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Apple Tells CA Court About Psystar's FL Move; Asks for Transfer/Consolidation & More Discovery
Tuesday, September 01 2009 @ 08:41 PM EDT

Apple has let the California court know about Psystar filing an almost identical complaint in Florida [text], trying to litigate there the same issues already before the California court. It is not happy, and it asks the court to take charge of all issues. It accuses Psystar of the "worst kind of forum shopping".

Psystar, on the other hand, is still upset about discovery issues regarding the Schiller deposition, and it has filed a supplemental brief asking for Apple's financial info, explaining why it needs it (I gather it thinks there is zero damage to Apple, or at least none that can be proven) and it pooh poohs Apple's worries about confidentiality, saying that Psystar has not violated and will not violate the protective order.

And I ask you, if you can't trust folks like Psystar to abide by the strictest letter and spirit of the law, who *can* you trust?

There is a status conference on September 4th, to handle the discovery dispute between the parties. And Apple has requested a status conference regarding the Florida mess.

Here is the voluminous docket:

08/31/2009 - 104 - Declaration in Support of 105 filed by Psystar Corporation. (Camara, Kiwi) (Filed on 8/31/2009) Modified on 9/1/2009 (sis, COURT STAFF). (Entered: 08/31/2009)

08/31/2009 - 105 - MOTION Motion to Seal Motion for Administrative Action filed by Psystar Corporation. (Camara, Kiwi) (Filed on 8/31/2009) (Entered: 08/31/2009)

08/31/2009 - 106 - Proposed Order to Seal 105 Motion for Administrative Action filed by Psystar Corporation. (Camara, Kiwi) (Filed on 8/31/2009) Modified on 9/1/2009 (sis, COURT STAFF). (Entered: 08/31/2009)

08/31/2009 - 107 - Letter Brief Court Ordered Supplemental Briefing filed byPsystar Corporation. (Camara, Kiwi) (Filed on 8/31/2009) (Entered: 08/31/2009)

08/31/2009 - 108 - NOTICE by Apple Inc. OF PENDENCY OF OTHER ACTION (Attachments: # 1 Affidavit Declaration of Mehrnaz Boroumand Smith In Support of Notice of Pendency of Other Action, # 2 Exhibit 1 to Declaration of Mehrnaz Boroumand Smith In Support of Notice of Pendency of Other Action, # 3 Exhibit 2 to Declaration of Mehrnaz Boroumand Smith in Support of Motion of Pendency of Other Action)(Boroumand Smith, Mehrnaz) (Filed on 8/31/2009) (Entered: 08/31/2009)

08/31/2009 - 109 - AFFIDAVIT 108 of Mehrnaz Boroumand Smith In Support of Notice of Pendency of Other Action by Apple Inc.. (Attachments: # 1 Exhibit 1 to Decl. of Mehrnaz Boroumand Smith, # 2 Exhibit 2 to Decl. of Mehrnaz Boroumand Smith)(Boroumand Smith, Mehrnaz) (Filed on 8/31/2009) Modified on 9/1/2009 (sis, COURT STAFF). (Entered: 08/31/2009)

08/31/2009 - 110 - ORDER SETTING STATUS CONFERENCE ON FRIDAY, 9/4/2009 AT 10:00 A.M. [re 108 Notice (Other), Notice (Other) filed by Apple Inc.]. Signed by Judge William Alsup on 8/31/2009. (whasec, COURT STAFF) (Filed on 8/31/2009) (Entered: 08/31/2009)

08/31/2009 - 111 - Letter Brief Motion to Seal filed byPsystar Corporation. (Attachments: # 1 Proposed Order)(Camara, Kiwi) (Filed on 8/31/2009) (Entered: 08/31/2009)

08/31/2009 - 112 - Letter Brief Letter Brief Dated August 31, 2009 - REDACTED VERSION- filed byPsystar Corporation. (Attachments: # 1 Exhibit A)(Camara, Kiwi) (Filed on 8/31/2009) Modified on 9/1/2009 (sis, COURT STAFF). (Entered: 08/31/2009)

09/01/2009 - 113 - ORDER GRANTING REQUEST FOR ORDER PERMITTING THE FILING UNDER SEAL OF LETTER BRIEF DATED AUGUST 18, 2009 by Judge Alsup (re 92 Motion). (whalc1, COURT STAFF) (Filed on 9/1/2009) (Entered: 09/01/2009)

