View the gallery.

View the gallery.

David Pogue demonstrates how to use a Blackberry

In the interview TUAW’er Christina Warren touches on the Apple Keynote, the future of Macworld and the Blackberry Storm…

• Cisco’s WebEX iPhone app
• FileMaker 10 Pro
• HP MediaSmart Server EX485
• Daylight Touch by MarketCircle
• Things by CultureCode
• Pulse SmartPen from Live Scribe
• Slingplayer for iPhone
• iPhoto ‘09
• Ecamm BT1

In line with recent green efforts by Apple the company has decided to not send out paper hard copies to every shareholder instead they can view it online at www.apple.com/investor or in the Notice of Internet Availability of Proxy Materials that will be mailed to Apple’s shareholders as of December 29, 2008. Apple’s 2008 Form 10-K was filed on November 5, 2008 and may also be viewed at www.apple.com/investor.

During the Keynote Apple announced the new unibody 17-inch MacBook Pro, variable pricing and an entire DRM-free iTunes Store as well as releasing major updates to iLife and iWork.

View the gallery.

The 17-inch MacBook Pro features a aluminium unibody enclosure, and a revolutionary new built-in battery that delivers up to eight hours of use and up to 1,000 recharges for more than three times the lifespan of conventional notebook batteries. The new 17-inch MacBook Pro has a high resolution LED-backlit display and the same large glass Multi-Touch trackpad introduced with the new MacBook family in October. In addition, the new 17-inch MacBook Pro includes state of the art NVIDIA graphics and the latest generation Intel Core 2 Duo mobile processors. As part of the industry’s greenest notebook family, the new 17-inch MacBook Pro is made of highly recyclable materials, meets stringent energy efficiency standards and is made without many of the harmful toxins found in other computers.

“We’ve developed new battery technology that is better for the user and better for the environment”, said Steve Jobs, Apple’s CEO. “Apple’s advanced chemistry and innovative technology deliver up to eight hours of use on a full charge cycle and up to 1,000 recharges”.

Apple uses advanced chemistry, intelligent monitoring of the system and battery, and Adaptive Charging technology to create a revolutionary new notebook battery that delivers up to eight hours of wireless productivity on a single charge and up to 1,000 recharges without adding thickness, weight or cost to the MacBook Pro’s incredible design. The longer battery lifespan equals fewer depleted batteries and less waste, which is better for the environment.

Measuring just 0.98-inches thin and weighing 6.6 pounds, the 17-inch MacBook Pro is the world’s thinnest and lightest 17-inch notebook. The 17-inch MacBook Pro is the most powerful Mac notebook yet with the latest Intel Core 2 Duo processors available up to 2.93 GHz, up to 8GB DDR3 main memory and a graphics architecture that allows users to switch between the NVIDIA GeForce 9400M integrated graphics processor for better battery life and the powerful NVIDIA GeForce 9600M GT discrete graphics processor for higher performance. The new 17-inch MacBook Pro includes a 320GB 5400 rpm hard drive standard with a 320GB 7200 rpm hard drive and 128GB and 256GB solid state drives as options. As with the rest of the new MacBook family, the 17-inch MacBook Pro includes a next generation, industry-standard Mini DisplayPort to connect with the new Apple LED Cinema Display featuring a 24-inch LED-backlit widescreen display with a built-in iSight video camera, mic and speakers.

The new 17-inch MacBook Pro joins the aluminium unibody MacBook family in setting new standards for environmentally friendly notebooks with every model achieving EPEAT Gold status. Each MacBook unibody enclosure is made of highly recyclable aluminium and comes standard with energy efficient LED-backlit displays that are mercury-free and made with arsenic-free glass. The new MacBook family meets stringent Energy Star 4.0 requirements, contains no brominated flame retardants, and uses internal cables and components that are PVC-free. The battery in the new 17-inch MacBook Pro provides additional environmental benefit because its extended lifespan means fewer depleted batteries resulting in less waste.

The 17-inch MacBook Pro is available from $2799 (£1949) by the end of January.

