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Dear Barrister TUAW: Psystar, matters of fact, and appellate cases
Dear Auntie Barrister TUAW, I've been following your coverage of the Psystar case and I'm a little confused by the discussion on your last post. I've always thought the original case to be one of fact and an appellate case one of law. This, to me, would mean that in the appellate process they would not argue the case again at all. It would all be based on if the legal decision in the original case was rendered improperly. So all the sturm and drang would be gone, No? With love & kisses, David Read on for Barrister TUAW, esq's response
Psystar dealt crushing blow in ongoing legal proceedings with Apple
Yesterday, Judge William Alsup, United States District Judge for the Northern District of California, dealt Psystar a crushing blow in its ongoing litigation with Apple over whether or not Psystar could market and sell non-Apple computers running modified copies of Apple's operating system. If you're not familiar with the circus case, I refer you to, well...grab a coffee and click here. The two companies, embroiled in litigation since early last year, recently completed pre-trial discovery and each filed cross motions for summary judgment. Judge Alsup put the ultimate hurt on Psystar when it granted Apple's motion for summary judgment and denied Psystar's motion for the same. In a sweeping order (courtesy Groklaw), the court agreed with Apple's take on the case and dismissed all of Psystar's defenses, both on the merits and for having waived and failed to properly plead. The end result was a dramatic and startling court order in an ongoing series of dramatic legal squabbles between the two companies. And at least one of Psystar's attorneys saw this coming. The litigation doesn't end here; various issues still remain for trial such as breach of contract and trademark infringement, but Psystar has been gutted. The court is clearly unsympathetic to Psystar's core position and while damages on the copyright issues falling in Apple's favor in the order have not been ruled upon, it would probably behoove Psystar to start looking under the couch cushions for spare change. A hearing is scheduled for December 14 on the remaining issues and for damages. Read on for a more detailed analysis of the court's order....
Apple wins copyright infringement case against Psystar in California
Well, well. Apple's won its copyright infringement claim against would-be Mac cloner Psystar in California. Anyone surprised? As we've been saying all along, the key argument wasn't the OS X EULA or Psystar's failed monopoly claims, but pure, simple copyright infringement, since Psystar was illegally copying, modifying, and distributing Apple's code. Psystar was also dinged for circumventing Apple's kernel encryption in violation of the Digital Millenium Copyright Act, but that's just another nail in the coffin, really. There's still some legal fireworks to come, as Apple's various other claims like breach of contract, trademark infringement, and unfair competition weren't addressed in this ruling, but those are all secondary issues now -- and we'd expect this decision to have quite an impact on the other case currently ongoing in Florida. We've broken down the highlights after the break, hit up the read link for the PDF and follow along.
Psystar alienates the Hackintosh community, too
Say what you will about Psystar, the community that continues to sell computers running OS X, despite bankruptcy, constant legal problems with Apple, and a case so slim even their own legal team gave up. Sure, they're out of reason, out of room, and way out of line, but at least they've got plenty of cojones, as the locals say. Why else would they say the things they do in this Miami Times article? Our friends at Engadget lay out just what's wrong with that piece, from Robert and Rudy's Pedraza's claims that they "cracked the code" behind OS X, to the suggestions and hints that what they're doing just might not be a contract violation. Whether or not Apple's EULA is enforceable is, of course, one of the arguments at issue in Psystar's case, even though plenty of shrinkwrap licenses have been upheld in court before. Apple's also got a copyright infringement claim against Psystar; this will be one of the topics at today's summary judgement hearing in California. But the kicker in all this is the statement that Rudy Pedraza makes about the famed Hackintosh scene -- a community of people who persist in running OS X on hardware and devices that it wasn't supposed to run on (not nearly as much of a problem to Apple, as they don't sell the capability like Psystar does, but still not technically allowed by the license agreement). Surely, you might think, this is where the Pedrazas could find friends; surely, despite all of the commotion they're causing, this is the place where they could find a kind ear and a helping hand. Nope. From the article: "The first thing you have to do is unlearn everything you've read online about how to make this work," Rudy says, "because it's all wrong." Nice. Way to alienate the one group, the one community that might still support your cause. I wish Psystar the best of luck -- not, mind you, because I need to buy or run any of their machines (I buy Apple because I appreciate both the hardware and the software), but just because their story continues to be so darn entertaining.
