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Psystar Ramps Up Again, but Carr & Ferrell Says This Is Its Stop; Jammie Thomas' Final Lawyer Wants to Represent Psystar
Friday, July 17 2009 @ 03:31 PM EDT

Apple v. Psystar is going forward, whether Psystar enjoys it or not. The judge, US District Judge William Alsup, has set a date for trial, January 11, 2010, and the cut-off dates for discovery are set forth in the Second Case Management Order [PDF], after the parties filed a Second Joint Case Management Statement [PDF], which provides a kind of "state of the case" overview. The order also officially lifted the bankruptcy stay so this case can go forward. The last page is a suggestions form, where the judge asks the attorneys to provide any ideas for improvement by him or the court, to be offered anonymously. I've never seen that before, but then I have never been in a court in California.

Interestingly, it looks like Psystar will be going forward with new lawyers. There is a filing asking to substitute new lawyers for the Carr & Ferrell firm. The new lawyers Psystar wishes to substitute are Camara & Sibley, a Texas firm, and Welker & Rosario, a California firm, which agreed to serve as local counsel. They are all Harvard guys. As you may recall from Psystar filings in the bankruptcy, Carr & Ferrell's unpaid $88,468.84 bill is the largest debt that Psystar listed when seeking Chapter 11 bankruptcy protection. Camara & Sibley is the same firm that agreed to take on the Jammie Thomas case, when her first lawyer wanted out. And the firm presents itself as being willing to take on a case even very late in the process, even after adverse rulings. One can't help but recall, however, that the RIAA massacred Ms. Thomas-Rasset, or more accurately put her into perpetual, lifetime servitude.

Here are the two most recent documents in the docket:

07/10/2009 - 75 - ORDER SCHEDULING SETTLEMENT CONFERENCE. Signed by Magistrate Judge Bernard Zimmerman on 7/10/2009. (bzsec, COURT STAFF) (Filed on 7/10/2009) (Entered: 07/10/2009)

07/15/2009 - 76 - MOTION to Substitute Attorney filed by Psystar Corporation. (Grewe, Christopher) (Filed on 7/15/2009) (Entered: 07/15/2009)

The parties are told to hustle forward with all discovery needed to meaningfully participate in the settlement conference.

The transcript of the January 29, 2009 hearing about whether or not Psystar could amend its complaint is now available on Justia.com, by the way. If you find Psystar's EULA arguments about copyright misuse fascinating, that is your document. The judge tells the Psystar lawyer, Colby Springer of Carr & Ferrell, on page 8, that the judge isn't a geek, even if he might look like one, so he asks the lawyer to explain it all clearly for him. In so doing, he explains its point of view to us as well. I have to say Springer does a fabulous job of presenting his client's case. Psystar is going to miss them, I think. I'd say it boils down to one idea, that copyright covers only expressions of ideas, not hardware, and Apple is trying to spread copyright restrictions to hardware. The problem with that concept is it assumes the only thing you can put in a EULA license is whatever copyright covers.

James Gilliland, Apple's lawyer, stands up on page 11, and Apple's position in its essence is that it owns the copyrights and that gives it the right to restrict who gets to copy its software and also who gets to distribute it. He uses the illustration that if it owned the copyright on a novel, it could license out the right to publish a book in paper form while restricting the right to publish an audiobook. Absent market power, that kind of restriction is common. Of course, Psystar claims Apple does have market power, and it claims cases support its position that you don't even need market power to find copyright misuse. The judge threw out the antitrust claims. The key question then, that this case will have to resolve, Gilliland states on page 12, then, can licensing restrictions be copyright misuse in the absence of market power? We'll get to find out, as the judge ultimately allowed Psystar to amend its counterclaims with regard to that question, while denying another proposed claim. By allowing it as a counterclaim, instead of just a copyright defense, it broadens the impact the final decision will likely have, which is no doubt why Apple opposed it as a counterclaim. But it is now.

What happens next is the case goes to the Magistrate Judge Bernard Zimmerman for mediation or settlement, if possible. Magistrate Judge Zimmerman issued an Order Scheduling Settlement Conference [PDF] setting a settlement conference for July 30 at 9 AM in San Francisco. The parties are told to finish all needed discovery in order to participate in the settlement conference. Seriously? So does Psystar have to turn over its financial records in discovery now? Oh, wait. I think the dog ate them, IIRC.

The judge asks the parties to file a report about the case, and a brief "candid evaluation of the parties' likelihood of prevailing on the claims and defenses", and "any other information that party wishes not to share with opposing counsel." I've never seen anything like that. California is a trip. I wonder if that would work with SCO lawyers? I'm thinking no. No one expects the case to settle that day, I gather from the instructions, but the parties are encouraged to highlight what stands in the way.

Some of you have wondered why there is this move to separate Apple's hardware and software. Daniel Eran Dilger's Roughly Drafted blog has an article that talks about why Microsoft is struggling against Apple, and lo and behold, Apple's integration of hardware and software plays a vital part:

This model worked well for Microsoft through the 90s. However, particularly since 2001, Microsoft has had trouble keeping up with Apple’s Mac OS X development, particularly in the consumer space. Apple’s tight hardware and software integration has enabled the company to deliver a differentiated product that can move faster, eschew Microsoft’s legacy limitations and security flaws, and deliver new hardware features in ways Microsoft can’t, because Microsoft can’t force hardware makers to follow its plans. These factors are not only eroding Microsoft’s monopoly position in PCs, but have also worked to prevent its monopolization of new markets.
Hence Psystar? Maybe? Allegedly? You think?

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