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The Latest on Psystar - Papa's Got a Brand New Bag - Updated
Sunday, January 17 2010 @ 02:55 AM EST

Psystar has filed an appeal. But it has also reported back to the California court that it is complying fully with the injunction ordered against it.

I thought you'd be interested in seeing the Report Regarding Compliance With Injunction that Psystar filed with Judge William Alsup in California. Psystar CEO Rudy Pedraza demonstrates a very different tone now. It seems Psystar would *never, ever* condone software piracy. Psystar tells the court that it might have made statements of defiance in the past, but now it knows it needs to stay legal, and so it will. Papa's got a brand new bag.

Or maybe someone finally decided to listen to his lawyer. That's a start. But they still think they are right, as you can see from their statement on their homepage:

We respectfully disagree with the court's notion that we are "hardcore copyright infringers". Psystar has never, and will never, condone software piracy. It's your software, you should be able to use it where you want to. If you purchase an off-the-shelf copy of OS X Snow Leopard, its your right to use that software. A publisher cannot forbid you from reading a book in the bathroom or listening to a music disc while riding your bicycle. There should be no difference in the software realm, no matter how much money Apple or anyone else throws at it. That is the real issue here and what we have always been fighting for.
The real issue? Hmm. I thought this was about making a lot of money. Isn't that what the company told potential investors?

Anyway, reality has fallen upon these freedom fighters, and here's what they tell the court Psystar has done to comply with the judge's order:

Psystar has voluntarily suspended the sale of our Rebel EFI software product. Psystar feels it would be prudent to halt the sale of Rebel EFI while we explicitly ask the court for clarification on the legality of Rebel EFI. Our patience has been tested but our resolve is unwavering. Psystar's vision of bringing the Mac OS to generic PC hardware is and always will be unyielding.
*Their* patience has been tested? Are they kidding? If they wanted to demonstrate patience, they could have asked the court for a declaratory judgment prior to selling anything, to find out if it was legal, instead of jumping in the pool and then measuring the water's depth. What? Too simple?

See what I mean, though, about a change in tone? Remember when the "dedicated leaders of Psystar" talked to the court like this?

It should be clear from the papers that Apple has filed that Apple has spent millions of dollars pursuing this family business, trying to destroy them. The record is replete with Apple’s admissions that this entire suit is based on a fierce motive to protect Apple’s market position by any means possible, legal or otherwise. This Court should end this vexatious litigation. It’s been millions too much.
Heh heh. And I remember Psystar's and Rudy Pedraza's tones in discovery too. So their new tone of voice, while a refreshing change, does not influence my opinion as to their essence, shall we say, but it's good to learn to be prudent.

Wait. What was that part about always unyielding? What about if the final word from all courts is to shut Psystar down, Rebel EFI and all?

Well, reality is unyielding too. So I'm thinking if the appeal fails, which I expect, Psystar will likely be talking more in tune with the wording of the Report on Compliance.

We also have the transcript of the September 24, 2009 hearing in Apple v Psystar and the one held on September 4, 2009, both PDFs. You'll enjoy them, if you enjoy seeing a master at work. James Gilliland of Townsend & Townsend, representing Apple, has the delicate task of handling a grumpy judge who has gotten an idea in his head that Apple would like him to alter. And for those of you in the media who received descriptions of what happened at these hearings from Camara & Sibley back in September, I suggest you compare those emails with the transcripts themselves now that they are available to the public.

Update: Here are the filings:

12/31/2009 - 247 STATUS REPORT Regarding Compliance with Injunction by Psystar Corporation. (Camara, Kiwi) (Filed on 12/31/2009) (Entered: 12/31/2009)

01/14/2010 - 248 - NOTICE OF APPEAL as to 243 Judgment, 242 Order, 207 Order on Motion to Seal, 208 Order on Motion for Miscellaneous Relief, 209 Order on Motion to Seal Document, 210 Order on Motion for Miscellaneous Relief, 211 Order on Motion to Seal, 212 Order on Motion for Miscellaneous Relief, 213 Order on Motion for Miscellaneous Relief, 214 Order on Motion for Summary Judgment, 150 Order by Psystar Corporation. Filing fee $ 455. (slh, COURT STAFF) (Filed on 1/14/2010) (Entered: 01/15/2010)

