World of Apple

On October 16, 2008, Psystar filed its Opposition to Apple’s Motion to Dismiss its Counterclaim. You may download the filings here:

Psystar’s Opposition to Apple’s Motion to Dismiss
Affidavit of Christophe P. Grewe, Esq. in Support of Psystar’s Opposition to Apple’s Motion to Dismiss
Exhibit A to Affidavit of Christophe P. Grewe, Esq.
Exhibit B to Affidavit of Christophe P. Grewe, Esq.

One of the most interesting portions of Psystar’s Opposition is its attempt to use language found in U.S. v. Microsoft Corp., 87 F.Supp.2d 30 (D.D.C. 2000) as follows (see page 10 of Psystar’s filing):

The District Court found that consumers would not switch from Windows to
Mac OS in response to a substantial price increase because of the costs of
acquiring the new hardware needed to run Mac OS (an Apple computer and
peripherals) and compatible software applications, as well as because of the
effort involved in learning the new system and transferring files to its format.
Findings of Fact ¶ 20.

As far as I understand their arguments as a non-attorney, Psystar is using that statement to support its allegations that the Macintosh is not part of the general PC market but is rather its own market. I am convinced that this will come back promptly to bite Psystar in the rear. This comment of the District Court in the Microsoft case dealt specifically with switchers in 2000, prior to Apple’s switch to Intel chips. The fact is that due to Apple’s switch to Intel chips—the very switch which makes possible the emulation that Psystar is relying upon— this observation is largely moot. Further, since 2000, Linux has become much more user-friendly with many people finding Ubuntu to be a viable alternative to both Windows and OSX.

I do not know if Apple is entitled to a Reply to Psystar’s Response. I will try to find out this information and report back accordingly.

As reported in my article earlier this morning, misunderstandings abound with regards to the agreement of Apple and Psystar to engage in alternative dispute resolution. For example, TechSpot reports in an article entitled “Apple and Psystar to settle out of court”:

By involving themselves in an Alternative Dispute Resolution (ADR) process, basically the companies have agreed to meet and work out a resolution in lieu of going through a costly legal process.

This is simply incorrect. Neither party has agreed to settle out of Court or waive their right to a trial.

On October 1, 2008, Apple and Psystar filed a Stipulation with the Court agreeing to participate in three different forms of alternative dispute resolution (ADR) by January 31, 2009 as follows: Non-Binding Arbitration; Early Neutral Evaluation; and Mediation¹. I did not report on this immediately as my background as a legal assistant has dulled my sensitivity to items that I find routine but that others may find of interest. This current filing is one of those items, and I believe that there may be confusion as to the significance of this Stipulation contained in some of the articles written about this development. Of course, the discombobulation may be solely on my end due to unfamiliarity with California-specific procedures and intellectual property legal practice (or I could just be a dumb bunny). However, I am familiar with the Federal Rules of Civil Procedure and court cases in general. Please remember at all times that I am not an attorney and that any ideas I put forth are not intended to be professional legal opinions, but simply my thoughts on the matter. Any legal questions must be answered by a properly licensed and qualified attorney.

From my perspective, an agreement to participate in ADR is not significant; it was something that I completely expected would happen. It would have been significant if there were no ADR conducted. Mediation is often, if not always, required in every Federal case, and in complex and somewhat dry cases, non-binding Arbitration is not unusual. I must confess complete ignorance on Early Neutral Evaluation, but here is official information from the Northern District of California that explains the goals and objectives of that process. The reader should note that all three of these avenues of ADR are non-binding. This means that the resolution reached, if any, must be voluntarily assumed by both parties. This would have been something much more remarkable if Apple had agreed to binding Arbitration.

Please note what this does not mean: Apple has not agreed to forgo trial on this matter. It appears to me that some recent reports seem to mistakenly imply this is the case. Additionally, I believe a tempest in a teapot has arisen with regards to the fact that these proceedings will be secret. This also is not unusual. In my own job, which involves cases involving thousands to multi-millions of dollars, confidential settlement agreements through Mediation are commonplace and pretty noncontroversial. So while Apple is indeed secretive, I would not point to the secrecy of any results obtained through alternative dispute resolution as something unique to Apple or somehow present in this instance because Apple is a party. In fact, I would attach little significance to this fact.

At The Mac Observer, an anonymous attorney is quoted as saying “ADR is a private process whereby both parties can meet and work out a resolution in lieu of going to trial.” I think that some have interpreted this statement as meaning that the selection of ADR is mutually exclusive of trial. That is not the case. Parties may participate in ADR and still go to trial.

For example, Tom Krazit at CNET reported:

It’s not exactly clear what Apple and Psystar are thinking with the decision to choose this path. If Apple loses the case, and Psystar is allowed to continue selling Mac OS-based Open Computers, it won’t really matter if the outcome is kept private, since the availability of Open Computers will tell the tale. If Psystar is forced to stop selling Open Computers with Mac OS, we’ll likewise notice that.

