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| Apple Accuses Psystar of Destroying Evidence; and in AutoZone, the 24th Hearing is Cancelled |
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Thursday, August 13 2009 @ 11:16 PM EDT
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Apple has filed a letter brief with the court, accusing Psystar of destroying evidence. I can't tell you much more than that, because the letter is heavily redacted, and most of the exhibits are sealed altogether. But those of you who followed the SCO v. IBM case will remember that spoliation, which is the legal word for destroying evidence, is a very serious matter. This is about Apple's DMCA claim, because one clear sentence reads: Defendant, Psystar Corporation, has destroyed relevant evidence that it was legally required to preserve. Specifically, Psystar has overwritten -- i.e., erased -- infringing versions of the software code used on computers sold to its customers. Apple goes on to state that it "contends and can prove" that Psystar violated the DMCA and infringed copyrights "by modifying Apple's Mac OS X software" and then installing it on non-Apple computers. When Apple deposed the Psystar CEO, Rodolfo Pedraza, it says, it did so to find out what method the company used to circumvent Apple's "technological protection measures", and that's how it found out about the erasures of prior versions of Psystar's software. This happened just before Psystar filed for bankruptcy. Apple asks that the court issue an order requiring Psystar to produce all master copies of its code, and if it can't, it requests sanctions. One possibility is that Apple can win a default judgment on liability as a sanction. A slightly lesser sanction might be what's called an inference adverse to Psystar on the copyright and DMCA claims, not to mention Psystar having to pay Apple's attorneys' fees and costs of having to file this motion. Like I say, spoliation is serious, depending on how it happened and how important the evidence was, and Psystar's prior attorneys, Carr & Ferrell, know it, as you can see in the spoliation motion [PDF] they filed in the Burst v. Microsoft case.
There is incremental progress in the SCO v. AutoZone case, too, and if any of you were thinking of going on the 24th, cancel your plans. The judge has cancelled the hearing, since AutoZone does not object to SCO filing an amended complaint.
Here's the Apple v. Psystar filing:
08/13/2009 - 89 - Letter Brief re 85 Letter Brief ,, Dated August 10, 2009, Public Version (correcting Docket #85) filed by Apple Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit (s) B-G (Filed Under Seal))(Related document(s) 85 ) (Gilliland, James) (Filed on 8/13/2009) (Entered: 08/13/2009)
Here's the public, redacted version of the letter brief:
90 -
Filed & Entered: 08/14/2009
Letter Brief
Docket Text: Letter Brief re [85] Letter Brief,, Letter Brief (Redacted Public Version) filed by Apple Inc.. (Attachments: # (1) Exhibit Ex. A, # (2) Exhibit Exs. B-G (Filed Under Seal))(Related document(s)[85]) (Chung, Megan) (Filed on 8/14/2009)
And here's AutoZone's docket notation:
08/13/2009 - 105 - MINUTE ORDER IN CHAMBERS of the Honorable Judge Robert C. Jones, on 8/13/2009. Upon review of the papers and pleadings on file herein regarding Plaintiff's Motion to Amend/Correct Complaint, IT IS HEREBY ORDERED that Plaintiff's 99 Motion to Amend/Correct Complaint is GRANTED.
IT IS FURTHER ORDERED that Plaintiff shall file its 1st Amended Complaint.
IT IS FURTHER ORDERED that the hearing, currently scheduled for August 24, 2009 at 9:00 a.m., shall be VACATED. (Copies have been distributed pursuant to the NEF - TKH) (Entered: 08/13/2009)
Spoliation Exhibit A to Apple's letter brief is a list of things Apple wanted from Psystar, including:
Please produce all DOCUMENTS and COMMUNICATIONS that RELATE TO any program, software or source code YOU used to install MAC OS X on PSYSTAR PRODUCTS, including but not limited to flow chars and/or pseudo code showing installation of MAC OS X.
If YOU have used or use a MASTER COPY, please produce one copy of each MASTER COPY that has been used or will be used. That's part of what's gone walkabout, according to Apple. So what's spoliation all about? And what could it mean in this case?
