The initial roundup article is worth reading as it is still reasonable accurate but here what’s new and what has changed in quick bullet form fashion.

• 9 to 5 Mac now believes that the 17-inch MacBook Pro will have a removable battery despite initially reporting that it wouldn’t.
• Although unsure whether it will arrive at Macworld, 9 to 5 Mac is also reporting that Time Capsule will receive a software update that will allow it to cache software updates for Macs on the network.
• AppleInsider suggests that the Mac mini which is the most certain hardware update will receive a FireWire 800 port and an additional USB port.
• TUAW suggests that AT&T will announce iPhone-as-modem tethering plans during Macworld week.

Letter quoted in full:

Dear Apple Community,

Steve

The advantage of a sealed battery similar to that of the MacBook Air would be that the enclosure can be very thin and could also be a very high capacity battery.

AppleInsider speculates that increased battery life could be accomplished with silver-zinc batteries.

Around the Moscone banners currently clad in white drapes are hanging, these will likely be unveiled sometime Monday. In the past Apple has used these banners to hint at upcoming products.

View the gallery here.

Previous models of the Mac mini featured a single-DVI connector which due to the graphics card did not support dual displays.

With the rumours that the Mac mini will now receive considerably improved graphics cards the new report is not surprising.

AppleInsider also partly concurs with a report from TUAW in which the site reported that the optical drive will be able to be replaced with a second hard drive via a build-to-order option. AppleInsider adds that TUAW’s description of a black and aluminium case design are inaccurate.

The Mac mini is expected to be launched at Macworld 2009 which kicks off with Apple’s keynote presentation on Tuesday January 5th.

A copy of this filing may be found here.

So what do I think of the arguments? My short opinion is that Apple nailed all the issues perfectly. Several of the deficiencies I had previously noted were used, and I learned several new rules of law if Apple’s filing is correct.

Brief Background

On August 28, 2008, Psystar filed a Counterclaim which was dismissed without prejudice by the Court on November 18, 2008. Subsequently, on December 2, 2008, Apple’s Amended Complaint was deemed filed giving Psystar another bite at the apple (pun intended) in its second Answer. Further, on December 8, 2008, Psystar moved for leave to file its First Amended Counterclaim. Due to the holidays, the hearing on this motion has been moved from January 15, 2009 to January 22, 2009. Further, the deadlines for Apple to file its Opposition to Psystar’s Motion has been moved to December 31, 2009, and Psystar’s Reply to Apple’s Opposition has been moved to January 7, 2009. The case is currently scheduled for a November 2009, trial date.

Of note, Psystar’s pending Amended Counterclaim differs substantially in nature from its prior—now dismissed—Counterclaim in that it is a request for declaratory relief. Generally speaking (a qualified and licensed attorney would have to give authoritative specifics), in a declaratory action, the facts are not in dispute; but rather the claim is made that at least one of the parties is in doubt as to its rights and duties and is requesting guidance from the Court.

This brief background is repeated nearly in full from one of my prior articles. As it turns out, my suspicion that the fact that this was a declaratory action did turn out to be significant.

Explanation of Some Terminology

In a basic lawsuit, a complaint is filed by the plaintiff, and an answer is filed by the defendant. The answer will address each of the plaintiff’s allegations by number and may assert some affirmative defenses. Affirmative defenses are allegations which, if true, may serve to nullify in part or in full the allegations made by the plaintiff. The burden to prove the allegations of the complaint is upon the plaintiff. However, the burden to prove any affirmative defenses is on the defendant. Unless local rules provide otherwise, the plaintiff does not have to respond to the affirmative defenses as they are presumed to be denied.

Remember that the standard for proof in a civil matter is not “beyond a reasonable doubt” as it is in a criminal case, but “by a preponderance of the evidence,” which is a lesser burden. I have heard attorneys explain this to juries as requiring one side to prove its case by as little as a fifty-one percent probability. There is another civil standard of “clear and convincing evidence” that is a standard that falls somewhere between the two. As far as I can tell, California holds to the “preponderance of the evidence” standard, but a properly licensed attorney would need to verify that.

In this present case, Psystar asserted forty-two affirmative defenses in its Answer to Apple’s Amended Complaint.

Summary of Apple’s Argument

In analyzing this filing, I have found that Apple has made clear and concise statements that aptly summarize its arguments. Since that is not a talent I share, I will quote directly from its Opposition where possible to give the reader the Cliff’s Notes version.

In its Introduction and Factual Background, Apple succinctly summarized the main thrust of its argument (pages 2–3):

“… Psystar has taken its previously asserted affirmative defense of copyright misuse and has improperly recast it as the basis for four amended counterclaims. Yet, the law is clear: copyright misuse is an affirmative defense — not a cause of action — and cannot be asserted as a counterclaim for declaratory relief. Nor should the Court allow Psystar to assert unfair competition counterclaims that are entirely derivative of its two improper copyright misuse claims.”

and,

“… this Court granted Apple’s motion [to dismiss], holding that ‘Psystar’s claim that Mac OS-compatible computer hardware systems constitute a distinct submarket or aftermarket contravenes the pertinent legal standards’ … . In its Order [dismissing Psystar’s Counterclaims] the Court gave Psystar leave to amend those counterclaims but required that Psystar file a motion to explain how it had overcome the pleading insufficiencies set forth in the Court’s Order. [omitted citation] The Court further stated it would dismiss all inadequately pled claims without further leave to amend.”

Significantly, in its proposed Amended Counterclaim, Psystar does not assert any federal or state antitrust counterclaims. Rather than attempt to fix the problems with its original pleadings, as the Court’s Order allowed, Psystar has abandoned its antitrust theories entirely and instead repackaged its affirmative defense of copyright misuse as two new counterclaims for misuse and two corresponding derivative state unfair competition claims.”