This decision does not involve any risk of either side “losing the case.” Any settlement is voluntary, and I would bet my bottom dollar that Satan would be up to his horns in Slurpees before Apple would ever voluntarily agree to let Psystar continue to sell pieces of crap Open Computers with OSX. Further, as to what the parties are thinking, the form itself appears to be something required by Court, so maybe there wasn’t really much of a choice.

The CNET article further states:

Psystar has never appeared to have a ton of resources to use on its behalf, despite hiring a big-time Silicon Valley law firm to represent it against Apple. So it might very well be interested in a cheaper method of resolving the dispute, especially if Apple has the upper hand.

I fundamentally disagree. Psystar had very quickly found itself in quite a nice facility, and I have my own personal theory I posited on i drank the koolaid on April 18, 2008:

Now here is my theory. Totally from my own head. I think these people genuinely think they have a shot at a successful business and are deluded enough to take on Apple. And arrogant enough. (which is [sic] an odd kind of way is admirable considering that Dear Leader made his way through charisma and arrogance). BUT I think they are being used as patsies by some larger cowardly interest who wants to take on Apple indirectly but has too much public image to lose. I have zero proof of any of that. But that is my theory.

Please excuse the informal tone of that piece as that particular blog is not intended to be written in anything other than a casual and colloquial tone, unlike my writing at World of Apple, which I do hope is professional.

I conjecture that Psystar DOES have access to substantial monetary backing; thus, the hiring of a prominent and expensive firm is not a “despite” factor but a possible confirmation of my theory. Lastly from the same CNET article:

And Apple may very well not want to concede in a public courtroom that Psystar has a chance of proving its antitrust claim that the relevant market for this case is Mac OS computers, rather than just personal computers in general.

I do beg Mr. Krazit’s tolerance on my presumption, but I believe this statement, too, is ill-conceived (or perhaps just poorly worded). Court cases simply do not work that way. A Judge may rule that Psystar has a chance of proving its antitrust case by denying Apple’s Motion to Dismiss Psystar’s Counter-Claim, but Apple is not in danger of being forced to concede any such thing. Companies and people disagree with rulings all the time. The Judge cannot force Apple or Psystar to concede but merely to comply. Perhaps I am being a librarian, but these distinctions seem quite important to me.

In what appears to be another example of confusion, AppleInsider reports:

First found by The Mac Observer and elaborated upon by CNET, the agreement shifts the two parties’ dispute of Psystar’s claimed right to sell Mac OS X systems from a decision through a traditional court case to a mediated, non-binding settlement discussion that sees their individual arguments judged on statements and legal grounds; once the mediator makes a decision, it’s up to Apple and Psystar to use that information to negotiate a deal.

There has been no shifting; there has been a possible shifting. Additionally, Mediators do not make decisions. They facilitate settlement discussions. Arbitrators make decisions, and the Arbitration in this case is non-binding so that the parties may use that decision to negotiate a deal or not.

Continuing from the same article:

The filing, submitted earlier in October to a US District of Northern California court, pushes both of the involved companies to hold their necessary mediation sessions by the end of January next year. Neither is bound to reach a settlement by a specific date, however.

Neither is bound to reach a settlement period. So the question should naturally arise, why then participate at all? These ADR proceedings often help both parties see the relative strengths and weaknesses of their cases which can be used to tailor their trial approach. Very often an outside opinion can expose flaws that neither side sees as it is easy to become so entrenched in one’s legal advocacy that it is difficult to see the merits of the other side.

Now putting all this aside, I would also bet on pain of being forced to use Vista for the next year that both sides already have conducted, or will be conducting, extensive private research on their own including the use of trial psychology consultants and mock trials.

For further information, please see ADR in The Northern District of California.

¹ The Stipulation was filed with a Proposed Order for execution by the Court which seems to require only non-binding Arbitration and not the other two processes. This is unclear to me. Believe it or not, legal documents are often confusing. Amazing, I know, but you need to trust me on this.

Corrections Made: I had mistakenly referred to a Jury when discussing a potential ruling on Apple’s Motion to Dismiss and added a parenthetical comment in the same paragraph. Minor grammatical errors were also corrected.

Appendix: In footnote number one, I note the confusion I found in the Stipulation and Proposed Order. Upon reviewing the filing for at least the twentieth time, I have come to the conclusion that the requested Order would only require mediation. If that is indeed the case, the blog maelstrom that this filing has caused has really been over nothing as mediation is almost always required. I hope that the Order, when issued, clarifies things. The Court is not obligated to use the Proposed Order submitted by the parties.

AppleInsider is noting that Apple will be refreshing the iMac lineup prior to the end of the year, it is expected that the iMacs will only receive minor specification changes.

AppleInsider expects the iMacs to receive similar CPU offerings to those seen in the MacBook Pro refresh earlier this week. This would mean CPU speeds remaining around the same. The iMac already has a 1066MHz front-side bus so no improvement is expected there.

Apple stated at its event last Tuesday that all Macs would be receiving DisplayPort so this is likely to replace the mini-DVI currently seen on the iMac.

Although not confirmed and AppleInsider is hesitant to add any certainty, it would be a fair expectation to see NVIDIA chipsets working their way into the iMac.

