors are not only eroding Microsoft’s monopoly position in PCs, but have also worked to prevent its monopolization of new markets.
Hence Psystar? Maybe? Allegedly? You think?


Psystar Ramps Up Again, but Carr & Ferrell Says This Is Its Stop; Jammie Thomas' Final Lawyer Wants to Represent Psystar | 151 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections here please
Authored by: tiger99 on Friday, July 17 2009 @ 03:37 PM EDT
If needed.

[ Reply to This | # ]

OT here please
Authored by: tiger99 on Friday, July 17 2009 @ 03:39 PM EDT
Anything that is interesting to Groklaw readers but not related to the main
article should go here, Please remember to make clickies where appropriate.

[ Reply to This | # ]

Newspick discussions here please
Authored by: tiger99 on Friday, July 17 2009 @ 03:40 PM EDT
Please indicate which Groklaw newspick item you are referring to in the title of
your post.

[ Reply to This | # ]

Is it publication to purchase and install a product?
Authored by: jsoulejr on Friday, July 17 2009 @ 03:56 PM EDT
Or does Apple publish and sell it's publication? Can a book be published with a
eula that doesn't permit it to be used in a public library?

[ Reply to This | # ]

How Would This Affect Straight Software Companies?
Authored by: Anonymous on Friday, July 17 2009 @ 07:18 PM EDT

Pystar's defense seems to rest on the idea that "I paid for it, I can do what I want with it". However, the entire commercial software business rests on selling software licenses with conditions attached. Look at databases for example. There are per CPU licenses. There licenses for using it with a client-server application versus using it with a web server. There are per seat licenses versus unlimited user licenses. There are licenses based on how much data you have. For each of these, you pay a different price.

If Pystar succeeds, what is to stop their argument from being used on virtually all other software products? For example, what is to stop someone from buying the "student" edition of Microsoft Office and using it for business purposes (which is currently against the license)? After all the "I paid for it, I can do what I like with it" argument could be applied just as readily there too.

I think that Apple's case should be pretty straight forward. They should be able to argue that a customer receives a valid license to OS/X when they buy an Apple computer, and that the disks sold in the stores don't include this license. This isn't any different from what Microsoft sells when they sell upgrade versions of MS Windows.

Pystar is trying to open a big can of worms. If they happen to succeed, I think the end result will be that the laws will be amended to close that can back up again.

[ Reply to This | # ]

Hence -Psystar Ramps Up Again, but Carr & Ferrell Says This Is Its Stop; Jammie Thomas' Final...
Authored by: Anonymous on Friday, July 17 2009 @ 10:18 PM EDT
"Hence Psystar? Maybe? Allegedly? You think?"

Are you insinuating Microsoft is secretly behind Psystar some how?

We still haven't gotten any proof we can take to the courthouse that Microsoft
is behind SCO's shenanigans.

Not all idiocy in instigated by Microsoft. Some people are just idiots.

[ Reply to This | # ]

There are rights, and then there are Rights
Authored by: Anonymous on Friday, July 17 2009 @ 10:43 PM EDT
If I use a traditional publishing example, it looks to me more that Apple is
saying that it can get a book published, sell it on Amazon (to anyone), but only
people taught to read in states west of the Mississippi are licensed to read it.
Anyone can buy the book, but the copyright restriction is in who can read the
book. That seems silly to me.

If Apple claimed that anyone that owns Apple Mac hardware AUTOMATICALLY has a
license to use the software, and OS media is for sale as a convenience to
hardware owners, that would be a different type of deal. But you pay LOTS for
just the OS version upgrades. (X.4 [Tiger] to X.5 [leopard], for example.)

This case may have broad implications for the high-end software industry, that
restrict software features based on license purchased, rather than hardware

This directly challenges Apple's view that it can have complete control over the
hardware AND the software, and charge full price for both. Do the users of any
of that purchased equipment or software have any rights? Or can they just not
read the book, because they were taught to read in Ohio?

-- Alma

[ Reply to This | # ]

Reasons why MS has trouble keeping up ...
Authored by: nsomos on Friday, July 17 2009 @ 11:06 PM EDT
To the extent that Psystar manages to get OS X running
on the same hardware that would run Windows, that 'tight
hardware and software integration' is not by itself
sufficient to explain Apples progress as opposed to
what MS has failed to do.

I would say that this 'tight integration' or lack thereof
is perhaps the least important of all the factors that make
the products of MS inferior in oh so many ways.

[ Reply to This | # ]

Don't blame the RIAA
Authored by: Anonymous on Saturday, July 18 2009 @ 06:14 AM EDT

One can't help but recall, however, that the RIAA massacred Ms. Thomas-Rasset, or more accurately put her into perpetual, lifetime servitude.

Don't blame the RIAA entirely. I blame:

  1. The jury in the case, who set the "damages" at $1.92 million for downloading 24 songs, after a judge had said $220,000 for 24 songs was excessive
  2. Congress, for passing the law that made this possible
  3. American voters, who vote for Representatives and Senators who pass laws like this one
  4. Last, and least, the RIAA. OK, they lobbied Congress to get a bad law passed. But anybody can lobby Congress, that's their constitutional right. Congress doesn't have to obey them.

[ Reply to This | # ]

Psystar Ramps Up Again, but Carr & Ferrell Says This Is Its Stop; Jammie Thomas' Final Lawyer Wants to Represent Psystar
Authored by: amster69 on Saturday, July 18 2009 @ 07:52 AM EDT
"Carr & Ferrell's unpaid $88,468.84 bill"

Does this mean that if Psystar are unable to pay this bill, Carr & Ferrell
can put Psystar into Chapter 7?


[ Reply to This | # ]

Psystar case isn't simple
Authored by: The Mad Hatter r on Saturday, July 18 2009 @ 09:43 AM EDT

There are several conflicting issues:

1) Doctrine of First Sale
2) UCITA - which was only adopted by a few states
3) Is a shrink wrap license legal
4) Does location play into this (legal in Florida say, but not in Alabama, so
can Psystar ship to Alabama)
5) RIAA and MPAA will likely file Amicus Curae as copyright is involved
6) Do First Amendment rights trump copyright law?
7) What does the sales of boxed copies of OSX imply?

I'm really of two minds about this case. I think that a lot of what corporations
are trying to do with copyright law now, is a perversion of what was originally
intended. This includes Apple.

At the same time, this looks like a Microsoft orchestrated attack on Apple. So
why would Microsoft attack Apple? Because they are costing Microsoft money, and
if this IS a Microsoft attack, it's morally reprehensible, and Microsoft needs
to be punished.


[ Reply to This | # ]

Psystar doesn't own the copyright.
Authored by: Anonymous on Sunday, July 19 2009 @ 06:11 PM EDT
Despite what Psystar says, it does not own the copyright to any of Apple's

Thus it still does not have the right to distribute copies or modified copies of

Apple's software. Period.

It it is in worse position to sell modified versions of Apple's software. That

would be a huge mistake.

[ Reply to This | # ]

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