Although I did not state it as elegantly as Apple, this mirrors in part what I said in my last article:

Psystar talks out of both sides of its mouth in its Proposed First Amended Counterclaim insisting that its new arguments do not require that it prove antitrust elements yet continually assumes and alleges the presence of antitrust elements, including separate and subsidiary markets, which have already been rejected by the Court.

As a sidenote, Apple has ceased using the term End User Licensing Agreement (EULA) in favour of the actual name of its contract: Mac OS X Software License Agreement (SLA).

Psystar’s Claims of Copyright Misuse

Even though the DMCA is brought up multiple times by Psystar, Apple points out that “there is no separate defense of ‘DMCA Misuse’ as Psystar admits.” Apple goes on to cite case law supporting its assertion that copyright misuse is only valid as an affirmative defense and has no place in a declaratory action, including one case, MGM Studios Inc. v. Grokster, Ltd., 269 F. Supp. 2d 1213, 1226 (C.D. Cal. 2003), claiming that the facts are “virtually identical” to this present action. Apple quoted the MGM court as follows:

“Copyright misuse has already been asserted by Sharman as an affirmative defense, and the Court will reach all aspects of that issue if necessary. Separately litigating that defense in a declaratory posture would not serve the purposes of declaratory relief, such as clarifying and settling the legal relations of the parties, or affording a declaratory plaintiff relief from the ‘uncertainty, insecurity, and controversy giving rise to the proceeding.’”

I was amused by Apple’s response to some of the over-the-top language used by Psystar:

“Simply describing alleged copyright misuse as ‘brazen’ and seeking declaratory relief, as Psystar has done here, does not convert the legal principle from an affirmative defense to a counterclaim.”

In addition to alleging that Psystar is wrongly attempting to convert an affirmative defense into a counterclaim, Apple has observed the contradictory nature of Psystar’s own pleadings (pages 5–10):

“Not only is there no basis for Psystar’s purported copyright misuse counterclaims, Psystar fails to allege a viable misuse defense in light of its own inconsistent allegations. As acknowledged by this Court and Psystar in its prior briefs, Apple is well within its rights to determine whether, how or by whom its software is reproduced and how it is to be licensed, distributed or used. See Order, at 14 (”[H]ere Apple asks its customers to purchase Mac OS knowing that it is to be used only with Apple computers (Compl. ¶ 28). It is certainly entitled to do so.“) [case law citation omitted] In the Ninth Circuit, it is not copyright misuse to limit the uses of licensed software where one’s competitors are free to develop competing software and customers are free to purchase it. Psystar’s pleadings are unambiguous in showing competition among numerous operating systems, as well as among sellers of computer hardware systems. Accordingly, these counterclaims must fail.”

[sarcasm mode on]But doesn’t Apple realize that Psystar has admitted that it is incompetent to develop something on its own, and so the law must force Apple to let them loot its work? [/sarcasm mode off]

Although that statement was said in sarcasm, it is based in truth. I repeat Psystar’s very own words:

PSYSTAR is informed and believes, and thereon alleges, that there are substantial barriers to entry in the market for operating systems, including the Mac OS market. It is prohibitively difficult, time-consuming, and expensive to create any operating system [missing comma] much less one that would offer substantially identical functionality, security, stability, and other aspects offered by the Mac OS. In general, a new operating system manufacturer faces an almost insurmountable barrier to successful entry to the operating system market. Those barriers would be raised even higher with respect to an operating system that would directly compete with the Mac OS.

(source)

Apple further noted that Psystar’s claim that Apple frivolously asserted a DMCA count is contradicted by its own attorney’s statement at the hearing for the Motion to Dismiss. This now explains why Apple had previously stated that it was amending its Complaint to include this new claim stating that it was based on new information. This new information is apparently Colby Springer’s own representations to the Court that Apple has embedded code in OS X to prevent its use on non-Apple labeled hardware and that Psystar has developed a means to neutralize this code. I find it interesting that it was represented that this override “means” was developed by Psystar when it is my understanding that it is nothing more than the code developed by the OSx86 Project. Is Psystar taking credit for someone else’s work? If Psystar is not using the OSx86 Project’s code, why did they add a new restriction on their work requiring that it be used only for non-commercial purposes?

Redistribution and use in binary form for direct or indirect commercial purposes, with or without modification, is stricktly [sic] forbidden.

Apple goes on to note that Psystar is relying upon a single case (Alcatel U.S.A., INc. v. DGI Tech., Inc., 166 F.3d 772 (5th Cir. 1999)) in another Circuit which contains findings that have been expressly rejected by the Ninth Circuit in multiple cases. Further, Apple alleges that this single case is clearly factually distinguishable from the present action. In the Alcatel case, DSC was attempting to control hardware for which it did not have copyrights which effectively prevented anyone from manufacturing a competing piece of hardware. In this case, Apple is not attempting to control hardware but rather the use of its properly copyrighted software for which there are multiple viable competitive alternatives. (I once again call for those on the Apple web who falsely—though innocently—reported that Psystar was benighted enough to be claiming that Apple did not copyright OS X to publish corrective pieces.) Psystar’s premise smuggles in its theory of certain distinct markets which was already rejected by the Court.

Psystar’s Claims of Unfair/Unlawful Business Practice

Apple asserts that Psystar has done nothing to demonstrate that it has overcome the Court’s objections to these same claims pled in its previous —now dismissed—Counterclaim.

