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Psystar Tries to Wriggle Around Any Permanent Injunction; Partial Settlement Filed; Hearing 12/14 UPDATE
Tuesday, December 01 2009 @ 01:51 PM EST

[ Update 2, Dec. 2: Psystar has stopped selling everything but Rebel EFI, according to AppleInsider. - end update]

Psystar has filed its response in opposition to Apple's Motion for a Permanent Injunction. In it, it claims a partial agreement has been reached with Apple. I, however, will wait until I hear Apple confirm the terms, not relying on Pystar's representations alone. The response says the partial settlement will be filed with the court tomorrow. This is not the first time Psystar has tried to argue that there is no need for a trial, but the parties keep moving toward one inexorably anyway.

According to Psystar, it has agreed to pay statutory damages for infringing Leopard, and Apple has agreed not to make them pay it until after the appeals. Psystar claims that Apple will drop its trademark and state-law claims. We'll see. But Psystar still asks the court to leave Snow Leopard and Rebel EFI -- its new do-hickey that helps *you* infringe Apple's copyrights and violate its EULA and the DMCA -- out of this injunction, and that tells me that despite the spin Psystar is putting on this agreement, there is no deal as far as the big picture is concerned. This is just telling us that the parties have figured out a sum certain for how much Psystar owes Apple *so far*. This case is not over by a mile. Now Psystar is trying to argue that you and I have the right to use Rebel EFI because we are not commercial users. As you can see, Psystar is still angling to stay in business some way, somehow. Here's their argument:

In particular, whether sales of Rebel EFI are lawful or not depends on whether Psystar’s end users have a defense under 17 U.S.C. § 117. This issue has not been litigated in this case at all. Psystar’s end users do not engage in commercial use of Mac OS X and their use would qualify as use for “internal purposes” even under the standards articulated by Apple in its summary-judgment briefing. If Psystar’s end users are protected by § 117, then Psystar cannot be violating the DMCA by selling Rebel EFI because Rebel EFI, as used by the end users, does not facilitate infringement. Apple correctly explains that this Court has power “to restrain acts which are the same type or class as unlawful acts which the court has found to have been committed.” M. at 9. But Rebel EFI is a different kind of act altogether.
More cuteness. The end users are not commercial users, but the seller of Rebel EFI is, and he knows exactly what they'll be doing with it, so it's amazing they'd even try this after Grokster, but somebody behind all this nonsense seems to wants to destroy the US tech market leaders, invalidate the enforceability of licenses on software, and then make a bundle on other people's code. I don't believe for one second that Psystar is about two guys in a basement. I have come to suspect that someone, somewhere behind all this is trying to destroy Apple's business, for personal profit, nothing less, just as SCO has been trying to destroy IBM's and Red Hat's business and Linux, for personal profit. Two strange cases, each threatening damage to major players in the US technology sector -- the two major competitors of Microsoft, actually now that I think of it, Linux and Apple -- and it's all happening at once.

[Note Update: the agreement itself is now filed.]

If you think of it in those terms, then don't some of the otherwise odd elements makes sense? How else to explain dragging the cases out time after time, when the ultimate conclusions seem fairly obvious even if you are not Clarence Darrow, unless the the goal is just to inflict damage? I have so far been unable to come up with a better theory to explain such peculiar litigation. Psystar isn't making money, according to its filings, not enough to feed the dogs. So why stretch it out? Does it make any sense at all to you? If not, then one has to look deeper and ask, who does benefit from all this? What is it really all about, if it can't be about what it says it's about?

That doesn't mean I think Microsoft is necessarily behind it. It could be coincidental, but it does seem to mean that someone has figured out how to be what I'd call a "copyright troll", or, more accurately probably, how to use them as throwaway litigation proxies.

