World of Apple

Today former senior vice president and general counsel of Intel Corporation joined Apple as General Counsel and senior vice president of Legal and Government Affairs, reporting to Apple CEO Steve Jobs. Daniel Cooperman who served in the role for the past two years will retire at the end of September.

“We are thrilled to have Bruce join our executive team, and wish Dan a very happy retirement,” said Steve Jobs, Apple’s CEO. “With Bruce’s extensive experience in litigation, securities and intellectual property, we expect this to be a seamless transition.”

Hello readers, just a quick note. Yes, I am aware of this new suit but am not quite ready to write on it yet. There are some trails I want to chase down, and I just want to let it marinate in my mind a bit more. Stay tuned for the World of Apple analysis in the near future as well as the promised articles on the California case. These cases for a time will be at a pace that it will be near impossible to have a comprehensive analysis up immediately. At least one site on the Apple web reported on the case on the day or day after it was filed. However, after reading the article, I was not only lost on what the real issues were purported to be; what I wasn’t lost on didn’t appear to be entirely accurate. It turns out that I am right. So with these significant filings, you can count on me to strive to be comprehensive but not necessarily “first” (which annoys my competitive nature but satisfies my drive for doing things to the best of my ability).

On one really exciting note, it is possible that I might be able to personally attend significant hearings since the Court is only about 90 minutes away from where I reside. The only problem with that is when hearing dates change at the last moment and obviously I have to give my employer advance notice. If there are any World of Apple readers who will be attendance at some of the same hearings, I look forward to meeting you.

In my past article, I had claimed that in my personal lay opinion, Apple’s counsel did not perform at their best during the August 20, 2009 hearing. I will defend that opinion in this article by examining the filings and hearing arguments relating to the issue of spoliation (destruction) of evidence.

Apple’s Letter Brief dated August 10, 2009

You may read this Letter Brief in full here.

As you can see, Apple outlines the history of the discovery of the destruction of certain data. It is interesting that Psystar filed for its bankruptcy protection right after Apple notified Psystar of this spoliation and other deficiencies in the Court-ordered production. Despite this, Psystar didn’t take any corrective measures until months after Apple’s notification.

Even though the deleted code featured so prominently in discussions, please note footnotes 3 and 5 of the Letter Brief:

Footnote 3 [the text to which this footnote refers is redacted]: When asked why, Psystar’s counsel stated that Psystar’s email and customer support software (SupportSuite) randomly “deleted or loses” emails. While counsel says that Psystar has contacted SupportSuite regarding this issue, Psystar has yet to find any emails or chat messages showing such contact with that vendor. Psystar also has not provided evidence of, and Apple is unaware of, any other steps taken by Psystar to halt the deletion of relevant emails by Psystar’s email system. Moreover, Psystar did not inform the Court of this email deletion at the two CMCs [case management conferences] in this case or at the last motion to compel hearing where Psystar’s emails and attachments were at issue.

Footnote 5 [the text to which this footnote refers is redacted]: Psystar has produced one version of the bootloader and just last week provided its July 2009 bootloader. However, Psystar has not produced the other bootloaders it previously used on its computers.

In its request for relief, Apple asks for sanctions citing general case law on the scope and breadth of the Court’s authority in this regard, but specifically requests:

If Psystar does not produce all prior versions of its code, then Apple respectfully requests that the Court exercise its inherent authority by granting Apple an inference adverse to Psystar on its copyright and DMCA claims and by awarding Apple its fees and costs associated with bringing this motion or as the Court otherwise sees fit.

This Letter Brief was authored by Mr. Gililand who, although he was present at the August 20, 2009 hearing, did not argue the issues.