Specifically (page 9):

“In fact, the proposed Section 17200 counterclaims suffer the same defects as before: a complete lack of support in law or in fact.”

and (pages 9–10),

“Moreover, Psystar’s Section 17200 claims are wholly derivative of its copyright misuse claims, and therefore must fail for the same reasons as the proposed misuse counterclaims discussed supra. Psystar has predicated every specific allegation of conduct in its state law counterclaims on the alleged ‘misuse of [Apple’s] copyrights.”"

Restated in English, if Psystar fails on its claim of copyright misuse as an issue appropriate for declaratory judgment; its third and fourth counterclaims must also fail as they depend upon the success of the first two. Apple further addresses Psystar’s claim that Apple somehow waived its rights by waiting to file suit or enter into licensing discussions by pointing to case law demonstrating that an allegation of laches is not a valid basis for a claim of violation of Section 17200 but rather is properly pled as an affirmative defense.

Psystar’s Claims of Violations of the “Spirit” of Antitrust Law Which has Caused Psystar Harm

Personally, I think this line of argumentation was a poor tactical decision on Psystar’s part. The Court had already rejected its antitrust arguments, and this seems to be an obviously transparent attempt to paint a white horse and call it a zebra. Apple points to a ruling of the California Supreme Court (page 11):

“When a plaintiff who claims to have suffered injury from a direct competitor’s ‘unfair’ act or practice invokes section 17200, the word ‘unfair’ in that section means conduct that threatens an incipient violation of an antitrust law or violates the policy or spirit of one of those laws because its effects are comparable to or the same as a violation of the law, or otherwise significantly threatens or harms competition.

Apple further points out that Psystar regurgitates previously rejected language and arguments from its prior—now dismissed—Counterclaim alleging tying, leveraging, and monopoly.

Conclusion

Please remember that this filing is Apple’s Opposition to Psystar’s Motion for Leave to Amend and not its opposition to the proposed First Amended Counterclaim itself as that document is not officially a pleading in this case until such time as the Court grants permission for filing. If the Court does allow it to be filed, I expect that we will see another Motion to Dismiss filed by Apple. My personal opinion, with the caveats that I have not yet read the pertinent case law and am accepting Apple’s representations of same at face value and that I am NOT a lawyer, is that Apple has made a strong case for denial of Psystar’s Motion for Leave. However, I also keep in mind the proverb:

“He who pleads his cause first seems right; until another comes and questions him.” (Proverbs 18:17)

This presumably means that Keynote, Numbers and Pages will be entirely browser based, no mention is made of whether native versions can be installed on the Mac.

The iWork suite of applications is overdue for an update.

Not only are TUAW’s sources confident that the Mac mini will see an announcement next week at Macworld but those sources also revealed some details about the new Mac mini.

According to those sources the internal drives will switch to SATA and the will be able to be swapped out for a second hard drive via a build-to-order option.

The Mac mini will also reportedly receive a slightly updated appearance swapping the plastic top for black plastic. The Mac mini will also receive a “lip” similar to that of the Time Capsule enclosure under which the optical drive will be hidden.

The Core 2 Extreme Q9000 microprocessor features four cores running 2.0GHz with 6MB of Level 2 cache, but most importantly the processor is priced at $348 in lots of 1000.

The processor seems perfectly suited to the 17-inch MacBook Pro which is currently priced at $2799.

Back in October Apple updated the 15-inch MacBook Pro with a new sleek enclosure but gave the 17-inch only a minor speed bump. Reports that followed indicated that a 17-inch model would follow within a few months.

The large screen iPod touch device is expected to pack a 7 or 9 inch display and will reportedly work with applications available from the App Store.

One of TechCruch’s sources has purportedly handled the device additionally reporting that Apple is in talks with OEMs in Asia about mass production of the device.

Rumours of large screen tablet type devices have been rumoured in the past by historically accurate sources.

At this time, no one else is involved with Psystar other than family members.

Psystar is not making any profit to speak of at this time as all monies are going to the lawyers and paying basic salaries.

Please do not read anything into what was not said. I know the limits of what my source can tell me, and I do not press the issue on questions that I know will not be answered. For instance, do not take the statement that “at this time, no one else is involved” as an admission that anyone else was involved in the past, though I am relatively certain that I was told many months ago that there were investors involved. However, I do not know if those investors were family members or other interests. I had the distinct impression that the investors were outside interests, but that was never explicitly stated. Nor should the above statement be considered a denial. In fact, I confirmed with my source that Psystar’s response to Apple’s allegation was intended precisely as I suspected in my earlier article: they did not answer the question of whether or not anyone else has been involved but merely re-asserted that any activity involving Psystar was not unlawful. As I had stated, Apple’s allegation was vague, and I don’t think Psystar could even adequately answer that allegation as its meaning is not clear. Additionally, my source confirmed that I was also correct that Psystar never alleged that Apple did not copyright Mac OS X. I would hope the sites that reported that myth make the appropriate corrections because it made Psystar’s attorneys appear as if they weren’t competent to use a computer, nevermind represent a party in a high-profile technology case.

Some Basics

While many filings are made in lawsuits, there are only a few that are absolutely critical. These would definitely include any Complaints (including Counterclaims) and Answers/Responses to same. In a prior piece, after giving Psystar advance notice of my intentions, I demonstrated that there is one area in which Psystar’s attorneys are not particularly competent: filing properly proofread documents with the Court. In that earlier article, the filing examined was not one of the critical filings; however, prior to that time, Psystar’s Answer to Apple’s Amended Complaint was subjected to scrutiny with similar results. This time I will perform an analysis of Psystar’s Proposed First Amended Counterclaim, which if accepted by the Court, will form the bedrock of Psystar’s offensive case against Apple. Surely this document was properly proofread, right? Surely Psystar’s attorneys have been monitoring the Apple web for articles on this case and were appropriately embarrassed by the sloppiness of their prior filings (even though they made no effort to amend them), right? No.

