Psystar Files Its Response to Apple’s Amended Complaint
- December 18th, 2008
- Apple Legal News, Psystar
- dizzle
On December 17, 2008, Psystar filed its Response to Apple’s Amended Complaint. In order to refresh your memory, here is a link to my prior article on what exactly was changed by Apple. In summary, in its Motion to the Court to allow this amendment, Apple stated:
“Through this motion, Apple seeks leave to file its Amended Complaint … attached hereto as Exhibit A, adds a Digital Millennium Copyright Act claim, additional factual allegations related to Apple’s previously asserted claims and Doe defendants. The DMCA claim is based on new information that Apple has learned since the filing of its original complaint.”
Psystar’s Answer to the Amended Complaint is now available on Justia (Docket Entry 41). Apple’s Amended Complaint is Docket Entry 38. As far as substantive matters are concerned, I will focus primarily on the Psystar’s answers to the most significant new information added by Apple, i.e. the DMCA count and the addition of the ten John Doe co-defendants. I do note that this time Psystar managed to correctly identify the case with the ten new defendants which they neglected to do in their last filings.
Before I get into those facts, I want to point out that once again, this new filing is inexcusably sloppy in some areas. Why do I have the chutzpah to say that? Everyone can make a mistake once. If that mistake or general trend is pointed out to them, and they repeat it (and are getting paid a small fortune for their services), it is not excusable neglect. I would be fired if this was a case I was assisting on as a paralegal and had proofreading responsibility for the work product. How do I know that Psystar and/or its attorneys are even aware of these mistakes (besides the fact that they are highly educated people who should know how to write a legal document using proper English)? I know this because I have a contact close to Psystar who talks to them nearly daily and relates the defects I have found as I tend to run around the office with marked-up copies of the filings pulled off of PACER and show them to anyone who will listen. I even provide this contact with a direct link to the articles in question. Does this mean that Psystar’s attorneys were told? I would hope so. If my attorneys were making public blunders in presenting my case, I would certainly tell them. Even if Psystar did not inform them, since this case has such a high profile on the Internet, an associate or legal assistant should be monitoring the Apple web to get a feel for the public opinion. Very few attorneys have the benefit of this free look into the mindsets and heuristics of the public. I monitor this case as it is reported in other blogs through a simple tailored search through Bloglines, and the World of Apple articles appear every time. I did not point out each and every defect the first time that Psystar filed its Answer, but I did point out the most embarrassing one. They misspelled “Mac” as “Max.” Ouch. That is bad. It shocked me to find that this error remains in this pleading.
So what exactly is wrong with this filing from a presentation and factual perspective? A great deal.
Page 1, Line 20: Psystar is referred to as the Defendant and Counterclaimant. Psytar is not currently a counterclaimant in this case. Psystar’s Counterclaim was dismissed, and the Court has not yet ruled on whether or not it will allow the filing of Psystar’s First Amended Counterclaim. It is my wish that the Judge refuse to allow its filing until it is properly proofread so as to teach them a lesson that it is disrespectful to the Court to file such sloppily written documents.
Page 5, Lines 4–5: “PSYSTAR likes denies the assertion that any trade dress is distinctive and again notes the functionality of the same.”
PSYSTAR “likes denies”? Is this some form of Valley-speak?
Page 5, Lines 6–7: “PSYSTAR admits that for a period of several hours on one day that PSYSTAR colloquially referred to certain computers by the name of ‘OpenMac’ ….”
Colloquially? Really? Does Psystar think that Judge Alsup just fell off the turnip truck? Here is the definition provided by the Dictionary program on my genuine Macintosh MacBook:
colloquial |kəˈlōkwēəl|
adjective
(of language) used in ordinary or familiar conversation; not formal or literary.
A sales page on a business site is not ordinary or familiar conversation, most particularly when the “formal” name is not included.
Was Psystar’s use simply colloquial? Take a look at the Google search results for Psystar + OpenMac and see if you can say with a straight face that all these news services within days all adopted some familiar colloquialism. Better yet, a picture is worth a thousand words; here are some pictures of what was actually on Psystar’s site for approximately one day.
The author of that Flickr page was prescient in noting:
Thought I should grab a shot of this before Apple Legal gets wind of it and the proof disappears.
