decoration decoration
Stories

GROKLAW
When you want to know more...
decoration
For layout only
Home
Archives
Site Map
Search
About Groklaw
Awards
Legal Research
Timelines
ApplevSamsung
ApplevSamsung p.2
ArchiveExplorer
Autozone
Bilski
Cases
Cast: Lawyers
Comes v. MS
Contracts/Documents
Courts
DRM
Gordon v MS
GPL
Grokdoc
HTML How To
IPI v RH
IV v. Google
Legal Docs
Lodsys
MS Litigations
MSvB&N
News Picks
Novell v. MS
Novell-MS Deal
ODF/OOXML
OOXML Appeals
OraclevGoogle
Patents
ProjectMonterey
Psystar
Quote Database
Red Hat v SCO
Salus Book
SCEA v Hotz
SCO Appeals
SCO Bankruptcy
SCO Financials
SCO Overview
SCO v IBM
SCO v Novell
SCO:Soup2Nuts
SCOsource
Sean Daly
Software Patents
Switch to Linux
Transcripts
Unix Books

Gear

Groklaw Gear

Click here to send an email to the editor of this weblog.


You won't find me on Facebook


Donate

Donate Paypal


No Legal Advice

The information on Groklaw is not intended to constitute legal advice. While Mark is a lawyer and he has asked other lawyers and law students to contribute articles, all of these articles are offered to help educate, not to provide specific legal advice. They are not your lawyers.

Here's Groklaw's comments policy.


What's New

STORIES
No new stories

COMMENTS last 48 hrs
No new comments


Sponsors

Hosting:
hosted by ibiblio

On servers donated to ibiblio by AMD.

Webmaster
Apple Files Reply Memo on Motion to Dismiss or Enjoin; Psytar Asks for Discovery Sanctions Again
Wednesday, September 23 2009 @ 05:04 AM EDT

Lots of activity in Apple v. Psystar, including Apple's filing its Reply Memorandum [PDF] regarding Apple's motion to dismiss or enjoin prosecution of the Psystar Florida litigation. Here's what Apple is responding to, if you'd like to compare, Psystar's Memorandum in Opposition to Apple's motion. Also there are three declarations in support of Apple's motion, one sealed, and one in which the declarant tells about registering copyright in Snow Leopard on Sept. 16 and it issuing on Sept. 21. So much for Psystar's allegation that there was no registered copyright on Snow Leopard. I couldn't figure out why Psystar even said that, frankly.

And the parties are fighting about Jacques Vidrine again. If you noticed, Apple filed under seal a declaration by Vidrine, docket number 137, with its motion to dismiss or enjoin prosecution, after telling the judge at the last hearing that it wouldn't be using him as an expert for trial and the judge so ordering. So once again, Psystar is claiming Apple violated that order by submitting the Vidrine declaration and is asking for sanctions, also that Vidrine's declaration be stricken. One thing is clear. Psystar really, really, really doesn't want Jacques Vidrine to testify about changes in Apple's technological protection measures in Snow Leopard.

We only find out what Psystar wants by reading Apple's Memorandum in Opposition [PDF], because Psystar sealed its motion. Psystar seems to be sealing a lot more than Apple is, but that could just be my impression. The essence of the Apple argument is that Apple says that it said it wasn't going to use Vidrine back when the case was only about Leopard, prior to Psystar starting to sell Snow Leopard. That changed things. Now, Vidrine's the very man Apple needs to explain the tech:

But Psystar contends the Court should not consider it because Apple in its Initial Disclosures never identified Mr. Vidrine as a witness Apple intended to rely upon. However, prior to August 27, 2009, when Psystar announced that it was going to sell a computer running Snow Leopard, Mr. Vidrine’s knowledge was not relevant to the matters in dispute between the parties. Now it is. Because of the recent change in circumstances, Apple has asked this Court to re-open discovery and to allow it to supplement its Initial Disclosure of witnesses pursuant to Federal Rule of Civil Procedure 37. Nothing in that Rule, or in anything Apple has previously said to this Court, precludes such a request. Psystar’s selective citation of the Status Conference Hearing Transcript to suggest otherwise is purposefully misleading.