01/15/2010 - 249 - Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 248 Notice of Appeal. (Attachments: # 1 Docket Sheet)(slh, COURT STAFF) (Filed on 1/15/2010) (Entered: 01/15/2010)

Psystar, then, according to the Notice of Appeal, is appealing not only the injunction, docket #242, the final judgment, #243, but all the orders, from #207-213, to seal "papers filed in connection with dispositive motions", the order regarding cross motions for summary judgment, #214, as well as docket #150, the order regarding Psystar's motion to compel and Apple's cross-motion for a protective order and "all other orders entered in this case that are adverse to the defendant".

The appeal is to the United States Court of Appeals for the Ninth Circuit, case number 10-15113. Here's the docket so far:

01/15/2010 - 1 - Added attorney K. A.D. Camara for Psystar Corporation, in case 10-15113. [7196649] (GR)

01/15/2010 - 2 - DOCKETED CAUSE AND ENTERED APPEARANCES OF COUNSEL. SEND MQ: Yes. The schedule is set as follows: Mediation Questionnaire due by Attorney K. A.D. Camara due on 01/22/2010. Appellant Psystar Corporation opening brief due 05/03/2010. Appellee Apple Inc. answering brief due 06/02/2010. Appellant's optional reply brief is due 14 days after service of the answering brief. [7196652] (GR)

Here are their rules about media coverage:
In the interests of informing the public, the U.S. Court of Appeals for the Ninth Circuit welcomes media coverage of legal matters coming before the court.

In almost all cases, oral arguments before an appellate panel are open to the press and public. In certain high-profile cases, the court may reserve courtroom seating for the media. Reporters should contact the court to determine whether reserve seating is available.

The Ninth Circuit Court of Appeals is one of two federal appellate courts to regularly allow still and video cameras and audio recorders in the courtroom for purposes of reporting on the proceeding. Rules pertaining to use of these devices are explained in the court's "Guidelines for Photographing, Recording and Broadcasting in the Courtroom," which is included with the "Camera Request Form" shown below.

Here's the Camera Request Form [PDF] or as HTML. Most of it is geared toward traditional media. I'm sure none of you were planning to show up with a camera crew, but there is normally a 3-day notice if anyone wants to take pictures or record electronically, so if you are planning to attend, we do need to follow the rules, even on our untraditional scale. That means no recording or taking pictures for Groklaw unless we officially apply. You can still attend as a member of the public and to report to Groklaw, but nothing electronic, unless we go through the proper channels, and that means you also would need to contact the court clerk in advance to determine if the public's cell phones and laptops are allowed in, and if so if they can be used during the session or only outside in the hall, etc. And note this part in particular: "(b) There shall be no audio pickup or broadcast of conferences between attorneys and their clients, between co-counsel, or among members of the panel."

And here is the full wording of the Report Regarding Compliance with Injunction:

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

REPORT REGARDING COMPLIANCE WITH INJUNCTION

1. My name is Rudy Pedraza. I am the CEO of Psystar Corporation. I was personally responsible for the steps that Psystar has taken to comply with this Court's injunction.

2. Psystar had already stopped selling computers with Mac OS X preinstalled when the Court's order came down. The only product that Psystar was selling when the Court's order came down was Rebel EFI.

3. Psystar ceased selling Rebel EFI two days after the Court's order came down. Since than, Psystar has not sold or offered for sale any products that include Mac OS X, that facilitate running Mac OS X on non-APple hardware or that otherwise come within the terms of the injunction.

4. Psystar posted on its web site a statement expressing its disagreement with this Court's summary judgment order and stating its intention of defying that decision, but intends to appeal it through all available legal channels.

5. Pursuant to an agreement between counsel for both parties memorialized in an email, counsel for Psystar is retaining one copy of Rebel EFI (and prior versions of Rebel EFI) and all software used in connection with running OS X on non-Apple computers for use in subsequent litigation. This includes the invited declaratory judgment proceeding in this Court and the ongoing litigation in Miami. Counsel for Apple has specifically stated that Apple does not wish this Court's injunction to be construed to require the destruction of evidence that is relevant to the ongoing litigation between Apple and Psystar.

