Apple and Psystar have entered into a partial settlement agreement whereby Psystar will agree to pay a specified amount in statutory damages to Apple on the condition that Apple not exercise the right to receive those damages until after Psystar has exhausted the appeals process.
Moreover, as part of the settlement agreement, Apple has agreed to drop all of its remaining claims pertaining to trademark and trade-dress infringement. This essentially negates the need for a trial and “reduces the issues before [the] Court to the scope of any permanent injunction on Apple’s copyright claims.”
Apple, of course, is seeking a broad permanent injunction that would prevent Psystar from selling hardware running any version of OS X, in addition to preventing it from selling software which enables others to circumvent the security measures in Apple’s OS. Psystar, if you recall, sells a piece of software called Rebel EFI which allows users to install Psystar’s code and subsequently install retail copies of OS X onto their computer. That being the case, Psystar argues that the permanent injunction shouldn’t be so broad as to encompass their Rebel EFI software. Psystar writes,
Rebel EFI [is a] product that has not been litigated in this case, that has not been the subject of discovery in this case, that is presently the subject of litigation in the Florida case, that is composed exclusively of Psystar software, that is not sold in conjunction with any hardware, and that is sold entirely apart from any copy of Mac OS X or any computer running Mac OS X.
In support of its argument, Psystar brings up the fact that Judge Alsup refused Apple’s request, a few months ago, to extend discovery to include issues pertaining to Snow Leopard. Alsup noted that Apple had a chance to address Snow Leopard issues in the initial discovery process, but that it chose not to, and would therefore not be allowed to do so late in the game. Likewise, Psystar argues that a similar principle should apply to its Rebel EFI software.
This Court should not give Apple an injunction covering a software product the legality of which Apple has yet to litigate anywhere. Such an injunction would give Apple relief on the very issues that it decided not to include in this case. If this limitation prejudices Apple, “The problem is one largely of Apple’s own making.” Docket No. 152 at 2 (Order Denying Apple’s Motion to Enjoin Florida Action). If Apple needed an injunction broad enough to cover Psystar’s new products, it should have welcomed discovery on Snow Leopard and sought to timely amend its complaint.
The obvious difference here, though, is that Rebel EFI did not even exist during the original discovery process, nor was Apple even aware that Psystar was planning to release it. As such, the argument that Apple chose not to include Snow Leopard in the original discovery process has no bearing on a piece of software that was non-existent up until a few weeks ago.
As expected, Psystar also writes that an injunction covering Rebel EFI would be inappropriate to the extent that its already the subject of litigation in Florida. Apple, of course, has already filed a motion seeking to have Psystar’s Florida suit either dismissed or transferred to the current case in California. Psystar argues that the issues pertaining to its Rebel EFI software raise entirely different factual and legal considerations, and should therefore not be subject to a broad sweeping injunction.
What we have here is basically a last ditch effort by Psystar to remain afloat. It’s already been ruled that Psystar infringed upon Apple’s copyrights in addition to violating provisions in the DMCA. Rebel EFI is only a piece of software, but it enables others to engage in actions which have already been labeled as infringing. Rebel EFI may not contain any OS X code, but it allows third parties to infringe upon Apple’s copyrights and Psystar’s argument as to why an injunction shouldn’t encompass its Rebel EFI software is interesting, it ultimately flies in the face of Judge Alsup’s ruling.
And lastly, Psystar requests that “any injunction expressly exclude from its coverage any conduct that is the subject of litigation” in Florida. In other words, Psystar still wants to litigate claims relating to Snow Leopard and Rebel EFI. Interestingly, though, the bulk, if not all, of Psystar’s motion focuses on its Rebel EFI software, with nary a mention of why the issues pertaining to Snow Leopard should also be litigated.