Here's a Report and Recommendation Regarding Spoliation Motions [PDF] in a case in Utah I highlighted back in 2006, Adams v. Gateway, where the magistrate judge, the Hon. David Nuffer, explains spoliation in detail, the three ways it comes into play, and what the purpose of sanctions is, so if you've forgotten about all that, you can review.
I have the report as text, at the end of the article here, but it's a report for the 10th Circuit, not California, which is where Apple is suing, so the case law part of the report isn't relevant for Apple. It's likely to be at least similar.
The short version is this: if you deliberately or carelessly destroy evidence, you ruin the other side's right to litigate, or defend against litigation, and rob them of the ability to prove their case, and so the court, if it's proven, can level the playing field to compensate for the loss of evidence by punishing whoever did it.
Evidentiary inference is one possible sanction, and it just means the court, the judge or the jury, will infer that whatever was deliberately destroyed was unfavorable to the person or entity that destroyed it. If it actually wasn't, you can imagine how mad you'd be at yourself if you destroyed it stupidly.
Another sanction can be dismissing your action, or part of it. Or, if you are the innocent plaintiff, you could get a judgment by default, which is what Apple is asking for. But, here, it's actually worse than just normal spoliation. If you read the letter, you saw that Apple mentions that Psystar's evidence destruction violates a discovery order by this judge on top of the usual. That's like pushing the nuke button. The judge gets a lot more choices in such a case, including contempt powers. As Judge Nuffer's report puts it: Fed. R. Civ. P. 37(b)(2) enumerates an illustrative variety of sanctions, including an order that certain facts be taken as true, that the disobedient party be barred from taking certain positions, that pleadings be stricken, and that default judgment be entered, as well as invoking contempt powers. The Rule also specifies that the court "shall require the party failing to obey the order or the attorney advising that party or both to pay the reasonable expenses, including attorney's fees," and has expansive powers to make "such orders . . . as are just." "As are just", as determined by a judge whose order has been defied ... well, I don't want it to ever be me doing that, that's all I can tell you. And Psystar can't run back to bankruptcy at the moment for any protection, I don't think. So hopefully, for its sake, it will be able to find the missing software. But lesser sanctions are possible too. It's up to the judge to consider any mitigating factors and to choose the least awful remedy that will level the playing field again. That could just be a warning not to do it again, but in this situation, I doubt it would be that mild, since Apple's DMCA claim depends on this evidence. In short, Psystar has been accused of something rather serious, maybe game changing. And it has just changed attorneys, which is never the greatest time for something game changing to happen. We have yet to hear Psystar's side of the spoliation story, though, so anything is possible. Psystar's announcement of the new lawyer included this unintentionally ironic detail: “Psystar has always been more a Cowboy than a Hippie,” the company said. “Now we’ve changed lawyers to better reflect who we are. Everyone here values openness. And that’s how we’re going to fight Apple: in public.” Lordy, not another cowboy. Cowboy Darl was only just bucked off of his bronco, if that is the proper lingo. I'm not sure I can take any more cowboys.
Well, we'll see how open Psystar turn out to be with this allegedly missing software. They continued that statement, in a Gizmodo article by John Hermann with my all-time favorite Psystar headline, Psystar Sobers Up, Lawyers Up, Prepares to Die Go to Court:
We have nothing to hide. We buy hundreds of copies of OS X legally, from retailers like Amazon and Apple itself. We're probably one of Apple's biggest customers. Then we install these copies of OS X, along with kernel extensions that we wrote in-house, on computers that we buy and build. Then we resell the package to people like you. That's it.
Nothing to hide any more, Apple is saying, because Psystar destroyed all the incriminating bits. I expect there will be a hearing on this, pardners. So stay saddled up.
