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Psystar files suit against Apple in Florida - What Are They Thinking? - Updated
Friday, August 28 2009 @ 11:23 PM EDT

Psystar has filed suit against Apple in the U.S. District Court for the Southern District of Florida in Miami, asking for a declaratory judgment that it's legal for them to sell Apple's upcoming Snow Leopard on their nonApple hardware. I know. There is already litigation between these parties in California. What are they thinking?

They are thinking they'll sue in Florida over Snow Leopard, instead of Mac OSX Leopard. Get it? It's entirely different, they claim, technically and legally.

But that's not what it's really about, in my view. What it's about now, stage front and center, is what I told you I suspected the California litigation was really about: it's about first sale. This is, then, I believe, a legal effort to destroy the GPL. This is the second such effort. SCO was the first. Somebody really, really wants to destroy the GPL, not just Apple's business reputation.

Here's the docket:

08/27/2009 - 1 - COMPLAINT against Apple Inc.. Filing fee $ 350.00 Receipt#: 547285, filed by Psystar Corporation.(mmo) (Entered: 08/27/2009)

08/27/2009 - 2 - Summons Issued as to Apple Inc. (mmo) (Entered: 08/27/2009)

So, Psystar is trying for an end run around the California court, where it's obvious their goose is cooked. Here's the difference, according to Psystar:
8. The Psystar computers that run Mac OS X Snow Leopard are able to do so by running software, written by Psystar, that interfaces with the open-source portion of Mac OS X Snow Leopard. The manner in which Psystar computers run Mac OS X Snow Leopard is entirely different from the manner in which Psystar computers run Mac OS X Leopard. Both the technical details of Apple's attempt to tie Mac OS X to Macintoshes and the computer software that Psystaar uses to enable Mac OS X to run on Psystar computers changed with the release of Snow Leopard. Accordingly, the factual and technical issues in this case are entirely different from those at issue in the California litigation, which is limited to Psystar computers that run Mac OS X Leopard.
Here's what didn't change: Psystar and whoever is behind Psystar are exactly how they were before. They claim, by the way, that discovery is over in the California litigation, but you saw that the judge there just asked for supplemental briefing on a discovery dispute there. Blech.

They also want an injunction and damages, no less. They have resurrected the allegation that Apple is anticompetitive, collecting "monopoly rents", by tying hardware and software, and by not letting Psystar buy their software and put it on nonApple hardware. The court in California already ruled that Apple is not guilty of any antitrust violations, that there is no tying violation, but Psystar is like SCO. They don't care. If a court rules against their "tying" argument, they try another court, using whatever they can think of. Snow Leopard instead of Leopard. Psystar wants a do over.

This will give you a taste for the plausibility of their complaint:

2. Psystar computers outperform comparable Macintoshes sold by Apple, in large part because of the superior hardware that Psystar sells.
And here's the first sale part:
16. Psystar seeks first a declaration that its activities with respect to Mac OS X Snow Leopard do not constitute copyright infringement. Psystar intends to purchase every copy of Mac OS X Snow Leopard that it resells with its computers, as has been its practice with prior versions of Mac OS X. It purchases these copies both directly from Apple and through resellers like Amazon and Best Buy. The Copyright Act expressly permits Psystar to take steps necessary to run Mac OS X Snow Leopard on its computers, even if these steps require making incidental copies of Mac OS X Snow Leopard. See 17 U.S.C. § 117(a). The Copyright Act also expressly permits Psystar to resell the particular copies of Mac OS X Snow Leopard that it has lawfully purchased. See 17 U.S.C. §109 (the first-sale doctrine). Psystar's customers are then permitted by §117 to again make copies necessary to run Mac OS X Snow Leopard on their Psystar computers. Together, §§109 and 117 render Psystar's actions with respect to Mac OS X Snow Leopard not copyright infringement.
Oh, brother. Then Psystar adds, "Moreover, Psystar seeks a declaration that the license agreement is unenforceable for lack of privity and lack of consideration."

Of course, it wants the Florida court to also declare it isn't violating the DMCA with Snow Leopard. It doesn't "gain access to Apple's copyrighted work", and anyway, it says its acts "fall within §1201(f), which permits circumvention for purposes of achieving interoperability between a copyrighted computer program and other programs." But then it adds, "Any circumvention by Psystar is solely for the purposes of making Psystar's software (which allows Mac OS X Snow Leopard to run on Psystar's computers) interoperable with Mac OS X Snow Leopard."