Here's the filing:

11/30/2009 - 237 - Memorandum in Opposition to Apple's Motion for a Permanent Injunction filed byPsystar Corporation. (Attachments: # 1 Proposed Order)(Camara, Kiwi) (Filed on 11/30/2009) (Entered: 11/30/2009)

Here's how Psystar phrases it:
Psystar and Apple today entered into a partial settlement that is embodied in a stipulation that will be filed with the Court tomorrow. Psystar has agreed on certain amounts to be awarded as statutory damages on Apple’s copyright claims in exchange for Apple’s agreement not to execute on these awards until all appeals in this matter have been concluded. Moreover, Apple has agreed to voluntarily dismiss all its trademark, trade-dress, and state-law claims. This partial settlement eliminates the need for a trial and reduces the issues before this Court to the scope of any permanent injunction on Apple’s copyright claims. Psystar’s argument with respect to the scope of a permanent injunction is very limited. Psystar argues only that any injunction from this Court should not extend to Rebel EFI, a Psystar product that has not been litigated in this case, that has not been the subject of discovery in this case, that is presently the subject of litigation in the Florida case, that is composed exclusively of Psystar software, that is not sold in conjunction with any hardware, and that is sold entirely apart from any copy of Mac OS X or any computer running Mac OS X....

If this Court were to grant an injunction broad enough to cover Mac OS X Snow Leopard, it would be undoing its earlier decision not to allow Apple to introduce Snow Leopard into this case after maintaining that discovery about Snow Leopard was irrelevant. Indeed, Apple asks this Court to go one step further and enjoin not only Psystar computers running Mac OS X Snow Leopard, but also an entirely new software-only product, Rebel EFI, that has not been the subject of any discovery at all in this action....

Apple has filed a motion to transfer the Florida action to this Court. If that motion is granted, then this Court can properly determine the preclusive effect of its summary-judgment order, if any, and, upon a judgment on liability, issue an appropriate injunction with respect to Rebel EFI. Until then, however, whether Rebel EFI is legal or not remains within the jurisdiction of the United States District Court for the Southern District of Florida, the first court in which a case concerning Rebel EFI was filed.

If you recall, Psystar once before argued that a trial was moot, because it would accept a permanent injunction on just Leopard, but Apple was not interested in that offer unless it went further:
Despite its insistence that it has not infringed Apple's rights, Psystar nevertheless states that it will stipulate to a permanent injunction and an award of nominal damages against it, and then contends that the remainder of Apple's claims against it are moot. The relief that Psystar proposes is insufficient. While Psystar's infringement should be enjoined, any injunction must be broad enough to prohibit Psystar's continued unlawful conduct and protect Apple against the recurrence of such conduct. Furthermore, a trier of fact must determine whether Psystar must disgorge its sales revenue, whether Psystar's infringement has been willful, and whether punitive damages are appropriate.
After winning so powerfully against Psystar, Apple is hardly likely to agree to less now. So, I take this filing as Psystar being Psystar, still trying to get the court to agree that a trial is moot. I seriously doubt Apple will concur.

And Psystar is still claiming that Snow Leopard, as well as Rebel EFI, is excluded from this case, in other words angling to keep selling it until there is some ruling from the Florida court. See what I mean? This leopard has not changed its spots. All that has happened is the parties have agreed on how much Psystar owes so far. The rest absolutely will be going to trial, whatever there is left after Apple's summary judgment motion is decided. There is a hearing set for December 14 [PDF] at 2 PM, and I hope some of you in California will be able to attend.

Update: Here's the agreement:

12/01/2009 - 238 - STIPULATION REGARDING DISPOSITION OF CLAIMS by Apple Inc.. (Gilliland, James) (Filed on 12/1/2009) (Entered: 12/01/2009)

Update 2: And the judge has now signed off on it:

12/01/2009 - 239 - STIPULATION AND ORDER REGARDING DISPOSITION OF CLAIMS. Signed by Judge Alsup on December 1, 2009. (whalc1, COURT STAFF) (Filed on 12/1/2009) (Entered: 12/01/2009)

As you can see, Apple didn't drop its trademark and state-based claims. It dropped them for now. That is what "dismiss without prejudice" means, that for now it's dropped, but the party does not give up its right to reintroduce, and the end of the paragraph about it tells you why: because at this point, no one knows what will happen to the Florida case, so no one knows where the matter will be tried. It's not dropped at all.