Psystar founders claim they cracked OS X, hackintosh scene is 'all wrong'
Okay, so we're reading this puff piece in the Miami New Times about would-be Mac cloner Psystar, and while we're somewhat willing to dismiss author Tim Elfrink's various mischaracterizations of the law and what Psystar is actually doing as just laziness and / or ignorance, there's a quote here from Psystar founder Rudy Pedraza that simply leaps off the page: Rudy scoffs at the idea he borrowed from the Hackintosh scene. "The first thing you have to do is unlearn everything you've read online about how to make this work," Rudy says, "because it's all wrong." Really? Because we think there's a very large, very active hacking community out there that would disagree with you, Rudy. P.S.- A full list of every other mistake in this piece after the break. [Thanks, Chris]
Psystar releases Rebel EFI installer, further enrages Apple
When not flying the Hackintosh banner, filing lawsuits, or generally positioning themselves as the gadfly on the ass of Apple, the kids at Psystar have been hard at work developing the software meant to free us all from the iron grip of Cupertino-approved hardware. And now, a mere two weeks since the company announced that it will be licensing its Darwin Universal Boot Loader to third parties, we submit for your approval a little something called Rebel EFI. Available to you -- the consumer -- right this very moment, the app will function as a universal installer for any modern OS -- provided your machine sports an Intel Core 2 Duo, Core 2 Quad, i7 or Xeon Nehalem processor. And of course, "any modern OS" includes Snow Leopard. What are you waiting for? Download the trial version for free (limited functionality, runtime of two hours) or download the full deal for the introductory price of $50 (full retail is $90). [Via iHackintosh]
With a rebel Dell, Psystar tries more, more, more
Psystar, that pesky little thorn in Apple's side, has released Rebel EFI. According to Psystar, the app, available for $49.99 through the company's site, "allows for the easy installation of multiple operating systems," including Mac OS X, on a vanilla PC. Besides bypassing EFI requirements, Rebel EFI can also detect for Mac OS X compatible and incompatible hardware, and automatically download appropriate drivers. Skeptical? No worries: the app is free to try (as an ISO download), with a two hour time limit. To each their own, and if running Mac OS X on non-Apple specified hardware floats your boat, then you should also be aware of the risks involved. In other words, back up your data if you are attempting such a thing. Second, and more importantly, there's the issue of licensing: Apple prohibits the installation of Mac OS X on non Apple-branded machines. Psystar giveth and Psystar must also taketh. One wonders how Psystar will react when people illegally use Rebel EFI, just like Psystar is allegedly misusing Mac OS X, as pirated versions inevitably circulate around the Interwebs. Thanks to everyone who sent this in. [via The Loop]
Psystar, Apple file motions for summary judgment
Apple and Psystar have been embroiled in litigation for quite a while now. At the core of the dispute: Psystar modifies Apple's operating system software so that it can run on its clone machines. It then sells its computers with Mac OS installed to, well, anybody who wants one. As you can imagine, this does not make Apple happy. Anybody familiar with The Great Clone Crackdown of 1997 will tell you that Apple likes to keep a very tight grip on any device that presumes to run its software. Apple points out that Windows machines are a mishmash of often conflicting hardware and suffer from quirks and errors and incompatibilities that such a set up can bring. So Apple's cadre of lawyers descended quickly on Psystar. In July of last year, the company sued Psystar for copyright and software licensing violations, quickly amending its lawsuit to additionally charge Psystar with violations of the Digital Millennium Copyright Act (DMCA). And there was much lawyering. More than a year later, now that discovery has been completed, the two parties have each filed for summary judgment, which, in effect, asks the judge to rule in favor of the filing party because enough evidence has been shown that either makes or breaks the lawsuit. Psystar's argument, and the one covered in its motion, somewhat relies on the "first sale doctrine" which says that any purchaser of a copyrighted product can then take that lawfully-made copy and sell it, so long as no additional copies can be made. For its part, Apple says that when one "purchases" its OS, you are only purchasing a license to use the product. Its Software Licensing Agreement (SLA) quite clearly states [PDF link to Snow Leopard SLA] that the user cannot modify the software to run on a non-Apple system. The idea that what you are purchasing is a license to use the product is pretty commonplace among software manufacturers, because, the argument runs, you can cut any software company's profits off at the knees if every purchaser became an owner with free rein to redistribute the software. Apple states that no software company in its right mind would put the money into research and development of any software product at all if that were the end result of bringing its product to market. Groklaw suggests this could have ramifications for FOSS and and the GPL.
