Once again the Apple web has gone off the deep end in its inaccurate reporting on the Psystar case. One major site gets something wrong, and before you know it, the inaccurate story reproduces faster than rabbits. With many news items, this is understandable and excusable. For instance, there is some information that simply is not easily accessible to most bloggers, and they have to rely upon the credibility of what is reported by larger outlets. However, if facts and assertions can be easily fact-checked, then it is simply bad reporting to parrot what others have said. What category does the Psystar case fall into? Well, the Federal Rules of Civil Procedure are available online and all of the filings in this case are available for free online; therefore, misreporting on these issues is negligent. Perhaps this is healthy, but my eyes have been opened to the fact that I can’t believe a lot of what I read unless I can verify it myself. The Apple web can and should do better than that.

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.

By presenting to the court a pleading, written motion, or other paper — whether by signing, filing, submitting, or later advocating it — an attorney or unrepresented party certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:

(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;

(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;

(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and

(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:

I am a staff writer at World of Apple and am actively involved in reporting updates in the Psystar case.  A few weeks ago, I had called and spoken to one of your legal assistants asking if it was possible to obtain clarification on this part of Apple’s Amended Complaint:

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 names and capacities when they are ascertained.

The part that I requested clarification on is bolded.  My confusion involves the word “capacities.” Is that intended to be modified by “whether individual, corporate, or otherwise” or is it intended to mean roles or activities?  I strive for accuracy in my reporting, and I want to be sure that I understand what is being pled.

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.