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The Psystar Appeal - Hearing (audio)
Wednesday, December 01 2010 @ 10:48 AM EST

As I mentioned on Monday, the Psystar appeal was scheduled for oral argument at the US Court of Appeals for the Ninth Circuit in San Francisco, CA on Tuesday, and we have the audio for you, if you can play wma format. I don't know why courts think we all use Windows, but we don't. But at least they make it available, which is more than the 10th Circuit has even dreamed of. But if you would like other formats, you might wish to respectfully write to the court and let them know.

If you'd like to follow the threads closely, here's our Apple v. Psystar collection of documents in the case so far, and the ones that were relevant specific to this hearing would be:

The main theme on Psystar's part is that they are not pirates, not a bad actor, because it's a case of copyright misuse on Apple's part. But what it's really all about is money, how large should the damages be.

You can pretty much figure out what is in the opening brief by reading the others. The three judges on the panel were Justices Mary M. Schroeder, Sidney R. Thomas, and Ronald M. Gould. Kiwi Camara argues for Psystar; George Riley for Apple. I can't tell you more than that, because I decided years ago that I couldn't agree to Microsoft's EULA on Windows Media Player. There are patent restrictions, and I got the impression it would spy on me if I let it near my computer, and the day I change my mind on all that, you'll know pigs are flying.


The Psystar Appeal - Hearing (audio) | 252 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections here
Authored by: alisonken1 on Wednesday, December 01 2010 @ 10:59 AM EST
Show quick note in title, then fill it out in comment

Kerrections -> Corrections

- Ken -
Registered Linux user^W^WJohn Doe #296561
Slackin' since 1993

[ Reply to This | # ]

The Psystar Appeal - Hearing (audio)
Authored by: Anonymous on Wednesday, December 01 2010 @ 11:02 AM EST
I've lurked here for a long time, frequently biting my tongue, but for some reason this is one episode too many.

PJ, would you consider getting off your high horse for once? Taking a principled stand against WMP and its associated patent encumbrances is great (and I agree with this stance), but why not also mention that this file plays just fine in VLC, a fully GPLed player?

Just my $0.02, Tomas

[ Reply to This | # ]

Newspicks here
Authored by: alisonken1 on Wednesday, December 01 2010 @ 11:02 AM EST
Remember to make a note of which newspick since they scroll off the page.

Use HTML mode if clickies or quotes and change post mode to "HTML"

- Ken -
Registered Linux user^W^WJohn Doe #296561
Slackin' since 1993

[ Reply to This | # ]

Off Topics Here
Authored by: SilverWave on Wednesday, December 01 2010 @ 11:04 AM EST

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 | # ]

The Psystar Appeal - Hearing (audio)
Authored by: Anonymous on Wednesday, December 01 2010 @ 11:24 AM EST


Which laws am I ignorant of ignoring?

[ Reply to This | # ]

The Psystar Appeal - Hearing (audio)
Authored by: qrider70 on Wednesday, December 01 2010 @ 11:43 AM EST
The Microsoft issue is certainly a concern, but there is a broader issue too.
about Deaf and hard of hearing people who are fully excluded from participation

because it is only available in audio format. If court hearings are to be fully

accessible to all citizens, a written transcript seems obligatory to me, just as
accessibility issue. Deaf and hard of hearing people shouldn't have to go find
someone to transcribe the audio just so they can be full participants.

[ Reply to This | # ]

The Psystar Appeal - Hearing (audio)
Authored by: Anonymous on Wednesday, December 01 2010 @ 12:40 PM EST
"But what it's really all about is money, how large should the damages be.

Sort of.

IIRC Camara has told the panel that Psystar is suing Apple in Florida for
damages on the grounds that Apple's EULA terms regarding prohibition of
interoperability are illegal and that Apple enforcement of such illegal terms in
the 9th Circuit has resulted in Psystar ceasing operations and thus creating
substantial damages to be awarded to Psystar.

So at the moment it is not entirely impossible that will
end up paying $$$$$$$ to Psystar.

OTOH it is absolutely set in stone that isn't going to
pay already awarded damages to Apple no matter whether under contract or
copyright or both remedies because Psystar doesn't have the money.

[ Reply to This | # ]

The Psystar Appeal - Hearing (audio)
Authored by: Anonymous on Wednesday, December 01 2010 @ 01:29 PM EST
I was surprised how short the hearing was.

Paystar said they aren't appealing the question of whether they violated the
software license, but that they shouldn't be subject to Copyright and DMCA
penalties. They said "copyright abuse" had been defined as claiming
copyright damages for something other than infringement of the rights specified
under the copyright act and that Apple was trying to claim damages for how the
OS was used (on non-Apple computer) not copying. They say the penalties for
violating the license should be decided by contract law. They dismiss as
mechanics how the OS was installed on the computers, that since they purchased
and provided a boxed copy with each computer they were ok as far as copyright
law was concerned.