A Closer Look at Psystar’s Proposed First Amended Counterclaim for Declaratory Relief as to the Unenforceability of Copyrights and Statutory Unfair Competition

I have tried several methods of providing information on the carelessness in the composition of these filings in the past, including a page-by-page narrative and a marked-up PDF file. This time I am going to try another approach: listing the problems by category. Within the past few days, Smile on My Mac has been kind enough to provide me with a review license for their products PDFpen and PDFpenPro. I will be testing these programs while examining the filings in this case and these experiences will be used as background data for a future review.

Error: Improper Case Caption

Please see Page 1.

Error: Improper Capitalization Style of Client’s Name

Please see Page 1. The error that occurs in the footer appears on each page, but only the first page is marked as an example. I have confirmed with my source that the proper spelling is in fact “Psystar” and not “PsyStar.” However, it appears that the attorneys are not the only ones confused as I found this image on Psystar’s own website:

Whoops

Error: Missing/Extra Punctuation and/or Words

Please see Page 1. There are commas missing after the highlighted text.

Please see Page 3. There is a missing hyphen.

Please see Page 9. There is a missing hyphen.

Please see Page 12. A stray “and” found its way into that sentence.

Please see Page 22. Does Psystar want to restore Apple’s enforcement or prohibit it?

Error: Inconsistent/Awkward/Incorrect Phrasing

Please see Pages 1 and 2. The second highlighted text portion is actually the proper way to phrase this and similar statements. The first portion is awkward and repeats “APPLE” unnecessarily.

Please see Page 4. The word “less” is missing before the word “RAM.” As the sentence reads right now, it is characterizing the very idea of having RAM as a negative against the Mac Mini.

Please see Page 4. This sentence is internally confusing as it uses the phrases “software applications” and “applications” as if they are two separate things.

Please see Page 10. After consistently using commas in its phrase “is informed and believes, and thereon alleges,” the commas suddenly disappear from this point forward in many places (though not entirely). I will only point out this one occurrence.

Please see Page 10. The author cannot seem to decide whether or not the word “check” belongs in quotations marks or not. I did not highlight every instance of where it is used inconsistently in that paragraph.

Please see Page 12. The author cannot seem to decide whether the proper capitalization is Mac or MAC.

Please see Page 17. This run-on sentence is nearly incomprehensible, including the unwelcome intrusion of an incorrect “by.”

Error: Subject/Verb/Infinitive Agreement

Please see Page 2. The proper word to follow the infinitive “to” is “seek” not “seeks.”

Error: Incorrect/Imprecise/Nonsensical Statements of Fact

Please see Page 4. The OSx86 community was creating “Hackintosh” machines before Psystar was a twinkle in Rudy Pedraza’s eye. They were not, however, doing it for commercial gain. Additionally, Macintoshes are not available only from Apple. A consumer may purchase a Macintosh machine at any number of authorized re-sellers. In fact Psystar acknowledges this on Page 7, thus demonstrating additional inconsistency.

Please see Page 6. The installation of an operating system is a necessity. The installation of a Macintosh operating system is not a necessity as there are other operating systems available to the consumer.

Please see Page 8. Steve Jobs did not return in 1997 as Apple’s Chief Executive Officer but rather as its Interim Chief Executive Officer.

Apple Shrugged

Please see Pages 4 through 5. There is one grammatical error contained in the highlighted text, but more importantly there is a gross entitlement mentality that quite frankly disgusts me. I will repeat it here:

PSYSTAR is informed and believes, and thereon alleges, that there are substantial barriers to entry in the market for operating systems, including the Mac OS market. It is prohibitively difficult, time-consuming, and expensive to create any operating system [missing comma] much less one that would offer substantially identical functionality, security, stability, and other aspects offered by the Mac OS. In general, a new operating system manufacturer faces an almost insurmountable barrier to successful entry to the operating system market. Those barriers would be raised even higher with respect to an operating system that would directly compete with the Mac OS.

Excuse me, that is illegal precisely how?

Translation: We can’t make it ourselves, so the Court should force Apple to let us use their hard work for our profit due to our own inabilities. And please don’t look at that penguin behind the curtain.

Honestly, this should sicken anyone who believes in innovation. Should the innovative and successful be punished because others can’t accomplish what they have? I can’t believe any self-respecting American capitalist could write such a statement. I do understand that people from many countries and economic systems are reading this article, but this case must be understood in the country and culture where it is being heard. If I didn’t know better, I would have thought that was a quote of Bertram Scudder from Atlas Shrugged.

Spurious Litigation

On Page 6, Psystar accuses Apple of engaging in spurious litigation in its addition of the DMCA count. I find this to be a sneaky “gotcha” move. Why? At first Psystar opposed Apple’s Motion to Amend, but then later agreed. Why would they agree to an amendment that they believe is spurious? Now it is possible that the agreement was made with full disclosure to Apple’s attorneys that Psystar would be alleging that it was spurious. Perhaps in this area of law allegations of spurious litigation are more common and not taken quite as seriously as I am accustomed to, but in my understanding this is quite a serious charge that could expose the offending attorney(s) to disciplinary action and monetary sanctions. If Psystar truly believes that the DMCA count was filed in bad faith why haven’t they filed a Rule 11 motion against Apple’s attorneys?

So What is Psystar Claiming isn’t Covered by Copyright?

Please see Pages 6 through 7. I will repeat the allegation here.

Mac OS users are—through APPLE’s copyright misuse—thereby locked in to a component not otherwise covered by any APPLE copyright—an Apple-Labeled Computer Hardware System.