Psystar also moves to strike Mr. Vidrine’s declaration pursuant to Rule 37(c) on the ground that it is improper expert testimony. Yet, Rule 37(c) does not govern whether opinion testimony is admissible. Under Federal Rule of Evidence 701, which is the appropriate standard, Mr. Vidrine’s testimony is admissible.

And they offer him for deposition by Psystar, if the court grants their request for more discovery. Apple quotes from the hearing transcript, showing where Apple said in open court it was requesting to reopen discovery and indicated its intent to use Vidrine in that connection. The court suggested at the hearing that Apple file a motion about reopening discovery, and so it did. Hence the reappearance of Vidrine:
Psystar’s assertion that Mr. Vidrine’s declaration violates an Order of this Court is wrong. At the September 4, 2009, Status Conference, the Court invited Apple to file a motion responding to Psystar’s new product announcement and duplicative lawsuit. The Court allowed Apple to attempt to establish through a motion that there is substantial justification for reopening discovery and amending its Initial Disclosures. That is precisely what Apple has done.

Trying to convince the Court that Apple cannot use evidence from Mr. Vidrine to demonstrate a substantial justification for amending its Initial Disclosures, Psystar selectively cites the September 4, 2009, Status Conference Hearing Transcript, but ignores the most relevant portions. A more complete review of the transcript clearly shows that the first half of the hearing related to issues that did not involve Psystar’s sales of computers running Snow Leopard. That is the part of the transcript Psystar quotes. But it was the second half of the Status Conference which involved Snow Leopard. That is the part of the transcript Psystar ignores. A complete review shows that Apple specifically requested that the Court re-open discovery on the issue of Snow Leopard and informed the Court and Psystar that Mr. Vidrine would be made available to testify as to any changes in the technological protection measure in Snow Leopard. Apple’s counsel stated:

Consequently, we suggest as follows: That the parties — that the Court allow discovery for another 30 days; that Psystar turn over the source code for its new product; that we be allowed to ask Mr. Pedraza what he did; and Apple will make Mr. Vidrine available to testify about any changes in the technological protection measure, so that those issues can be finally resolved at trial in January. . . . [O]ur request is that the Court allow us to take the small amount of discovery specifically related to the newest product, released seven days ago. And, in exchange, we will offer to make Mr. Vidrine available for anything that relates to the changes as between Leopard and Snow Leopard.
28 September 4, 2009, Status Conference Hearing Transcript, p. 28:6-21 (emphasis added).

(Declaration of James G. Gilliland, Jr. in Opposition to Psystar Corporation’s Motion to Strike, Ex. 1.)

The Court responded by asking Psystar’s counsel whether it released new products using Snow Leopard after the August 21, 2009, fact discovery cut-off:

The Court: Help me understand. When did Snow Leopard 10.6 come out?

Mr. Camara: I believe it was August 28th, which is –

The Court: Of this year?

Mr. Camara: Of this year.

The Court: August 28th.

Mr. Camara: Which is after the close of fact discovery in this case.

The Court: And when did your company make this announcement about your product?

Mr. Camara: It was last week. I don’t remember precisely which day last week.

The Court: And just tell me, what did your announcement say?

Mr. Camara: We announced we are offering for sale computers running Snow Leopard.

September 4, 2009, Status Conference Hearing Transcript, pp. 31:17-32:8.

After having heard this sequence of events, the Court went on to state that these new facts might warrant revised Initial Disclosures including the identification of Mr. Vidrine as a witness:

Mr. Camara: Your Honor, the change – the new discovery that would have to be taken is not trivial. For example, Mr. Vidrine, who the Court has already ordered will not be able to testify, is the person who is charged with designing the new technological protection measures for Snow Leopard. If Apple thought Snow Leopard was covered by this case, they should have disclosed Mr. Vidrine. He is the guy who designed the protection measures. We would have to take his deposition.