Update: Indeed, there is a hearing already set:
The Court is in receipt of plaintiff’s August 10, 2009, letter and hereby SETS a further meet-and-confer for 9:30 A.M. ON AUGUST 20, 2009, in the Court’s jury room on the 19th floor of the federal courthouse in San Francisco. Any unresolved issue(s) will be heard by the Court at noon on the same day. Defendant’s response is due by 9:00 a.m. on August 19, 2009. Please note that only counsel who participates in the further meet-and-confer may argue at the hearing. That last means they can't send a cheaper associate to handle the meet and confer prior to the hearing, and then send in the big guns just for the hearing. The meet and confer is to try to resolve things, so only a few items are left for the hearing, and this judge, I gather, wants the same lawyer to handle both. I would take that as a signal, if I were a party, that he wanted me to take the meet and confer process seriously.
Here's the filing:
08/12/2009 - 87 - ORDER SETTING HEARING RE PLAINTIFF'S DISCOVERY DISPUTE [re 85 Letter Brief, filed by Apple Inc.]. Signed by Judge William Alsup on 8/11/2009. (whasec, COURT STAFF) (Filed on 8/12/2009) (Entered: 08/12/2009)
Here's Apple's letter brief, and Exhibit A, as text, the exhibit being all the requests in discovery it is highlighting as unfulfilled:
***********************************
[Townsend letterhead]
August 10, 2009
Via Electronic Filing
Honorable William Alsup
United States District Court
[address]
Re: Apple Inc. v. Psystar Corp., Case No. C 08-03251 WHA
Dear Judge Alsup:
Defendant, Psystar Corporation, has destroyed relevant evidence that it was legally required to preserve. Specifically, Psystar has overwritten – i.e., erased – infringing versions of the software code used on computers sold to its customers. [redacted] Psystar’s failure to preserve and produce this clearly relevant evidence violates both the Federal Rules and this Court’s Supplemental Order governing discovery.
I. Background
In this lawsuit, Apple contends and can prove that Psystar has violated the DMCA and infringed Apple’s copyrights by modifying Apple’s Mac OS X software, which is designed to be used solely on Apple computers, and by installing Mac OS X on non-Apple computers. In November 2008, Apple served discovery seeking the source and executable software code that Psystar uses to cause Mac OS X to run on non-Apple computers. (See RFP Nos. 3, 5, 8-11, 13, 15, 19, 46, 47, 55, 56 and IROG Nos. 7-8, language reproduced as Ex. A.) In March 2009, Apple deposed Psystar’s 30(b)(6) designee, CEO Rodolfo Pedraza, to discover how Psystar circumvented technological protection measures in Mac OS X and installed it on Psystar computers (Topic 1). Apple also inspected Psystar’s source code and deposed Roberto Pedraza (Psystar’s co-founder) and Psystar’s technical “consultant,” [redacted]. This discovery revealed that Psystar has erased prior versions of its software that Apple’s experts independently have found on defendant’s computers. Apple sent a letter identifying this spoliation issue and other deficiencies in Psystar’s document production (Ex. B), but before the parties could meet and confer Psystar filed for bankruptcy. On July 23, 2009, shortly after the bankruptcy stay was lifted, the parties finally met and conferred on these issues.
II. Psystar’s Destruction of, and Failure to Produce, Key Technical Documents
Since April, 2008, Psystar has sold various different non-Apple computers that run Mac OS X. Over time Psystar has created different versions of the software 1 it installs on these computers that allow them to run Mac OS X. [redacted]
_________
1 In discovery, Apple sought production of Psystar’s source code, software or programs used to run or update Mac OS X (RFP Nos. 3, 10, 13, 15, 46, 47 and 55-56) and documents relating to any modifications made to or reverse engineering of Mac OS X to enable Mac OS X on Psystar computers (RFP Nos. 8-11, 13). (See Ex. A.)
