decoration decoration

When you want to know more...
For layout only
Site Map
About Groklaw
Legal Research
ApplevSamsung p.2
Cast: Lawyers
Comes v. MS
Gordon v MS
IV v. Google
Legal Docs
MS Litigations
News Picks
Novell v. MS
Novell-MS Deal
OOXML Appeals
Quote Database
Red Hat v SCO
Salus Book
SCEA v Hotz
SCO Appeals
SCO Bankruptcy
SCO Financials
SCO Overview
SCO v Novell
Sean Daly
Software Patents
Switch to Linux
Unix Books
Your contributions keep Groklaw going.
To donate to Groklaw 2.0:

Groklaw Gear

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

To read comments to this article, go here
Psystar Makes Its Case In Bankruptcy Court, but Stay is Lifted Anyway
Tuesday, June 23 2009 @ 02:26 AM EDT

The bankruptcy court in Florida has granted [PDF] Apple's motion to lift the automatic stay, to allow the Apple v. Psystar case to continue to resolution in California:
The automatic stay imposed by 11 U.S.C. §362 (a) is lifted to allow the Infringement Action to proceed for all purposes through final judgment; provided that Apple must seek further relief from this Court before executing any money judgment obtained in the Infringement Action against the Debtor’s estate.
Psystar had filed an opposition [PDF] to Apple's motion to lift the stay. Attached as Exhibit C [PDF] was an affidavit from Psystar's President, setting forth Psystar's position. To no avail, alas.

So, it's off to the races. I'm sure Psystar just can't wait to make its EULA arguments. Of course, as is typical in bankruptcy cases, even if Apple wins, no money can be handed over without the bankruptcy court OKing it first. But that isn't, I suspect, Apple's primary goal anyway. They want the copyright infringement, as they see it, to stop.

Here's the docket entry:

06/15/2009 - 38 - Motion to Appear pro hac vice by James G Gilliland, Jr. Filed by Creditor Apple, Inc. . (Oriol-Bennett, Alexandra) (Entered: 06/18/2009)

06/17/2009 - 39 - Order Granting Motion To Appear pro hac vice (Re: # 38 ) (Pittman, Linda) (Entered: 06/19/2009)

06/19/2009 - 40 - Order Granting Motion For Relief From Stay Re: # 25 (Covington, Katrinka) (Entered: 06/22/2009)

By the way, do you remember that alleged "Open Source" blog where gumout, otherwise known as Daniel Wallace, and Terekhov used to hang out and plot strategy to undermine the GPL? You remember Daniel Wallace. The blog's gone now, noticed by Robert Ambrogio:
Not all these biglaw blogs are active. LexBlog describes a blog from Morris Manning & Martin that deals with the law surrounding open source software as dormant. To me, it appears dead. The link for the blog leads to an Italian-language blog about online gambling. This might suggest that even as some large law firms take small steps towards blogging, others are stepping away.
Of course there's always Internet Archive. It's weird, kind of like watching some of Psystar's arguments being born, y'all.

Here's the meat of Psystar President Rudy Pedraza's Declaration:

I, Rodolfo Pedraza, declare and state as follows:

1. I am the President and Co-Founder of Psystar Corporation, the Debtor and also one of the largest creditors in this matter.

2. On April 14th 2008 Psystar gained national attention, as it became the only competitor to Apple in providing hardware capable of running the OS X 10.5 Leopard operating system, hereafter referred to as Leopard.

3. Psystar Corporation legally purchases the Leopard software and resells it in unmodified form along with the Open Computers it manufactures (during the course of Apple's litigation Psystar has provided proof of legal purchase of these items).

4. In addition to the hardware and software, purchased from Apple, we also provide special software that allows our computers to understand how to run the Leopard operating system software (unmodified).

5. On July 3, 2008 Apple, Inc. filed a complaint against Psystar Corporation in the Northern District of California. Case No. CV 08-03251 WH.