The Court: Well, I understand that. Possibly – I’m not saying it would be, but possibly this new development which just occurred would constitute, quote, substantial justification for a revised disclosure, even at this late date, add to Mr. Vidrine. And then he would be made available and so forth.

The Court then explicitly authorized Apple to file a motion seeking that specific relief:
The Court: Look, here is the answer to this, The answer is: You’ve got to bring a motion.
September 4, 2009, Status Conference Hearing Transcript, pp. 33:12-34:2.

Apple has now filed its Motion seeking to dismiss or enjoin the Florida lawsuit and also to re-open discovery in this case. [redacted] Psystar’s argument to strike Mr. Vidrine’s declaration is based solely on a purposefully selective misreading of the Court’s statements and should be denied.

Even if the court wishes to sanction Apple, striking the Vidrine declaration is overkill, Apple argues, citing a number of legal arguments that would allow the testimony in even if he couldn't testify as an expert witness.

Most interesting in the reply memorandum on the Apple motion to dismiss or enjoin is that Apple says that while it has indeed registered a copyright in Snow Leopard, despite Psystar's allegation otherwise, it says it didn't really need to for the court to order injunctive relief, because once a court has jurisdiction over a case, any further copyright infringement is covered with respect to injunctive relief. Apple quotes from the case Perfect 10:

Once a court has jurisdiction over an action for copyright infringement under ( 17 U.S.C.) section 411, the court may grant injunctive relief to restrain infringement of any copyright, whether registered or unregistered. See, e.g., Olan Mils, Inc. v. Linn Photo Co., 23 F .3d 1345, 1349 (8th Cir. 1994); Pac. & S. Co., Inc. v. Duncan, 744 F.2d 1490, 1499 n. 17 (11th Cir. 1984).
Not only that, but since Snow Leopard evolved from Leopard, it's a derivative work, and "once a court has jurisdiction over a registered work," Apple says, "it also has jurisdiction over unregistered works that are derivative of the registered work. That leads Apple to this conclusion: "Pystar's copying infringes Apple's copyrights in both works. Accordingly, this Court has jurisdiction over all of Apple's copyright claims against Psystar."

The filings:

09/21/2009 - 143 - MOTION to Seal PORTIONS OF APPLE INC.'S OPPOSITION TO PSYSTAR CORPORATION'S MOTION TO STRIKE THE DECLARATION OF JACQUES VIDRINE AND FOR SANCTIONS filed by Apple Inc.. (Attachments: # 1 Affidavit J. Jeb B. Oblak, # 2 Proposed Order)(Boroumand Smith, Mehrnaz) (Filed on 9/21/2009) (Entered: 09/21/2009)

09/21/2009 - 144 - Memorandum in Opposition TO PSYSTAR CORPORATION'S MOTION TO STRIKE THE DECLARATION OF JACQUES VIDRINE AND FOR SANCTIONS, 139 MOTION File Document Under Seal filed by Apple Inc.. (Attachments: # 1 Affidavit DECLARATION OF JAMES G. GILLILAND, JR., # 2 Exhibit 1 TO DECLARATION OF JAMES G. GILLILAND, JR., # 3 Exhibit 2 TO DECLARATION OF JAMES G. GILLILAND, JR., # 4 Proposed Order)(Boroumand Smith, Mehrnaz) (Filed on 9/21/2009) (Entered: 09/21/2009)

09/21/2009 - 145 - MOTION to Seal [MISCELLANEOUS ADMINISTRATIVE REQUEST TO FILE UNDER SEAL (1) PORTIONS OF APPLE INC.'S REPLY BRIEF IN SUPPORT OF ITS MOTION TO DISMISS OR ENJOIN, (2) CERTAIN EXHIBITS TO THE REPLY DECLARATION OF J. JEB B. OBLAK IN SUPPORT THEROF; (3) REPLY DECLARATION OF DR. JOHN P. J. KELLY AND EXHIBITS THERETO IN SUPPORT THEREOF] filed by Apple Inc.. (Attachments: # 1 Affidavit of Mehrnaz Boroumand Smith in Support Thereof, # 2 Proposed Order)(Boroumand Smith, Mehrnaz) (Filed on 9/21/2009) (Entered: 09/21/2009)