Psystar licenses Darwin Universal Boot Loader to third parties, chaos ensues
Like the proverbial kid brother, Psystar has amused us for years now, following Apple around, mocking it, claiming some sort of moral high ground for its Open Macs. Now, hot on the heels of Snow Leopard, the company is back with yet another ambitious project. For a fee, Psystar will license you its Darwin Universal Boot Loader (providing you're an OEM). By shipping machines with the DUBL pre-installed yet relying on the consumer to install his own Snow Leopard disk (which he obtained legally, of course) you should theoretically be able to avoid any sort of sticky legal situation of the sort that has dogged Psystar for years. If that weren't enough, the boot loader supports up to six different operating systems per machine and apparently configures itself, ahem, "automagicly." Is this the last nail in the coffin, the final puzzle piece that will bring us a world where third party machines running OS X fly off the shelves with abandon? Somehow, we doubt it. But it would be amusing to buy a computer with a "Psystar Certified" sticker next to the one that says "Intel Inside." Your move, Apple. PR after the break. [Via Apple Insider]
Psystar to pursue OEM licensing program despite legal woes
Legal issues? What legal issues? Psystar has announced that it plans to license its virtualization technology for OS X to third-party vendors despite its continuing legal issues with Apple. The Psystar OEM Licensing Program, designed to allow Intel machines to run Snow Leopard -- actually, certified machines from Psystar running the company's Darwin Universal Boot Loader -- can support up to six operating systems at a time in a single piece of hardware. "Once a product is certified, consumers can purchase it off the shelf or through standard channels and when labeled Psystar Certified would allow the installation of Snow Leopard simply by inserting the retail OS X DVD," Psystar said in a press release issued today. The cost of this licensing program is not available at this time. Apple and Psystar go to trial in January 2010. [MacDailyNews via Apple Insider]
Member of Psystar's legal team quits
Earlier this week, David Welker (co-founder of lawfirm Welker and Rosario) left Psystar's legal team. He will be succeeded by Eugene Action, who is already listed as the council of record. If you're unfamiliar with this story (and who could blame you, it's so ridiculous), here's a primer. Psystar sells Mac clones with Leopard installed. Apple played the conspiracy theory card and then declared copyright infringement and sued. Psystar responded with a counter suit, filed Chapter 11, recovered, sued over Snow Leopard ... you know what? Just check the history here. It's an epic exercise in red tape manufacturing. At this point, Psystar is like that cricket you hear but can't find. Ultimately harmless, hard to ignore and supremely annoying.
Bruce Sewell to join Apple as General Counsel & senior vice president
Apple has a new General Counsel and senior vice president on its executive team. Bruce Sewell, who held the same position at Intel Corporation, will be joining Apple in place of Daniel Cooperman. Cooperman, who has been General Counsel and senior vice president of Legal and Government Affairs for the past two years, is retiring at the end of September. Apple CEO Steve Jobs was quoted in a press release as saying "We are thrilled to have Bruce join our executive team, and wish Dan a very happy retirement. With Bruce's extensive experience in litigation, securities and intellectual property, we expect this to be a seamless transition." Sewell has been responsible for leading Intel's legal, corporate affairs, and corporate social responsibility programs, managing a team of attorneys and policy professionals located throughout the world. In his new role at Apple, Sewell and his team will defend Apple against attacks on the company's intellectual property. We'd like to give Mr. Sewell one big piece of advice for his new job -- read up on the Psystar case as soon as you can.