09/01/2009 - 114 - AMENDED ORDER SETTING STATUS CONFERENCE for Friday, 9/4/2009 at 11:00 AM [re 108 Notice (Other), Notice (Other) filed by Apple Inc.]. Signed by Judge William Alsup on 9/1/2009. (whasec, COURT STAFF) (Filed on 9/1/2009) (Entered: 09/01/2009)

09/01/2009 - 115 - ORDER RE DEFENDANT'S LETTER OF 8/31/2009 RE DISCOVERY DISPUTE [re 112 Letter Brief filed by Psystar Corporation]. Signed by Judge William Alsup on 9/1/2009. (whasec, COURT STAFF) (Filed on 9/1/2009) (Entered: 09/01/2009)

Apple views the new Florida move as a delaying tactic:
Psystar should not be allowed to delay resolution of the disputes between Apple and Psystar yet again through procedural tactics of filing yet another action in Florida, in addition to its prior tactic of filing for bankruptcy in Florida (Case 09-19921-RAM). Though Apple has not been served yet with the Florida complaint, Apple intends to notify the Florida court of the pending California action. Furthermore, when appropriate, Apple will seek dismissal or transfer of the Florida action to California and consolidation with the California action.
But Apple requests to be able to do limited discovery right now, say 30 to 60 days, not waiting for transfer or consolidation, just on the issue of Psystar's plans regarding Snow Leopard. Psystar, for its part, writes a letter saying it would like the court to keep the present schedule. The letter is so redacted, there's no way to know what else it said. Probably this is a good time for Psystar to be a very good doobee about sealing things.

On the Florida move, Apple tells the court that it's duplicative of what is happening in California already:

Psystar should not be allowed to re-assert in a new action the antitrust claims that this Court dismissed and that Psystar chose not to amend. Nor should Psystar be permitted to simultaneously litigate, in another forum, the same subject matter pending in this case and before this Court. Permitting this blatant forum shopping is not only prejudicial to Apple in that it will delay the determination of matters at issue in this case, but it is also a waste of judicial resources and will unnecessarily create the possibility of inconsistent results. Psystar’s market definitions alleged in the Florida action – defining the relevant markets as those for Mac OS X and hardware for premium computers priced at over $1000 – were and/or could have been raised in this California action. Psystar’s limitation of the market to Mac OS X is no different than the one-product market definition previously asserted and dismissed in the California action. Nor does Psystar’s modified definition for hardware take into account that many of Psystar’s computers are sold for less than $1000. Moreover, this Court has already found that Mac OS-compatible computer hardware systems do not constitute a distinct submarket or aftermarket under applicable antitrust laws. Hence, the fact that Snow Leopard is a new version of the Mac OS X operating system does not raise any new issues in terms of the alleged tying and monopoly claims. Thus, Psystar’s Florida claim is in essence a compulsory counterclaim that Psystar voluntarily dismissed when the Court gave it opportunity to amend its counterclaims nine months ago.
Apple says Psystar is just forum shopping:
Apple’s policies and license agreements restricting the use of Apple’s software remain the same as previous versions of Mac OS X and it remains Apple’s lawful prerogative to not license to its competitors. 1 Contrary to Psystar’s allegations in the Florida complaint, Mac OS X Snow Leopard is covered by Apple’s Amended Complaint in the California case. Indeed, as Psystar’s lead counsel, K.A.D. Camara (who signed the Florida complaint), noted in a deposition for the California action, “Snow Leopard beta seeds are still within your cause of action.” (See Boroumand Smith Decl., Ex. 2.) Thus, the issues raised in the Florida action regarding Snow Leopard version is admittedly covered by the California case. More importantly, in the California action, Apple specifically requested in its prayer for relief a preliminary and/or permanent injunction that prevents the sale or distribution of any device that allows installation of Apple’s software on non-Apple computers or that allows for the installation by circumventing Apple’s access control measures. Psystar’s later-filed complaint in Florida specifically requests the Florida district court to allow the sale and distribution of such infringing computers. The Florida action is a clear example of forum-shopping at its worst.
Significantly, Apple says Psystar's lawyer already acknowledged that Snow Leopard is covered by its California complaint, and it offered an almost totally redacted excerpt of a deposition transcript where Apple says he said so. That would prove fatal to Psystar's claim that the Florida action is about totally new issues. It claims the California case is only about Leopard; Snow Leopard, it suggests, is what Florida will be about. Apple says, Puh lease.