09/21/2009 - 146 - Reply Memorandum re 138 MOTION to Dismiss OR ENJOIN PROSECUTION OF THE RECENTLY-FILED FLORIDA ACTION AND TO RE-OPEN DISCOVERY FOR LIMITED PURPOSES filed by Apple Inc.. (Gilliland, James) (Filed on 9/21/2009) (Entered: 09/21/2009)

09/21/2009 - 147 - Declaration of J. Jeb B. Oblak in Support of 138 MOTION to Dismiss OR ENJOIN PROSECUTION OF THE RECENTLY-FILED FLORIDA ACTION AND TO RE-OPEN DISCOVERY FOR LIMITED PURPOSES [REPLY DECLARATION OF J. JEB B. OBLAK IN SUPPORT OF APPLE INC.S MOTION TO DISMISS OR ENJOIN] filed by Apple Inc.. (Attachments: # 1 Exhibit (s) 1-2 [submitted under seal])(Related document(s) 138 ) (Gilliland, James) (Filed on 9/21/2009) (Entered: 09/21/2009)

09/21/2009 - 148 - Declaration of Dr. John P. J. Kelly in Support of 138 MOTION to Dismiss OR ENJOIN PROSECUTION OF THE RECENTLY-FILED FLORIDA ACTION AND TO RE-OPEN DISCOVERY FOR LIMITED PURPOSES [REPLY DECLARATION OF DR. JOHN P. J. KELLY IN SUPPORT OF APPLE INC.'S MOTION TO DISMISS OR ENJOIN, SUBMITTED UNDER SEAL] filed byApple Inc.. (Attachments: # 1 Exhibit (s) 1-2 [submitted under seal])(Related document(s) 138 ) (Gilliland, James) (Filed on 9/21/2009) (Entered: 09/21/2009)

09/21/2009 - 149 - Declaration of Susan D. Carroll in Support of 138 MOTION to Dismiss OR ENJOIN PROSECUTION OF THE RECENTLY-FILED FLORIDA ACTION AND TO RE-OPEN DISCOVERY FOR LIMITED PURPOSES [REPLY DECLARATION OF SUSAN D. CARROLL IN SUPPORT OF APPLE INC.'S MOTION TO DISMISS OR ENJOIN] filed byApple Inc.. (Attachments: # 1 Exhibit (s) 1-4) (Related document(s) 138 ) (Gilliland, James) (Filed on 9/21/2009) (Entered: 09/21/2009)


  


Apple Files Reply Memo on Motion to Dismiss or Enjoin; Psytar Asks for Discovery Sanctions Again | 189 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Palm, Psystar... etc...
Authored by: Anonymous on Wednesday, September 23 2009 @ 05:50 AM EDT

Do they really beleave they can win or want to go out fighting?

Or Palm with the USB vendor ID use. Did they think they could win the battle?
Apple has control over the OS, the marketing, future technology, can use
specialised processor.... What's the point with Psystar?

[ Reply to This | # ]

Interesting copyright rules
Authored by: Anonymous on Wednesday, September 23 2009 @ 06:16 AM EDT
So what I just learned: 1. Once the court has a case about a registered
copyright, the plaintiff can get relief for other copyrights, whether
registered or
unregistered. That seems to say that if Apple had an unregistered
copyright on
something that is completely unrelated to Leopard, they could get
relief if
Psystar copied it. 2. Once the plaintiff has a registered copyright,
it can get
relief even if the copyrighted material appears in another,
unregistered
publication. So Apple can get relief against Psystar for copying
Snow Leopard
even if they haven't registered the copyright in Snow Leopard
because of all the
parts that were present in the registered Leopard. 3. Apple
has indeed
registered copyright in Snow Leopard.

[ Reply to This | # ]

Corrections Here
Authored by: om1er on Wednesday, September 23 2009 @ 06:31 AM EDT
To keep things accurate.