The parties have agreed that Psystar will pay Apple $1,337,550 twice, first for Apple's First through Fifth Claims, which would be copyright infringement, contributory and induced infringement, violation of the DMCA, and breach of contract and inducing breach of contract, and the second payment would be extra on the First, Second, and Third Claims, again the copyright and DMCA claims.

Now to help you to figure out Psystar's new claim that Rebel EFI is totally different, let me show you what Psystar has just stipulated as to a judgment against it being filed on this claim, Apple's claim for inducing breach of contract:

FIFTH CLAIM FOR RELIEF
(Inducing Breach of Contract)

60. Plaintiff incorporates herein by reference each and every allegation in the preceding paragraphs.

61. The owners and managers of Psystar have admitted in public statements their knowledge of the existence of the License Agreement governing the use of Mac OS X software and of its terms and conditions.

62. Apple is informed and believes, and on that basis alleges, that notwithstanding its knowledge of the existence and terms of the License Agreement, Psystar has advised, encouraged and assisted others to breach the License Agreement by, among other things, encouraging those consumers to acquire Mac OS X software and then assisting them to install, use and run it on non-Apple-labeled computers. In so doing Psystar has unlawfully induced breach of the License Agreement by others.

63. As a direct and proximate result of Psystar's actions to induce others to breach the License Agreement, Apple has suffered economic injury and damages in an amount to be proven at trial in excess of $75,000. Apple further seeks punitive damages and injunctive relief as a result of Psystar's inducement of others to breach Apple's License Agreement.

This is what Psystar agrees it is guilty of having done. And now it wants to sell you Rebel EFI. Do you see a difference? I would talk to my lawyer before I bought anything like that. I seriously doubt the court will see any difference between what Psystar has just agreed it did and what it proposes to do in the future with Rebel EFI. Note that this is a contract issue, not a copyright infringement issue. I don't understand Psystar arguing that there is no DMCA violation if there is an equally untenable contract breach still on the table. You still know the terms of the Apple license, do you not? Does Psystar? There will be arguments perhaps about its new theory of how to violate the license and get away with it, but it's essentially the same goal, just a different approach, as I see it.

Here's the Psytar filing, minus the header and the certificate at the end, just for time, but the meat of it is here, so you can form your own opinions:

********************************

PSYSTAR'S RESPONSE IN OPPOSITION TO APPLE'S MOTION FOR A PERMANENT INJUNCTION

Psystar and Apple today entered into a partial settlement that is embodied in a stipulation that will be filed with the Court tomorrow. Psystar has agreed on certain amounts to be awarded as statutory damages on Apple's copyright claims in exchange for Apple's agreement not to execute on

1

these awards until all appeals in this matter have been concluded. Moreover, Apple has agreed to voluntarily dismiss all its trademark, trade-dress, and state-law claims. This partial settlement eliminates the need for a trial and reduces the issues before this Court to the scope of any permanent injunction on Apple's copyright claims.

Psystar's argument with respect to the scope of a permanent injunction is very limited. Psystar argues only that any injunction from this Court should not extend to Rebel EFI, a Psystar product that has not been litigated in this case, that has not been the subject of discovery in this case, that is presently the subject of litigation in the Florida case, that is composed exclusively of Psystar software, that is not sold in conjunction with any hardware, and that is sold entirely apart from any copy of Mac OS X or any computer running Mac OS X.

I. An injunction covering Rebel EFI is foreclosed by this Court's order denying Apple's motion to dismiss the Florida action

This case concerns Psystar's Open Computers, computers that come with Mac OS X installed, along with Psystar software that makes Mac OS X compatible with non-Apple hardware.

This case also concerns a particular version of Mac OS X, the version known as Mac OS X Leopard. When Apple sought to expand the scope of discovery in this case to litigate new Psystar products that relate to the next version of Mac OS X, known as Mac OS X Snow Leopard, this Court held that Apple was barred from so expanding the litigation. See Docket No. 152 (Order Denying Apple's Motion to Enjoin Florida Action).