Psystar sues over Snow Leopard, abandons reality
When I was a kid my neighbor had an enormous St. Bernard dog named Caesar. It lived in a grungy dog house in their back yard. Caesar's hobbies included barking incessantly. In fact, that was all he ever did. All day and all night that furry, drooling monstrosity barked. LIke a canine jackhammer to the face. Caesar wasn't half as annoying as Psystar. To keep a ridiculous story short: Psystar sells its own computers capable of running Mac OS X. The back-and-forth battle between Psystar and Apple has done almost nothing to dissuade the clone maker, and this week it's gone to a whole new level. Psystar has moved to sue Apple over the release of Mac OS X Snow Leopard. In short, Psystar wants an injunction and damages due to Apple's "...anticompetitive attempts to tie Mac OS X Snow Leopard to its Macintosh line of computers." That's right, in some wacky attempt to turn a profit, Apple has released a proprietary OS meant to run on its proprietary hardware. They claim that their method of running Snow Leopard is different than Apple's method, and if they buy copies of the OS and install them on machines which they then re-sell, then everything should be OK. I support Psystar's right to capitalist goodness, but their stubborn adherence to a lost cause is annoying. Like Caesar.
Psystar bankruptcy dismissed, stays against Apple blocked
Over the weekend, The Mac Observer posted a detailed analysis of the latest chapter in the Psystar saga. It's taken me a few days to come down from vacation and try to wrap my brain around the legalese, but here's the condensed version of what happened. Psystar was granted its motion to dismiss its Chapter 11 bankruptcy filing in the State of Florida. The judge in the case must feel that Psystar will either try to file for Chapter 7 (liquidation) bankruptcy or try to delay Apple's case in California against the clone maker (now scheduled to start on January 11, 2010) with another Chapter 11 filing. Why? The judge has stipulated that Psystar will not be granted an automatic stay in the case if they file for Chapter 7 bankruptcy, and has blocked Psystar against filing Chapter 11 again for another six months. Translation: "Hey, Psystar! You can't use bankruptcy to weasel out of Apple's case against you." We don't know if Psystar has been selling a lot of Mac clones or if there is a secret admirer with deep pockets lurking in the wings, but by removing Chapter 11 protection, creditors who are owed money can now file suit for financial relief. Those creditors include Psystar's previous law firm, Carr & Farrell, which is owed about $88,000. One of the other companies that may line up for compensation could be Apple, which may very well be owed payment for shrink-wrapped copies of Mac OS X that were purchased by Psystar. More legal moves will undoubtedly unfold in the months leading up to the January court date, so keep your browser pointed to Court TV TUAW for updates about this seemingly never-ending battle.
Psystar bounces back from Chapter 11, intros new high-end hardware
Everybody's favorite fuzzy little Apple clone maker is back from Chapter 11 bankruptcy protection (we're still waiting on that revelatory outing of creditors that Apple is so hungry for), and already has a new product in the offering. Psystar's new Open(7) hardware runs Intel Nehalem Xeon, which should provide a nice performance jolt to hackintosh land. Psystar is also going to start using a new bootloader called Darwin Universal Boot Loader, which will eventually be released to open source. Oh, and just in case you were wondering: a little bit of bankruptcy hasn't softened the company's confrontational spirit: Psystar says it's ready to "emerge and again battle Goliath," and that when "life gives you apples, make applesauce." It's kind of cute, really.[Via TUAW]
Psystar emerges from Chapter 11, and still making applesauce
The infamous Mac-clone maker Psystar is apparently set to emerge from Chapter 11 bankruptcy, and it seems that they are planning on getting right back into their previous routine with a new hardware offering to boot.In an e-mail newsletter that went out to subscribers today, the company states that the Chapter 11 protection was "critical" to their daily operations, and that they are now ready to "emerge and again battle Goliath." More information is expected to be available "in the coming days" when they are formally discharged by the Bankruptcy court. Along with the announcement, the newsletter also introduces Psystar's newest hardware offering, the Open(7), which "brings together OS X and Intel Nehalem Xeon technology" in what they are calling their "fastest and most quiet computing configuration." In addition, they are stating that all new systems will feature a new bootloader, called the Darwin Universal Boot Loader (DUBL), and mentioned plans of an open source release in the near future.The e-mail was wrapped up with a simple anecdote: When life gives you apples, make applesauce. So this begs the question, are they referring to the fruit, or the company? Thanks to Sean Wightman for the tip!
