Apple’s Opposition to Psystar’s First Amended Counterclaim is due today. As we await their arguments, I have a bit of exclusive news to report. I believe that my source for this information is reliable. Upon my inquiry I was told the following:

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

Psystar currently does not have any outside investors 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:

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.