On its face this statement appears to be alleging that Apple has no copyrights on its actual hardware which would be a ridiculous claim. However, upon reading Page 18, it appears that the statement is a bit more nuanced. The allegation in question is worded as follows:

Apple-Labeled Computer Hardware Systems are not covered by any copyright corresponding to the Mac OS.

It appears that Psystar is attempting to claim that the symbiotic relationship required by EULA must also have been copyrighted in order to have a copyright claim in this matter or something along those lines. The allegation is so unintelligible to me that I suspect it is intended to create more heat than light.

Conclusion

I once again find myself sleep deprived at 3 am writing about Psystar. I would not be surprised if there are a few grammatical errors of my own due to the late hour after working a full-time day job, so I beg the readers’ indulgence. Before any suggests that I should be granting Psystar’s attorneys the same indulgence, writing their pleadings is not my highly paid job. I am a volunteer here writing at my own time, and lately, at great personal sacrifice. I had wanted to delve into some further observations in great detail, but I will have to be satisfied with these two summary statements:

1. On Page 19, Paragraphs 81 through 83, Psystar goes from point A to point C perhaps hoping that the reader will not notice that the dots were not connected. The DMCA carves out an exception for “circumvention devices” that have a commercially significant purpose other than allowing unauthorized access to a copyrighted work. Psystar jumps from denying that there is any circumvention device in place to begin with, to arguing that its products (in toto, since nothing is excluded) have a commercially significant purpose other than circumventing copyright protections through technological means. Don’t try to understand the logic; there isn’t any.

2. Psystar talks out of both sides of its mouth in its Proposed First Amended Counterclaim insisting that its new arguments do not require that it prove antitrust elements yet continually assumes and alleges the presence of antitrust elements, including separate and subsidiary markets, which have already been rejected by the Court.

But a second case manufacturer has also posted a link for the iPhone nano on it’s website. The link on Vaja’s website merely links to a page asking you to sign up for information about “the upcoming release of our iPhone nano cases.”

Today the EDN has reverted on that initial report and instead writes that Foxconn is manufacturing the updated iMac, shipment figures of 800,000 units per month remain true.

The new report also contains an additional piece of information, noting that iMac’s cooling module will be supplied by FPC and Auras Technology.

This years Macworld lacks the hype of previous years and also lacks the handfuls of rumours that the previous lead ups to Macworld have delivered. Take for example the approach to Macworld 2007, the air was filled with talk of the iPhone and it certainly delivered.

This years Macworld is already a completely different story to previous years; only a couple of weeks ago Apple announced that Steve Jobs would not host the famed keynote presentation and instead Phil Schiller would do the honours. The company also revealed that this would be the final Macworld that they exhibit at.

This article isn’t to discuss Apple’s reasons for making such decisions nor to speculate on the health of Steve Jobs. Let’s take a look at the few rumours that have surfaced in the past few months.

Macworld 2009 Keynote Predictions

• Snow Leopard preview by Bertrand Serlet.
• Updated iMac with NVIDIA chipsets
• Updated Mac mini with NVIDIA chipsets
• iLife and iWork ‘09

Mac OS X 10.6 Snow Leopard

Mac OS X 10.6 Snow Leopard first saw an appearance at WWDC earlier this year at that time Apple said it would ship “in about a year”. Since then we’ve been presented with evidence that Snow Leopard could ship by the end of the first calendar quarter of 2009. But recent builds given to developers would suggest that Snow Leopard is far from being a shipping product.

It is incredibly unlikely that Apple will announce a firm shipping date at Macworld as past experience would show that the publicity isn’t grand when Apple misses a deadline, so why set one at all?

One thing we can expect at Macworld is for Phil Schiller or possibly Bertrand Serlet to give a detailed talk about what Snow Leopard will deliver.

We’ve already been told by Apple that Snow Leopard is not going to be an operating system that delivers bucket loads of new features, instead Snow Leopard is positioned to enhance the performance and security of Mac OS X Leopard.

Key to Snow Leopard are two technologies, the first called Grand Central aims to deliver support for multi-core processors but instead of developers having to rewrite applications to be “multi-core aware” the operating system itself will have the ability to assign tasks across multiple cores and processors. In addition to Grand Central, Open CL (Open Computing Language) allows developers to tap into the power of the generally idle GPU (Graphics Processing Unit). GPU’s are incredibly powerful and all Macs are rumoured to have the latest offerings from NVIDIA by the time Snow Leopard sees a public release.

As the release of Mac OS X Snow Leopard approaches I’m personally seeing a familiar bunch of comments being bounded about. There familiarity comes from before Mac OS X Leopard hit store shelves and they insinuated that Apple would keep new, big features under its hat until the very last minute. At the time I attempted to stress to these individuals that new feature cannot go untested by the very large developer base and therefore no feature can stay secret.

If Apple does intend to pack Snow Leopard out with new features we’ll certainly hear about them.

Updated iMac

The evidence is indisputable, text strings found in current versions Mac OS X point towards a currently unreleased model of iMac which the reasonably reliable DigiTimes believes Apple has ordered 800,000 units for the first quarter of 2009.

Of interest the aforementioned text strings point towards Apple adopting NVIDIA chipsets for the new iMacs, the company did the same for the new notebooks release back in October.

Apple has already made the iMac a reasonably “green” product when it introduced the new models with aluminium enclosures and glossy glass displays, it would be unexpected for Apple to redesign the iMac.

Mac mini

The poor Mac mini has suffered a game of on and off rumours for over a year now, but finally it seems some concrete evidence points towards an update being just around the corner.

The same text strings that revealed the iMac to be due for an update also point towards an unreleased Mac mini product code.