6. Attached hereto as Exhibit A is a true and correct copy of Apple's EULA for Mac OS X 10.5.

7. Apple Inc.'s End User License Agreement (EULA) aims to prohibit the use of legitimately bought software on commodity hardware with a clause stating said software may only be installed on an "Apple-labeled computer". Apple, Inc., by and through their counsel, set out in a Goliath vs. David battle with the sole purpose of overwhelming Psystar's resources, with excessive motion practice and demands for discovery, in an attempt to remove competition with respect to OS X - compatible computers.

8. Attached hereto as Exhibit B is a true and correct copy of Psystar's Counter Suit.

9. Psystar Corporation in its counter suit against Apple, Inc., contests the legality of said agreement (EULA) on grounds that it violates the same copyright laws Apple is attempting to assert (copyright misuse). Additionally, we strongly believe Apple is also violating antitrust law (tying), which is unlawful in the State of Florida and many others states. Florida Antitrust Act of 1980, § 542.15 Florida Statutes. However, the latter argument was dismissed by the federal court and Psystar Corporation is not in a position to appeal at this point in time, but has considered addressing this issue on appeal and/or at a State level.

10. The pending issue before the federal court is not a matter of fact but rather a matter of law. Hence Psystar's counter suit seeking declaratory relief aims to resolve this dispute without further unnecessary and expensive discovery processes.

11. Unfortunately, Apple has been busy burying us in discovery in defense of their claim in an attempt to bankrupt us before getting to trial. This has overwhelmed our resources and prevented us from pushing forward with our declaratory relief claim.

12. Attached hereto as Exhibit C is a true and correct copy of Apple's responses to said discovery.

13. Attached hereto as Exhibit D is a true and correct copy of the complete docket in U.S. District Court, California Northern District (San Francisco) Case # 3:08-cv-03251-WHA.

14. During the course of the discovery period, Apple has failed to answer and instead has objected to all Interrogatories and/or Requests for Admissions in an attempt to further bury Psystar in legal bills without providing any information. This has incapacitated Psystar from continuing to dispute Apple's objections as all our resources have been utilized to defend their discovery disputes, as you can see from the docket. Apple has conducted extensive and unnecessary motion practice in this case not in the interest of judicial economy but rather in attempt to bankrupt Psystar. The same is true for its discovery practices.

15. Apple's intention is to overwhelm Psystar in order to circumvent the addressing of our counter suit. Our success in said counter suit would simultaneously dismiss Apple's pending litigation in view of the fact that all its causes of action stem from the EULA claim.

16. Several times this court has inquired as to whether or not Apple has gotten injunctive relief and the answer to this is No. It has been unable to seek such in over eleven (11) months of litigation. If their case is so cut and dried we would not be allowed to sell our computers.

17. Apple has asked for the stay in this case to be lifted in the interest of judicial economy and the interest of both parties. This is completely contradictory to its prior practices in the course of the case as its focus has been to stonewall our discovery and bleed us to death with frivolous discovery requests after we have made every effort to provide them all documents in our possession.

18. Apple, Inc.'s Motion for Relief from Stay incorrectly cites SCO, which filed for bankruptcy after an order entered on a motion for summary judgment. There has been no summary judgment motion filed or order entered in Apple v. Psystar, nor in Psystar v. Apple.

He sounds just like SCO, doesn't he? Psystar is David fighting Goliath, and their very excellent chances in litigation are being overwhelmed by big bad Apple, but given their chance, all Apple's claims will melt like snow on a summer day.


Can one of you brainiacs explain what in the world he might mean in number 4 by "special software that allows our computers to understand how to run the Leopard operating system software (unmodified)"?

Update: Please factor in Netka's article on where their code was taken from. Also, I thought I'd just note that whether or not they modify the software isn't the issue with a DMCA allegation. The issue there is access, not modification. If there is a system in place blocking access and you access anyway, then the DMCA jumps in, and Apple has such a claim. It doesn't even have to be a great system, by the way, from the cases I've read anyway.

  View Printable Version

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 )