Apple says Paystart took a copy of Mac OS X, installed it on a Mac, modified it
(creating a derivative work), put that derivative work on a copying system to
make hundreds of copies that they then distributed. They say distribution of a
derivative work is one of the rights protected by the copyright act. They say
the fact Paystar also bundled a sealed boxed copy of the unmodified OS with each
computer is irrelevant.

They both cited various cases from this circuit or others and how they did or
did not apply to this case.

[ Reply to This | # ]

Impact on GPL?
Authored by: Anonymous on Wednesday, December 01 2010 @ 01:44 PM EST
Is there an impact on GPL enforcement if Paystar wins?

The GPL says if you distribute binary copies of a GPL work, you must include or
make available the source (also under GPL). If you don't, then you are
distributing copies of a copyright work without a license in violation of

The key point is that the GPL is a license not a contract.

Paystar wants its damages to be under contract law rather than copyright law.
Direct financial damage from distribution of GPL software without source or GPL
license information is $0 -- loss of potential reputation gains of GPL software
authors and unjust reputation gains from the copiers being rather ephemeral. Not
having the hammer of copyright damages would remove any financial downside to
violating the GPL.

On the other hand, Paystar is claiming their inclusion of boxed copies of OSX
are covering their copying. In the GPL case, any binary distribution is a
derivative work of the GPL'd source. Distributing that without the source would
be like Paystar distributing OSX without the boxed copy. So, maybe Paystar could
win without affecting GPL?

[ Reply to This | # ]

The Psystar Appeal - Hearing (audio)
Authored by: Anonymous on Wednesday, December 01 2010 @ 02:21 PM EST
What worries me is how there were lots of questions for
Psystar (indicating that the judge(s?) didn't fully
understand the thrust of his argument) but not so many for
Apple's guy.

Apple's argument seems to hinge on the copying inherent in
Psystar's manufacturing processes that preinstall the OS for
the convenience of the end user; my question is: If Psystar
had shipped a system that booted up and then required you to
insert a copy of the MacOS CD that it would then modify to
make work... would the ruling be different? They'd not be
copying any Apple IP anywhere; they could even sell the
system and the license separately.

And if the ruling WOULD be different... doesn't it suck that
we have laws that make things more inconvenient for users?
Isn't it the purpose of the law to make things _better_ for
end users, and not worse? What's failing here?

[ Reply to This | # ] 1:28, the first question, the first clue or a Lawyer Rendered Monosyllabic!
Authored by: webster on Wednesday, December 01 2010 @ 02:51 PM EST

or The End of Appellate Audio Releases...

Counsel had a difficult hearing that morning and left the local court
preoccupied. He realized he forgot to file an essential document just as he sat
down to eat his healthy, bag lunch, such as it was, but supplemented with
jalapeno chips and saltless nut snacks procured in the jaunt form court. He
immediately got up and trudged through the drizzle right back to the court he
had left fifteen minutes before. He filed on this deadline and marched right
back to lunch.

Putting case updates aside he decided to "lunchar" with the appellate
argument of the Apple-Psystar case at the head of Groklaw. Camara made a clear
organized opening choosing to hit copyright misuse by Apple first. He defines
copyright misuse as using copyright to enforce other rights not covered by
copyright such as license rights. Apple is trying it here to get exorbitant
copyright damages for a purported license violation.

Twenty-eight seconds into the second minute a female voice of a judge gently
interrupts with this question:

------"Well, isn't it true though that the that the software is
designed to operate the Apple hardware?"---------

Camara's lips parted, [his jaw did NOT drop], he thought deep and fast and
responded, "Yes, Your Honor." And no more. At the same time his
right brow furled as if to say, "Apropos of what?" of "So What
does that have to do with this argument?"

It was pretty clear to all that the dialogue had turned to some pretty
fundamental ground here, like shift-keys make capitals. Most of all it was
clear to the judge who asked the question. After the monosyllable answer and an
extremely awkward and lucid pause the judge darted into some hopefully
intelligent, relevant follow up, but the damage had been done. The color of her
slip is known. Both parties hope that amongst the three of the panel and their
law clerks they can do something sensible.

One of PJ's goals is to educate the legal world about the tech world.
Discretion is the better part of wisdom. With revelations like this the court
will either have to return to the silent era or swear themselves to silence.



[ Reply to This | # ]

Comes goes here
Authored by: indyandy on Wednesday, December 01 2010 @ 04:26 PM EST
I'll put in a couple of transcriptions I did ages ago but quite frankly I didn't
find them interesting enough to look for my Groklaw password to submit them.

A couple of questions:
1) How does one pronounce "Comes"? Does it rhyme with mums? tomes?
Gomez? Something else?

2) Am I alone in being unable to reply to the main article with Firefox? This
post submitted with SeaMonkey.

