Miracle Max: See, there’s a big difference between mostly dead, and all dead. Now, mostly dead: he’s slightly alive. All dead: well, with all dead, there’s usually only one thing that you can do.
Inigo: What’s that?
Miracle Max: Go through his clothes and look for loose change.

Well it has been a while since I have reported on this case due to personal family troubles, and truth is, I have not completely kept up with all of events. Rather than never finding time to go back and read front the point I left off, I am going to start with the latest developments and go back and read the most relevant items. I welcome reader input as to any fact or nuance that I might have missed.

A few days ago, I was reading my RSS feeds and noticed multiple sites proclaiming that Psystar was dead. I thought to myself, ”Self, I bet that turns out to be completely wrong. None of these stories deal with the two million reasons Psystar has to keep things going.” It was this bit of failure to be skeptical of a sound byte quote that motivated me to jump back into the game.

So let’s back up a bit. On December 15, 2009, Apple prevailed in its attempt to obtain a permanent injunctive order against Psystar for any clones produced running Leopard or Snow Leopard. Psystar had been desperately trying to make Snow Leopard a separate issue but failed. I think that failure is finally righting a very bad ruling made earlier in the case in which Judge Alsup punished Apple for its battle to keep Snow Leopard out of that litigation primarily because it wasn’t released yet. That decision completely baffled me, but finally it appears that Judge Alsup has corrected himself in a roundabout way.

This Order does effectively end Psystar’s future as a trash-talking Mac cloner. There is no ambiguity or wiggle-room in that facet. However, Judge Alsup refused to exclude Psystar’s product, Rebel EFI (did I mention how much I hate cheesy, self-serving names?), from the injunction. Here is the precise wording (apologies for the lengthy quote; it is necessary):

B. REBEL EFI
Since the terms of an injunction must be “reasonable to prevent or restrain” further infringement of a copyright or violation of the DMCA, it follows that an injunction must be limited as “to restrain acts which are the same type or class as unlawful acts which the court has found to have been committed or whose commission in the future, unless enjoined, may fairly be anticipated from the defendant’s conduct in the past.” Orantes-Hernandez v. Thornburgh, 919 12 F.2d 549, 564 (9th Cir. 1990) (quoting NLRB v. Express Pub. Co., 312 U.S. 426, 435 (1941)); 17 U.S.C. 502(a), 1203(b)(1).

Consistent with this standard, a permanent injunction against Psystar should, at a minimum, encompass the acts found unlawful in this action. In other words, an injunction should at least cover Psystar’s acts constituting infringement of Apple’s reproduction, distribution, and derivative-work rights under the Copyright Act, Psystar’s acts constituting contributory infringement of Apple’s reproduction right under the Copyright Act, and Psystar’s acts violating the anti-circumvention and anti-trafficking provisions of the DMCA, as found at summary judgment (Dkt. No. 214).

Psystar does not dispute this legal standard (Dkt. No. 237 at 4). Instead, Psystar concentrates its fire on obtaining an exclusion for its aforementioned Rebel EFI product from any injunction issued by this order. Psystar advances three reasons for such an exclusion: (1) Rebel EFI only works with Apple’s Snow Leopard product, and Snow Leopard should be excluded from the injunction; (2) the method by which Rebel EFI operates does not fall within “the same type or class” of acts found to be infringing or unlawful in this action, and raises legal issues not litigated by the parties; and (3) an injunction that does not exclude Rebel EFI would cause substantial interference with the sovereignty of in the United States District Court in the Southern District of Florida, where a separate action involving Rebel EFI is pending (Dkt. No. 237).

Since this order has already determined that an express exclusion for Snow Leopard is improper, Psystar’s first argument fails. With respect to Psystar’s second argument that Rebel EFI differs materially from this case in both fact and law, Psystar cites to no decisions where the terms of an injunction under the Copyright Act or DMCA specifically excluded a non-litigated product of the accused infringer. Instead, Psystar attempts to distinguish the decisions cited by Apple and this order — such as Walt Disney — supporting the extension of injunctive relief to non-litigated works of the copyright holder as being “cases where the additional, non-litigated conduct was the same in all legally relevant respects to the actually litigated conduct” (Dkt. No. 237 at 5).

Psystar’s argument belies even a casual reading of these decisions. Walt Disney and its progeny addressed the issue of whether non-litigated copyrighted works of the copyright holder should be included within the scope of a court’s injunction. Here, Apple is the copyright holder whose rights have been asserted, and therefore Walt Disney is clearly applicable as to whether Snow Leopard should be included in an injunction. By contrast, Rebel EFI is a product of Psystar, the accused infringer in this case (See Dkt. No. 237 at 4). And whether a non-litigated act or product of an accused infringer falls within the ambit of an injunction goes to the enforceability, rather than the scope, of the injunction. See In re Lorillard Tobacco Co., 370 F.3d 982, 986 (9th Cir. 2004) (noting that the three fundamental characteristics of an injunction are that it is directed to a party, enforceable by contempt proceedings, and designed to protect the substantive relief sought by a complaint in more than a temporary fashion) (citations omitted) (emphasis added).

In other words, distinguishing the Walt Disney line of decisions provides no protection to Psystar with respect to its own product, Rebel EFI. Whether Rebel EFI violates the terms of the injunction set forth in this order is a factual issue more appropriate for a contempt action. See Jerry’s Famous Deli, Inc. v. Papanicolaou, 383 F.3d 998, 1001 (9th. Cir. 2004) (affirming a contempt order after factual findings by the district court indicated that the defendant violated a permanent injunction directed to prevent infringement of the plaintiff’s trademarks).