[townsend letterhead]
Hon. William Alsup
August 10, 2009
Page 2
Psystar contends it was under no obligation to preserve source code modifications 2 even though the Federal Rules specifically require litigants to preserve relevant evidence and this Court’s Supplemental Order specifically required Psystar to take “affirmative steps as are necessary to preserve evidence.” Supp. Order, ¶4; see also Sensonics, Inc. v. Aerosonic Corp., 81 F.3d 1566, 1575 (Fed. Cir. 1996) (“uncompromising duty to preserve relevant records”). This duty required Psystar to stop overwriting code. Computer Assoc. Int’l., Inc. v. Am. Fundware, Inc., 133 F.R.D. 166 (D. Colo. 1990) (duty to stop ongoing erasures of source code arose, at the latest, when a copyright infringement action was filed). Moreover, as stated in the October 30, 2008 Joint Case Management Statement, Psystar’s principals were put on notice of this duty to preserve and a document preservation notice was sent out to Psystar’s employees. Yet, as admitted by Mr. Pedraza, Psystar has not complied with its obligations and instead has destroyed evidence of its willful infringement. Below are specific examples discovered to date by Apple of code that has been erased:
[redacted]
__________
2
Interestingly, Psystar just implemented a software version control system – over a year after this lawsuit was instituted and months after Apple’s meet and confer letter on spoliation.
3 When asked why, Psystar’s counsel stated that Psystar’s email and customer support software (SupportSuite) randomly “deletes or loses” emails. While counsel says that Psystar has contacted SupportSuite regarding this issue, Psystar has yet to find any emails or chat messages showing such contact with that vendor. Psystar also has not provided evidence of, and Apple is unaware of, any other steps taken by Psystar to halt the deletion of relevant emails by Psystar’s email system. Moreover, Psystar did not inform the Court of this email deletion at the two CMCs in this case or at the last motion to compel hearing where Psystar’s emails and attachments were at issue.
4 The findings of Apple’s technical expert will be detailed in his August 21, 2009 opening expert report or can be submitted by declaration under seal should the Court so require.
5 Psystar has produced one version of the bootloader and just last week provided its July 2009 bootloader. However, Psystar has not produced the other bootloaders it previously used on its computers.
[townsend letterhead]
Hon. William Alsup
August 10, 2009
Page 3
[redacted]
III. Relief Sought Apple requests that the Court order Psystar to produce the code for [redacted], and all master copies that Psystar has used. If Psystar does not or cannot produce these documents, Apple requests that the Court issue an order: (1) requiring Psystar – under the penalty of perjury – to admit that it has destroyed documents and (2) making a factual finding that prior versions of Psystar’s software included [redacted] and were destroyed by Psystar. Additionally, Apple requests that the Court sanction Psystar for its discovery misconduct. Federal courts have the inherent authority to impose sanctions for destruction of evidence and bad faith conduct. Chambers v. NASCO, Inc., 501 U.S. 32, 43 (1991); Unigard Sec. Ins. Co. v. Lakewood Eng. & Mfg. Corp., 982 F.2d 363, 365 (9th Cir. 1992); Leon v. IDX Syst. Corp., 464 F.3d 951, 958-61 (9th Cir. 2006) (striking claims where computer files were intentionally deleted); Computer Assoc., 133 F.R.D. at 170 (entering default judgment on liability in a copyright action where defendant overwrote source code upon each revision). If Psystar does not produce all prior versions of its code, then Apple respectfully requests that the Court exercise its inherent authority by granting Apple an inference adverse to Psystar on its copyright and DMCA claims and by awarding Apple its fees and costs associated with bringing this motion or as the Court otherwise sees fit.
Very truly yours,
/s/ James G. Gilliland, Jr.
James G. Gilliland, Jr.
Counsel for Apple Inc.