6. Psystar and its principals have destroyed all their copies of Rebel EFI. The only copy of Rebel EFI source code that now exists is in the hands of counsel for Psystar pursuant to the agreement between the parties.

I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct to the best of my knowledge and ability.

Executed on December 31, 2009, at Miami, Florida.

[signature]
RUDY PEDRAZA


  


The Latest on Psystar - Papa's Got a Brand New Bag - Updated | 663 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
OT - off topic thread starts here
Authored by: Totosplatz on Sunday, January 17 2010 @ 03:16 AM EST
Please make links clicky...

---
Greetings from Zhuhai, Guangdong, China; or Portland, Oregon, USA (location
varies).

All the best to one and all.

[ Reply to This | # ]

The Latest on Psystar - Papa's Got a Brand New Bag
Authored by: Anonymous on Sunday, January 17 2010 @ 03:26 AM EST
One approach for Psystar could be to move to another country and just continue
their operations.

http://www.pearc.de

Even if Apple wins this particular court case, it is fighting a losing battle by
trying to enforce ridiculous licensing restrictions against its customers. If
Apple wins, the next Psystar won't bother purchasing OS X legally from them.

---linuxrocks123

[ Reply to This | # ]

News picks thread starts here
Authored by: Totosplatz on Sunday, January 17 2010 @ 03:30 AM EST
Please mention the article title in the subject if possible, and make links
clicky...

---
Greetings from Zhuhai, Guangdong, China; or Portland, Oregon, USA (location
varies).

All the best to one and all.

[ Reply to This | # ]

Corrections thread starts here
Authored by: Totosplatz on Sunday, January 17 2010 @ 03:35 AM EST
Please suggest the correction in the title, if possible...

---
Greetings from Zhuhai, Guangdong, China; or Portland, Oregon, USA (location
varies).

All the best to one and all.

[ Reply to This | # ]

I'd love to have access to their financials
Authored by: The Mad Hatter r on Sunday, January 17 2010 @ 08:36 AM EST

Because this doesn't make any sense. None at all. So the question is, who is
paying for it?


---
Wayne

http://madhatter.ca/

[ Reply to This | # ]

The Latest on Psystar - Papa's Got a Brand New Bag
Authored by: The Cornishman on Sunday, January 17 2010 @ 09:03 AM EST

Psystar-177's a hoot. Mr Gilliland has uttered (by my count) 55 words before His Honor is down his throat like a ferret, telling him that Apple stonewalled about Snow Leopard and threatening him with jury instructions to that effect.

Mr Gilliland refers him to the declaration by his learned friend, with attached exhibits, but Judge Alsup thinks he's looking for a deposition:

THE COURT: I have so many papers here. I'm going to hand it down to you. Motions to strike. I've got motions to dismiss. I have so many pieces of paper here. You find it for me in all this material.
You lawyers need to learn that you have got to present short, simple, sweet things for the poor judge. Otherwise, how am I supposed to keep all of this straight?
Then, what I like to think of as the nearest a court reporter can get to humour:
(Brief pause.)
He wants short, simple and sweet? He's in the wrong job, then. Short, simple and sweet is rock candy, not software IP litigation. I surely to goodness hope that Judge Stewart can cope with a handful of court papers.

---
(c) assigned to PJ

[ Reply to This | # ]

Legal or otherwise
Authored by: _Arthur on Sunday, January 17 2010 @ 10:48 AM EST
[Apple has] a fierce motive to protect Apple’s market position by any means
possible, legal or otherwise.

1) No judge will ever object that a company uses all legal means to protect
its interests.

2) Or otherwise. Apple should file a motion that these words be expunged
from Psystar filing. That would achieve nothing, but will cost Psystar
another $100K in legal fees. Maybe that'll teach Rudy something.

[ Reply to This | # ]

The Latest on Psystar - Papa's Got a Brand New Bag
Authored by: Anonymous on Sunday, January 17 2010 @ 11:11 AM EST
>
instead of jumping in the pool and then measuring the water's depth
<

More like;constructed a 10m diving platform, on the concrete patio, and did a
swallow dive off it before even building the pool.

