World of Apple

In a very interesting turn of events, on November 26, 2008, Apple filed a Notice of Motion and Motion for Leave to File Amended Complaint stating in part:

“Through this motion, Apple seeks leave to file its Amended Complaint … attached hereto as Exhibit A, adds a Digital Millennium Copyright Act claim, additional factual allegations related to Apple’s previously asserted claims and Doe defendants. The DMCA claim is based on new information that Apple has learned since the filing of its original complaint. Apple’s Amended Complaint is timely, does not cause any prejudice to Psystar and should be permitted.”

So what does this possibly mean? It could be confirmation of my long-standing theory that the Psystar principals are merely patsies for some larger interests who wish to be spared the publicity of going against Apple but would benefit from a victory in this case. Under my theory those interests would be the as-yet unidentified “Does 1–10″ that Apple wishes to add as co-defendants. The plot thickens indeed.

It is likely that the Court will grant this motion. The parties themselves had already previously agreed to a date of January 19, 2008 to amend the pleadings. Psystar has indicated to Apple’s counsel that it opposes this filing.

I note that the proposed Amended Complaint is six pages longer than the initial Complaint. I have verified that this addition is not comprised by exhibits but rather the Complaint itself.

Doe Defendants 1–10

The Amended Complaint reveals tantalizingly little about these unidentified parties. 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 activites 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.

If I am right, some backers of Psystar are sweating right now, and if they are paying the bills, I would not be surprised to see some push for a nominal settlement. For another take on the possible identity of these “Doe” defendants please see: Has Psystar Ruined the Hackintosh for Everyone?

Additional Allegations in Amended Complaint

Paragraph 12 is expanded to include Psystar’s OpenPro, and Psystar’s practice of offering Leopard updates at its site that are either exact copies or modified versions of Apple’s copyrighted software. From this point on, the paragraph numbers do not match as Apple has added two additional paragraphs prior to the paragraph previously numbered as 14 and later moves around and adds other paragraphs. These first additional paragraphs mention Psystar’s plans to release additional computers using unauthorized copies of Leopard, including laptops, as well as Psystar’s practice of distributing a restore disk and providing support for customers to install Mac OS X software in an unauthorized manner.

In its General Allegations, Apple quotes more extensively from the EULA including the Transfer and Termination provisions. In the First Claim for Relief, allegations of additional copyright infringement, including unauthorized derivative works, are added. The Third Claim for Relief points out that Apple had taken measures to protect their copyright, and the defendant has illegally circumvented these measures. The Fourth Claim for Relief sets forth with more specificity Psystar’s alleged infringements. The Fifth Claim for Relief includes a new allegation that Psystar has admitted it was aware of the existence of the EULA. The Seventh Claim for Relief contains additional information on Psystar’s alleged harm to Apple’s trade dress and reputation. In the Eighth Claim for Relief, as in earlier claims not here noted, Apple makes a specific allegation that Apple’s Trade Dress is non-functional. The import of that allegation is beyond my ken. An Eleventh Claim for Relief was added alleging violations of Common Law Unfair Competition.

Many of the allegations contain strengthened wording of “intentional, willful and in conscious disregard of Apple’s rights.”

Apple’s Prayer for Relief contains a request for a preliminary injunction which was noticeably absent from the first Complaint which only sought a permanent injunction. It is my opinion that the Court may very well grant a preliminary injunction until the case is resolved. Apple can easily argue that Psystar’s business does not solely rely upon its disputed sales of non-Apple hardware loaded with OS X as Psystar also sells computers loaded with Windows and Linux.

The above listing of changes is not intended to be all-encompassing. It is the product of my first review of the documents for the most important highlights. As I have time to examine the filings more closely, I will provide additional information. I remind the reader that my opinions are lay-opinions as I am not an attorney, and if authoritative opinions are desired, a competent licensed attorney should be consulted.

Copies of the filings can be downloaded below:

• Motion for Leave to Amend
• Proposed Amended Complaint

Update: I added a link to an article with a differing theory on the potential identity of the as-yet unnamed defendants and made minor grammatical changes.

Okay Cult of Mac beat me to posting this thought (boo! hiss!), but I am sure more people than just Leigh McMullen and I thought of this today. And Leigh, I spelled the company name correctly, unless there is some pun that just flew over my red-head. It wouldn’t be the first time.

