Psystar argues why Snow Leopard case is different from the ongoing Leopard litigation

Thu, Sep 24, 2009

Legal, News

A few weeks ago, Florida based clonemaker Psystar filed a lawsuit against Apple in the state of Florida seeking a court order that would allow it to sell copies of Snow Leopard on non-Apple hardware in addition to seeking an injunction against Apple that would prevent it from tying its OS X solely to Apple hardware.

Now if this all sounds vaguely familiar, it’s because Apple and Psystar are currently entangled in litigation regarding the same issues in the state of California.  In fact, many of the arguments levied by Psystar in its new suit have already been dismissed by the court in California.

So why, then, is Psystar bringing this new suit in Florida?  Well, Psystar alleges that the two cases are completely different because one involves OS X Leopard and one involves OS X Snow Leopard.  Catch the difference?

Apple, of course, promptly responded with a motion seeking to halt Psystar’s legal case in Florida, or at the very least, have the two cases consolidated under the jurisdiction of Judge Alsup, who is currently overseeing the California litigation.

Late last week, Psystar filed a motion with the court attempting to explain why their new lawsuit involving Snow Leopard tackles different issues than those being addressed in California.

Not surprisingly, Psystar’s first misstep occurs only 1 paragraph into their motion.  Arguing that they don’t want the trial date pushed back further, Psystar writes that it doesn’t want to give Apple more time to “remedy its strategic decision to litigate only Leopard in this action, a strategic decision it now regrets.

That’s blatantly false, and Apple’s initial motion to halt the Florida case highlights that the ongling litigation in California was never limited to OS X Leopard.

Likewise, Psystar’s Answer and Counterclaim in this action, filed over a year ago, encompass versions of Mac OS X beyond Leopard. Psystar refers to “Mac OS” throughout its Answer and Counterclaim – without reference to a specific version number of Apple’s operating system… Psystar further alleged that Apple’s purported anticompetitive conduct began with the “release of Mac OS 8” and continued with “Mac OS 9—up to and including Mac OS 9.2.2 on December 6, 2001” and “with respect to Mac OS X.”  It is beyond disingenuous for Psystar to accuse Apple of anticompetitive conduct that spanned more than a dozen years and three major releases of Apple’s operating system software (Mac OS 8, Mac OS 9 and Mac OS X) but now claim these allegations – while covering MAC OS X versions 10.0 through 10.5 and their incremental variants – do not cover Mac OS X version 10.6.

Moving on, Apple’s initial motion claims that Psystar was dishonest about its intentions to run Snow Leopard on Psystar hardware.

Despite active discovery proceedings for more than one year, Psystar never disclosed its intention or effort to run version 10.6 of Mac OS X on Psystar’s computers. […REDACTED…] Significantly, Psystar never disclosed during discovery any information about its plans to run Snow Leopard on its computers or any communications with others about that version of Mac OS X – all of which are responsive to numerous Apple document requests.

Psystar, for its part, denies this and writes,

… the release of Snow Leopard was a surprise event for Psystar. Psystar did not know when Snow Leopard would be released until Apple’s public announcement of a release date. And Psystar developed its new technology — selective virtualization — in the days preceding and the week following the release of Snow Leopard. It is simply incorrect to suggest that Psystar withheld any information or code during the discovery period that might have induced Apple to seek a pleadings amendment sooner. And it would have taken no great oracular capacity to predict that upon the release of Snow Leopard, Psystar would have taken steps to get Snow Leopard running on Psystar systems. Psystar has never been opaque about its intention to continue on in its business.

Psystar, again, is tripping over its own feet here.  Psystar first argues that it didn’t disclose its plans to run Snow Leopard on Psystar hardware because it had no idea when Snow Leopard was going to be released.  Just a few sentences later, Psystar concedes that it doesn’t take a psychic to have predicted that Snow Leopard was on Psystars roadmap.  If Psystar “has never been opaque” about its intentions to carry on its business through subsequent OS X releases, why weren’t these intentions conveyed to Apple during any of the pertinent depositions and interrogatories?