From the ad copy: “The highly extensible OpenMac is a configuration of PC hardware capable of running unmodified OS X Leopard kernels. If you purchase Leopard with your OpenMac we will not only include the actual Leopard retail package with genuine installation disc, but we also include a Psystar restore disc for your OpenMac and we will preinstall Leopard for free so you can begin to use your computer right out of the box.”
Which was suddenly changed to the following image:
Here is some captured copy from Psystar’s own site:
“When comparing base configurations, the Mac Mini costs 150% of the price of the OpenMac while offering poorer performance, smaller storage space, and RAM. Not only that but the Mac Mini doesn’t have the option for an nVidia GeForce 8600 video card like the OpenMac does so playing games on it is a lost cause.”
Here is an example of hyperlink text to an old link that was once on Psystar’s site and reported on multiple sites:
http://www.psystar.com/psystar_openmac_osx86_reinventing_the_wheel.html
Obviously, the link no longer works, and since it was up for a very short time, the Internet Archive does not have a stored version of it. But seriously folks, do you buy that this was simply some innocent “colloquial” labeling? No, I didn’t think so. If you did, boy do I have a bridge to sell you at a great price! And I don’t think that the Court is going to buy it either. Honesty is the best policy. Psystar should have just took it like men and admitted that they called it the OpenMac but upon further consideration (or advice of counsel) decided that was not a good business move and quickly rectified the situation. As it stands now, I feel like this statement in a Federal Court filing is spinning the facts so obviously that the author must think the readers of this filing are hopelessly naive.
Page 5, Lines 15–17: “PSYSTAR admits that it sells a computer model referred to as the OpenPro but denies that it is named after the MacPro® or any other APPLE product; ….”
Do you believe that? I don’t, particularly considering the above evidence. At this point, their credibility is shot. But it is even worse. Psystar cannot properly spell the name of Apple’s product: it is Mac Pro not MacPro. The correct spelling is in Apple’s own Amended Complaint which one would think that the responding attorney would be reading as he prepared Psystar’s Answer.
Page 5, Lines 24–27; Page 6, Lines 1–2: “PSYSTAR denies the allegations in the final sentence of paragraph 12 of the First Amended Complaint, specifically: that PSYSTAR makes copies of the Leopard software; that PSYSTAR offers downloads of ‘updates’ to the Leopard software from the website www.psystar.com;…. … the PLAINTIFF; and/or that PSYSTAR generates unauthorized, modified versions of software updates from the PLAINTIFF.”
Really?
“Safe updates, as well as bug fixes and workarounds, are now available in our Support section,” Psystar says on its website. “We have released a couple of fixes for things like Time Machine as well as a fix for DHCP issues that some customers are having. Computers shipped as of today have all updates available preinstalled with Leopard.”
“The boot time grew longer, as well, after I downloaded the Mac OS X 10.5.3 update from Psystar. The company “vets” all software updates from Apple to essentially make sure that you don’t download something that would hose your Open Computer.”
(Via CNET)
“We have released a scripted installer for the 10.5.3 update for the Apple operating system. The scripted installer has cumulative fixes for Open Computers. If your Open Computer does not have OS X Leopard 10.5.3 you may download and perform this update. This update will also activate OS X Leopard’s built-in automatic updater which will allow you to perform safe updates from Apple through the built-in Software Update utility. Installation instructions are to be found here.”
(Via ars technica quoting Psystar’s site)
Here is the best one, the whole story painted in vivid colour:
(Via Google’s cache of http://psystar.com/1053_update_available.html. It is a snapshot of the page as it appeared on Dec 4, 2008 23:05:35 GMT.)
Page 6, Line 8–10: PSYSTAR denies the allegation that it provides technical and support and assists its customers in an effort to violate the terms of the Software License Agreement.
I wonder what technical and support is? I think a stray “and” landed in the wrong place. Sloppy.
Page 6, Lines 22–23: PSYSTAR denies that its action have and/or continue to cause harm to the PLAINTIFF…”
My baloney detector broke with that one.
“When we asked about Apple’s EULA for Leopard and that no one was allowed to use Leopard on a computer that wasn’t Apple-labeled, Pedraza said “we’re going to do it whether Steve Jobs likes it or not.”
