I have been pondering this whole turn of events some more and will have additional thoughts very soon.

These recent filings can be found here:

• Psystar’s Consent to file Amended Complaint
• Apple’s Amended Complaint

“We have removed the KnowledgeBase article because it was old and inaccurate,” Apple spokesman Bill Evans, told Macworld. “The Mac is designed with built-in technologies that provide protection against malicious software and security threats right out of the box.”

The support page was criticised by many as it went against Apple’s latest “Get a Mac” adverts which ridiculed Windows users for having to invest in anti-virus solutions to protect their computers.

The problem is, as with many of these types of stories. Those who decided to write it up have done so without proper research and have caused a cascade of misinformation; to the point where the BBC is writing up the “news” which quickly became one of the most viewed stories on the site and remains as of writing the most emailed.

Thankfully one blogger has done the hard work that everyone else should have done and pointed out that the support technote that Apple posted on November 21 (updated December 2) was in fact an amended article which was originally posted on Apple’s site in June 2007.

So Apple has been offering this recommendation for 18 or so months although even Apple claims that the article “does not constitute Apple’s recommendation or endorsement” but is only their for “information purposes”.

And before everyone jumps on my back I do see the importance of running anti-virus software in networked environments where Windows PCs are present and maybe even as just a precaution on your Mac, but you won’t catch me running one of these bloated third-party anti-virus applications.

• In Brief: Alabama Woman Sues Over Alleged iPhone 3G Defects
• In Brief: Amended Complaint Filed in Alabama iPhone Case
• A Possible Hurdle for the Alabama 3G iPhone Suit

Since that time, on October 10, 2008, Apple moved to Dismiss Plaintiffs’ Amended Complaint for Failure to State a Claim. Basically, Apple alleges that the Plaintiffs failed to comply with a necessary condition precedent to bringing a lawsuit on the alleged grounds under Alabama law: they failed to contact Apple to allow Apple the chance to repair or replace the iPhones if necessary. Apple also alleges that a case for unjust enrichment is barred under the terms of its One Year Warranty.

The Plaintiffs responded on October 21, 2008, relying heavily on the much-publicized problems that some users were having with their devices resulting in Apple already providing multiple corrective updates and that Apple and/or its distributors leaked information that additional corrective updates were forthcoming which would remedy the problems in full. Thus, they claim that Apple had sufficient notice to satisfy the spirit of the Alabama requirement. They further claim that they cannot be denied unjust enrichment relief as they were unaware of the One Year Warranty and its terms.

On October 24, 2008, the Court noted that the parties are in dispute as to the existence and/or knowledge of this warranty and gave the parties seven days to attempt to come to an agreement on that issue. If the parties could not agree, the Court stated that it would rule upon Apple’s Motion without assuming the existence and/or delivery of the alleged warranty.

On November 4, 2008, the Court issued its Opinion and Order as two separate filings. The Court’s Opinion noted that the existence and/or delivery of the warranty remains a contested issue. The Court granted Apple’s Motion to Dismiss as to the warranty claims and denied the Motion as to the unjust enrichment claim. While this may seem confusing, the granted portion was based not upon the existence of the disputed warranty issued by Apple but upon the Alabama Commercial Code which legislates that providing actual notice is an absolute condition precedent to any claim of breach of warranty. The Court noted that the Code provides that the seller must be notified within a reasonable amount of time after discovery of the problem or else be barred from any remedy. [emphasis in original] The Court rejected the Plaintiffs’ argument of general notice and opined in some detail as to its reasoning that notice was required as to these specific devices purchased by these specific people.

In its separate Order of the same date, Counts I and II of the Plaintiff’s complaints were officially dismissed with prejudice (meaning that they are adjudicated in finality, unless appealed, if possible) and that the Plaintiffs’ claim of unjust enrichment remained as there were factual disputes between the parties as to the existence and/or delivery of the alleged One Year Warranty provided by Apple. The Court noted that this dismissal with prejudice does not affect the rights of any members of the putative class.

On November 19, 2008, Apple responded to the remaining claim and various factual allegations in the Plaintiffs’ Amended Complaint. The crux of Apple’s Answer is its denial that the iPhone 3G is defective. As far as the request for class-action status, Apple denied that class treatment is warranted in this instance and that any members of this purported class have not been damaged or entitled to relief. Apple repeated its assertion of the existence of its One Year Warranty which would bar the claim of unjust enrichment. Apple also asserted nineteen affirmative defenses. At first, I was going to repeat them all here but decided to wait for reader input as I am learning that not all tech geeks are also legal geeks who like to read court filings for fun. Let me know if those additional details are something you would be interested in.

The last filing was entered on November 20, 2008 and comprised an Order from Judge Acker reminding the parties of certain local rules and asking for notification if this case should be evaluated for ADR (alternative dispute resolution).