Welcome to my humble abode

So, let’s pretend that the Psystar case goes to trial, and Psystar wins (which I think has about a snowball’s chance with the Heat Miser). While they say they are not trying to hurt Apple; that in fact would be a devastating blow. However, I do believe there is a quite simple way around it. Psystar’s contentions seem to be centered on the idea that retail boxed software purchased by a consumer should not be restricted to certain machines. Okay, well what if Apple no longer sold the retail box OS software? New Macs already come with the most current OS installed, and Apple doesn’t make the bulk of its money on OS software. So the idea would be that a Macintosh is a completely easy and integrated system to the point of including free software updates to all machines that meet the minimum operating specifications. Talk about “it just works”! Additionally such a move, if it wasn’t coupled with a price increase, would help dispel the falsified myth that Macs are always more expensive. Maybe not though, some Windows users still think that Apple users can’t right-click with their mice. Psystar’s argument all of sudden went puff into the malfunctioning cloud where it belongs.

Another idea would be a software subscription service bundling not just the OS but other Apple software as well. If Psystar wins (doubtful), there will be a revenue hit one way or another, but the ways I just suggested minimize it greatly. Otherwise, there will be a general quality hit with piece of crap clones like the Psystar boxes produced en masse.

Take that Psystar!

Now of course, I do not believe Psystar’s arguments, as have thus far been explained, are valid. There are plenty of OSes out there for the consumer, including ones that cost absolutely nothing. Think March of the Penguins.

DISCLAIMER: I am not unbiased about this case. I totally believe Apple should prevail and that Psystar is a parasite with a big arrogant mouth. However, when I write on the factual contents of the pleadings, I will report faithfully what they say. Once the facts are out of the way, and the interpretation or opinions begin, I have an admitted strong bias towards Apple. This is not simply because I am an Apple fangirl but because I find the actions and words of Psystar to be distasteful at best — coupled with my opinion that Apple is in the legal right in this instance. I do not support Apple in everything they do. For example, Apple’s administrative suit against the recycling program in New York with an apple for a logo was just plain moronic. The two logos looked nothing alike, and it isn’t like New York hasn’t been called The Big Apple before Jobs was a twinkle in his father’s eye.

NEW THOUGHT: Could some solution like the above be part of the mysterious “product transition” mentioned in Apple’s Third Quarter Earnings Conference Call?

Today, Plaintiff Jessica Alena Smith, filed an Amended Complaint in the case of Jessica Alena Smith on behalf of herself and all others similarly situated v. Apple, Inc. in the Northern District of Alabama (Case No. 2:08-cv-01498-WMA, Judge William M. Acker, Jr. presiding).

I have compared the two Complaints and noted several minor changes as well as two potentially more significant ones. The minor changes comprised changing the wording “new wireless communication protocol and standard, 3G” to “new wireless communication protocol or standard, 3G” in Paragraph 1 and elsewhere where similar wording was found with some variations (see Paragraphs 13 and 18). Additionally, in Paragraph 16, the phrase “and to trust that the device was ‘twice as fast at half the price.’” was removed. That slogan had already been quoted in Paragraph 12. The two potentially significant changes are as follows:

In Paragraph 2, Wilton Lee Triggs, II, was added as a purchaser of a “Defective iPhone 3G.” He has not been specifically named as a Plaintiff, and a lawyer would be needed to explain a potential legal strategy for this addition.

An additional factual allegation was made stating “Upon information and belief, Defendant is aware of the above-stated defects with Defective iPhone 3G and have attempted to undertake corrective action too late and with little to no success.

I am not an attorney and thus cannot draw any legal conclusions from these changes. I am, however, a grammar nazi and found that in both filings Paragraph 6 is missing a period, and the new allegation appears to be missing a word or a plural.

There has been no official confirmation of this rumour, but MacDailyNews reports that deals have been reached with three Russian carriers: Mobile TeleSystems, VimpelCom and MegaFon. The ultimate source for this information is the ever-so-elusive “unidentified people familiar with the talks.”

iPhone Talks is also reporting on the unconfirmed story but is only mentioning Mobile TeleSystems who is taking their cue from Apple’s playbook by declining to confirm or deny.