Notably, Psystar lead counsel KAD Camara was asked by Apple mid-August if Psystar had plans to enable Snow Leopard on non-Apple computers.  Camara, tellingly, refused to answer the question.

Moving along, Psystar argues that the California case can’t possibly cover Snow Leopard because Snow Leopard wasn’t even released at the time the original lawsuit was filed.  Moreover, Psystar argues that Apple’s amended complaint “cannot be construed to extend to Snow Leopard because Apple had not registered any copyright in Snow Leopard before filing the complaint.

While that seems to be a solid argument for Psystar, the issue isn’t entirely black and white.  Groklaw writes on the matter:

Plus, while it is true you have to register a copyright to go for an infringement action, it’s a bit more complicated. After all, you do already have the copyright, whether you register or not, and the courts don’t treat that like chopped liver. The advantages to registering include what kind of damages you can ask for, statutory — like the RIAA — or whether you have to prove actual damages, which is harder, and also if you register first you can ask for your attorneys’ fees.

Psystar subsequently attempts to differentiate between Leopard and Snow Leopard by arguing that the technological mechanisms Apple uses to prevent the OS from running on non-Apple hardware varies from Leopard to Snow Leopard.

In turn, the way Psystar gets OS X to run on its hardware also varies from Leopard to Snow Leopard.

The method by which Psystar computers run Mac OS X is completely different for Snow Leopard than it was for Leopard. For Leopard, Psystar computers invoked a particular Apple function [redacted] to cause Mac OS X to [redacted] function properly. This was accomplished through the Psystar-written kernel extension OpenCojones.kext. For Snow Leopard, Psystar uses new code to instead virtualize (that is, simulate) parts of the system management chip (SMC) to “convince” Mac OS X that it is running on Apple hardware. Virtualization like this is the backbone of a large part of the modern computing industry; indeed, it is how Apple’s Macintosh computers are able to run Windows and Windows applications. As this brief description makes clear, the Psystar technology in the Florida case is entirely different from the Psystar technology at issue here.

Next, Psystar argues that the Snow Leopard case is sufficiently different because it involves the planned sale of Psystar created “dongles”, which it describes as “USB sticks containing virtualizatoin software that will allow end users to run Mac OS X on computers of their choice, not just computers purchased from Psystar.

Fair enough, but with Psystar’s logic, all it needs to do to file a brand new lawsuit is to release a new product, or change the way the put OS X on their computers.  Then it can jump up and down and yell, “Hey look, the cases are different because the one involves Psytar’s brand new wireless USB mouse which houses a copy of OS X!”

Psystar has worked out a design for a dongle that it intends to test, manufacture, and sell in the near future, possibly depending on the progress made in the Florida action. The dongle, of course, would be an entirely new product that is different in kind from the Psystar computer systems at issue in this action.

Well, I’m convinced.

Psystar also brings up the point that Apple’s EULA in Snow Leopard isn’t 100% the same as the one used in Leopard, a fact, which while true, ultimately fails to differentiate the two cases to the extent that 2 separate cases in 2 separate states makes any sort of sense.

And lastly, you might recall that Psystar initially claimed that Apple had a monopoly in the OS X market, a dimwitted argument that the court in California quickly shot down.  In their new action, Psystar claims that Apple has a monopoly in the market for premium computers.  In its motion to halt the Florida action, Apple addressed Psystar’s new monopoly argument and pointed out that Psystar’s definition of “premium computer market” was completely arbitrary and self serving.  In response, Psystar narrowed its definition of Apple’s monopoly to cover only the premium market for Unix based computers.  How convenient.

Early this week, Apple filed a motion in response to Psystar’s reply, and we’ll have more on that later today.

Groklaw breaks down Psystar’s full response over here.



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