It seems to me that the ever-so-eloquent-with-the-trash-talk Rudy Pedraza knew fully well that this would cause harm to Apple. Unless we believe that Steve Jobs just wouldn’t like it because he once got a sunburn in Miami.
By the way, I requested an interview with Rudy Pedraza and was denied. Why? Because his lawyers said no? No. The reasons were much more base than that; none of it having to do with the fact that I have a low opinion of his company. I am still trying to secure the interview. His lawyers can be present, I don’t care.
Page 6, Lines 27–28; Page 7, Lines 1–2: “PSYSTAR denies that it has engaged in any action that is unfair, unlawful, exploitive, or that otherwise causes consumer confusion and injury nor that any such action has ever existed.”
Can you spot the grammar error nor not? I bet you can.
Page 7, Lines 3–5: “PSYSTAR admits that APPLE contends that persons other than PSYSTAR are involved in the activities alleged in APPLE’s First Amended Complaint. PSYSTAR denies that said activities are unlawful and improper.”
Interesting. They don’t deny that other persons are involved but only deny that any such involvement is unlawful. The plot thickens. It appears that Apple is correct, and CrunchGear put its foot in its collective mouth. Who are the ten John Does? Contrary to the opinions of some very notable people including John Gruber, I do not believe it is the OSx86 community but rather some investors who would prefer to remain unnamed. This will all come out in discovery. Whether we, the reading public, ever learn this information is uncertain. Discovery is not required to be filed with the Court, and unless it is used as proof for some filing, or Apple makes good on its promise to move to amend its Complaint to include the known names, it may remain an intriguing secret.
Page 8, Lines 3–5: “PSYSTAR admits that the PLAINTIFF claims to license the use of the Mac OS for use only on Apple-labeled hardware although PSYSTAR is without information or knowledge as to what this otherwise vague and ambiguous terminology (i.e., Apple-labeled hardware) refers.”
Get a shovel ’cause its getting really deep. Do you believe that Psystar in good faith is without information or knowledge as to what “Apple-labeled hardware” means?
Page 8, Lines 26–28: PSYSTAR similarly notes that the PLAINTIFF has never denied PSYSTAR the authorization to install, use, or sell the Mac OS software on any non-Apple-labeled hardware until the filing of the present action.
Really? Psystar in another place in this filing admits the existence of the license agreement but here denies that Apple has ever denied them authorization? Is this some well-guarded secret? Once credibility is lost, it can be impossible to regain. Psystar has absolutely nothing to gain by making such ridiculous and internally contradictory statements.
Page 9, Lines 17–18: PSYSTAR denies the allegations of paragraph 27 including the allegation that PSYSTAR has in anyway infringed any of the PLAINTIFF’s exclusive rights under the Copyright Act.
Maybe I am wrong, but I think they meant “any way” rather than “anyway.” The word and the phrase have two different meanings.
Also of note, Psystar still maintains its utterly silly denial that Apple is “[a] pioneer of the personal computer revolution.” (Page 2, Lines 13–15). I wonder if Psystar would deny that the sky is blue?
Now let’s dive into the DMCA claim at issue. Following is Apple’s Count in full (Page 11, Lines 4–28; Page 12, Lines 1–17):
THIRD CLAIM FOR RELIEF
(Violation of Digital Millennium Copyright Act)
(17 U.S.C. § 1201, et seq.)
43. Plaintiff incorporates herein by reference each and every allegation in the preceding
paragraphs.
44. Apple employs technological protection measures that effectively control access to
Apple’s Copyrighted Works.
45. Defendant has illegally circumvented Apple’s technological copyright protection
measures that control access to Apple’s Copyrighted Works.
46. Defendant has admitted that Apple’s Mac OS X normally “will not operate on anything
other than Apple-labeled computer hardware” but that Defendant has “developed [its] own code that
allows it to operate on a non-Apple-labeled computer system” and that such code overrides or gets
around Apple’s embedded codes.
47. Apple is informed and believes, and on that basis alleges, that Defendant’s “code” is
used to circumvent a technological protection measure since it avoids, bypasses, removes,
descrambles, decrypts, deactivates, or impairs a technological protection measure without Apple’s
authority for the purpose of gaining unauthorized access to Apple’s Copyrighted Works.
