Linked by Thom Holwerda on Mon 4th May 2009 21:18 UTC
Legal This past weekend, Apple accused Psystar of withholding information in the ongoing lawsuit between the two companies. The letter made it onto the internet, and was widely reported on. Psystar has now replied to Apple's letter, and there's some serious venom in there.
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v I see...
by macUser on Mon 4th May 2009 22:14 UTC
RE: I see...
by macUser on Thu 7th May 2009 00:19 UTC in reply to "I see..."
macUser Member since:
2006-12-15

Ha! -5 markdown, fantastic-- only proves the point further.

Reply Score: 1

v WTF???
by JonathanBThompson on Mon 4th May 2009 22:31 UTC
RE: WTF???
by poundsmack on Mon 4th May 2009 23:09 UTC in reply to "WTF???"
poundsmack Member since:
2005-07-13

to anyone who has ever run a start up eploying only a few people and scrambeling to make a profit, book keeping isn't aslways perfect. things are rushed, overlooked, and some times just plain lost. I have done several startups and in the begining isn't not that perfectly managed thing where everything is filed accordingly and what not. Peronally I don't care what side wins this case, but I can understand where they are comming from on the basis of being a startup struggeling to survive. it must be even harder being under constant litigation.

I am not saying what they are doing it right, but I do understand it.

Reply Score: 5

RE[2]: WTF???
by darknexus on Tue 5th May 2009 02:15 UTC in reply to "RE: WTF???"
darknexus Member since:
2008-07-15

At the same time, one would think that if Psystar was started specifically to sell these Mac clones, they would have been a lot more careful with their filings since they were knowingly going into dangerous territory. On the other hand, if they started up and only later decided to sell these Opencomputers (Mac clones, basically) that's another matter. I don't know which is the case, I'm just saying that if they were intending to challenge Apple they should have been a bit more careful about bookkeeping.

Reply Score: 2

RE[2]: WTF???
by Soulbender on Tue 5th May 2009 06:33 UTC in reply to "RE: WTF???"
Soulbender Member since:
2005-08-18

things are rushed, overlooked, and some times just
plain lost.


If you're so disorganized that you lose the very important paperwork that you use in the litigation process that you are currently in, well, maybe you shouldn't be running a company in the first place and may just be getting what you deserve.
Not that I don't think Apple are a bunch of assholes but seriously, you lost the paperwork? That might fly in a movie but in real life it just means you're a moron.

Reply Score: 4

RE[3]: WTF???
by Vanders on Tue 5th May 2009 09:50 UTC in reply to "RE[2]: WTF???"
Vanders Member since:
2005-07-06

"things are rushed, overlooked, and some times just plain lost.


If you're so disorganized that you lose the very important paperwork that you use in the litigation process that you are currently in, well, maybe you shouldn't be running a company in the first place and may just be getting what you deserve.
"

For a start none of the documents are exactly "very important": a private company the size of PyStar doesn't need quarterly P&L sheets, it doesn't need it's original cashflow projections that were part of it's business plan etc. If they're not directly related to tax or HR law, they don't fall under "important" for any small company.

Secondly PyStar lost the documents before the litigation machine of Apple Inc. rolled in to town. Perfectly understandable: anyone who thinks things do not get lost like that has probably never worked for a small company.

That might fly in a movie but in real life it just means you're a moron.


Really? I bet you've lost at least one hard copy document in the past 24 months, or deleted a document from your hard drive you thought you didn't need any more. If someone sues you and asks for the deleted document, does this suddenly make you a moron who's getting what he deserves?

Reply Score: 3

RE[4]: WTF???
by nonono on Thu 7th May 2009 19:34 UTC in reply to "RE[3]: WTF???"
nonono Member since:
2009-05-07

we are not talking about "one" document, as you well know. And to answer your question, yes you would be a moron if you deleted a document you are legally required to keep.

Which is of course the crux here. Apple is requesting documents that all businesses are legally required to keep. Basic documents required to file taxes to the IRS. They have thus far not been able to produce the majority of those documents.

They started a business where they blatantly chose to break the law based on the grounds that Apple broke it first. This is simply not a good legal argument.

Reply Score: 1

RE: WTF???
by rajj on Tue 5th May 2009 03:38 UTC in reply to "WTF???"
rajj Member since:
2005-07-06

They didn't say that they lost the documents. It says that they never had them to begin with.

Reply Score: 4

RE: WTF???
by segedunum on Tue 5th May 2009 10:49 UTC in reply to "WTF???"
segedunum Member since:
2005-07-06

and you think Apple is going to offer them a pile of money for violating their IP?