They may have done more harm to those who dabble with the Mac software as I can
see Apple putting in measures to prevent this happening again.

Tufty

[ Reply to This | # ]

It's your software, you should be able to use it where you want to.
Authored by: AMackenzie on Sunday, January 17 2010 @ 01:11 PM EST
This is a very strong point which hasn't (as far as I am aware) been discussed
on Groklaw.

Having bought a piece of software (such as Apple's OS-X) why should I not be at
liberty to run it on whichever PC I want?

Up to now, we've only seen question-begging answers like "it violates
copyright legistlation [in some particular jurisdiction]". Why should
Apple be allowed to impose legal and digital restrictions on such software?

The fact that Apple PCs are only a small part of the PC market also has no
bearing on the question. How is Apple's preventing me running OS-X on a random
PC different in essence from a publisher preventing me reading a book in the
bath?

[ Reply to This | # ]

"But they still think they are right..."
Authored by: Anonymous on Sunday, January 17 2010 @ 08:40 PM EST
Of course they do, because they are. Just because you're too blinded by your
legal hypocrisy and can't see it doesn't change this fact.

-S

[ Reply to This | # ]

Chalk and cheese
Authored by: Anonymous on Sunday, January 17 2010 @ 09:20 PM EST
I understand the licensing questions. If you want to object to F-Spot because of
the mono issue then fair enough. Personally I've looked into it and I think the
danger is more potential than real at this point, although the situation bears
watching. Indeed I think the danger lies more in the creation of possible FUD at
this point, and overreaction makes this worse. But if you think mono is a
serious threat because of mono then I understand where you are coming from.
However that doesn't make F-spot a bad application as some here have tried to
imply.

Some of these comments are just a bit over the top and misrepresent what F-spot
really does. Many of the experts commenting freely here on its shortcomings
don't seem to have ever used it. F-Spot isn't supposed to be a photo editor like
the gimp. It is a camera management application which does a little bit of minor
touching up of images on the side.

For those who have never used it, here is my experience.
I plugged the camera into the USB port. F-Spot immediately started (by itself),
correctly identified the camera, downloaded and displayed thumbnails of the
pictures stored on it, and offered to store them to a local directory and/or
delete them off the camera. It was all very self-explanatory and easy to use It
is a simple little application designed so that people can get pictures off
their cameras easily.

Comparing F-spot to the gimp is just silly. They are designed to do completely
different things. F-spot is designed to be simple and self-explanatory, to `just
work', and to let people manage their cameras. The gimp isn't. The gimp is
designed to be a fully featured photo editor. F-spot isn't. Chalk and cheese.

[ Reply to This | # ]

You can tell the bad guys by their secrecy
Authored by: Anonymous on Sunday, January 17 2010 @ 11:00 PM EST
So, Psystar wants all the documents sealed, just like SCO. And
Microsoft. They all have so much to hide. They are ashamed of
public scrutiny.

Yes, I'm willing to see examples of the good guys wanting secrecy,
too. Have at it.

[ Reply to This | # ]

Camera request form in HTML as well as PDF!
Authored by: MadTom1999 on Monday, January 18 2010 @ 12:32 PM EST
But don't they realise that if people discover just how pointless Pointless
Document Format is then we'll all be able to communicate so much more easily and
cheaply and those poor hackers will have to find other ways of accessing your
computer!

[ Reply to This | # ]

MS spins IE security disaster into Windows 7 upgrade opp
Authored by: SilverWave on Tuesday, January 19 2010 @ 09:38 AM EST
SecInfo [95] MS spins IE security disaster into Windows 7 upgrade opp 'Ditch XP,
our browser is safe-ish, pigs can fly'
http://www.theregister.co.uk/2010/01/19/microsoft_xp_ie6_windows_7_security_nigh
tmare/

---
RMS: The 4 Freedoms
0 run the program for any purpose
1 study the source code and change it
2 make copies and distribute them
3 publish modified versions

[ Reply to This | # ]

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