48. Apple is informed and believes, and on that basis alleges, that Defendant has
manufactured, imported, offered to the public, provided or otherwise trafficked a product, device,
component, technology, software, or “code” (“the Circumvention Devices”) that are primarily
designed or produced for the purpose of either circumventing Apple’s technological protection
measures that effectively control access to Copyrighted Works, or allowing third parties to access
Apple’s Copyrighted Works without authorization.
49. Apple is informed and believes that that the Circumvention Devices have only limited
commercially significant purpose or use other than to circumvent a technological protection measure
that effectively controls access to Copyrighted Works, or are marketed by Defendant for use in
circumventing a technological protection measure that effectively controls access to Copyrighted
Works.
50. Apple is informed and believes, and on that basis alleges, that Defendant has realized
profit by virtue of its circumvention of Apple’s technological protection measure and trafficking in
circumvention devices.
51. Apple has sustained economic damage as a result of Defendant’s circumvention of
technological protection measures and trafficking in the Circumvention Devices in an amount to be
proven at trial.
52. Apple is entitled to recover the actual damages it has suffered and/or any profits gained
by Defendant that are attributable to its circumvention of access controls and trafficking in the
Circumvention Devices pursuant to 17 U.S.C. § 1203(c)(1). Alternatively, Apple is entitled to the
maximum statutory damages allowed under 17 U.S.C. § 1203(c)(2). Apple will make its election at
the appropriate time before final judgment is rendered.
53. Pursuant to 17 U.S.C. § 1203(b), Apple is entitled to an injunction against Defendant’s
continuing circumvention of access controls and trafficking in the Circumvention Devices.
54. Apple is further entitled to recover its full costs and reasonable attorneys’ fees pursuant
to 17 U.S.C. § 1203(b).
Now here is Psystar’s response in full to the DMCA count filed by Apple (Page 10, Lines15–28; Page 11, Lines 1–20):
THIRD CLAIM FOR RELIEF
(Violation of the Digital Millennium Copyright Act)
43. PSYSTAR repeats and incorporates by reference its admissions and denials as set forth in
paragraphs 1-42 of the present Answer.
44. PSYSTAR denies that APPLE employs technological protection measures that effectively
control access to APPLE’s Copyrighted Works.
45. PSYSTAR denies the allegation that it has circumvented a technological copyright
protection measure that controls access to APPLE’s Copyrighted Works.
46. PSYSTAR admits that it has developed means to allow the Mac OS X to operate on non-
Apple-Labeled computer hardware systems; PSYSTAR otherwise denies the remaining allegations
of paragraph 46 of APPLE’s First Amended Complaint.
47. PSYSTAR denies that its “code” circumvents a technological measure by virtue of
avoiding, bypassing, removing, descrambling, decrypting, deactivating, or impairing a
technological protection measure in order to gain unauthorized access to APPLE’s copyrighted
works.
48. PSYSTAR denies that it manufactures any product, device, component, technology,
software, or ‘code’ that is primarily designed or produced for circumventing any so-called
technological protection measure that effectively controls access to copyrighted works or that
allows third parties to accomplish the same.
49. PSYSTAR denies the allegations of paragraph 49 of the First Amended Complaint
including the assertion that PSYSTAR manufactures or markets a so-called Circumvention Device.
50. PSYSTAR denies the allegations of paragraph 50 of the First Amended Complaint
including the assertion that PSYSTAR has realized a profit by virtue of circumvention of any
technological protection measure or trafficking in a circumvention device as is falsely alleged by
Apple.
51. PSYSTAR denies the allegations of paragraph 51 of the First Amended Complaint
including the assertion that APPLE has been damaged by virtue of PSYSTAR’s alleged
circumvention of any technological protection measure or alleged trafficking in a circumvention
device for at least the reasons that PSYSTAR has not engaged in any such activity as is falsely
alleged by Apple.
