Category: Psystar

Psystar Files Reply Brief

Hot on the heels of my last report, Psystar has filed its Reply Brief in response to Apple.

Copyright Misuse

Psystar asserts that copyright only governs copying and not restrictions on use. Even at first blush, this appears absurd. I cannot play a non-copied movie for a public audience at a theater. Psystar (in my opinion) deceptively spins Alcatel in claiming:

For all Apple’s attempts to distinguish that case, R. Br. at 35-37 — the only case about use of a copyright in an operating system to control the user’s choice of hardware, and thus the only case squarely on point – Apple must admit that the Fifth Circuit held that it was misuse to prevent a competitor from offering compatible, cheaper hardware for use with a copyrighted operating system.

Here is a link to the case. Read it for yourself. Psystar conveniently ignores the fact that the case deal with hardware components (replacement parts).

It pulls a similar sleight of hand with the Practice Management case. In that matter, the AMA tried to prohibit the use of competing medical codes, not to control the use of their own medical codes. Psystar remarkably tries to claim that this is even more damning to Apple. Huh? Once again, please go read the case for yourself.

Stifling Creativity

Of course Psystar denies Apple’s position that their copyright restrictions do not stifle creativity. But once again Psystar falls into dysfunctional thinking. Apple’s claim was that there is no dampening of creativity to create competing operating systems. Psystar claims that it stifles competition creativity in hardware systems that can run Apple’s work. But that is not the focus in determining copyright abuse.

Tying

At last! Psystar makes a relevant and accurate representation. It states that Triad (link to case) is distinguishable since the Triad software was never sold apart from the hardware while Apple does sell the operating systems separately and wants to control after-purchase use.

But then they straight into Oz:

(Page 10) Finally, it is worth taking a step back to look at a strange feature of Apple’s position. Apple admits that if it required OS X to be the only operating system that a user used on his Macintosh, then that would be copyright misuse. R. Br. at 34-35. But Apple denies that, if, instead of creating an exclusive operating system, it required that its operating system system be used exclusively on Macintoshes, that would be copyright misuse. It cannot be that misuse exists where a copyright owner tries to use copyright to make his copyrighted work exclusive, but not when he tries to use copyright to make an adjunct, uncopyrighted work exclusive.

No. No. No. Apple stated that if (and didn’t even state this on the pages cited by Psystar which say nothing of the kind) it required its buyers of OS X not to use other operating systems AT ALL (no mention was made of using them on a Macintosh) than THAT would be misuse. I have to wonder if there is a just an abysmal lack of reading comprehension or a blatant attempt to mislead the Court.

Scope of the Injunction

Psystar holds firm to its assertion that it didn’t need to accept the California Court’s invitation to examine Rebel EFI when it believed that the Court had no jurisdiction to do so since that issue was first-filed before the Florida Court. Psystar claims, “Apple’s discussion of the injunction misses this point entirely.” (Page 11) Huh? Apple addressed this specifically and at length (Pages 43 through 45).

Sealing Orders

Psystar clarifies that its basis to remove the sealing orders was that the information appeared in publications that Apple’s own experts admitted were authoritative. Since I don’t have access to all of the documents needed to assess this assertion, I cannot make a judgment. However, if the quality of analysis is similar to what came before, hope does not spring eternal.

Grammar Nazi nitpick: When filing a Federal Brief, one should know about the wonderful world of em-dashes.


In addition to her position as Assistant Editor at World of Apple, dizzle runs idrankthekoolaid, an Apple fangrl satire blog, and is an Administrator and Hostess at MyAppleSpace and their vidcast MASTv.

Status Update: Apple v. Psystar v. Apple

The Florida Court has granted Apple’s request for a stay of proceedings pending the outcome of the Appeal. This is typical and expected. The Florida Court had not yet ruled on Apple’s Motion to transfer the Florida case to Judge Alsup in California. On the Appellate front, Apple has filed its Answering Brief as well as a Motion for Judicial Notice.

Answering Brief of Plaintiff-Appellee Apple Inc.


Unlike the other early filings in the Appeal, this item was not filed under seal. It is broken into three primary categories which I will follow in digesting the Brief. I remind the readers that Appeals are limited to mistakes of law or fact and thus are usually much more narrow than the issues in the underlying suit. For example, Psystar did not appeal the dismissal of its antitrust counterclaims that were originally alleged in the California case. Nor did it ever supply the California Court with the requested information for a determination to be made on the Rebel EFI product which was enjoined until Psystar could prove that its operation was substantially different from the issues ruled upon. Based upon this latter fact, Apple argues that Psystar has waived its right to ask the Appellate Court to remove Rebel EFI from the Injunction.