Psystar’s Response Letter Brief dated August 19, 2009

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I have obtained the transcript of the hearing that took place on August 20, 2009 resulting in the following Minute Entry in the Court docket:

08/24/2009 – 96 – Minute Entry: Discovery Hearing held on 8/20/2009 before William Alsup (Date Filed: 8/24/2009). Supplemental briefs due by 8/27/09. Deft shall pay pltf $5,000 in attys fees. (Court Reporter Sahar McVickar.) (dt, COURT STAFF) (Date Filed: 8/24/2009) (Entered: 08/24/2009)

However, before reporting on what transpired, a brief review of the filings that led to this hearing is in order. Rather than delaying the publication of this information so that I might digest this information down, I refer the reader to Groklaw’s excellent articles on the subject:

EULAs, Psystar, and the Reality Principle – Updated

Apple v. Psystar takes a darker turn in discovery – Updated

I have some additional thoughts that I would like to add to what Groklaw has reported, but I shall do so in subsequent articles during the “downtime” until the deadline for additional filings which is August 27, 2009 with another ruling no sooner than the end of August.

So What Happened at the Hearing?

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The discovery dispute that has been ongoing (and which I am going to explore in full over the coming days, though I would refer the reader to Groklaw to get up to speed until then) was heard today (8/24/09) before Judge Alsup with this terse ruling (though in all fairness it was just a minute entry and not a typical full-blown Order):

ORDERED AFTER HEARING
Parties shall file supplemental briefs by 8/27/09. Defendant shall pay Plaintiff $5,000.00 in attorneys fees for bringing the motion.

Maybe now Psystar will figure out that it is not all fun and games with silly threats and contests on your website when dealing with the Federal Court System. Note that it was Psystar itself that was sanctioned, not their law firm.

Since, oddly enough, the English word “sanction” also has the opposite meaning of “to approve,” Wikipedia’s concise layman’s summary of legal sanctions is helpful:

Sanctions are penalties or other means of enforcement used to provide incentives for obedience with the law, or with rules and regulations.[1] Criminal sanctions can take the form of serious punishment, such as capital punishment, prison time, or severe fines. Within the civil law context, sanctions are usually monetary fines, levied against a party to a lawsuit or his/her attorney, for violating rules of procedure, or for abusing the judicial process. The most severe sanction in a civil lawsuit is the involuntary dismissal, with prejudice, of a complaining party’s cause of action, or of the responding party’s answer. This has the effect of deciding the entire action against the sanctioned party without recourse, except to the degree that an appeal or trial de novo may be allowed because of reversible error.

Since no further detail was given, all we can really conclude is that Judge Alsup was annoyed to the tune of $5,000.00. Lauren could have bought herself a totally tricked out Mac Pro for that.

In minor news, the Bankruptcy Court recently corrected a clerical error in its prior Order making it clear that the case was dismissed with prejudice for a period of twelve months (and not six as it had mistakenly said in one part of the prior Order).

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.

Personal issues have kept me from writing as regularly on my favourite case as I would like, but hopefully that has ended or at least been minimized. Many interesting things have happened recently, particularly regarding discovery, and I have only just began to digest the information and do not write on a subject until I am fairly sure that I have the facts down and some solid defensible opinions. However, this is a perfect opportunity to step back and take a look into the discovery between the parties prior to Psystar filing and then just as suddenly, fleeing, bankruptcy. As far as I have seen, this information has not been reviewed elsewhere on the Apple web.

Typically, in Federal Court, discovery requests and answers are not filed with the Court unless there is some dispute, and even then, they are often heavily redacted as we have already seen with the Letter Brief filed by Apple on April 29, 2009. In fact, the parties had earlier requested, and had been granted, a Protective Order allowing the redaction (or filing under seal) of certain areas of inquiry in any discovery which must be used as an attachment in support of any filing. Due to these circumstances, we know precious little about precisely what types of inquiries were propounded by both parties. However, attached to Rudy Pedraza’s Declaration filed with the Bankruptcy Court were copies of Apple’s Answers to Psystar’s First, Second, and Third Requests for Admission (comprising 181 separate Requests).

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According to the USA Today Apple and AT&T (and Google presumably, although not mentioned by USA Today) are set to release their statements to the Federal Communications Commission to explain why Google’s free Google Voice service and associated apps were banned from the iPhone.

The article goes onto mention that Google may find itself in some bother over the company denying the use of the VoIP Skype on the Android phone platform.