As with the iMac the text strings indicate that the new Mac mini will also come with NVIDIA chipsets and presumably far more powerful graphics capabilities than the current incarnation.

iWork/iLife ‘09

Going back in the timeline of iWork and iLife it wasn’t hard to predict a pattern this was until Macworld 2007. Until that point Apple had released a major update at every single Macworld since 2003. In 2007 Apple decided to release iLife and iWork ‘08 at a special event in August, the same did not hold true for 2008.

Despite having zero rumours regarding the two software suites it wouldn’t be too far fetched to imagine Apple releasing major updates to iLife and iWork at Macworld 2009.

17-inch MacBook Pro

In October 2008 Apple released a brand new redesigned MacBook Pro but only the 15-inch model received the revamp treatment.

Just after the release of the 15-inch model it was rumoured that the 17-inch model would follow “in a few months”. Apple will likely quietly release the 17-inch MacBook Pro.

Macworld 2009 Coverage

As with past years World of Apple will be at Macworld offering extensive coverage of the expo and keynote. Despite having no live coverage of the Keynote we will offer large galleries of photos from the keynote and from the expo floor.

Reference Links for this Case (for future reference)

Definition of Declaratory Relief

28 U.S.C. § 2201. Creation of remedy

Digital Millennium Copyright Act

§ 1201. Circumvention of copyright protection systems (part of the DMCA)

Copyright Act 1976, as Amended

Federal Rules of Civil Procedure

Online docket for Apple v. Psystar

Apple’s Amended Complaint

Psystar’s Answer to Apple’s Amended Complaint

Psystar’s Proposed First Amended Counterclaim

Reference Links and Material for this Article

InformationWeek: Apple Failed To Copyright Mac OS X, Psystar Claims

Mac clone manufacturer Psystar said that Apple’s copyright suit against it should be dismissed because Apple has never filed for copyright protection for its Mac OS X operating system with the U.S. Copyright Office, according to court papers.

ars technica: New Psystar filing full of sound and fury, signifying nothing

Psystar’s recent filing has, among its innumerable denials and 42 affirmative defenses, logical fallacies and denials of facts which can be readily proven with the most basic research. For example, Psystar outright says that Apple lacks copyrights for Mac OS X 10.5 and failed to register the OS with the US Copyright Office. A quick search of the Copyright Office’s website actually shows that Apple’s application for copyright was granted January 24, 2008 for “new and revised text, illustrations and compilation; new and revised computer program.”

ZDNet: Latest Psystar wacky claim: OS X never copyrighted (!???)

So, what is this nonsense about Apple failing to copyright OS X? That’s what Psystar – the fly-by-night illegal Mac clone maker that Apple has sued for copyright infringement for rebundling OS X software with its computers – is claiming in the latest gambit to avoid getting shot out of the water in U.S. District Court.

Are any of those statements an accurate representation of what Psystar actually claimed? No. In reviewing these stories and many more which are not listed, it appears that the wellspring of this claim in this instance is InformationWeek.

Additional Reference Links and Material for this Article

AppleInsider: Psystar claims Apple has invalid Mac OS X copyright

In an aggressive response, unofficial Mac clone builder Psystar has made a controversial claim that Apple doesn’t legally own the US rights to protect Mac OS X, invalidating a major component of its lawsuit.

The Industry Standard: Psystar v. Apple drags on, company claims Apple doesn’t own Mac OS X copyright

Psystar, the company that attempted to sell generic computer hardware with Apple’s Mac OS X operating system on it before being slapped down by an Apple lawsuit, now says that Apple doesn’t own the copyright for Mac OS X.

These two articles are closer to the facts but still lack needed precision.

Brief Background

On August 28, 2008, Psystar filed a Counterclaim which was dismissed without prejudice by the Court on November 18, 2008. Subsequently, on December 2, 2008, Apple’s Amended Complaint was deemed filed giving Psystar another bite at the apple (pun intended) in its second Answer. Further, on December 8, 2008, Psystar moved for leave to file its First Amended Counterclaim. Due to the holidays, the hearing on this motion has been moved from January 15, 2009 to January 22, 2009. Further, the deadlines for Apple to file its Opposition to Psystar’s Motion has been moved to December 31, 2009, and Psystar’s Reply to Apple’s Opposition has been moved to January 7, 2009. The case is currently scheduled for a November 2009, trial date.

Of note, Psystar’s pending Amended Counterclaim differs substantially in nature from its prior—now dismissed—Counterclaim in that it is a request for declaratory relief. Generally speaking (a qualified and licensed attorney would have to give authoritative specifics), in a declaratory action, the facts are not in dispute; but rather the claim is made that at least one of the parties is in doubt as to its rights and duties and is requesting guidance from the Court. In my lay opinion it seems that this lowers the bar considerably for another successful motion to dismiss from Apple as the issues are primarily of a legal, rather than a factual, nature. However, I remind the reader, dismissals are rare, and I was quite surprised and pleased that Apple prevailed earlier. That might not happen again, and if not, it should be taken as anything more than Apple failing to meet the incredibly high burden required to remove a case from the hands of a jury. It does not mean that the Judge believes that the claims have actual merit, only that they have a minimal basis in law.

Here is the definition for a declaratory action:

Declaratory relief refers to a judgment of a court which determines the rights of parties without ordering anything be done or awarding damages. By seeking a declaratory judgment, the party making the request is seeking for an official declaration of the status of a matter in controversy. Optimally, the resolution of the rights of the parties involved will prevent further litigation. For example, a party to a contract may seek the legal interpretation of a contract to determine the parties’ rights, or an insured may seek a determination of insurance coverage under a policy.

