The appellate case is moving along with both parties having filed their mandatory Mediation Questionnaires. Other than both agreeing that mediation would be futile, the filings are pretty vanilla with the exception of the following unintentional humour (from Psystar’s filing):
As its attorney had previously indicated, Psystar is appealing Judge Alsup’s Order effectively ceasing all of their operations. What is a bit surprising is that Psystar has also filed multiple Orders regarding the sealing of confidential documents. A copy of the docket entries may be found here, and the relevant portion of the filings detailing each Order appealed can be found here.
Although Psystar could raise the issue of Rebel EFI with Judge Alsup, it is unlikely that they will proceed any further until the Appeal is heard by the Ninth Circuit. Nothing new has transpired in the Florida case.
I wonder who paid the hefty filing fee of $455.00.
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.
On December 31, 2009, Psystar filed a Report of Compliance with Injunction (you can view the filing here). There are a few points of interest.
In paragraph 4, Pedraza makes a statement that seems to be contradictory to Psystar’s stated position in the Miami Court; that is, the California case does not involve Rebel EFI. How so? Pedraza states that Psystar has ceased selling Rebel EFI in order to comply with the California Injunction, but why do so if that Injunction didn’t apply to that product.
Things are quiet in the California action since Judge Alsup entered a permanent injunction in Apple’s favour regarding Psystar’s Mac clones, no matter which version of OS X is being used. Although Judge Alsup invited Psystar to bring a Motion containing specific details about this product and differentiating it from the guidelines of the Injunction so that a determination could be made on the legality of their Rebel EFI software; they have yet to do so. And I do not expect them to just yet. Psystar knows that the chances of getting a favourable ruling from Judge Alsup are slim to none and is leaving that option as a last resort. Instead, they are hoping to circumvent (pun intended) the California Court altogether by persuading the Florida Court to take jurisdiction over that remaining issue.
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.
(more…)
Groklaw is reporting that Apple has won a total and permanent injunction against Psystar, the injunction which can be seen in whole here [PDF] rules the following:
- Copying, selling, offering to sell, distributing, or creating derivative works of plaintiffs copyrighted Mac OS X software without authorization from the copyright holder;
- Intentionally inducing, aiding, assisting, abetting, or encouraging any other person or entity to infringe plaintiffs copyrighted Mac OS X software;
- Circumventing any technological measure that effectively controls access to plaintiffs copyrighted Mac OS X software, including, but not limited to, the technological measure used by Apple to prevent unauthorized copying of Mac OS X on non-Apple computers;
- Manufacturing, importing, offering to the public, providing, or otherwise trafficking in any technology, product, service, device, component, or part thereof that is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to plaintiffs copyrighted Mac OS X software, including, but not limited to, the technological measure used by Apple to prevent unauthorized copying of Mac OS X on non-Apple computers;
- Manufacturing, importing, offering to the public, providing, or otherwise trafficking in any technology, product, service, device, component, or part thereof that is primarily designed or produced for the purpose of circumventing a technological measure that effectively protects the rights held by plaintiff under the Copyright Act with respect to its copyrighted Mac OS X software.
Judge Alsup stated in the injunction that he doesn’t want to see Psystar “engage in defiant or unreasonable conduct”. Psystar has until December 31st 2009 to comply and Psystar “must immediately begin this process, and take the quickest path to compliance; thus, if compliance can be achieved within one hour after this order is filed, defendant shall reasonably see it done.”
Additionally Psystar must “immediately destroy any technology, product, device, component, or part thereof in its custody or control that has been used to circumvent any technological protection measure that effectively controls access to plaintiff’s copyrighted Mac OS X software, or effectively protects the rights held by plaintiff under the Copyright Act with respect to its copyrighted Mac OS X software”.
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.
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.
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.
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.
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