************************************
************************************
EXHIBIT A
TO LETTER BRIEF DATED AUGUST 7, 2009
| RFP No. |
Plaintiff's Requests for Production |
| 3 | Please produce all DOCUMENTS and COMMUNICATIONS that RELATE TO any program, software or source code YOU used to install MAC OS X on PSYSTAR PRODUCTS, including but not limited to flow chars and/or pseudo code showing installation of MAC OS X. | |
5 | If YOU have used or use a MASTER COPY, please produce one copy of each MASTER COPY that has been used or will be used. | |
8 | Please produce all DOCUMENTS that RELATE TO any modifications to MAC OS X made or used by PSYSTAR. | |
9 | Please produce all DOCUMENTS and COMMUNICATIONS that RELATE TO any modifications by PSYSTAR to open source code used in MAC OS X. | |
10 | Please produce all DOCUMENTS and COMMUNICATIONS that RELATE TO any APPLE SOFTWARE or any modification to APPLE SOFTWARE used, included or found on PSYSTAR PRODUCTS. | |
11 | Please produce all DOCUMENTS and COMMUNICATIONS that RELATE TO testing or reverse engineering of MAC OS X or APPLE COMPUTERS performed by PSYSTAR or a THIRD PARTY. | |
12 | Please produce all DOCUMENTS that RELATE TO APPLE SOFTWARE, including but not limited to COMMUNICATIONS with THIRD PARTIES. | |
13 | Please produce all DOCUMENTS and COMMUNICATIONS that RELATE TO a THIRD PARTY's programs or software that allow installation of MAC OS X on computers other than APPLE COMPUTERS. | |
15 | Please produce all DOCUMENTS and COMMUNICATIONS that RELATE TO the "OpenComputing Leopard Restore Disk" and "Psystar Open Computer Restore Disk," including all restore forms or acknowledgements of sale directed to PSYSTAR from its customers, all source code used to create the "Restore Disk," instructions on how to use the "Restore Disk," and any pseudo code or flow charts RELATED TO the "Restore Disk." | |
19 | Please produce all DOCUMENTS and COMMUNICATIONS that RELATE TO source code or programs from Netkas, other programmers or hackers from OS X 86. | |
46 | Please produce one copy of each version of PC EFI, dsmos.kext and other kernel extensions that PSYSTAR has used or uses to install MAC OS X on YOUR products. | |
47 | Please produce all DOCUMENTS and COMMUNICATIONS that RELATE TO the source of firmware, PC EFI, dsmos.kext and other kernel extensions that YOU have used to install MAC OS X on YOUR products. | |
55 | Please produce all DOCUMENTS and COMMUNICATIONS that RELATE TO software updates to MAC OS X and/or APPLE's Software Update utility. | |
56 | Please produce all DOCUMENTS and COMMUNICATIONS that RELATE TO YOUR provision of software updates on PSYSTAR PRODUCTS. |
| ROG No. |
Plaintiff's Interrogatories: | Defendant's Response: |
| 7 | Describe in detail the steps or processes YOU have undertaken to install MAC OS X on PSYSTAR PRODUCTS, including but not limited to IDENTIFYING (a) each PERSON who participated in or was involved with the installation process and (b) each software used. | ....Psystar Corporation will further make the source code for its technology in accordance with the Protective Order of March 2, 2009. (From Second Supplemental Response) | | 8 | Describe how PSYSTAR installs or runs MAC OS X software on the PSYSTAR PRODUCTS and IDENTIFY all software or firmware used to do so. | Psystar refers to its response to Interrogatory No 7 including its offer to make available its source code in accordance with the Protective Order of March 2, 2009. (From Second Supplemental Response) |
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| Authored by: Aladdin Sane on Thursday, August 13 2009 @ 11:30 PM EDT |
| Place corrections here. Please summarize in title.
---
For a
successful technology, reality must take precedence over public relations, for
nature cannot be fooled. --Richard Feynman [ Reply to This | # ]
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| Authored by: Aladdin Sane on Thursday, August 13 2009 @ 11:32 PM EDT |
| Discuss Groklaw News Picks here.
Please state the title of the News Pick to
which your comment refers.
---
For a successful technology, reality
must take precedence over public relations, for nature cannot be fooled.
--Richard Feynman [ Reply to This | # ]
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| Authored by: Aladdin Sane on Thursday, August 13 2009 @ 11:33 PM EDT |
| Start OT threads beneath this comment.
Thanks.