We do learn some details about Psystar’s sealed Opening Brief. Apple alleges:

Nonetheless, on the pretext of educating the Court regarding the technology at issue in this case, Psystar supplies a “Technical Addendum” with its opening brief. This document appears to be a veiled attempt to revive factual claims the district court has rejected and Psystar has abandoned on appeal. (Page 11 of Answering Brief)

Psystar has more veils than a harem girl.

Psystar now asserts that installation of Psystar’s bootloader and numerous kernel extensions is unnecessary to run Mac OS X on Psystar computers absent the existence of Apple’s TPM [technological protection measure]. Opening Br. At 27. But this claim is contrary to the unchallenged factual record. For example, even if Apple did not implement its TPM, Psystar would still be required to modify Mac OS X by replacing the bootloder and modifying certain Mac OS X kernel extension files to force the operating system to run on non-Apple hardware. (Page 15 of Answering Brief)

And we get this interesting graphic of Psystar’s Pirates R Us operation (Page 11 of Answering Brief):

Pirates R Us

The District Court Correctly Rejected Psystar’s Affirmative Defense of Copyright Misuse

Psystar does not dispute that it is a copyright infringer. Instead, its defense is that the infringed copyrights are per se invalid due to Apple’s copyright abuse. However, per se copyright abuse would be a novel doctrine in contravention of existing precedent. In fact, the Ninth Circuit itself rejected this theory in the case of Triad Systems Corp. V. Southeastern Express Co., 64 F.3d at 1337 (9th Cir. 1995). Unbelievably, Psystar is arguing that Apple also abused its copyright by suing Psystar in the first place, an act it describes as sham litigation,—despite the reality that Apple prevailed. Apple argues that if Psystar were correct then nearly any software licensing would be invalid and undermine long-standing laws, rights, and business relationships. It is well-established that courts have rejected findings of copyright abuse when proprietary software is limited to use on specific hardware as long as the creator does not prevent other parties from creating their own competing software—something Psystar has acknowledged that its lacks the talent to do. In fact, a copyright owner could refuse to let ANYONE use the protected work. In order to prevail on copyright misuse in general (not the even more radical theory of per se copyright abuse) Psystar would have to show that Apple used its copyrights to create an unlawful monolopy or to inhibit competition and creativity.

The cases relied upon by Psystar do not have a bearing in this case. First, in Practice Management Info. Corp. V. American Medical Ass’n, 121 F.3d 516 (9th Cir. 1997), the copyright owner extracted a promise that the consumer would abstain from using competing products regardless of any infringement on the copyrighted work. That is not the case here. In fact, Apple makes it easy to use competing operating systems with its Boot Camp feature. Second, in Alcatel USA, Inc. V. DGI Technologies, 166 F.3d 772 (5th Cir. 1999), Alcatel effectively prohibited the addition of any non-Alcatel peripherals or components to its systems. Of course this is also not the case here. Psystar, however, attempts to stretch the facts by claiming that the microprocessor cards in Alcatel are analogous to an entire Macintosh computer. Even if this were so, competing hardware exists, and more on point, the analogy is ridiculous. A more pertinent example would be after-market hard drive or memory.

When allegations of copyright misuse are grounded in tying software to another product, there is no misuse unless the copyright holder used the copyrights to limit competition in the market for the tied product. The market in this case has been ruled to be personal computers in general, and it is patently obvious that there is no lack of competition in hardware vendors. However, this can be overcome by a showing of market power being leveraged to harm competition. Apple may soon have to worry about this prong, but right now, its personal computers are still in the minority and in this matter, Psystar did not allege that Apple had market power in the relevant market as its theory of a separate market consisting of Macintoshes alone was shot down.