---
August 10, 2007 - The FUD went thud.

[ Reply to This | # ]

Newspick Discussions Here
Authored by: om1er on Wednesday, September 23 2009 @ 06:33 AM EDT
Please list the title of the Newspick being discussed.

---
August 10, 2007 - The FUD went thud.

[ Reply to This | # ]

Off Topic
Authored by: om1er on Wednesday, September 23 2009 @ 06:35 AM EDT
Here, we talk about Oranges and Paystar and anything but Apple and Psystar. :-)

---
August 10, 2007 - The FUD went thud.

[ Reply to This | # ]

"purposefully misleading"? How inflammatory!
Authored by: Anonymous on Wednesday, September 23 2009 @ 07:48 AM EDT
Surely Apple would concede that Psytar - by which I mean Kiwi Camara - could
just be mind blowingly incompetent instead?

Actually - that could be "as well as", now that I think about it.

[ Reply to This | # ]

Derivative Work - Apple Files Reply Memo on Motion to Dismiss or Enjoin; Psytar Asks for...
Authored by: Anonymous on Wednesday, September 23 2009 @ 10:41 AM EDT
'..."once a court has jurisdiction over a registered work," Apple
says, "it also has jurisdiction over unregistered works that are derivative
of the registered work.'

In my personal opinion, that's it in a nutshell. As PJ frequently notes, if
you want legal opinion, consult a lawyer, and I've seen so many twists and turns
while following Groklaw that I would never bet the mortgage on what seems
obvious. But to me, it seems Obvious that the California court should be
handling any Snow Leopard decisions.

I don't necessarily agree that Apple should keep you from installing your
software on any computer you want, and I don't agree that you shouldn't be able
to sell that computer to anyone you want, including the software installed on
it, as long as I don't go making additional copies of that software to install
on additional computers. But as of now, that's just my opinion, and I'll stick
with Ubuntu, because no one cares how many computers I install it on.

But as far as copyright protection is concerned Psyster's attempt to open a new
front in Florida is simply trying to game the system.

[ Reply to This | # ]

Derivative work
Authored by: Rhialto on Wednesday, September 23 2009 @ 12:27 PM EDT

If Snow Leopard is a derivative work of Leopard[1] may not be directly obvious. If Apple uses the common method of a main development branch with release branches, then they may both be derived from some common ancestor (the version where the release branch of Leopard was created) but not the one of the other.

An illustration of this method can be found here.

[1] Derivative? "Derived work" seems a much more logical term to use.

---
I have not "authored" this, I have written it.

[ Reply to This | # ]

Big Picture, Little Question
Authored by: sproggit on Wednesday, September 23 2009 @ 12:37 PM EDT
I'd like to step back from this for a moment, just to think about the move and
counter-move in a slightly larger context. For the purpose of this, let's please
work on the premise that Apple will not permit any third party to produce
hardware for it's OS under any circumstances, anywhere, ever.

What possible future scenarios do we see?

1. Apple Wins 1st Case
Well, this would pretty much be game over for Psystar. They could appeal [but
let's imagine that would fail], they could wriggle, but ultimately their
business model is doomed. End game.

2. Psytar Wins, Take 1.
At this point Apple will likely re-write their EULA to prevent anything remotely
similar to this happening again. They can rewrite their T&Cs to insist that
their software may only run on authorized, original, Apple hardware. There will
be an attempt by Psystar to argue illegal tying, but let's imagine that in the
'Personal Computer' context that Apple are not deemed large enough to be a
monopoly and so this avenue fails. Psystar's business model is doomed. End
game.

3. Psystar Wins, Take 2
Apple lose the case and are told that they cannot use the EULA to prevent people
who want to run their software on non-Apple hardware. Apple release a new
version of OS/X that has much improved hardware detection and sets it up to
refuse to run on non-Apple machines. A small number of existing machines may
slip through, but Psystar are unable to offer any new machines capable of
running the OS. Psystar's business model fails. End game.