---
For a
successful technology, reality must take precedence over public relations, for
nature cannot be fooled. --Richard Feynman [ Reply to This | # ]
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| Authored by: Anonymous on Friday, August 14 2009 @ 12:17 AM EDT |
Am I understanding this correctly? In discovery, they are not providing Apple
with the software they use to get OS X running on non-Apple hardware, claiming
that for some reason they are unable to. But they appear to still be selling
non-
Apple computers running OS X. How exactly do they expect this story to fly??? Of
course these are the same people that claimed, essentially, that they did not
keep financial information on their company...[ Reply to This | # ]
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| Authored by: IMANAL_TOO on Friday, August 14 2009 @ 01:08 AM EDT |
I can hear Psystar say - Hej, Judge, we didn't destroy that evidence on purpose,
it was stored on ZFS, so go sue SUN, or Oracle, for that matter. ZFS does crash
on you, your honour.
---
______
IMANAL
.[ Reply to This | # ]
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| Authored by: tknarr on Friday, August 14 2009 @ 02:06 AM EDT |
I notice that Apple doesn't claim Psystar destroyed the code. They claim that
Psystar overwrote the code on the computers they sold. Now, don't I
recall IBM making the point that having code on backups go missing wasn't a
problem because that same code was also in their version-control repository
which had been delivered as part of discovery. Wouldn't the same
reasoning apply: Psystar is required to preserve and turn over the evidence
requested, not every single physical copy that might exist in addition to the
copies they turn over? If they can't or won't turn over the masters that the
code on the customer machines is a copy of, that'd be an issue, but as long as
the master code exists and is delivered then whether the customer copies were
overwritten or not is irrelevant. Unless Apple wants to claim the code on the
customer machines isn't identical to the master copies, in which case I'd think
Apple would have to produce something to support that claim.
And I
suspect the "overwriting" translates to "automatic update installed the newest
version of the code". [ Reply to This | # ]
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- _Used_ on the computers that they sold - Authored by: bugstomper on Friday, August 14 2009 @ 02:48 AM EDT
- Terms of Use - Authored by: sproggit on Saturday, August 15 2009 @ 02:47 AM EDT
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- Terms of Use - Authored by: Marc Mengel on Saturday, August 15 2009 @ 10:15 PM EDT
- Amen - Authored by: Anonymous on Tuesday, August 18 2009 @ 05:14 PM EDT
- Amen - Authored by: Anonymous on Tuesday, August 18 2009 @ 07:40 PM EDT
- Terms of Use - Authored by: Anonymous on Saturday, August 15 2009 @ 10:20 PM EDT
- Terms of Use - Authored by: tknarr on Saturday, August 15 2009 @ 10:04 PM EDT
- Terms of Use - Authored by: Anonymous on Saturday, August 15 2009 @ 11:55 PM EDT
- Terms of Use - Authored by: Anonymous on Wednesday, August 19 2009 @ 03:34 AM EDT
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| Authored by: m_si_M on Friday, August 14 2009 @ 02:16 AM EDT |
As we have learned from SCO and others, there's a huge difference between
openness and fighting the opposing party "in public."
I must admit that I still haven't my mind up yet in this case, but carefully
reading texts is of utmost importance.
Does anyone remember Darl McBride bragging about "security"? Of course
he wasn't referring to computer or network security, but being secure from SCO's
legal threats.[ Reply to This | # ]
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| Authored by: Anonymous on Friday, August 14 2009 @ 02:47 AM EDT |
I'm Apple and I want to find out how Psystar is running OS X on non-Mac
computers.
Hey, maybe I should buy one of Psystar's computers and "hack" it.
You think?[ Reply to This | # ]
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| Authored by: Anonymous on Friday, August 14 2009 @ 04:13 AM EDT |
Amazon will sell me "Mac OS X Version 10.5.6 Leopard" for $96.99 plus
postage.
I went through the whole order process and it didn't even ask me to verify I
owned an Apple manufactured computer.
What's up with that? [ Reply to This | # ]
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| Authored by: stegu on Friday, August 14 2009 @ 07:26 AM EDT |
I think that one interesting piece of news did not
get the attention it deserved here:
> AutoZone does not object to SCO filing an amended complaint.
I interpret that as AZ saying:
"Sure, bring it on, we know you don't have a case anyway."
That's refreshing. It will be fun to read SCO's amended
complaint.
[ Reply to This | # ]
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| Authored by: Anonymous on Friday, August 14 2009 @ 11:40 AM EDT |
This reads like utter incompetence rather than malice.