Apple announced several changes to the iTunes Store. Beginning today, all four major music labels—Universal Music Group, Sony BMG, Warner Music Group and EMI, along with thousands of independent labels, are now offering their music in iTunes Plus, Apple’s DRM-free format with higher-quality 256 kbps AAC encoding for audio quality virtually indistinguishable from the original recordings. iTunes customers can also choose to download their favorite songs from the world’s largest music catalog directly onto their iPhone 3G over their 3G network just as they do with Wi-Fi today, for the same price as downloading to their computer. And beginning in April, based on what the music labels charge Apple, songs on iTunes will be available at one of three price points: 69 cents, 99 cents and $1.29, with most albums still priced at $9.99.

“We are thrilled to be able to offer our iTunes customers DRM-free iTunes Plus songs in high quality audio and our iPhone 3G customers the ability to download music from iTunes anytime, anywhere over their 3G network at the same price as downloading to your computer or via Wi-Fi”, said Steve Jobs, Apple’s CEO. “And in April, based on what the music labels charge Apple, songs on iTunes will be available at one of three price points — 69 cents, 99 cents and $1.29 — with many more songs priced at 69 cents than $1.29″.

Apple today introduced iLife ’09, which features major upgrades to iPhoto, iMovie and GarageBand, and includes iDVD and an updated version of iWeb. iPhoto ’09 builds on the ability to automatically organize photos into Events by adding Faces and Places as breakthrough new ways to easily organize and manage your photos. iMovie ’09 expands on the revolutionary super fast movie creation introduced in iMovie ’08 by adding the depth users want through powerful easy-to-use new features such as the incredible new Precision Editor, video stabilization, advanced drag and drop, and animated travel maps. GarageBand ’09 introduces a whole new way to help you learn to play piano and guitar with 18 basic lessons and optional lessons from top artists such as Sara Bareilles, John Fogerty, Norah Jones and Sting. iLife ’09 is included with every new Mac purchase and available as a $79 upgrade for existing users.

GarageBand ’09, the updated version of Apple’s popular software used by millions to play and record music, now gives budding musicians a fun new way to learn to play piano and guitar. Basic Lessons let you learn the fundamentals at your own pace with Apple instructors in beautiful HD video synchronized to animated instruments and notation. Artist Lessons feature original artists showing how to play their hit songs with everything from finger positions and techniques to the story behind the song. Choose from lessons by popular artists including: Sara Bareilles, Colbie Caillat, John Fogerty, Ben Folds, Norah Jones, Sarah McLachlan, Fall Out Boy’s Patrick Stump, OneRepublic’s Ryan Tedder and Sting. Artist Lessons are sold separately at the new GarageBand Lesson Store, available inside the GarageBand ’09 application. GarageBand ’09 also includes exciting new guitar amp and stomp-box effects, and Magic GarageBand Jam that lets you play along with a virtual band that you create.

iLife ‘09 is available for $79 (£69) later in January.

Apple also introduced iWork.com public beta, a new service Apple is developing to share iWork ‘09 documents online. Using your Apple ID, just click the iWork.com icon in the Keynote, Pages or Numbers toolbar to upload your document and invite others to view it online. Viewers can provide comments and notes, and download a copy of your document in iWork, Microsoft Office or PDF formats. A consolidated online list of all your shared documents indicates when your viewers have posted comments.

iWork ‘09 is available for $79 (£69) today.

For the past four years we’ve attempted to cover the keynote live, with mixed success it must be said. This year we’re making no attempt at all, World of Apple will be at the keynote but we’ll be taking photos. So look out for a gallery of fantastic photographs just after the keynote.

In addition as the week progresses we’re going to attempt to cover more third party news than we have in the past, we already know that there is a lot of buzz about iPhone apps here at Macworld so we’ll be checking them out.

Finally two Apple related movies are being premiered this week, World of Apple got an exclusive viewing of “Welcome to Macintosh” this evening and “MacHeads” will be showing later in the week. We intend to offer some reviews of both these films.

For further information on what it is going down socially at Macworld, Macworld Bound is definitely a blog worth checking out and you can follow me on Twitter as well as Adam Jackson.

Hope you enjoy your Macworld week as much as we will and happy reading.

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