Newcomer steps in to fill Mac clone "Quo"ta
Update: @JoeWilsonTV responded in the comments that Quo Computer is open (telephone number in his comment) and that they are taking orders in the store. The website is supposed to launch next Monday. Thanks Joe!It seems like it was only last week that Mac clone maker, Psystar filed for Chapter 11 bankruptcy protection. Oh, that WAS last week. Surely, this would be the end of US companies trying to unauthorized Mac clones, right? Right? Come on, this is America -- that would be too easy. In fact, it took just three days for the next would-be Mac clone retailer to appear.As CNET reported over the weekend, Quo Computer plans to sell its Mac clone offerings both online and in a retail store in Los Angeles. The retail store was set to open yesterday, June 1, 2009, but I was unable to locate a phone number for the store (and LA's directory assistance didn't have a listing). The website, though currently just a splash page, will apparently be ready sometime later this week. Apparently three models with OS X Leopard pre-installed will be offered, with pricing set to start below $900. According to CNET, Quo's founder, Rashantha De Silva, expects that Apple will sue Quo, just as they sued Psystar. Well, at least he isn't completely delusional. More below...
Psystar files for bankruptcy, anonymous creditors to be outed
We have mixed feelings about the news that Psystar is going under. On the one hand, it's wonderful having somebody attempt to create powerful, expandable Macs for cheap, on the other hand the company has been generally abrasive to the grassroots hacker community its work is based on, and pretty bombastic when it comes to Apple and "the law." But hey, everybody needs to make a profit, even companies being sued into oblivion by Apple, and the news of Psystar filing for Chapter 11 bankruptcy protection has interesting legal implications. Not only does it stall Apple's case against the company -- while implying a possibly inevitable defeat -- but Apple has long posited that a mystery investor behind Psystar has nefarious aims, and the bankruptcy hearing on June 5th will name the creditors behind the company. Our fingers are crossed for a "Dan Brown"-style conspiracy, but we're prepared to be "post-2002 Tom Hanks"-style disappointed.[Via SlashGear]
Psystar files for Chapter 11, tucks tail between legs
In the fight for the right to party sell unauthorized Mac clones, there may be a victor declared sooner rather than later -- if not legally, then fiscally. Psystar, which has been playing with fire for quite some time, recently hit a snag in its battle with Apple. The Mac Observer is reporting that Psystar has filed for bankruptcy in Florida on Thursday thereby slowing Apple's case against the Mac clone vendor. As TMO points out, this action seems to indicate that the financial supporters of Psystar are seeing the writing on the wall and believe Apple will likely be the victor in the legal battle for distribution rights of OS X-running Macintosh clones. One outcome of Psystar's decision to file Chapter 11 is that its equity creditors will be revealed, finally pulling the curtains off of the secret of who has the (possibly) deep pockets in Psystar's legal battle. Another outcome is that Apple's case against Psystar will be temporarily delayed as the bankruptcy proceedings require all other legal action involving Psystar to be put on hold. Currently Psystar is still selling its 'wares online, however, once the Federal judge presiding over the bankruptcy filing lifts the stay of legal actions, it is likely that Psystar will fold under the financial pressure. Psystar's chutzpah notwithstanding, the bankruptcy hearings are set to begin on June 5; stay tuned folks, this is still going to be messy. [via Twitter, a tip of the hat to @PaulKent!]
Psystar Open(3) manages to ship, gets unboxed by lucky customer
Take a good look at the box above, folks -- it just might be the first, the last and the only Open(3) you ever see. Psystar's latest Mac clone, which was launched right around a month ago, has miraculously managed to ship out (or, at least one has). If you'll recall, the company has been battling with Apple for months on end for selling OS X-equipped machines without Cupertino's blessing, but apparently it's still doing at least a bit of business under the table. Hit up the read link for a Flickr gallery full of this here slap in the face. It's good stuff, trust us.[Thanks, Mike]