I will post additional updates regarding this case as they become available.

In his research Munster noted that Apple was offering discounts on seven products and those discounts averaged 8%. Mac Sales averaged 13 sales per hour, up from 2 per hour earlier in November. iPhone sales averaged 3.4 per hour up from 1.3 earlier in the month.

Munster concluded that Macs are selling better than expected and iPhones are in line with expectations.

Also in his report Munster explains how he can maintain a target on AAPL of $250 a share. Munster writes that his target is based on 20 times earnings and is using Apple’s non-GAAP earnings which included revenue from the iPhone.

Mini DisplayPort on the new MacBook

The availability of a license confirms that the port is propriety from Apple but should allow third-party developers to make adapters to allow notebooks with VGA and DVI connections to use the new 24-inch LED Cinema Display.

“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. Apple’s Amended Complaint is timely, does not cause any prejudice to Psystar and should be permitted.”

So what does this possibly mean? It could be confirmation of my long-standing theory that the Psystar principals are merely patsies for some larger interests who wish to be spared the publicity of going against Apple but would benefit from a victory in this case. Under my theory those interests would be the as-yet unidentified “Does 1–10″ that Apple wishes to add as co-defendants. The plot thickens indeed.

It is likely that the Court will grant this motion. The parties themselves had already previously agreed to a date of January 19, 2008 to amend the pleadings. Psystar has indicated to Apple’s counsel that it opposes this filing.

I note that the proposed Amended Complaint is six pages longer than the initial Complaint. I have verified that this addition is not comprised by exhibits but rather the Complaint itself.

Doe Defendants 1–10

The Amended Complaint reveals tantalizingly little about these unidentified parties. 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 activites 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.

If I am right, some backers of Psystar are sweating right now, and if they are paying the bills, I would not be surprised to see some push for a nominal settlement. For another take on the possible identity of these “Doe” defendants please see: Has Psystar Ruined the Hackintosh for Everyone?

Additional Allegations in Amended Complaint

Paragraph 12 is expanded to include Psystar’s OpenPro, and Psystar’s practice of offering Leopard updates at its site that are either exact copies or modified versions of Apple’s copyrighted software. From this point on, the paragraph numbers do not match as Apple has added two additional paragraphs prior to the paragraph previously numbered as 14 and later moves around and adds other paragraphs. These first additional paragraphs mention Psystar’s plans to release additional computers using unauthorized copies of Leopard, including laptops, as well as Psystar’s practice of distributing a restore disk and providing support for customers to install Mac OS X software in an unauthorized manner.

In its General Allegations, Apple quotes more extensively from the EULA including the Transfer and Termination provisions. In the First Claim for Relief, allegations of additional copyright infringement, including unauthorized derivative works, are added. The Third Claim for Relief points out that Apple had taken measures to protect their copyright, and the defendant has illegally circumvented these measures. The Fourth Claim for Relief sets forth with more specificity Psystar’s alleged infringements. The Fifth Claim for Relief includes a new allegation that Psystar has admitted it was aware of the existence of the EULA. The Seventh Claim for Relief contains additional information on Psystar’s alleged harm to Apple’s trade dress and reputation. In the Eighth Claim for Relief, as in earlier claims not here noted, Apple makes a specific allegation that Apple’s Trade Dress is non-functional. The import of that allegation is beyond my ken. An Eleventh Claim for Relief was added alleging violations of Common Law Unfair Competition.

Many of the allegations contain strengthened wording of “intentional, willful and in conscious disregard of Apple’s rights.”

Apple’s Prayer for Relief contains a request for a preliminary injunction which was noticeably absent from the first Complaint which only sought a permanent injunction. It is my opinion that the Court may very well grant a preliminary injunction until the case is resolved. Apple can easily argue that Psystar’s business does not solely rely upon its disputed sales of non-Apple hardware loaded with OS X as Psystar also sells computers loaded with Windows and Linux.

The above listing of changes is not intended to be all-encompassing. It is the product of my first review of the documents for the most important highlights. As I have time to examine the filings more closely, I will provide additional information. I remind the reader that my opinions are lay-opinions as I am not an attorney, and if authoritative opinions are desired, a competent licensed attorney should be consulted.

Copies of the filings can be downloaded below:

• Motion for Leave to Amend
• Proposed Amended Complaint

Update: I added a link to an article with a differing theory on the potential identity of the as-yet unnamed defendants and made minor grammatical changes.

iPhone 3G is a lot of amazing things — a revolutionary phone, widescreen iPod, breakthrough Internet device, and home for thousands of applications. And with an iPhone 3G Gift Card, it’s also the perfect gift. Give one in any amount starting at $25 toward the cost of a new iPhone.