How Did so Many Sites Get the Idea that Psystar Alleged that Apple did not Copyright OS X?

Repeat After Me

As before, I believe this is due to three reasons: one, writers are not reading the filings carefully and holistically if they are reading them at all; two, technology writers do not have the requisite basic background to write competently on legal filings; and three, too many writers simply parrot what has been said by others.

The allegation of Psystar that has been lifted out of its Answer to Apple’s Amended Complaint and used to support this erroneous claim is quoted below. I note that there are similar statements in Psystar’s Proposed First Amended Counterclaim, but since that is not yet “official,” I am going to reference the Answer.

Fourteenth Affirmative Defense
(Failure to Register Copyright)

PLAINTIFF is prohibited from bringing action against PSYSTAR for the alleged infringement of
one or more of PLAINTIFF’s copyrights for failure to register said copyrights with the Copyright
Office as required by 17 U.S.C. § 411.

At first the reader might be thinking that those articles above were right, and I am out of my gourd. However, I ask the skeptic to re-read that allegation carefully. Does it say that Apple did not copyright OS X? No, it doesn’t. It doesn’t specify which copyrights, out of the many explicitly and/or implicitly claimed by Apple, are allegedly not registered. Further, elsewhere in this filing, Psystar admits that Apple HAS registered copyrights on OS X. First, let’s look at Apple’s Amended Complaint where they claim to have such copyrights (click images for enlargements):

Paragraph 26 of Apple's Amended Complaint

Now let’s look at Psystar’s corresponding response to this paragraph:

Psystar's Response to Paragraph 26 of Apple's Amended Complaint

Additionally, from page 29, lines 18 through 19 of Psystar’s Answer:

As evidenced by the foregoing, APPLE misuses its copyrights in the Mac OS to force purchases of Apple-Labeled computer hardware systems for use in conjunction with the Mac OS.

Similar statements appear on page 28, lines 18 through 20 and page 29, lines 13 through 14. Now, I ask you gentle reader, is it a reasonable interpretation of Psystar’s Fourteenth Affirmative Defense that Psystar is so benighted as to claim that Apple did not copyright OS X? Does anyone believe that Psystar’s attorneys could not do the simple records searches waved about by so many technology writers? If so, do you also think that they walk into walls face first? I am no fan of Psystar, and their attorneys have abysmal writing/proofreading skills, but they are not stupid. Fair is fair.

So what is Psystar referring to in its Fourteenth Affirmative Defense? Here is my theory, but once again, I remind the reader that I am not an attorney, and this is simply my lay reading. My theory has two possible prongs: Psystar denies that the registered copyrights are valid; and Apple has not copyrighted the tied-in combination of Apple-labeled hardware and the Mac OS (if that is even possible). This becomes a bit more obvious when the Proposed Counterclaim is brought into the picture which is beyond the scope of this article.

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So what precisely am I on about? Here are some statements that can be found in recent articles:

Computerworld: Mac clone maker denies ‘concerted effort’ after Apple claims others are in cahoots[.]

This article goes on to quote the filing but distinctly is making the claim that is summarized in that statement. I am fairly convinced that this one Computerworld article, which should be a reliable source, is the pied piper that led all the rest off the cliff.

That same article also claimed: The case is slated for trial in April.

That is patently false. This statement appears to have been pulled out of thin air. The case is slated for trial in November 2009. Again, this is readily accessible information to anyone as the Scheduling Order is online and easily understandable. In fact, a researcher does not even have to read the Order to find this information, it is contained right in the docket summary:

CASE MANAGEMENT SCHEDULING ORDER: Discovery due by 6/26/2009. Jury Trial set for 11/9/2009 07:30 AM in Courtroom 9, 19th Floor, San Francisco. Motions due by 8/20/2009. Pretrial Conference set for 10/26/2009 02:00 PM in Courtroom 9, 19th Floor, San Francisco. Signed by Judge William Alsup on 11/7/2008. (whasec, COURT STAFF) (Filed on 11/7/2008)

Now watch as the story gets taller with the telling.

Home Gadget: Psystar: Apple Is Paranoid for Alleging Conspiracy. Mac cloner Psystar claims it’s nothing but an independent Florida-based startup, despite Apple’s suspicions of a conspiracy.

Wow, Psystar claimed nothing of the sort to anyone who took the time to carefully read the actual filing. Additionally Apple never alleged a “conspiracy,” but simply that others were involved. That allegation does not by necessity comprise a conspiracy, but then the headline wouldn’t be so jazzy.

MacNN: Psystar denies Apple conspiracy allegations. There is no conspiratorial effort being made to steal Apple’s intellectual property, Psystar claims in federal court documents. Apple has accused Psystar of violating the license for Mac OS X Leopard by installing the software on third-party hardware; expanding on this, however, Apple has accused Psystar of having the help of 10 other people or companies, which it has been unable to name. “The true names or capacities, whether individual, corporate or otherwise, of these persons are unknown to Apple,” a statement reads. “Consequently they are referred to herein as John Does 1 through 10.”

Neither Apple nor Psystar EVER used the word “conspiracy.” Psystar, who turned unnecessarily hostile in their latest filings, used the words “concerted effort.” Conspiracy means something pretty serious in legal matters. One could wish that the Apple web were a bit more circumspect in ascertaining these subtleties.

I have words of caution to these bloggers that are exaggerating the facts and implying that Apple is making a claim simply based on paranoia. First, you are treading close to libel unless you have some facts to back up that accusation. Second, I suggest you read Rule 11(b) of the Federal Rules of Civil Procedure as follows:

(b) Representations to the Court.

(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.

