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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


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