Consumers who use Android, the Google-developed operating system for wireless devices, can’t use Skype, a leading Voice over Internet Protocol (VoIP) service. A pioneer in free Internet calling, Skype allows you to talk as long as you want without draining cellphone minutes.

Android users get Skype Lite, a watered-down version of the original that routes calls over traditional phone networks — not the Internet. As a result, long-distance calls are still cheap or free, but cellphone minutes are gobbled up every time a Skype Lite call is made.

Google has reportedly been asked to address its own application approval process for Android as part of the FCC’s investigation.

As of August 4, 2008, Debtor Psystar has been released from its Florida Bankruptcy proceeding. It appears that this dismissal is good for the period of one year and conditioned upon Psystar paying its outstanding creditors, presumably including its prior law firm. Good luck with that.

Additionally Apple has filed numerous documents under seal (private) with the California Federal Court. World of Apple is determining what little information may be gleaned as a matter of public record. From the brief review, Apple is contending that Psystar purposefully and willfully destroyed relevant evidence that it infringed upon Apple’s code. Specifically, while Psystar may not NOW be using Apple’s code (arguably), it has in the past and has conveniently lost all evidence of that fact. The plot thickens. It seems that Psystar are precisely the bad boys I have suspected.

The routine mechanics of civil litigation have been steadily moving along in the past few weeks. Nothing new in the bankruptcy case has occurred since our last report. The next bankruptcy hearing is scheduled for August 4, 2009 in which Psystar’s Motion to Dismiss its bankruptcy case will be considered. I remind the reader that despite the fact that the case is not yet officially dismissed, Psystar declared that it had been in a promotional email to its customers. Since I am fairly certain that Apple has not yet invented time machine technology for Psystar to misappropriate, that statement remains a tad premature.

The last activity we reported in the California case was the news that Psystar requested leave for substitution of counsel. Their proposed new lead law firm is none other than Camara & Sibley, LLP of Houston, Texas; the firm that represented Jammie Thomas against the RIAA in which Ms. Thomas not only lost, the RIAA was awarded even more monetary damages than sought. I am not so certain that such a recent track record should recommend itself to Psystar who’s less than forthright activities and thus far shaky legal position are not exactly pristine. Ms. Thomas’ loss was due to a combination of many factors and cannot be placed solely, if at all, at the feet of the skill of her attorneys (and I agree with Groklaw that the damages are unconscionable). Case decisions involve many complex relations that cannot be reduced so easily, and it appears that the jury followed the law as written—law which is highly hated by many and arguably unduly oppressive. That being said, however, if I were Psystar, I would be concerned that perhaps their new firm cannot rehabilitate their blackened case and image; fair or not. Jammie was a sympathetic defendant; Psystar is not.

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Following the rejection and removal of Google Voice apps from the App Store the FCC (Federal Communications Commission) has now begun an investigation into the process involved in app approvals and what role AT&T plays in the process.

To offer some background, Google Voice is a service originally known as Grand Central, at the most basic function Google Voice offers a single phone number of your choice that will ring multiple phones, e.g. work, home, mobile, etc. Along with this unified number there is also a unified voice mail system, accessible via the web. Google Voice also allows listening in on voice mails as they’re being left, setting custom away messages for different callers, blocking of telemarketers and many more features.

Several third party Google Voice apps had been available on the App Store for some months and Google had submitted the official app for review not long ago. The apps main functions are to facilitate dialling out of the phone using the Google Voice number, sending SMS messages, showing a call history and access to the online voicemail system.

On July 27 Apple rejected Google’s official iPhone app and removed all the previously approved apps from the App Store causing uproar amongst the media and iPhone owners. At the time it was unclear whether the decision was Apple’s or AT&T’s, it was later revealed that AT&T was most likely behind the ban.

Today it has been revealed that the U.S Federal Communications Commission has taken interest in the matter. In letters sent to Google, AT&T and Apple the FCC makes mention to an ongoing case started by Skype which questions wireless open access and also another case regarding handset exclusivity.

All the letters as well as the document containing details about RM-11361 can be seen below.

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