If this Court were to grant an injunction broad enough to cover Mac OS X Snow Leopard, it would be undoing its earlier decision not to allow Apple to introduce Snow Leopard into this case after maintaining that discovery about Snow Leopard was irrelevant. Indeed, Apple asks this Court to go one step further and enjoin not only Psystar computers running Mac OS X Snow Leopard, but also an entirely new software-only product, Rebel EFI, that has not been the subject of any discovery

2

at all in this action.

This Court should not give Apple an injunction covering a software product the legality of which Apple has yet to litigate anywhere. Such an injunction would give Apple relief on the very issues that it decided not to include in this case. If this limitation prejudices Apple, "The problem is one largely of Apple's own making." Docket No. 152 at 2 (Order Denying Apple's Motion to Enjoin Florida Action). If Apple needed an injunction broad enough to cover Psystar's new products, it should have welcomed discovery on Snow Leopard and sought to timely amend its complaint.

II. An injunction covering Rebel EFI is inappropriate because Rebel EFI is currently the subject of litigation in the United States District Court for the Southern District of Florida.

An injunction covering Rebel EFI would invade the jurisdiction of Judge Hoeveler of the United States District Court for the Southern District of Florida. As the Ninth Circuit announced last year:

[W]hen exercising its equitable powers to issue an injunction, a court must be mindful of any effect its decision might have outside its jurisdiction. Courts ordinarily should not award injunctive relief that would cause substantial interference with another court's sovereignty.
United States v. AMC Entertainment, 549 F.3d 760, 770 (9th Cir. 2008) (emphasis added). Because an injunction preventing Psystar from using or selling Rebel EFI would effectively decide the case currently pending before Judge Hoeveler, it would be a gross interference with the "sovereignty," or jurisdiction, of his court.

Apple has filed a motion to transfer the Florida action to this Court. If that motion is granted, then this Court can properly determine the preclusive effect of its summary-judgment order, if any, and, upon a judgment on liability, issue an appropriate injunction with respect to Rebel EFI. Until then, however, whether Rebel EFI is legal or not remains within the jurisdiction of the United States District Court for the Southern District of Florida, the first court in which a case concerning Rebel

3

EFI was filed.

III. An injunction covering Rebel EFI is inappropriate because Psystar's conduct in selling Rebel EFI involves entirely different factual and legal questions from those that the parties have litigated in this case.

The summary judgment in this case turned on the manner in which Psystar assembled its Open Computers. It turned on such things as the use of the Psystar imaging station and what this Court found to be the creation of multiple copies and derivative works of Mac OS X along the way. See Docket No. 214 (Order on Cross-Motions for Summary Judgment). None of these same facts is involved in Rebel EFI. Rebel EFI is entirely a software product. It does not involve the assembly by Psystar of any computers. Cf. id. at 13 (finding a DMCA violation because Psystar "obtain[ed] access to Mac OS X and . . . circumvent[ed] Apple's technological measure when modifying Mac OS X in its production process"). Nor does Rebel EFI contain or include Mac OS X. A Mac OS X DVD does not even accompany sales of Rebel EFI. Rebel EFI consists solely of Psystar software available for sale and download through Psystar's website.

In particular, whether sales of Rebel EFI are lawful or not depends on whether Psystar's end users have a defense under 17 U.S.C. § 117. This issue has not been litigated in this case at all. Psystar's end users do not engage in commercial use of Mac OS X and their use would qualify as use for "internal purposes" even under the standards articulated by Apple in its summary-judgment briefing. If Psystar's end users are protected by § 117, then Psystar cannot be violating the DMCA by selling Rebel EFI because Rebel EFI, as used by the end users, does not facilitate infringement.

Apple correctly explains that this Court has power "to restrain acts which are the same type or class as unlawful acts which the court has found to have been committed." M. at 9. But Rebel EFI is a different kind of act altogether.