  


Apple Tells CA Court About Psystar's FL Move; Asks for Transfer/Consolidation & More Discovery | 351 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections thread
Authored by: SirHumphrey on Tuesday, September 01 2009 @ 08:46 PM EDT
Place the potential typo and the correction here
thus
errer => error

[ Reply to This | # ]

Off topic thread
Authored by: SirHumphrey on Tuesday, September 01 2009 @ 08:50 PM EDT
No ON Topic posts here or we'll strap you into a chair and play a different
recording of Darl McBride oral testimony into each ear until your brains explode

[ Reply to This | # ]

[NP] News Picks discussion
Authored by: Aladdin Sane on Tuesday, September 01 2009 @ 08:51 PM EDT
Discuss the Groklaw News Picks here. Mention which News Pick you are commenting on.

---
For a successful technology, reality must take precedence over public relations, for nature cannot be fooled. --Richard Feynman

[ Reply to This | # ]

if you can't trust folks like Psystar to abide by the strictest letter and spirit of the law, ..
Authored by: SirHumphrey on Tuesday, September 01 2009 @ 08:56 PM EDT
...who *can* you trust?

Why SCOXQ.BK of course!!!

Actually, now there is a trustee, maybe we can !

[ Reply to This | # ]

Haiku Thread
Authored by: SirHumphrey on Tuesday, September 01 2009 @ 09:04 PM EDT
PJ writeth:

Apple says Psystar
is just forum shopping, (So)
Apple says, Puh lease!!

[ Reply to This | # ]

Apple Tells CA Court About Psystar's FL Move; Asks for Transfer/Consolidation & More Discovery
Authored by: charlie Turner on Tuesday, September 01 2009 @ 09:29 PM EDT
Was that a doobie, or a do bee, as in do be a do bee, don't be a don't bee (or
was it a don't be a don'tbie). Goodness, Romper Room was so long ago that I
don't really remember. PJ, you are giving away the era of TV when you grew up.
:)

[ Reply to This | # ]

Is Snow Leopard A "New Version Of The Mac Operating System?"
Authored by: sk43 on Tuesday, September 01 2009 @ 10:10 PM EDT
Apple asserts that Psystar's Florida action should not be allowed even though
"Snow Leopard is a new version of the Mac OS X operating system ..."

Apple could make a much stronger argument if it were to quote from Rob Enderle's
latest masterpiece:
http://www.technewsworld.com/story/Windows-7-vs-Snow-Leopard-Inside-the-War-Room
s-67992.html According to Rob:

"Snow Leopard, if you think about it, is what Microsoft would call a
'service pack' ..."

It's not even a new version of the OS!

[ Reply to This | # ]

Who can you trust?
Authored by: kalten on Tuesday, September 01 2009 @ 10:45 PM EDT

PJ says:

And I ask you, if you can't trust folks like Psystar to abide by the strictest letter and spirit of the law, who *can* you trust?

Why, PJ, I would think the answer to that would be obvious.

SCO, of course. <g>

[ Reply to This | # ]

Who owns the copyrights to MacOS?
Authored by: electron on Wednesday, September 02 2009 @ 03:12 AM EDT
What I don't understand is that, if the software - MacOS - is owned by and
copyrighted by Applesoft, why is it that Paystar, or for that matter any other
organisation, think it can make copies and distribute that software without the
explicit written consent of the Applesoft corporation?

I mean, if they can do that then why shouldn't I make physical copies of all
Adobe's software and sell it?

Where is the difference?




---
Electron

"A life? Sounds great! Do you know where I could download one?"

[ Reply to This | # ]

Guilty!
Authored by: Anonymous on Wednesday, September 02 2009 @ 03:40 AM EDT
"And I ask you, if you can't trust folks like Psystar to abide by the
strictest letter and spirit of the law, who *can* you trust?"

Glad you already decided the case. Why not inform the courts and save everyone
a bunch of money?