4. Psystar Wins, Take 3
Apple lose the case and produce a new piece of hardware - a 'math co-processor'
chip or card, without which MacOS/X cannot function. This chip includes a
hardware feature that is patented. Apple decline to license the patent to
Psystar (pick your reasons). Psystar's business model fails. End game.

You get where this is going, right?

Whichever way you look at this, Apple have made it perfectly, 100% crystal clear
that they are going to do everything in their power to stop Psystar in their
tracks. They have the technological means, and the ability to do so. At best,
Psystar can expect to be forced to play a game of perpetual catch-up as Apple
design-in, from the next release of hardware, some mechanism to make the Psystar
approach completely uneconomical or illegal.

If Psystar are clever enough to do all the things that are necessary to build a
clone machine and to get it running as quickly as they have, then they will have
an employee, somewhere, who is smart enough to realise that the business model
they are following is a non-starter.

With that in mind they have 2 options.

1. Sit down with Apple and try and negotiate a license deal to let them build
these machines. Concede that Apple will want a hefty slice that will squeeze the
profit margins considerably.

2. Quit the game now.


They haven't. Instead they seem to be opening conflict on new legal fronts (Snow
Leopard, Florida) and are continuing with the games in the first case.

So here, belatedly, is that little question: what other possible reasons can
there be for this present strategy? I can come up with just 2 answers:-

1. They want Apple to buy them out, and have seen Apple's healthy profit reports
in the recent past. They are licking their chops in anticipation of a windfall.
( a la SCO).

2. This is a nuisance case. Psystar are a front organisation, sponsored by a
Pipe Fairy, that have been set up from scratch (thinking, for way less than the
$50 Million that, for example, SCO were paid for SCOSource), with no aim in mind
other than to get Apple bogged down in a long, protacted and ugly legal case.

If my analysis of Psystar's long-term chances with the case are remotely
accurate, what other possible reasons can there be???

[ Reply to This | # ]

September 16 / September 21
Authored by: Lazarus on Wednesday, September 23 2009 @ 01:27 PM EDT
PJ, I think the reason that the Psystar response says that there wasn't a
copyright registered is purely because of timing.


The Psystar response is dated as filing on the 18th of September. Just two days
after the copyright was applied for.


Now, I don't know exactly how the system for checking for the existance of a
copyright works, but I'm more than willing to believe that a copyright that has
been asked for doesn't show up until it's been granted.


So, when Psystar (and their lawyers) searched for a copyright, the likely didn't
find anything. So their statement was true, at the time of their writing.
Events, naturally, have overtaken them.

It certainly would have been a good point for them if the copyright had been
registered after the 18th, but even with it only being registered on the 16th,
that's important, because they can only get certain types of money from the date
of registration (or maybe the date of issuance [sp?]) onward.

---
Any incoherancies on my part should be blamed on my use of Vicodin.
Unfortunately, it's for my back, so I'm not quite a House clone.

[ Reply to This | # ]

Apple Files Reply Memo on Motion to Dismiss or Enjoin; Psytar Asks for Discovery Sanctions Agai
Authored by: GLJason on Wednesday, September 23 2009 @ 05:09 PM EDT
So much for Psystar's allegation that there was no registered copyright on Snow Leopard. I couldn't figure out why Psystar even said that, frankly.

Seriously? Before you can sue for copyright infringement, you must obtain a copyright registration (or at least attempt to obtain one and be denied). SCO for instance could not sue for SVRX copyright infringement until they registered SVRX copyrights. Apple clearly didn't register the copyrights for Snow Leopard until last week, after Pystar filed its motion. If Apple's lawsuit doesn't contain claims of infringement for Snow Leopard, wouldn't they have to amend their complaint after registering the copyrights for Snow Leopard or file another suit?

It seems like a valid legal point to me and I wonder why you attempt to make it sound ridiculous.

[ Reply to This | # ]

Groklaw © Copyright 2003-2013 Pamela Jones.
All trademarks and copyrights on this page are owned by their respective owners.
Comments are owned by the individual posters.

PJ's articles are licensed under a Creative Commons License. ( Details )