Apple's injunction briefing does not address Rebel EFI by name. Apple only addresses Snow Leopard. And the cases that Apple cites in its argument about Snow Leopard, M. at 1113,

4

although they hold that an injunction may sweep broader than the specific conduct that gave rise to the litigation, concern only cases where the additional, non-litigated conduct was the same in all legally relevant respects to the actually litigated conduct. See, e.g., Walt Disney Co. v. Powell, 897 F.2d 565, 566 (D.C. Cir. 1990) (different Disney characters being printed on t-shirts).

These cases do not justify an injunction that extends to Rebel EFI because Rebel EFI differs from the conduct that was litigated in this case in the critical respect that the legality of Rebel EFI depends, as the legality of the conduct in this case did not, on whether end users have a § 117 right to run Mac OS X on their own computers for personal use. If so, then Rebel EFI does not facilitate infringement and does not violate the DMCA.

IV. Relief Requested

Psystar respectfully requests that any injunction expressly exclude from its coverage "any conduct that is the subject of litigation in Psystar Corp. v. Apple Inc., No. 09-22535, in the United States District Court for the Southern District of Florida, assigned to Judge Hoeveler." This will guarantee that so long as that case is ongoing, this Court does not invade the judicial province of Judge Hoeveler by issuing an injunction that enters upon matters that this Court has already ruled were not part of this action and were, instead, properly filed in Florida.

Dated: November 30, 2009

CAMARA & SIBLEY LLP
By: /s K. A. D. Camara
K.A.D. CAMARA

Attorney for Defendant / Counterclaimant

5


  


Psystar Tries to Wriggle Around Any Permanent Injunction; Partial Settlement Filed; Hearing 12/14 UPDATE | 289 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections here
Authored by: SpaceLifeForm on Tuesday, December 01 2009 @ 01:55 PM EST
If any.


---

You are being MICROattacked, from various angles, in a SOFT manner.

[ Reply to This | # ]

News Picks commentary here
Authored by: SpaceLifeForm on Tuesday, December 01 2009 @ 01:57 PM EST
Please note which article you are referencing
in the title.


---

You are being MICROattacked, from various angles, in a SOFT manner.

[ Reply to This | # ]

OT here
Authored by: SpaceLifeForm on Tuesday, December 01 2009 @ 01:58 PM EST
Please make any links clickable.


---

You are being MICROattacked, from various angles, in a SOFT manner.

[ Reply to This | # ]

PJ, your bias is showing
Authored by: Anonymous on Tuesday, December 01 2009 @ 02:06 PM EST
PJ, Apple is the one who expressly limited the case in question to Leopard by
insisting that Snow Leopard wasn't at issue when they refused to turn over Snow
Leopard related discovery.

Also, do you *really* think Psystar is going to claim a settlement has been
reached when Apple could easily come back with "No, it hasn't."?
Really?

[ Reply to This | # ]

Apple EULA ..
Authored by: Anonymous on Tuesday, December 01 2009 @ 02:21 PM EST
"2. Permitted License Uses and Restrictions.

A. Single Use. This License allows you to install, use and run one (1) copy of the Apple Software on a single Apple-labeled computer at a time. You agree not to install, use or run the Apple Software on any non-Apple-labeled computer, or to enable others to do so
"

Seems perfectly clear to me ..

[ Reply to This | # ]

who owns Psystar ?
Authored by: Anonymous on Tuesday, December 01 2009 @ 02:42 PM EST
"Tom Kravitz at News.com posted the corporate docs for Psystar at this PDF, which show its registered to Rodolfo Pedraza"

I assume they're not earning revenue from selling Apple clones, so where is the money coming from to pay the legal fees ?

Psystar, a Rebel South Florida Company, Takes On Apple

"This isn't just about some Florida startup versus Apple," says Kiwi Camara of the Houston law firm Camara & Sibley, which represents Psystar. "It's about recognizing a future where anything can be connected to anything else"

"Unable to reach a payment agreement with its previous legal representation, Psystar hires Houston-based Camara & Sibley as its new legal team. The firm represents plaintiffs for a flat fee instead of a success-fee basis"

I've never understood why Apple didn't just get out of the hardware market and license their entire portfolio to the hw manufacturers.