By IP I assume you mean intellectual property and believe it or not, in a court of law it means absolutely nothing. It will have to be established that Psystar have violated a copyright or specifically violated the EULA for OS X and whether that can be enforced. Something concrete, you know? Asserting that IP is being 'violated' doesn't mean anything I'm afraid.

The red mist seems to be coming down with this as it is with so many Apple fans.

Meanwhile, it says a heck of a lot that Psystar claims to have lost all those documents

They didn't claim any such thing. They have just said that they didn't have the information at all and have disclosed everything they could thus far. Anything else is just pointless posturing by Apple because they have a paranoid delusion that Psystar is getting secret funding. A judge won't be impressed. Not only is it shooting in the dark, it doesn't mean anything in the context of the case.

Reply Score: 4

RE[2]: WTF???
by JonathanBThompson on Tue 5th May 2009 16:43 UTC in reply to "RE: WTF???"
JonathanBThompson Member since:
2006-05-26

One of us is remembering incorrectly: they've also created modified copies of Apple software for their purposes, as well as using their trademarks inappropriately, so it isn't entirely about the EULA, and those things are pretty clearly addressed in IP litigation law.

Reply Score: 2

there is no smpoking gun
by unclefester on Mon 4th May 2009 23:37 UTC
unclefester
Member since:
2007-01-13

Apple knows here is no smoking gun. They are simply trying to destroy Psystar with constant pointless litigation.

I would love to see Apples financial records when they were a startup. They were probably just a bunch of receipts kept in a shoe box.

Reply Score: 9

RE: there is no smpoking gun
by Soulbender on Tue 5th May 2009 07:03 UTC in reply to "there is no smpoking gun"
Soulbender Member since:
2005-08-18

They were probably just a bunch of receipts kept in a shoe box.


Them at least they actually kept them.

Reply Score: 2

RE[2]: there is no smpoking gun
by unclefester on Tue 5th May 2009 10:08 UTC in reply to "RE: there is no smpoking gun"
unclefester Member since:
2007-01-13

I would be very surprised if Apple has detailed financial records dating from the first 2-3 years of operation. They were just a couple of kids selling mail order DIY kits out of a garage.

Reply Score: 3

I agree...
by cmost on Tue 5th May 2009 01:33 UTC
cmost
Member since:
2006-07-16

While Apple is a multi-billion dollar corporation and Psystar is a tiny, nearly insignificant startup where is the comparison? I've also worked with startups and their filing leaves a lot to be desired. They're usually comprised of a couple of computer geeks and their friends working in someone's garage or basement to get things off the ground. Oh wait, that sounds a lot like how Apple Computer got started! My point is that it's not just a "cop out" for Psystar to say they lost requested records. They very likely did lose track of them. Apple knows it can bury Psystar by simply having their lawyers throw enough paper at them and biding their time. The legal system in the U.S. is a disgrace.

Reply Score: 5

RE: I agree...
by WereCatf on Tue 5th May 2009 02:23 UTC in reply to "I agree..."
WereCatf Member since:
2006-02-15

Apple knows it can bury Psystar by simply having their lawyers throw enough paper at them and biding their time. The legal system in the U.S. is a disgrace.

In the case where one of the parties has almost limitless resources and the other could go bankcrupt the latter one should be allowed to file a complaint to the judge who could then order all the expenses to be paid by the one with near-limitless resources. That'd stop such wait-and-let-them-go-bankcrupt tactics and would make the bigger party to actually want to have the thing over as fast as possible.

Reply Score: 6

RE: I agree...
by nonono on Thu 7th May 2009 20:00 UTC in reply to "I agree..."
nonono Member since:
2009-05-07

The company started in April 2008. You have to legally retain documents. That's not just a requirement of the IRS, but also merchant transaction companies, banks, credit card companies, and various state and local entities representing businesses, consumers, and government.

Reply Score: 1

Let me get this right...
by mrhasbean on Tue 5th May 2009 02:41 UTC
mrhasbean
Member since:
2006-04-03

What some people saying is that because Apple is a multi-billion dollar corporation they should be required to have all their records right - and maybe even cough for Pystar's costs - but because Pystar is a startup sloppy record keeping should just be accepted?

OK, so what if Pystar does have the secret backing of other major corporations? The old "oh we lost it" excuse gives them a nice easy way to hide that then doesn't it...

Reply Score: 1

RE: Let me get this right...
by WereCatf on Tue 5th May 2009 02:52 UTC in reply to "Let me get this right..."
WereCatf Member since:
2006-02-15

and maybe even cough for Pystar's costs - but because Pystar is a startup sloppy record keeping should just be accepted?