[ Reply to This | # ]

Financials? Again?
Authored by: Anonymous on Wednesday, September 02 2009 @ 10:36 AM EDT
I didn't think Apple had to prove actual damaged, since they dropped the claim
for recovery of lost sales. If Psystar is found guilty of violating the license
agreement, they have no right to use the software, nor do their customers.
Distribution and use without license to do so is a license infringement, as well
as a potential copyright infringement. On those claims, Apple doesn't have to
prove the actual amount of damages to be able to recover.

Right?

[ Reply to This | # ]

Apple pulls no punches
Authored by: Anonymous on Wednesday, September 02 2009 @ 10:45 AM EDT
I'm glad Apple is pulling no punches and telling the court in plain English what
it thinks Psystar
is doing to manipulate the court system.

Apple's allegations of "forum shopping" and "delay" are
clearly and gut-punchily stated in an
approach approximately midway between Novell's nasty and sarcastic tone and
IBM's soft-shoe
approach.

Hopefully, Apple's lawyers are alert enough to do this in real-time at court to
avoid being
hood-winked by Psystar's lawyers just like what SCO's lawyers accomplished
during some of
the litigation in Utah and bankruptcy court.

[ Reply to This | # ]

Forum shopping
Authored by: J.F. on Wednesday, September 02 2009 @ 12:13 PM EDT
If Microsoft can do it (think about the Windows/Lindows case), why can't
Psystar? Microsoft not only shopped around the US, they shopped around the
ENTIRE WORLD for a court that would rubber stamp their case. Guess the
difference is MS is a huge corp with tons of cash and Psystar isn't.

[ Reply to This | # ]

A Golden Oldie
Authored by: Anonymous on Wednesday, September 02 2009 @ 03:06 PM EDT
It doesn't look lie PJ was always in love with EULAs.

EFF's Sony Complaint Includes MediaMax & Unconscionable EULA Claims
Monday, November 21 2005 @ 10:23 PM EST

The EFF's complaint [PDF] is now available, and it's a beaut. They filed it as a class action in California, with two California firms, (Green Welling, and Lerach, Coughlin, Stoia, Geller, Rudman & Robbins), and they include every charge you could think of. They even mention the warranty of merchantability. California has some laws that are useful, such as the Consumer Protection Against Computer Spyware Act and the Computer Legal Remedies Act, so they throw them in too. But this is the sentence I have not seen in any other complaint that made me happy:

"The CDs also condition use of the music on unconscionable licensing terms."

At last, a direct confrontation regarding EULAs. Perhaps you saw the joke on IRQ about throwing a brick through a window with a EULA attached:

I will write on a huge cement block "BY ACCEPTING THIS BRICK THROUGH YOUR WINDOW, YOU ACCEPT IT AS IS AND AGREE TO MY DISCLAIMER OF ALL WARRANTIES, EXPRESS OR IMPLIED, AS WELL AS DISCLAIMERS OF ALL LIABILITY, DIRECT, INDIRECT, CONSEQUENTIAL OR INCIDENTAL, THAT MAY ARISE FROM THE INSTALLATION OF THIS BRICK INTO YOUR BUILDING."

That's an example of an unconscionable EULA, because no one except someone under improper pressure would say yes to such terms. That isn't all. EFF is suing not only over the rootkit, but over the MediaMax DRM too. That is a much bigger story than the rootkit, in that it affects, EFF says, over twenty million CDs -- ten times the number of CDs as the XCP software. Also, MediaMax wasn't written by the same firm as XCP, so it makes it harder for Sony to claim they didn't know the gun was loaded, so to speak. And EFF is asking the court to make Sony fix all the compromised computers.

[ Reply to This | # ]

Apple Tells CA Court About Psystar's FL Move; Asks for Transfer/Consolidation & More Discovery
Authored by: Anonymous on Wednesday, September 02 2009 @ 03:52 PM EDT
IANAL, so I have a question about this: Apple has asked the California court to
do something with the Florida case. What jurisdiction would California have
over a Florida case? (i.e. what gives State 'X' the ability to *tell* State 'Y'
to dismiss a case)

I would think Apple would inform California but ask Florida to simply dismiss
given the duplicate case and that the California one was already well under
way.

I'm guessing (as a matter of what I would *think* would be common sense and
ettiquett(sp?) ), that the Florida judge will dimiss or otherwise defer to
California to complete the case but could the Florida court keep it's own
separate run of the case if it wanted to?

[ Reply to This | # ]
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