[ Reply to This | # ]

disabled citizens access
Authored by: whitleych on Wednesday, December 01 2010 @ 05:56 PM EST
Those who point to the expense involved of making something accessible forget
that the original service was not free either... The recording did not spring
into existence free of cost. Those same city buses did not simply appear on the
city streets complete with driver and maintenance staff for nothing. In fact,
those very roads had a price. Those without disabilities take government
services for granted yet most complain when those with disabilities seek to have
"equal" treatment under the law.

Why does having a disability make a citizen less worthy of participating in
their government?

[ Reply to This | # ]

Could Apple make other licensing conditions?
Authored by: Anonymous on Wednesday, December 01 2010 @ 06:19 PM EST
Could apple say you can only copy their software while wearing a pink shirt?
Standing on ones head? (ADA violation?)

I don't like shrink wrap agreements. I buy a book and I should be able to read
it, or shred it, or take out the pages and make paper airplanes (derivative

I understand that software, by its nature, typically requires copying to make
use of it. Needing a license to install, and another license to run it sounds

Software should be licensed like a book. One use/user at a time. (Including on
mulit-user systems)

What the case is really about is greed. Its all about Apple's profit margin.
Paystar sees it as an opportunity. Apple sees it as needing protection. If
Apple's margins were more like 10%, Paystar would have to sell at a loss.

[ Reply to This | # ]

Psystar puzzle - to me
Authored by: nola on Wednesday, December 01 2010 @ 07:43 PM EST
As somewhat of an aside to the current topic (but not so far as to go to the
off-topic thread :), I have always wondered about Psystar's original intent.

The "Apple hardware only" clause had not previously been tested in
court as
far as I know. So if Psystar wanted to push that boundary they would have
built a machine that could have OS X installed on
it, but not have done the installation. They would have been coy about what
OS's could be installed, probably saying only that "all popular operating
systems" would run.

But they chose the nuclear option, for some reason that entirely escapes me.
It's almost as though Apple set them up to create a case that would inevitably
have this result. I'm not suggesting that
Apple did so, but Psystar's various actions made them a much easier target
than might otherwise have been the case.

So, why? Who stands to gain? It's a real puzzle.

[ Reply to This | # ]

Microsoft pumps cash into IBM bete noire
Authored by: SilverWave on Thursday, December 02 2010 @ 01:28 AM EST
Microsoft pumps cash into IBM bete noire

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 | # ]

Mozilla [...] has also received pressure from advertisers about its efforts to limit tracking.
Authored by: SilverWave on Thursday, December 02 2010 @ 01:46 AM EST
In May, Mozilla engineer Dan Witte proposed a mechanism that caused cookies to
automatically expire when a user closed his or her Web browser. (By comparison,
most tracking cookies last for years). It only affected tracking cookiesónot
cookies that websites use to remember users' passwords or shopping-cart


Mr. Simeonov reached out to the chief executive of Mozilla, who put him in touch
with Jay Sullivan, vice president of products at Mozilla. The two spoke on June
9. Mr. Sullivan said Mr. Simeonov expressed concern that the change would prompt
advertisers to "go underground" to conduct even more surreptitious
forms of tracking. Mr. Sullivan said that Mr. Simeonov's comments
"supported what we were already thinking."

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 | # ]

  • Link - Authored by: SilverWave on Thursday, December 02 2010 @ 01:47 AM EST
The Psystar Appeal - Hearing (audio)
Authored by: Anonymous on Thursday, December 02 2010 @ 02:34 AM EST

The simplest method for converting this audio file is would be the "low
tech" method:

(1) computer running MS Windows, with WMA player sw
(with speaker out/line-out or headphone jack)
(1) computer running any OS, with software to record sound
(with microphone/line-in jack)
(1) audio cable to connect the two devices

No patents would be violated. (A lot of prior art on this method :-)

To play the audio on MS Windows computer, one would already have a
"license" if one is needed.

Now, _distributing_ the recording might require permission from the copyright
holder. Is there a precendent against distributing a court hearing? (i.e., a
photocopy of a court transcript) Or would it be similar to how PDFs of the court
transcripts are posted here already?



[ Reply to This | # ]

IMO, Camara needs to work on his delivery
Authored by: Anonymous on Thursday, December 02 2010 @ 06:00 AM EST
I don't say this to be mean, I say it because judges are only human. Listening
to interminable run-on sentences delivered in a whiny nasal monotone that raises
at the end? Like he's asking a question even when he's making a statement?
It's unlikely to assist the Justices in focussing on his arguments.

He sounds like he the facts in his head, but is having trouble presenting them
cogently. And as per his habit, he keeps reaching for the Big Argument, speaking
to Congressional intent rather than to the letter of the statues.

There's obvious talent there, but if it was my money on the table, I'd prefer to
have a more seasoned and compelling lawyer present my case. Like Apple's.

[ Reply to This | # ]

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