The District Court Correctly Enjoined Psystar’s Continuing Infringement and DMCA Violations

A lower court’s grant of Injunction can only be reversed based upon a showing of reliance upon an incorrect legal standard or clearly mistaken findings of fact. There is nothing in the record to show the Court misunderstood the facts or the law. Psystar cannot now allege a factual difference with its Rebel EFI product when it declined to produce such evidence to the Court granting the Injunction. Psystar attempts to claim that the Florida case is the “first-filed” for Rebel EFI but that is putting the cart before the horse. It was not products that were deemed unlawful in and of themselves, it was the infringing activity that was the basis of the California Court’s Injunction. If the infringing activity is similarly unlawful, it wouldn’t have to be re-litigated de novo each time Psystar conceived of a new parasitic product. Imagine the legal nightmare that would cause. No party could be assured of the final disposition of their rights. With Rebel EFI, Psystar admits in its Opening Brief that it is a continuation of the same infringing process ruled upon.Further, the Court properly enjoined infringing acts with Snow Leopard as it is a derivative work of Leopard in addition to the essential infringing activity being nearly identical.

The Sealing Orders Should Not be Vacated

Psystar claims that Apple’s TPM [technological protection measures] are already widely available so that sealing them is unnecessary. Apple counters that their trade secrets are not public and that the existence of websites which routinely speculate upon same does not deprive Apple of its rights. Apple does not acknowledge the validity of any of these speculations nor sanction them. The items sealed were narrowly confined to trade secrets and do not impeded upon the public’s ability to understand the case. There is one Order that Apple inadvertently submitted that was broader than the parties agreed. Psystar never brought this error to Apple or the Court’s attention and cannot sit upon such knowledge of a non-malicious mistake and attempt to play “gotcha.”

Apple Inc.’s Request for Judicial Notice


If a court takes Judicial Notice of something that means it will be accepted as fact without need for any further proof. This is commonly used for things such as a date falling on a certain day of the week or from nearly indisputable sources. This is within a court’s discretion. In this instance, Apple is asking the Court to take Judicial Notice of proceedings which are directly related to this matter and cites case law in which proceedings can be so introduced if they have substantial relation to the present matter. The cases which Apple is seeking to have recognized are the Florida District Court case and Psystar’s prior Bankruptcy case. I think this will likely be granted. The relevant filings from the California case are already before this Court.

It is unclear to me whether or not Psystar is allowed a rebuttal to this filing. If so, it should have been filed within seven days of the Answering Brief, which date has already expired. However, there are other relevant, and later dates, relating to Apple’s filing of the Answering Brief, so if a reply is forthcoming and allowed, it should appear any day.


In addition to her position as Assistant Editor at World of Apple, dizzle runs idrankthekoolaid, an Apple fangrl satire blog, and is an Administrator and Hostess at MyAppleSpace and their vidcast MASTv.

Apple v. Psystar Appeal: Extension Granted to Apple to File Reply Brief

As discussed here, Apple was due to file its reply to Psystar’s opening brief in the appeal. However, on June 15, 2010, the following docket entry is noted:

Filed clerk order (Deputy Clerk:CAG): The appellee’s motion for an extension of time in which to file the answering brief is granted. The answering brief is due July 8, 2010. The optional reply brief is due 14 days after service of the answering brief. [7372209] (AF)

It is expected that the entire Reply will be filed under seal, but we will check and let you know once it is filed.

There has also been activity in the Florida case as follows:


PAPERLESS ORDER SETTING STATUS CONFERENCE AND REQUIRING MEDIATION. ( Status Conference set for 7/21/2010 11:30 AM in Miami Division before Senior Judge William M. Hoeveler.)This conference will be held at Federal Courthouse Square, Courtroom 9, Ninth Floor, 30l North Miami Avenue, Miami, Florida. The parties shall prepare and file their joint scheduling report prior to the status conference. Within thirty (30) days from the date of this order, the parties shall select a certified mediator under Local Rule 16.2.B and shall schedule a time, date and place for mediation. In the event the parties cannot agree on a certified mediator, they shall advise the Clerk and the Clerk shall designate a certified mediator under a blind rotation system. Signed by Senior Judge William M. Hoeveler on 6/9/2010. (lcs) (Entered: 06/09/2010)

I would expect that at least one of the parties will request a Stay of this proceeding and requirement to mediate pending the outcome of the appeal.

In addition to her position as Assistant Editor at World of Apple, dizzle runs idrankthekoolaid, an Apple fangrl satire blog, and is an Administrator and Hostess at MyAppleSpace and their vidcast MASTv.