52. PSYSTAR denies the allegations of paragraph 52 of the First Amended Complaint.
53. PSYSTAR denies the allegations of paragraph 53 of the First Amended Complaint.
54. PSYSTAR denies the allegations of paragraph 54 of the First Amended Complaint.
Okay, I am not terribly familiar with the DMCA and plan on doing some serious cramming to get up to speed. However, it again seems fairly obvious that Psystar is arguing in an internally contradictory manner. Psystar has already admitted that it utilizes a workaround in order to prevent OS X from going into a kernel panic when it detects that it is installed on a non Apple-labeled computer. For instance how do these two statements make sense at all when read together?
46. PSYSTAR admits that it has developed means to allow the Mac OS X to operate on non-
Apple-Labeled computer hardware systems; PSYSTAR otherwise denies the remaining allegations
of paragraph 46 of APPLE’s First Amended Complaint.
47. PSYSTAR denies that its “code” circumvents a technological measure by virtue of
avoiding, bypassing, removing, descrambling, decrypting, deactivating, or impairing a
technological protection measure in order to gain unauthorized access to APPLE’s copyrighted
works.
All the while later in the pleading going into great detail how Apple has embedded code into OS X so that it will only function on its own labeled hardware. The core of the DMCA issues here appear to be two-fold:
1. Does Apple use technology that requires circumvention in order for OS X to run on non Apple-labeled machines? (Psystar argues out of both sides of its mouth on this one.)
2. Is there circumvention technology that is being used in order to allow OS X to run on non Apple-labeled machines, and does this technology have meaningful usage outside of its circumvention abilities?
A qualified and licensed attorney (I am neither) would need to be consulted to determine if there are other core issues. This is my lay opinion and nothing more.
This too is very interesting. Here is Apple’s allegation in Paragraph 56 of its Amended Complaint (Page 12, Lines 22–26):
FOURTH CLAIM FOR RELIEF
(Breach of Contract)
…
56. Apple is informed and believes, and on that basis alleges, that Psystar has acquired
Mac OS X version 10.5 software, that Psystar opened the box in which the software disk and license
were packaged, opened the seal on the shrink-wrapped software disk, and thereafter installed the
Leopard operating system and/or Leopard Server software on computers. By so doing Psystar
accepted the terms and conditions of the applicable License Agreement.
Here is Psystar’s response to that paragraph (Page 11, Lines 27–28):
FOURTH CLAIM FOR RELIEF
(Breach of Contract)
…
56. PSYSTAR denies the allegations of paragraph 56 of the First Amended Complaint in that
the software disk is not sealed or shrink-wrapped.
I don’t recall; is the software disk shrink-wrapped? Did Apple make an error in this statement and perhaps should have alleged that the retail box is shrink-wrapped? In any event, I think it is patently obvious that something shrink-wrapped was opened, and although Psystar’s lawyers must deny it was the disk if it in fact wasn’t, it still seems to be tilting at windmills.
Page 14, Lines 1–3:PSYSTAR is without information or knowledge as to the nature of existence of the unidentified “various marks or . . . [purportedly] distinctive trade dress” referenced in paragraph sixty-two of the First Amended Complaint and on that basis denies those allegations.
The nature of existence? Animal, vegetable, or mineral? Or perhaps did Psystar intend to say “the nature or existence”? I think the latter. If so, more sloppiness.
Page 15, Lines 1–3: PSYSTAR denies that PLAINTIFF’s alleged Trade Dress is distinctive with respect to the Max OS X Leopard operating system and whether the same distinguishes PLAINTIFF’s goods and services and on that basis denies the allegations of paragraph 90.
Huh? Something went horribly wrong after the phrase “operating system,” and I can only guess as to what Psystar intended to say.
After answering the allegations in Apple’s Amended Complaint, Psystar alleged its own Affirmative Defenses. These are items which, if proven, serve to mitigate or nullify Apple’s allegations, even if they are true. Following are some of the more interesting ones that I have not previously mentioned in prior articles.
(Page 19, Lines 11–12):
10th Affirmative Defense
Any reproduction, display, derivation, or distribution of any valid copyright of the PLAINTIFF by
PSYSTAR is a fair use protected by the provisions of 17 U.S.C. § 107.
Fair use!?! No, they are not kidding.