From the start of the letter:
"Psystar has overwritten - i.e., erased - infringing versions of the
software code used on computers sold to its customers."
And footnote 2 says "Interestingly, Psystar just implemented a software
version control system - over a year after this lawsuit was
instituted[...]."
As a professional programmer, a version control system (VCS) is one of the most
important tools I use. When writing code, I get the latest code from the VCS,
make changes on my local computer, and then commit those changes to the VCS.
The VCS keeps a history so that I can go back to the version of the code from
any date/time. This means that if I make a mistake I can undo it easily.
Releases of the code (i.e. anything that gets shipped to customers) always come
from the VCS; this allows them to be reproduced easily, should that be necessary
in future. (E.g. I might need to reproduce an old version of the software to
help troubleshoot a customer's problem and provide a small, minimal fix to that
customer. I can do that by getting the old version from VCS).
It looks like Psystar were not following best programming practises, and didn't
have a VCS. Instead they had a single copy of the code somewhere (on someone's
PC or on a network drive) that they update when needed. This means that there's
no history unless they can recover the data from backup tapes - and in 1year+
it's likely that the tapes would be reused and overwritten. If they weren't
involved in a lawsuit and didn't care too much about supporting older customers,
then this would be fine. Unfortunately for them, they are involved in a
lawsuit.
jjon (not logged in)[ Reply to This | # ]
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| Authored by: Anonymous on Friday, August 14 2009 @ 12:57 PM EDT |
I have no doubt Apple's laywers will eat Pystar for lunch. Perhaps Pystar has
done dishonest things destroying evidence. It really just isn't important in the
larger view.
Apple wants to have control over their software after they get paid for it. It
is a horrible mistake for our society to give this to them through law. I'm not
talking about making new copies as that is not at issue here. I'm talking about
taking paid for software, modifying it, reselling it, using it. For each one
Apple got paid. That should be the entirety of their priveledge but the law is
fouled up and gives them more.
There is no end to the disputes and abuse available through the ownership at a
distance created by license agreements and copyright restrictions on
modifications. Everything people do with their own posessions in their own
presence becomes subject to complex and costly legal disputes along with
intrusive technical control measures.
We are all poorer as a result. These limitations are used for plain old market
segmentation. Make the low elasticity people pay the most while still being able
to sell to the high elasticity people. It makes money for the vendor but if you
draw a big circle around vendors and customers alike to represent our whole
society we are all poorer as we suffer with artificial constraints, enormous
legal costs and planned obsolescence. Whenever someone says EULAs and similar
legal contrivances are needed to support their "business model" they
really mean market segmentation and the price gauging it enables along with a
few other toxic bits like blocking competition.
It would be wise policy and good law if copyright only pertained to taking new
copies into the marketplace and EULAs along with genuine contracts were
constrained to not burden how people use and dispose of their property. The
only real deals along those lines we need are rentals and leases where the key
element is return of the property in good condition at the end of the term.
For all other purposes our government and the law should say essentially
"you sold it, it is theirs now, end of story" and should not deviate
no matter what a click through shrink wrap or even genuinely negotiated contract
might say. It is a huge burden on our courts and all of us to enforce these
crazy contracts and crazy restrictions on who can do what with the things in
their posession. The rational course of action is to simply not.
[ Reply to This | # ]
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| Authored by: LaurenceTux on Friday, August 14 2009 @ 03:29 PM EDT |
okay let see if i get this right
1 they create Mac shimms 0.00.00.1 to make their product work with purchased
copies of OSX10.whatever
2 they continue to develop Mac Shimms and come out with version 1.00.00.2763
(the first release that works correctly
3 they start selling computers and as they update they improve Mac Shimms
(coming out with version 2 - 3 -4 ect)
but they don't keep older copies around
and Apple actually cares about outdated copies of the software?? wouldn't the
presence of the current program be enough to nail Psystar??[ Reply to This | # ]
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| Authored by: AlanF on Friday, August 14 2009 @ 03:53 PM EDT |
Has everyone forgotten Digidyne and Fairchild v. Data General?
