Interesting. I am going to spend some time re-evaluating this. I think we may know more when the Judge rules on the Motion. Remember there is no DMCA angle yet. The Judge has to allow the amendment, and he is not required to do that. If he feels that Apple should have included that to begin with, and they are not asking for an exception due to excusable neglect or inadvertance (which why are not), he likely will not grant it. Complaints aren’t things in which parties can just willy-nilly decide to go “oops,” I think I might want to add that. Something has to have changed to make Apple want to add that now rather than at the beginning.

It wouldn’t be the first time I am wrong in a guess (and let’s face it, only the two parties know their strategy, we are all just guessing), but I just think it is more to it. Going back through all the stuff so far, the outline of a potential idea is bubbling up through this warped brain of mine.

I am probably going to leave it to others to chase down that fox; I am really intriqued by the mysterious “John Doe” do-defendants.

To answer SCF’s question, that preliminary review of the material doesn’t seem to indicate that Apple would be required to go after the OSx86 group, though a complete answer on that would of course require a professional legal opinion. As a lay person, I think it is obvious that there are enough differences to make the circumstances distinguable: one group is trying to make a profit on the back of Apple and the other is a group of geeks who like to tinker around to see what they can do. Huge difference IMHO.

SJC said:Considering that there are large numbers of people working on the ‘Hackintosh’/OSx86 projects quite openly across the internet, could Psystar use the fact that Apple hasn’t prosecuted them in its defence? After all, Psystar is basically selling their hacked version of OS X. (I doubt they’re capable of doing any of the hacking themselves.)

Actually I have good reason to believe that they are doing at least some of the hacking themselves and/or created new hacks.

Is the DMCA like I’ve heard regular copyright is, where you have to chase every infraction, no matter whether its coincidental, not for profit, etc., less when you go to prosecute a serious case the fact you’ve let these other slide is used against you?

I do not know for sure, but my gut says no. There were already standard copyright claims, this DMCA is not adding much new that I can see, but I could be wrong on further examination. IMHO nearly every site is concentrating on that and not enough on the John Does 1-10. Are those OSx86 people? I don’t think so, but as we spoke, there is a paper trail I want to follow a bit further. Right now, I still think the best theory is un-named backers/owners who wish to remain un-named. IF I am right, and IF Psystar fails again in its countersuit, Apple may have no motivation to settle for any amount worth speaking of but just simple go away money. Certainly not millions. I really think the Gotcha is the John Does.

I do think however, that the licensing under which OSx86 operates needs some tweaking. I believe that was brought up in the interviews linked to in that engadget article.

That’s true, it seems that Psystar is using a whole lot of code (the EFI emulator, the NVInject graphics patch) from developers working on the OSx86 Project. For the OSx86 community, this is a labour of love. Psystar is using other people’s work, without their permission, and to make money. Not like this comes as a surprise.

engadget: “We also talked to several other members of the OSx86 scene who believe that Apple is tolerant of (and even subtly assisting) their efforts, and are worried that the Psystar flap might end that relationship and bring the hammer down — after all, there’s no Psystar without OSx86.”

http://www.engadget.com/2008/04/16/osx86-project-not-too-happy-with-psystar-either/

Has Psystar Ruined the Hackintosh for Everyone?

I do not think it is the OSx86 community but must confess that never even crossed my mind. That particular community has been particularly outspoken against Psystar (link forthcoming), and Apple has been content to let them fly under the radar so far. I do think though that Max’ take is a solid alternative point of view. Did that help? Legal issues are complex. If they are distilled too much several undesirable things happen.

1. You don’t really learn anything

2. It encourages irresponsible reporting by some sites that just parrot what they read from another, and it turns into a game of telephone, where the facts and reality are far apart. Understanding the complexities of this case does take some work, but it is worth it. I try to distill it down enough for the lay person without diluting the importance. Please feel free to ask me any questions.

Is the DMCA like I’ve heard regular copyright is, where you have to chase every infraction, no matter whether its coincidental, not for profit, etc., less when you go to prosecute a serious case the fact you’ve let these other slide is used against you?