Where to begin? It doesn't bypass but then again it does so legally. Is their new lawyer not a techie? Mac OSX doesn't need Psystar code to be interoperable with itself. And here's a question: Psystar claims that it doesn't use anything but the open source Apple code with Snow Leopard. If that is so, does Psystar carefully remove all the proprietary code before distributing to customers? If not, what part of copyright law gives Psystar distribution rights to Apple's proprietary software code bundled in with the rest?

I'm sorry, but Psystar lost fair and square in California on the antitrust claims. To try to do it again in Florida makes a mockery of the legal system, in my view. And to put the cherry on top, Psystar asks for money damages for "lost sales and injury to Psystar's business reputation and to the reputation of its personal computer products." Treble damages. When Psystar says they are cowboys, they don't mean Roy Rogers.

It's docket #: 1:09-cv-22535-WMH, Psystar Corporation v. Apple Inc.

By the way, Bloomberg is reporting that Apple says iPhones with shattered screens "showed outside pressure caused the cracking", not batteries overheading:

“In all cases the glass cracked due to an external force that was applied to the iPhone,” Alan Hely, a London-based spokesman for Apple Europe, said in an e-mail. “There are no confirmed battery overheating incidents for iPhone 3GS and the number of reports we are investigating is in the single digits.”

Apple, based in Cupertino, California, has sold 26 million iPhones since introducing the product in 2007.

Wouldn't it be weird if some folks were falsely accusing Apple? Who would want Apple to get bad press?

Update: Psystar has issued a company statement, "setting the record straight", and here is part of it:

Apple has done a great job creating a stylish and functional operating system. That’s why we buy and use Apple products. We never set out to conquer Apple, what we wish is to coexist with Apple as a competitor in the industry.

It is our goal at Psystar to offer a great product (OS X) to people who are not included in Apple’s target market. Steve Jobs has even said, “There are some customers which we choose not to serve.” Some people simply cannot afford an Apple computer. Others would like to see better performance from their machines with hardware configurations that Apple does not provide. Our Psystar machines were developed to fill niches that a larger corporation like Apple doesn’t serve.

Then perhaps Psystar should consider writing its own operating system and hence offering normal and actual competition?

And it's put out a press release about its latest offering, which hilariously ends by saying you can't install XP:

Psystar Announces the Release of Their Complete Computer Systems with the Rebel Series

Psystar, the leading manufacturer of OS X- compatible PCs, is now offering the Rebel series, pre-installed OS X machines complete with a monitor, wireless keyboard & mouse. The Rebel 19" and the Rebel 22" ship ready to use from the box, and as compared to Apple's iMac line, offer the most affordable PC running OS X.

Miami, FL (PRWEB) August 27, 2009 -- - Psystar, the leading manufacturer of OS X- compatible PCs, is now offering the Rebel series, pre-installed OS X machines complete with a monitor, wireless keyboard & mouse. The Rebel 19" and the Rebel 22" ship ready to use from the box, and as compared to Apple's iMac line, offer the most affordable PC running OS X. Expandable, faster and cheaper than a similarly configured iMac the Rebel series boasts as much as a 66% improvement in processing power as compared to a similar iMac. Combined with the Darwin Universal Boot Loader (DUBL) that allows for the easy installation of additional hard drives, each configurable with an OS of your choice*, our Rebel machines are the next evolution in computing power.

The Rebel 19" ships with a 19" monitor, 2.33 GHz Intel Quad Core processor and 500 GB hard drive. With more processing power, a larger hard drive and a superior graphics card than the iMac 20", the Rebel still comes in at a more affordable price at $899, a savings of $300 as compared to Apple's hardware. Unlike Apple's computers, which can be difficult and cumbersome to upgrade hardware, Psystar machines allow for easy expandability.

Even the higher end iMac 24" cannot compete with Rebel 22" , which ships with a 3.0 GHz Intel Quad Core processor. Using benchmarking software, the Rebel 22" out performs the pricier Mac on a number of levels from Integer processing to memory bandwidth tests, with a 66% better overall score and at $1299, the Rebel 22" comes in at $900 less than the $2199 iMac 24".

The DUBL, now being offered in new computers shipping from Psystar, allows for the installation of additional hard drives, each with its own operating system*. The Darwin Universal Boot Loader can identify new hard drives attached to the computer and allows for the user to easily install a different operating system on it.

The Rebel series, coupled with Psystar's unique DUBL technology offers a machine which not only has better processing performance out of the box, but one that can adapt with you as your computing needs change. That our Rebels are faster, cheaper and more expandable than a comparable Mac is what has led to the claim that " Its not a Mac, its better!" For a direct comparison of hardware configurations and performance differences, visit Psystar.com.

*DUBL currently does not support the installation of XP.


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