Apple v. Psystar: Psystar Files Opening Brief in Appeal

As per the agreed extension between the parties, Psystar filed its Opening Brief with the Ninth Circuit yesterday. However, the entire thing was filed under seal. Here is the actual filing including the parameters of the Protective Order. Apple’s response is due June 16, 2010, but as per a letter from Attorney Camara included with the filing, Psystar would not oppose a reciprocal extension if Apple should require one. At this point, it is unknown how much of this case will actually be available for public review, but I shall stay on top of it and report back. I did find the following section of the Stipulated Protective Order of general interest as to the agreement of the parties dealing with the production of Software Code:

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Apple v. Psystar: Psystar Receives Extension of Time to File Opening Brief

Here is the latest docket entry in the Psystar appeal:

04/30/2010 14 day oral extension by phone of time to file Appellant Psystar Corporation’s opening brief is granted. Appellant’s opening brief is due May 17, 2010. Appellee Apple Inc.’s answering brief due 06/16/2010. The optional reply brief is due 14 days after service of appellee’s answering brief. [7321225] [10-15113] (AT)

I had planned on working on digesting the brief for WOA readers this evening, but I guess I have the night off to play with my new iPad.

In addition to her position as Assistant Editor at World of Apple, dizzle runs idrankthekoolaid, an Apple fangrl satire blog, and is an Administrator and Hostess at MyAppleSpace and their vidcast MASTv.

Getting Ready for the Psystar Appeal

This case is about to get moving again with Psystar’s Opening Brief in their Ninth Circuit Appeal due on May 3, 2010.  The last significant event was Apple’s victory in its Motion for Summary Judgment before Judge Alsup in November 2009.  The transcript for that hearing is now public record, and a copy may be read here.  It is helpful at this point to briefly review the arguments of each side as presented orally at the hearing.  Both parties admitted that there were no disputed of issues of material facts as touched the reciprocal motions for summary judgment with regards to the subject matter at issue therein, to wit, allegations of copyright infringement and violations of the DMCA.  That is important as motions for summary judgment are basically a request by a party for the case, or a part of the case, to be determined by the Judge solely on issues of law.  If there are issues of disputed material fact, a Judge cannot decide as it then becomes a matter for the jury.   Many cases in the American court system are disposed of in full or in part in this manner.

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Apple v. Psystar Update

The appellate case is moving along with both parties having filed their mandatory Mediation Questionnaires. Other than both agreeing that mediation would be futile, the filings are pretty vanilla with the exception of the following unintentional humour (from Psystar’s filing):

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Psystar Files Appeal

As its attorney had previously indicated, Psystar is appealing Judge Alsup’s Order effectively ceasing all of their operations. What is a bit surprising is that Psystar has also filed multiple Orders regarding the sealing of confidential documents. A copy of the docket entries may be found here, and the relevant portion of the filings detailing each Order appealed can be found here.

Although Psystar could raise the issue of Rebel EFI with Judge Alsup, it is unlikely that they will proceed any further until the Appeal is heard by the Ninth Circuit. Nothing new has transpired in the Florida case.

I wonder who paid the hefty filing fee of $455.00.

In addition to her position as Assistant Editor at World of Apple, dizzle runs idrankthekoolaid, an Apple fangrl satire blog, and is an Administrator and Hostess at MyAppleSpace and their vidcast MASTv.

Apple v. Psystar: Report of Compliance With Injunction

On December 31, 2009, Psystar filed a Report of Compliance with Injunction (you can view the filing here). There are a few points of interest.

In paragraph 4, Pedraza makes a statement that seems to be contradictory to Psystar’s stated position in the Miami Court; that is, the California case does not involve Rebel EFI. How so? Pedraza states that Psystar has ceased selling Rebel EFI in order to comply with the California Injunction, but why do so if that Injunction didn’t apply to that product.

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Psystar v. Apple: Where Are We Now?

Things are quiet in the California action since Judge Alsup entered a permanent injunction in Apple’s favour regarding Psystar’s Mac clones, no matter which version of OS X is being used. Although Judge Alsup invited Psystar to bring a Motion containing specific details about this product and differentiating it from the guidelines of the Injunction so that a determination could be made on the legality of their Rebel EFI software; they have yet to do so. And I do not expect them to just yet. Psystar knows that the chances of getting a favourable ruling from Judge Alsup are slim to none and is leaving that option as a last resort. Instead, they are hoping to circumvent (pun intended) the California Court altogether by persuading the Florida Court to take jurisdiction over that remaining issue.

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