Don't get confused; we are talking about PsyStar vs Apple, but I meant every case where a small company or one with low financial pool to draw from and a large company with cartloads of money to throw in the case. I didn't take a stand as to the article itself.

Just to clarify that up then; I think PsyStar should try to find those documents and they should have been more careful about such as they knew they were going to get sued. Hell, everyone knew that. But I don't condone of Apple's practices either. They've already shown themselves to be greedy and selfish bastards willing to do almost anything to win.

Reply Score: 3

RE[2]: Let me get this right...
by Vinegar Joe on Tue 5th May 2009 04:51 UTC in reply to "RE: Let me get this right..."
Vinegar Joe Member since:
2006-08-16

But I don't condone of Apple's practices either. They've already shown themselves to be greedy and selfish bastards willing to do almost anything to win.


But they're so insanely cool!!!!!!

Reply Score: 6

RE[2]: Let me get this right...
by Soulbender on Tue 5th May 2009 07:01 UTC in reply to "RE: Let me get this right..."
Soulbender Member since:
2005-08-18

They've already shown themselves to be greedy and selfish bastards willing to do almost anything to win.


How do you know Psystar isn't greedy selfish bastards willing to do almost anything to win?

Reply Score: 3

Really
by Buck on Tue 5th May 2009 06:15 UTC
Buck
Member since:
2005-06-29

"Ideological reasons"?!? Come on, get out of the cloud cuckoo land already! There's no ideology in business, only money, ROI and competition. Why do geeks when siding with some company always want to portray it as the white horse that's going to liberate each and all?

Reply Score: 4

What the issue is
by alcibiades on Tue 5th May 2009 07:20 UTC
alcibiades
Member since:
2005-10-12

The issue is not whether Psystar has filed its tax returns correctly. It probably has, or it would be in trouble already with the authorities. Whether they have or not is however irrelevant to the case, and also you cannot conclude that from the fact that they do not have what Apple is asking, that they have not done it.

The issue is also not who is funding it or why. Its simply irrelevant. If they were funded by MS or Dell it would make no difference to the merits of their case, and it would be an entirely legitimate thing for either Dell or MS to do.

The issue is real simple. It is whether the clause in the copy of OSX that Apple, for reasons of its own, decides to sell at retail, which forbids the buyer to install it on non-Apple equipment, is enforceable in law.

That is the only issue on the case that matters. There are other issues to do with how Psystar went about installing, what use it made of Apple logos in its marketing materials... and so on. But the only important one to the industry is the validity of that particular EULA clause.

People who keep muttering darkly about conspiracies by hidden investors with ulterior motives in funding Psystar are just revealing how deeply they are up to their eyebrows in Cupertino spin. Funding competition to Apple, funding challenges to its business model, are part of ordinary business conduct, perfectly OK things to do. Except in the wonderful world of the Mac fanatic, where anyone doing anything that Apple does not like becomes cause for an attack of hysteria.

Reply Score: 9

RE: What the issue is
by JonathanBThompson on Tue 5th May 2009 07:34 UTC in reply to "What the issue is"
JonathanBThompson Member since:
2006-05-26

Ah, whatever you want to say, though, one of the easiest ways to take out a competitor without going into other issues too deeply involves pointing out how they're clearly screwing up legally elsewhere that's another legal issue.

And as relates to that, just because some entity filed tax forms that are filled out, apparently properly as far as the taxing entity is concerned with the very limited information they have, has zero bearing as to whether or not they are falsified: as long as nobody takes too close of a look at what comes in as raw materials and out as shipped product and services, something that makes sense can easily be overlooked, but if you delve deeper into facts and actually do all that busy work, you may find distinct inconsistencies that indicate tax evasion/fraud and signs of money laundering, all of which can be used to take down any individual person or entity, and if clearly egregious enough, it could make any other points in progress seem moot. After all, remember me mentioning Al Capone before? Lots of things were known to likely go on, including all sorts of violent crime, up to and including the likes of murder, but nothing there could be definitively proven, but it was much easier for the government to demonstrate that they were falsifying their tax filings and what they were paying, based on ingoing/outgoing evidence that was observed over a period of time. That seems like a perfectly reasonable torpedo to fire at the waterline of someone you see trying to sink your boat.

Oh, and besides that, the total sales in terms of unit numbers and such is perfectly relevant to the case for determining the damages that may be awarded: this makes perfect sense for Apple to do, either way, to seek out these records, because either by the records not being proper, they can get rid of Psystar that way, if they're bad enough, or they can be more readily convicted by the records for demonstrating what's needed for greater accuracy as to scope for damages computation.