Common sense also supports this distinction between the terms and enforceability of an injunction. As Psystar readily admits, Rebel EFI has not been litigated in this action and was not subject to discovery. Moreover, Psystar’s opposition brief appears to purposefully avoid providing a straightforward description of what Rebel EFI actually does (See Dkt. No. 237). Thus, it is not only inappropriate, but impossible to determine on this record whether Rebel EFI falls within “the same type or class of unlawful acts” found at summary judgment. This order declines to “bless” a product about which it knows little of substance. Psystar’s second argument is therefore rejected, and Psystar — if it continues to do so — sells Rebel EFI at its peril.

Finally, Psystar asserts that issuing an injunction without excluding Rebel EFI would “invade the jurisdiction of Judge Hoeveler of the United States District Court for the Southern District of Florida” (Dkt. 237 at 3). To support their argument, Psystar cites to United States v. AMC Entertainment, 549 F.3d 760, 770 (9th Cir. 2008), quoting in relevant part:
[W]hen exercising its equitable powers to issue an injunction, a court must be mindful of any effect its decision might have outside its jurisdiction. Courts ordinarily should not award injunctive relief that would cause substantial interference with another court’s sovereignty.

What Psystar conveniently omits, however, are the paragraphs immediately following the quoted language. As the remainder of the decision clearly explains, the district court’s granting of a nationwide injunction in AMC Entertainment was improper because the injunctive relief directly conflicted with an existing decision by the Fifth Circuit, and circuit courts “expect [their] pronouncements [to] be the final word within the [c]ircuit’s geographical area, subject only to en banc or Supreme Court review.” Id. at 771. Since neither the United States District Court for the Southern District of Florida nor the Eleventh Circuit Court of Appeals has issued any pronouncement on the legality of Rebel EFI under the Copyright Act or DMCA, Psystar’s argument lacks merit. Moreover, as explained above, whether Rebel EFI or any future or non-litigated Psystar product violates the injunction issued by this order is a question more appropriate for contempt proceedings. This order does note, however, that if such contempt proceedings are brought against Psystar, comity with respect to the action before Judge Hoeveler in Florida will be properly considered. This determination would, of course, also examine the harm that delay would cause Apple, the stage of the proceedings in the Florida case, and whether the record before the undersigned provides a more complete framework to do justice to the issues presented. But these questions are for another day.

In sum, Rebel EFI will not be expressly excluded from the terms of the injunction. It should be clear, however, that this ruling is without prejudice to Psystar bringing a new motion before the undersigned that includes real details about Rebel EFI, and opening itself up to formal discovery thereon. This would serve the purpose — akin to a post-injunction motion vetting a “design-around” in a patent action — of potentially vetting (or not vetting) a product like Rebel EFI under this order’s decree. Moreover, Psystar may raise in such a motion any defenses it believes should apply to the factual circumstances of its new product, such as the 17 U.S.C. 117 defense raised in its opposition and at oral argument. Whether such a defense would be successful on the merits, or face preclusion or other hurdles, this order cannot predict. What is certain, however, is that until such a motion is brought, Psystar will be selling Rebel EFI at its peril, and risks finding itself held in contempt if its new venture falls within the scope of the injunction.

In short, Judge Alsup refused to expressly exclude Rebel EFI from the injunction. That wording is significant in light of other statements in the Order indicating that Judge Alsup was none too pleased with Psystar selective quotation of case law and misquoting the Court’s Orders by failing to put them within their proper context. Judge Alsup in this Order and a separate Final Judgment Order expressly retained enforcement jurisdiction.

Why did Judge Alsup possibly leave the door open to Psystar? He was not clear on Rebel EFI actually worked, though he strongly suspected that once he did, it would violate the clear guidance articulated in the portions of the Order describing why the clones were enjoined. He basically put the equivalent of a “Bad Dog” sign outside the fence and asked Psystar if they really want to open that gate. They might not like what they find inside.

So what will Psystar’s next move likely be? Exactly what the Judge told them to do. Don’t sell Rebel EFI without filing a new motion in which more details on the product are given so that a firm decision can be made. And, as of this date, Rebel EFI is listed on Psystar’s site as being “out of stock.” Of course that is not precisely true, let’s just say its slightly true, because Rebel EFI is a software program; it is not possible for it to be “out of stock.” I guess it would have just killed the Pedrazian pride to say that it was unavailable until further notice. I expect to see such a Motion from Psystar in the immediate future.

To sum things up, why was I suspicious when I read that Psystar was giving up the ghost? Well, their prior settlement with Apple in which they agreed to pay over two million dollars in damages is tolled until all of the legal avenues, including appeal, have been exhausted. It is in Psystar’s best interest to keep this horse alive as long as possible. And Attorney Camara might not mind losing fees for the priceless publiclity he and his firm have been receiving for this case. I believe that Camara knows that the case is a dog but hopes that it will put his name out there for some career-making technology case.

Also, I keep wondering, what ever happened to the ten John Does? I don’t see where Apple ever struck them as parties. It is as if they were mentioned and vanished into the virtual ether.

In addition to her position as Assistant Editor at World of Apple, dizzle runs idrankthekoolaid, an Apple fangrl satire blog, and is an Administrator and Hostess at MyAppleSpace and their vidcast MASTv.