[ Reply to This | # ]

I'm skeptical of the "conspiracy theory"
Authored by: Anonymous on Tuesday, December 01 2009 @ 02:56 PM EST
I don't see the parallel between Psystar and SCO at all, apart from them both
pursuing strange and unsuccessful legal strategies that are related to software
licensing.

Ever since Apple switched to the Intel platform, there has been a legally
dubious Hackintosh scene that runs OS-X on non-Apple hardware. I don't have any
trouble believing that these guys simply thought they could make a lot of money
selling "Hackintosh" boxes, and that they managed to convince
themselves that they would be able to argue their way out of any legal
repercussions from Apple. Seems mighty unwise to me, but plenty of businesses
have done stupid things.

As for this being a plot to destroy Apple, or to invalidate the GPL, I just
don't buy it, and I can't imagine that Microsoft could be backing this. Would
Microsoft stand to gain from a ruling that EULAs are not enforceable? Of course
not, even if it caused trouble for Apple.

Plus, Microsoft needs Apple and the Mac to remain viable to alleviate antitrust
concerns. They want to be able to make the case that a "level playing
field" should apply to other proprietary software, but not to OSS (think
"reasonable and non-discriminatory licensing"). They basically want
regulatory bodies to ignore GPL software as irrelevant. Without the Mac, they
could not make that case as well.

[ Reply to This | # ]

The Thing Is...
Authored by: sproggit on Tuesday, December 01 2009 @ 03:11 PM EST
... Irrespective of anything else, the US Legal System is allowing itself to be
"gamed" by Psystar.

The fact that Psystar has been allowed to file two related court cases in
different states - and to attempt to re-try in the second instance, issues it
lost in the first, is proof positive that this is the case.

The law is supposed to be all about equitable relief, justice, balance, and
"doing the right thing". If we step back from the immediate dispute
between these two companies, there is an underlying message to be had here. It's
very simple. The message reads, "In the United States it is perfectly
acceptable to game the legal system - to break the law - and get away with
it."

Part of me has been absolutely incensed with the conduct of lawyers acting on
behalf of organisations like the MPAA and RIAA and the way that they have
treated private citizens in the US. [ Looks like the same is about to happen to
the UK as well... ] But then you read about cases like this, and you realise
that the really serious criminals - those people who churn out thousands of
bootleg copies of DVDs and CDs every day - must be looking at the Apple vs
Psystar case and laughing out loud. The MPAA and RIAA will continue to lose out
in revenue terms, and in some cases it might even be their sister companies - or
at least other US corporations, who are unwittingly encouraging it to happen.

If the US legal system can't even enforce "proper conduct" within it's
own borders - i.e. by not permitting companies to game the system as is so
blatantly happening here - then what have overseas organised criminals got to
worry about?

The only people who are going to lose out of this whole mess will be private US
citizens - taxpayers who elect the lawmakers to ensure that they have equal
rights to protection under the law. If it wasn't so serious, that would be
funny.

[ Reply to This | # ]

How much of Snow Leopard is separate from Leopard
Authored by: jpvlsmv on Tuesday, December 01 2009 @ 04:06 PM EST
Just a curiosity from a copyright standpoint, if Psystar agrees to an injunction
against infringing Apple's copyright in Leopard, are there works distributed as
part of Snow Leopard that are covered by that?

For example, has the code for the color browser panel changed between the 2
versions? If not, how can Psystar distribute the "Snow Leopard"
version which is identical to the (injoined) previous version?

Would Apple have to register the copyright in the (example) color browser panel
in order to enforce the injunction?

--Joe

[ Reply to This | # ]

Stipulation Has Been Filed
Authored by: Steve Martin on Tuesday, December 01 2009 @ 04:11 PM EST
PJ, check your Inbox.