The advert which shows an iPhone 3G accessing information on the internet “really fast” received 17 complaints from the public who stated that the “ad was misleading, because they believed it exaggerated the speed of the iPhone 3G.”

In a response Apple claims that the “opening line of the voice-over stated “So what’s great about 3G?”. They believed that the claim clearly positioned the content of the ad as a comparison of the new 3G iPhone with its 2G predecessor.”

Adding that “the implication that the 3G iPhone allowed downloads and internet access that was ‘really fast’ by comparison to the previous generation was not misleading.”

In addition to Apple’s response Clearcast also defended the ad saying that “they received supporting evidence for the claim and were satisfied that the 3G iPhone could achieve speeds that, when compared to the rest of the market, were reasonably fast.”

The ASA ruled that the ad “must not appear again in its current form” after deciding that the ads “repeated use of the claim “really fast”, were likely to lead viewers to believe that the device actually operated at or near to the speeds shown in the ad.”

Although the ruling was made by Judge Kenneth Karas on November 7 the decision was only made public earlier this week.

In the ruling Judge Karas wrote “Because Mr. Papermaster has been inculcated with some of IBM’s most sensitive and closely-guarded technical and strategic secrets, it is no great leap for the Court to find that Plaintiff has met its burden of showing a likelihood of irreparable harm.”

The judge also touched on Papermaster’s point that Apple and IBM are no longer competitors, Karas noted that although Papermaster would not be designing chips for Apple he would no doubt have to call upon is superior experience that he received from IBM.

“It is likely that Mr. Papermaster inevitably will draw upon his experience and expertise in microprocessors and the ‘Power’ architecture, which he gained from his many years at IBM, and which Apple found so impressive, to make sure that the iPod and iPhone are fitted with the best possible microprocessor technology and at a lower cost,” adding; “Indeed, any claim that he would merely use general engineering skills is belied by Apple’s focus on Mr. Papermaster’s ’spot on’ knowledge of semiconductors and microprocessor design,” he added.

Karas ruled that the case would run on a fast track, “The Court has ordered that an expedited discovery schedule be arranged and that the trial take place as soon as practicable after discovery is completed,” he said.

The complaint from users of the new notebooks was that standard definition movies purchased from the iTunes store would not playback on an external display due to HDCP restrictions.

Apple writes the following about the update:

This update is recommended for owners of MacBook, MacBook Air, and MacBook Pro with Mini DisplayPort. The update addresses an issue where some standard definition purchases from the iTunes Store do not play on some external displays.

The update means that content purchased from the iTunes store should now playback with no issues.

The report comes after Best Buy announced that it is offering $150 off all Macs.

Mark your calendars. And start your research now by browsing the Apple Online Store to find iPod, iPhone, and Mac gifts for everyone on your list.

Apple has not disclosed any discounts but those interested can view World of Apple’s articles on Apple’s Black Friday sales for 2007, 2006 and 2005. Unlike some previous years Apple appears to be running the promotion across the globe on the same day.

The BBC writes that EMI still owns rights to the Beatles back catalogue and therefore must make an agreement with Apple Corps before digital distribution can begin.

“EMI want something we’re not prepared to give ‘em. It’s between EMI and The Beatles I think - what else is new?,” McCartney stated to the BBC. “Last word I got back was it’s stalled at the moment. But I really hope it will happen because I think it should.”

AppleInsider has received word from EMI who said that the company is “working hard to secure [an] agreement with Apple Corps to make the Beatles’ catalogue available in digital form” but added “the various parties involved have been unable to reach agreement.”

EMI hopes to make progress “soon.”

When we redesigned the new Macbook, our designers and engineers set a goal of making not only the greenest notebook Apple ever produced, but the greenest family of notebooks. So every new Macbook has been built using materials that are highly recyclable and free of many harmful substances present in other computers.

In the advert and on a new section of its website Apple touts that fact that its new MacBook Air, MacBook and MacBook Pro are free of harmful toxins, highly recyclable, very energy efficient and come in compact packaging.

The update which is available through Software Update and on Apple’s website is said to contain “stability improvements” and is recommended for all Safari 3.2 users.

Late last week, IBM posted the appropriate bond. Also of interest, just like Psystar (but hopefully with actual merit, unlike Psystar), Papermaster countersued IBM right back. Papermaster alleges:

• The employment agreement signed by Papermaster precludes him from working for any direct or business enterprise competitor with IBM. Papermaster argues that Apple fails on both counts; it is not a direct competitor and it is not a business enterprise company, but rather a consumer products company.
• The agreement is overly broad as its prohibition lasts for one year which is unreasonably long in the fast-paced world of technology.
• The agreement provides that it shall be governed by the laws of New York, but Papermaster actually works in Texas and would work for Apple in California and those two states are not friendly to such agreements.
• Papermaster signed an agreement with Apple t