This would also be a breach of The Rules of Conduct for the State Bar of California. Now in a prior article, I expressed incredulity at some of the claims made by Psystar, but I backed up my statements with reasonable facts such as demonstrating that the use of “Open Mac” did not appear to be a “colloquial” use and that Psystar did in fact offer software updates on its site. Now, I am positive there must be some subtlety that I am missing so that Psystar’s attorneys are avoiding the misrepresentation of facts to the Court which is a very serious matter. These allegations of misrepresentations to the Court by Apple’s attorneys on the basis of sheer paranoia have not been substantiated whatsoever by any reasonable basis in facts.

Apple’s Amended Complaint says precious little about the new John Doe Defendants. Here is the extent of the information pled:

18. On information and belief, persons other than Psystar are involved in Psystar’s unlawful and improper activities described in this Amended Complaint. The true names or capacities, whether individual, corporate, or otherwise, of these persons are unknown to Apple. Consequently they are referred to herein as John Does 1 through 10 (collectively the “John Doe Defendants”). On information and belief, the John Doe Defendants are various individuals and/or corporations who have infringed Apple’s intellectual property rights, breached or induced the breach of Apple’s license agreements and violated state and common law unfair competition laws. Apple will seek leave to amend this complaint to show the unknown John Doe Defendants’ true name and capacities when they are ascertained.

That is all that was said explicitly on the subject.

When Psystar answered Apple’s Amended Complaint, regarding Paragraph 18 it stated:

18. 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. PSYSTAR likewise denies the suggestion that there exists a concerted effort to commit infringement of APPLE’s intellectual property rights, to breach or induce the breach of APPLE’s otherwise unenforceable license agreements, and to violate state and common law unfair competition laws. PSYSTAR admits that APPLE contends that it will seek leave to amend its First Amended Complaint upon the discovery of these purported individuals and/or corporations but otherwise denies the allegations set forth in paragraph 18.

Now, read it again carefully. Does it explicitly say that there are not other persons involved? It does not. Now perhaps Psystar is intending to outright deny that other persons are involved, but the response as it stands does not say that. It simply doesn’t. It only denies that there is a concerted effort “to commit infringement of APPLE’s intellectual property rights, to breach or induce the breach of APPLE’s otherwise unenforceable license agreements, and to violate state and common law unfair competition laws.” Do you see the subtle distinction here? All Psystar is doing is reiterating their denial of Apple’s allegations regarding their copyright and licensing rights.

Oddly enough, a forum poster at MacRumors “got it” way better than the paid journalists did:

I’d say that this statement of Psystar at least makes sense, in a warped way. Even though they are copying Apple’s software in clear violation of the license for that software, they have made many claims why what they are doing is actually not infringing on Apple’s intellectual property (like claiming that Apple is a monopoly and therefore Apple’s copyright is not enforceable, claiming that Apple forgot to register its copyrights which is just untrue and so on). It would seem obvious that if Psystar isn’t infringing on Apple’s copyright, then there can’t be any conspiracy to infringe on Apple’s copyright.

Also, what does “persons other than Psystar are involved in Psystar’s unlawful and improper activities described in this Amended Complaint” even mean? I don’t know for sure, and thus, I doubt Psystar could even answer this question fully. I am surprised that Psystar’s attorneys did not allege that it could not affirm or deny as the allegation appears to be vague and ambiguous. Would investors count in that description by Apple? Psystar cannot possibly be denying that because I know there are investors with a reasonable degree of factual certainty, and I am positive that Psystar’s attorneys would not perpetrate a fraud upon the Court.

Apple’s allegation was vague, and so was Psystar’s response. The confident pronouncements made by the sources listed above do not have basis in reality. I had some further confusion in understanding precisely what Apple was attempting to allege, so I sent the following inquiry to the lawyers on this case:

Dear Sirs and Madam:

Additionally, in my reporting and lay examination of the filings, I have a close contact with Psystar to whom I have been alerting my findings who has been passing them along to the Psystar principals.  I think it only fair that I also alert Apple’s representatives to a potential source of opinion as well, though I am sure that you have been monitoring the articles written on the Apple web frequently.  Unfortunately, a great deal of what has been written has been wildly inaccurate or ignorant.

That was my first contact with anyone working for Apple on the case despite the fact that I have been in constant communication with my contact for Psystar. I only point this out to demonstrate that despite my very obvious pro-Apple bias in this matter, I have alerted Psystar to the issues I have found and even waited before ripping into their sloppy filings to give them time to amend. I have been told that the principals of Psystar have elected not to relay this information to their attorneys which is sheer foolishness. Also, that is another circumstantial fact that leads me to believe that Psystar is getting paid to be the front. If MY attorney could not spell my name properly in a case that I really cared about and had a large vested interest in, I certainly would tell them: even more so if I were paying the legal bills. This disregard by Psystar could certainly point to a lack of a large vested interest for the principals personally and a suggestion that they are not footing the legal fees. In any event, in such a high-profile case with abundant reporting on the Internet, if Psystar’s attorneys do not have a legal assistant assigned to monitor the articles written, they are not being thorough.

I received a prompt reply from attorney Mehrnaz Boroumand Smith who referred me to Apple’s Legal PR Department. I left a message for Susan Lundgren and have not received a response. While I am inclined to believe this is due to Apple’s policy of secrecy, it is possible that Ms. Lundgren has been away for the holidays.

I also wish to thank those who have written for the site and hope that they continue to do. Also those who work behind the scenes to keep World of Apple alive and looking fresh deserve much praise as well.

World of Apple wishes everyone a happy holidays and here’s hoping you find a brand new iPod, iPhone or Mac under your tree!

All the best for 2009.

Alex Brooks
Senior Editor
World of Apple.com