---
"When I say something, I put my name next to it." -- Isaac Jaffe, "Sports Night"

[ Reply to This | # ]

Proof of bold statements?
Authored by: DodgeRules on Tuesday, December 01 2009 @ 04:17 PM EST
PJ says:
but somebody behind all this nonsense seems to wants to destroy the US tech market leaders, invalidate the enforceability of licenses on software, and then make a bundle on other people's code. I don't believe for one second that Psystar is about two guys in a basement. I have come to suspect that someone, somewhere behind all this is trying to destroy Apple's business, for personal profit, nothing less, just as SCO has been trying to destroy IBM's and Red Hat's business and Linux, for personal profit. Two strange cases, each threatening damage to major players in the US technology sector -- the two major competitors of Microsoft, actually now that I think of it, Linux and Apple -- and it's all happening at once.
Wow! Where so I begin? Does the phrase "Weasel words" come to mind? When I posted my opinion about surveys, I was asked to provide links showing the proof. Where are the links and proofs of these bold statements?

I always thought that Groklaw was about the truth and showing proof of such, but lately, with anything Apple, it has become more wild accusations then cold hard facts. Maybe Santa can bring you a new GPS so you can find your way back to the superhighway and get off these narrow dirt roads.

[ Reply to This | # ]

What would Germany do?
Authored by: Anonymous on Tuesday, December 01 2009 @ 04:19 PM EST
You recall how quickly Germany dealt with SCO. Curious to know if any of our
German readers could tell us how Psystar would fare in a German court against
Apple, now that the details of Psystar's arguments are available.

--------------------

Dilbert IS reality



[ Reply to This | # ]

Psystar Tries to Wriggle Around Any Permanent Injunction; Partial Settlement Filed; Hearing 12/
Authored by: Anonymous on Tuesday, December 01 2009 @ 05:53 PM EST
A friend bought a netbook with Ubuntu pre-installed and turned it into a
hackintosh, and did not use Rebel EFI. He bought it with Ubuntu because the
Win XP version only had a 160 gig hard drive and more limited memory.
Microsoft is still trying to dictate what you can do with your computer.

On the other hand, he has a half dozen Macs already in the house. He just
wanted a little thingy that was compatible with all the other stuff he had
already.

[ Reply to This | # ]

Psystar is putting words in Apple's mouth
Authored by: Anonymous on Tuesday, December 01 2009 @ 09:18 PM EST
This appears to be a blatant attempt by Psystar to make it appear as if Apple
has agreed to a settlement in the case. Psystar is putting words in Apple's
mouth.

This is a very sleezy attempt. Already, other web sites are misinterpretting
this Psystar response to Apple's request for permanent injunction and
shutdown of Psystar as if Apple agreed to this.

Most assuredly, until we hear ourselves from Apple, this is NOT an agreement
from Apple. This is Psystar's one-sided attempt to hoodwink the judge.

If anything, Apple would, at the very least, want Psystar barred from using
Apple's trademarks in ANY advertisement of its hardware. Thus, Psystar
would not be even allowed to say they are selling Mac OS X compatible
hardware. This, they can't even guarantee since Apple can change its
hardware DRM easily with every upgrade to Mac OS X. Thus Psystar would be
mis-using Apple's Trademarks and disparaging Apple's reputation by selling
non-working hardware.

ANAL

[ Reply to This | # ]

Astro Turfing
Authored by: Anonymous on Wednesday, December 02 2009 @ 09:55 AM EST
Yup we are in the middle of a full on Astro Turf campaign. This is more than
mere Trolls coming out of the woodwork to complain about Apple, this case, and
the presentation of this case.

The SCO case has never elicited this kind of response. Nope. Someone is
intentionally sending people to Groklaw to muddy up the comments. It's way too
obvious.

You people need to move your Astro Turf campaign to Slashdot. At least there
your comments look like typical whack job comments.