(Page 22, Lines 8–16):
Twenty-Second Affirmative Defense
(Nominative Use of Trademark)
The use of any trademark of the PLAINTIFF by PSYSTAR is a nominative fair use in that the
PLAINTIFF’s product or service is not readily identifiable without the use of the trademark;
PSYSTAR only uses as much of the trademark as is reasonably necessary to identify the
PLAINTIFF’s products or services; and PSYSTAR does nothing that would, in conjunction with
the trademark, suggest to the relevant consuming public a sponsorship or endorsement by the
PLAINTIFF.
Nominative fair use!?! No they aren’t kidding here either.
(Page 22, Lines 8–23):
Twenty-Third Affirmative Defense
(Fair Use of Trademark)
The use of any trademark of the PLAINTIFF by PSYSTAR is protected by the Fair Use Doctrine
and/or the First Amendment including but not limited to parody, non-commercial use, product
comparison, and/or non-competing/non-confusing use.
The First Amendment!! Oh my. Though I suppose it can be argued that the poor quality of these machines is a sick parody of the real thing. The leader of my Mac User Group serviced a Psystar machine and when he opened the casing, he found packing popcorn inside.
Here is the text of the First Amendment in case you are not American and unfamiliar with our Constitution or someone who simply hasn’t read it in a while:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Psystar, you have rendered me speechless. That is an accomplishment.
(Page 24, Lines 1–5):
Twenty-Eighth Affirmative Defense
(Illegality)
PLAINTIFF’s claims are wholly or partially barred because the contract is unenforceable on the
grounds illegality.
What precisely is “grounds illegality”? I don’t know. Sloppy.
(Page 25, Lines 13–18):
Thirty-Fourth Affirmative Defense
(Frustration of Purpose)
Enforcement of the alleged contract by and between the PLAINTIFF and PSYSTAR as alleged by
the PLAINTIFF would frustrate and cause the alleged contract to operate in a manner contrary to
the purpose of the same.
How it would do this is not explained, and it is beyond my hyperactive powers of imagination to even venture a wild guess.
(Page 26, Lines 26–28):
In Unix style operating systems like that of the Mac OS, the kernel routines that handle panics are generally known as panic(). Panic() routines are generally designed to output an error message to
the display device of the computer, dump an image of kernel memory to disk for post-mortem
debugging, and then await either manual reboot of the system or automatically initiate the same.
Okay, I am not a gal that plays around in the Terminal. Readers, is the terminology of “panic()” correct? I have never seen a kernel panic described in that manner with the empty parentheses, and a quick Google search did not enlighten me. By the way, it is “Unix-style” not “Unix style” if you want to be precise.
(Page 28, Lines 13–14):
There is no specific reason as to why this infinite loop is present in the code as the kernel is capable of restating/rebooting on a much broader range of hardware.
Restating? If anything I believe that Psystar’s pleadings prove the folly of relying too heavily on automated spell-check. Human beings are still necessary.
I saved the best for last as this is something that I had already pointed out here and to my contact for Psystar.
(Page 8, Lines 13–22): PSYSTAR admits that a license agreement is attached as Exhibits 1 and 2 to the First Amended Complaint but is without information or knowledge with respect to whether those agreements are provided with each version of the Mac OS X or Max OS X Server and on that basis denies the allegations of the first sentence of paragraph 22 of the First Amended Complaint. PSYSTAR admits that the quoted language matches that language as provided in the exhibit attached to the First Amended Complaint claiming to be the Mac OS X license and, further, that said quoted language also corresponds to that language in the exhibit purporting to be the Max OS X Leopard Server License Agreement; PSYSTAR otherwise denies all remaining allegations of
paragraph 22 of the First Amended Complaint including whether or not said terms are valid and/or
enforceable.
Max OS X? This error also appears on Pages 9 and 10 and are the exact same errors that existed in the original Answer. Maybe that is what is going to be announced at Macworld.
Did I mention that I found this filing sloppy? Okay, I just wanted to be sure.
Note: Some of the formatting of the quotations appears odd due to copying from .pdf files, and I don’t know how to avoid that happening. None of the odd page breaks appear on my edit screen even though they appear in the published product. If someone does know how to avoid this, I would appreciate the tip.
Errata 12/18/08: Corrected minor grammar errors.