Everything I see in Apple v. Psystar looks like an exact parallel to this case.
In June 1984, the 9th Circuit Court of Appeals wrote:
"The issue presented for review is whether Data General's
refusal to license its NOVA operating system software
except to purchasers of its NOVA central processing units
(CPUs) is an unlawful tying arrangement under section 1
of the Sherman Act, 15 U.S.C. Sec. 1 (1976) and section 3
of the Clayton Act, 15 U.S.C. Sec. 14 (1976). We conclude
that it is."
http://www.altlaw.org/v1/cases/443829
That looks pretty straight-forward to me. Could someone
with more legal experience tell me why this doesn't apply
to Apple v. Psystar?
Hi Casceil! :-)[ Reply to This | # ]
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| Authored by: GLJason on Friday, August 14 2009 @ 04:11 PM EDT |
What do they need the source code for? This seems like it
would be like
Netscape asking to see all versions of Windows
source code from Microsoft
because Microsoft didn't keep all
versions on a user's computer when they
upgrade? I think
the
mechanism that Paystar used would be a trade secret,
wouldn't
they have to have a protective order and maybe just show it
to
third party witnesses?
[ Reply to This | # ]
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- Overbroad? No. - Authored by: PJ on Friday, August 14 2009 @ 04:34 PM EDT
- Overbroad? No. - Authored by: Anonymous on Friday, August 14 2009 @ 05:54 PM EDT
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| Authored by: FreeChief on Saturday, August 15 2009 @ 01:26 AM EDT |
Psystar has always been more a Cowboy than a Hippie. Everyone here
values openness.
Now I'm confused. I thought the story was that
long-haired smelly commie hippies were pushing openness.
No matter. We all
love Willy Nelson.
— Programmer in Chief
[ Reply to This | # ]
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| Authored by: Anonymous on Saturday, August 15 2009 @ 05:03 AM EDT |
This isn't a DMCA violation. This is yet another example of why the DMCA is
such a bad law and is prone to abuse.
Apple, I will not be buying any of your products.
[ Reply to This | # ]
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| Authored by: MacUser on Saturday, August 15 2009 @ 07:21 AM EDT |
The next version of OS X is expected to be released in September. I
wonder
if Apple's pricing and upgrade policies will make the curent case
moot.
You can pre-order an upgrade to OS X Leopard -- Snow Leopard -- on
Amazon
for
$29. This is clearly a nominal price for a proprietary OS, covering
manufacturing and distribution costs. (Various Linux distributions are
available on Amazon from $10 to $46.)
No way is $29 a full
retail price. No way is it even an OEM price. Let's
compare with Windows. The
OEM Price for Windows Vista on Amazon is $99
(reduced from $159). Masochists can pick up the full retail edition for $155
(down from $240).
I suspect that Snow Leopard's installer will
check for an existing Leopard
installation. Also, I would not be surprised to
see the word
"Upgrade" on the packaging, Jobs's sense of aesthetics
notwithstanding.
This would make it legally very difficult for future
Psystars. It would be
like a reseller including a patch that would make a
Photoshop upgrade run
as a full version. Apple could then fence off existing
"Hackintoshes" -- they have ignored the true hackers, anyway,
moving
only when Pystar attempted to commercialise that community's
efforts. [ Reply to This | # ]
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| Authored by: LaurenceTux on Saturday, August 15 2009 @ 12:17 PM EDT |
Given the small amount of stuff required all Apple has to do to start selling
OSX for Non Apple Hardware is create an ISO with the following
1 a Diagnostic and verification Program: this will ensure that the hardware can
be "blessed by The Jobs"
2 if the verification passes then a preinstaller that will do any needed
partitioning and such
3 the program that marks the hardware as "blessed By the Jobs"
4 a browser so that the person can buy the OSX dvd online
I think that Apple should simply destroy the market instead of sueing each time
somebody trys this
or maybe just grab a bottle of hand sanitizer and wash thier hands of the whole
mess.[ Reply to This | # ]
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