Currently the iMacs employ ATI Radeon HD 2400 or 2600 paired with an Intel chipset with a NVIDIA GeForce 8800 GT as a build-to-order option, it’s possible that Apple could simplify its offerings similar to those available in the current MacBook and MacBook Pro.

The iMac refresh is expected in mid-November but is likely to be a quiet affair.

AppleInsider is reporting a few details about the next upcoming Mac OS X release, Snow Leopard. In the article the regularly accurate rumour site details Apple’s plans to rewrite the Finder, increase Microsoft Exchange support and introduce a new feature called ImageBoot.

The Finder in Mac OS X Leopard is one of the few remaining Carbon-based applications, in Snow Leopard the Finder is said to have been completely rewritten in the superior Cocoa.

Snow Leopard is said to be in the hands of a few select developers who have begun testing pre-release copies with labelled builds starting at 10Axxx.

AppleInsider also details that Microsoft Exchange support will be greatly increased in Snow Leopard, iCal, Address Book and Mail will all benefit from more tightly integrated Exchange support, such as events scheduling, adding contacts to Address Book and automatic Mail configuration.

Finally AppleInsider reveals a feature that hasn’t been touted previously called ImageBoot, said to be based on NetBoot Apple’s technology which allows Macs to boot from a remote disc over a network. ImageBoot allows users to set up numerous disk images on secondary partitions or external hard drives and select at boot up time which image they which to boot from.

The latest email from Steve Jobs to a customer who complained that the new MacBook would be incompatible with HD camcorders now that it lacks FireWire reads:

Since the original email (pictured) the original sender has replied to which Steve Jobs replied again:

———- Forwarded message ———-
From: Steve Jobs
Date: Thu, Oct 16, 2008 at 4:04 PM
Subject: Re: Firewire RIP?
To: Xxxxx

-David

Migration and DVD/CD Sharing Update - 40.3MB

This update is recommended for all users and provides enhanced customization capabilities and improved performance for migration over FireWire, ethernet, and wireless networks.

A letter signed by Steve Jobs details Apple’s latest achievements that have been made to help the environment. The update offers information on the companies latest progress as well as detailing “groundbreaking” system of reporting that is unmatched in the industry.

In the update Apple announces that it has successfully eliminated PVC and BFRs as well as using arsenic free glass for displays. The company is yet to use PVC-free power cables but is working on it.

Apple also announces that “new product designs are on track to meet our 2008 year-end goal.”

In regards to recycling Apple’s takeback program has grown dramatically, in 2007 takebacks grew 57%, that equates to around 21 million pounds in “e-waste”. Apple now offers takeback options for customers in 95% of countries around the world.

In a update on Apple’s carbon footprint Steve Jobs writes that the company has decided to “measure the emissions produced at each stage of a product’s lifecycle, from production and transportation to consumer use and eventual recycling. Starting today, Apple will report this information for each new product we introduce, so our customers will better understand the progress we’re making.”

Apple is offering a list of all its products and their environmental efficiency.

Recently, I’ve seen more and more images done in HDR, or high dynamic range imaging. In a nutshell, HDR can return some really cool looking pictures. See this article at Wikipedia for more in-depth info on HDR. Programs such as Photoshop can create this effect, however that will cost a pretty penny and can require a bit of work. Photomatix Pro allows you to create these images for much less money and time. As we often strive to do, we have a copy of Photomatix Pro to give away at the end of the reveiw, courtesy of the wonderful folks at HDRsoft. So let’s get started.
(more…)

Apple has today announced that ABC, CBS, FOX & NBC have begun offering HD downloads of primetime programs in high definition on the iTunes store.

Some of the more popular programs include “Grey’s Anatomy” and “Lost” from ABC, “CSI” and “CSI: Miami” from CBS, “Bones” and “Prison Break” airing on FOX, and “Heroes” and “The Office” from NBC Universal.

“We’ve got an incredible Fall 2008 TV lineup with over 70 primetime comedies and dramas, including many of the most popular shows on TV in stunning HD,” said Eddy Cue, Apple’s vice president of Internet Services. “With over 200 million episodes sold, iTunes customers have proven they love watching television on their computer, iPod, iPhone and TV with Apple TV.”

A full list of HD programs available includes ABC’s “Brothers & Sisters,” “Desperate Housewives,” “Dirty Sexy Money,” “Eli Stone,” “Grey’s Anatomy,” “Life on  Mars,” “Lost,” “Private Practice,” “Samantha Who?” and “Ugly Betty.” CBS programming includes “CSI,” “CSI: Miami,” “CSI: New York,” “NCIS” and “Numb3rs.” FOX shows include “Bones,” “House,” “Prison Break” and “Sons of Anarchy,” which airs on FX. NBC shows include “30 Rock,” “Heroes,” “Kath & Kim,” “Knight Rider,” “Law & Order: SVU,” “Life,” “Lipstick Jungle,” “My Own Worst Enemy” and “The Office,” and SCI FI Channel’s “Battlestar Galactica” and “Eureka,” and USA Network’s “In Plain Sight,” “Monk,” “Psych” and “The Starter Wife.”