The past few weeks have not been kind to Psystar. First, Judge Alsup issued a decisive ruling which essentially invalidated Psystar’s entire business model. And shortly thereafter, Psystar was ordered to pay nearly $2.7 million in damages to Apple for their infringing behavior.
But in a pathetic attempt to keep up the legal shenanigans with Apple for as long as possible, Psystar recently filed a motion arguing that the permanent injunction initially handed down by Judge Alsup shouldn’t be construed so broadly as to encompass its Rebel EFI Software. As a quick reminder, Rebel EFI is a piece of downloadable software available on Psystar’s website that allows users to install OS X onto non-Apple hardware. In short, Psystar argues that because Rebel EFI didn’t even exist during the course of the original discovery process, it should therefore fall outside the scope of the permanent injunction which precludes Psystar from selling hardware with pre-installed versions of OS X. Put simply, Psystar asserts that issues relating to Rebel EFI raise entirely new factual and legal considerations that shouldn’t be subject to a broad sweeping injunction.
With that in mind, Apple this week filed a motion with the Court laying out a number of cogent arguments explaining why Rebel EFI should fall under the umbrella of Judge Alsup’s permanent injunction.
For starters, Apple writes that Psystar has already been found to have committed contributory infringement by enabling its customers to run modified copies of OS X. Moreover, the Court also found that Psystar had facilitated circumvention of the security measures in OS X. That being the case, Apple argues that it should be entitled to an injunction that not only prevents Psystar from infringing Apple’s copyrights, but also prevents Psystar from enabling others to infringe upon its OS X copyrights.
Even if Psystar no longer sells computers preinstalled with Mac OS X, the injunction must prohibit Psystar from offering any material support of infringement by Psystar’s customers.
Psystar, for its part, argues that because its Rebel EFI software “differs from the conduct that was litigated in this case”, it should fall outside the purview of the injunction. In response, Apple correctly points to a 1984 case involving an individual who illegally sold t-shirts featuring copyrighted images of Mickey and Minnie Mouse. The court in that case enjoined the defendant from selling t-shirts that featured images of other Disney characters that weren’t at issue in the case, such as Donald Duck and Goofy. Though the defendant reasoned that the injunction was overly broad to the extent that it covered images not at issue in the actual case, the court ruled that when “liability has been determined adversely to the infringer” and there is a significant possibility of future infringement, “it is appropriate to permanently enjoin the future infringement of works owned by the plaintiff but not in suit.”
In other words, even though Rebel EFI was not part of the original suit, the underlying principles are exactly the same. Apple writes that the injunction should address “Psystar’s pattern of unlawful conduct”, and shouldn’t necessarily be tied to a specific product or product name. Apple also points out that injunctions can often include technologies that didn’t even exist when an initial injunction was issued.
Contrary to Psystar’s argument, there is no basis in law or fact to limit the injunction to the specific computer models at issue in the summary judgment motion. Rather, the injunction should also apply to any new technology that circumvents any technological protection measure in Mac OS X. Courts have enjoined parties from circumventing protection measures not yet released when the injunction issued. By their very nature, injunctions prohibit future conduct, including conduct the defendant has not yet conceived.
In another failed attempt at a rational legal argument, Psystar asserts that the Court in California shouldn’t address its Rebel EFI software because its ruling may subsequently interfere with and contradict established rulings on the very same topic in Florida. Remember that Psytar, in the midst of the California litigation, filed a similar lawsuit in the state of Florida. Apple, however, calls Psytar’s bluff and notes that “there has been no established judicial pronouncement by the Florida court or the Eleventh Circuit, let alone one that insulates Psystar’s unlawful conduct.”
So there you have it, the final nail in Psystar’s coffin is hanging in the balance. Judge Alsup will issue a ruling on the matter on December 14th.