[ Reply to This | # ]

explaining their actions
Authored by: Anonymous on Wednesday, December 02 2009 @ 11:00 AM EST
How else to explain dragging the cases out time after time, when the ultimate conclusions seem fairly obvious even if you are not Clarence Darrow, unless the the goal is just to inflict damage?

My guess would be that they simply decided they have nothing else to do and nothing (of their own) to lose.

In the case of Psystar, the alternative would be to say, "oh well, that didn't work, we give up" and give any unspent money back to the VCs. Not likely to happen in the business world.

In the case of SCO, they have no other realistic business to turn to. Having started down the road with the lawsuits, they killed off their own Unix customer base and that only continues to spiral downward as those who haven't migrated to other platforms continue to do so.

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Paystar wiggle room and conspiracy theories
Authored by: davidf on Wednesday, December 02 2009 @ 12:20 PM EST
I tend to distrust conspiracy theories because they are to easy. Yes, I agree it
is very M$'ish or Paystar to act the way it has. When, however, has there been a
shortage of people who are willing to try to make a buck the easy way?

If you cannot write your own operating system, steal one. If you cannot create
your own business, steal someone elses. This is basic to anyone who thinks the
world owes them a free ride.

Mac OS X is cheap compared to any M$ OS. Buy a Mac, then every two or three
years depending on the length of the cycle, pay $250.00 or so for the update to
the OS.

Personally, I think Paystar are just fast talkers who have managed to conn some
(probably) basically honest lawyers into taking on a case that has no merrit.

That said, steal it from Linux (or the GPL community) or steal from Apple, its
still the same, the attempt to ride the success coat tails of someone else for
free. M$ is just the shining example of this in the tech sector.

My only regret is that it takes the courts so long to get a handle on these
people. Paystar has managed to paper the courts with claims which basically try
to make the court system look like idiots becuase they do not understand
information technology the way they should.


The more I think about it, the more I think that the Paystars of this world
should pay double, once to Apple for trying to steal their good business, then
again for trying to play the courts for a fool. Shame on paystar!

Cheers!
davidf

---
"Music is enough for a lifetime, but one lifetime is not enough for music."
Serge Rachmaninoff

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End users, EFI, and Lexmark
Authored by: Anonymous on Wednesday, December 02 2009 @ 02:13 PM EST
I do have to question the enforcability of forbidding use of software on
non-Apple branded hardware by end users. Not so many years ago Lexmark tried to
sue companies making toner cartridges for their printer under the DMCA for
bypassing technolocial protections to make their toner cartridges work with
Lexmark branded printers. The best I can recall, the courts decided that while
the process technically did violate the DMCA, the end-users right for
interoperability with their equipment had higher standing. A year or so before
that an almost identical matter was decided the same way concerning replacement
remotes for garage doors. (I wish I could remember the name company with the
garage doors.)

From my viewpoint as someone who doesn't work within the legal system, it seems
the courts have ruled in favor of end-users for copyright claims involving
interoperability issues many times. So can someone enlighten me just how this is
different than the Lexmark toner issue that I mentioned earlier?



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IP blocking
Authored by: Anonymous on Thursday, December 03 2009 @ 12:30 AM EST

It's interesting how Groklaw web pages look different depending on what IP
address is used to view them. I wonder why that would happen? Very clever.

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Psystar Tries to mislead the court
Authored by: Anonymous on Thursday, December 03 2009 @ 07:31 AM EST

Psystar first claims:

Psystar argues only that any injunction from this Court should not extend to Rebel EFI

Then there is a long argument about Rebel EFI. But at the end, what Psystar actually asks for is:

Psystar respectfully requests that any injunction expressly exclude from its coverage "any conduct that is the subject of litigation in Psystar Corp. v. Apple Inc., No. 09-22535, in the United States District Court for the Southern District of Florida, assigned to Judge Hoeveler."

Psystar's requested text would exclude Snow Leopard as well as Rebel EFI - dispite them claiming at the top of the brief that they're only trying to exclude Rebel EFI. They are blatently trying to win on the Rebel EFI issue, then get the court to accidentally exclude Snow Leopard from the order.

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