(Edited to add that last paragraph)

Edited 2009-05-05 07:47 UTC

Reply Score: 1

RE[2]: What the issue is
by alcibiades on Tue 5th May 2009 11:52 UTC in reply to "RE: What the issue is"
alcibiades Member since:
2005-10-12

So now we agree that there is no evidence Psystar has failed to file appropriate tax returns, but next for some reason the suggestion is being made that it has filed the returns with false information in them? The mention of Al Capone is presumably to add to this the suggestion that there is some Mafia involvement, and that the falsity of its returns is bad enough to be a criminal matter?

Put up or shut up. What is the evidence?

People on the island do not seem to realize that when its supporters use these sort of debating tactics, they do Apple's cause nothing but harm. In fact, its a serious encouragement to raise a bit of money and go into the business along with Psystar and PearC. Could be a hoot.

Reply Score: 2

RE[3]: What the issue is
by JonathanBThompson on Tue 5th May 2009 16:52 UTC in reply to "RE[2]: What the issue is"
JonathanBThompson Member since:
2006-05-26

No, you idiot! That is NOT what I'm saying! Whether they've been falsely filed or not, they're evidence, but if they've kept sloppy records, that counts against them, too, sets them up for being far more likely to be audited, which might/might not show that, and if absolutely nothing else, gives Apple more hard evidence (if the records are correct) of the extent of any real/perceived damages they may be awarded for potentially lost sales and damage to trade dress as determined by the court. In case you've had your head in the sand, other IP cases (copyright violations, trademark violations, etc.) definitely do use these numbers to determine the amount of damages, and at least in the US, this is how things are typically done. If Psystar has nothing to hide in such matters, then there's no good reason they can't cough such details up, even if it does take a bit of work: there's no good reason they can't cough up such records, since as a business, it is their legal responsibility to keep them, and to themselves, it really helps to keep things from getting all overly confused and impossible to correctly judge whether they're making money or not, or if perhaps there's internal corruption. Because I've been a victim of a budget being thrown out of kilter due to someone not following standard accounting practices in regards to company funds, even though they wanted to keep me, they couldn't, and it is entirely possible that if somehow Psystar wins this case, they just might find the same sort of thing has been going on, and this is actually a gain for them.

If records aren't clearly kept, often, where there's smoke, there's usually fire. Your reading comprehension skills need an upgrade.

Reply Score: 1

Comment by me
by pandronic on Tue 5th May 2009 08:34 UTC
pandronic
Member since:
2006-05-18

I've just done a side by side comparison of the Psystar Open(3) and the cheapest Mac Mini. Both are 599$ and for every spec possible the Open(3) beats the Mac hands down.

It's true that the Mini also has Wifi and Bluetooth but IMO this are irrelevant in a desktop computer.

If I add a 200$ 20" Samsung LCD it is comparable with the 1199$ iMac. Unbelievable.

No wonder Apple wants these guys out by any means.

Reply Score: 3

RE: Comment by me
by dlundh on Wed 6th May 2009 07:10 UTC in reply to "Comment by me"
dlundh Member since:
2007-03-29


It's true that the Mini also has Wifi and Bluetooth but IMO this are irrelevant in a desktop computer.



hahaohwow.jpg

IMO price is irrelevant for a desktop computer, bluetooth and wifi are essential.

Reply Score: 1

Apple Are Going to Lose
by segedunum on Tue 5th May 2009 10:38 UTC
segedunum
Member since:
2005-07-06

Based on Apple's posturing so far they are going to lose this, and circling around with pointless accusations of Psystar's funding and the paranoid delusion that they're being funded by organisations unknown will not impress a judge. It has nothing whatsoever to do with the central tenet of the case.

Reply Score: 5

RE: Apple Are Going to Lose
by mrhasbean on Tue 5th May 2009 12:39 UTC in reply to "Apple Are Going to Lose"
mrhasbean Member since:
2006-04-03

Apple won't lose overall. If they lose the case they will simply change their licence and the cost of the product. It will become similar to Microsoft's OEM stuff. If you have a legitimate registered Apple labelled Mac you will be able to buy upgrades at a "significant discount" (read current Apple retail price / Microsoft OEM type price) while those who don't have a registered Apple Labelled computer will be slugged the full price, and by making the discount for Apple labelled Mac's something in the order of 80-90% they will simply price Pystar out of the market.

At the end of the day - whether it's right or wrong, whether you like it or not - Pystar will lose out in this.

Reply Score: 1

RE[2]: Apple Are Going to Lose
by unclefester on Tue 5th May 2009 13:48 UTC in reply to "RE: Apple Are Going to Lose"
unclefester Member since:
2007-01-13

Charging a different price for retail copies of software based on ownership of Apple hardware would be illegal in many countries.

If Psystar win Apple will have to completely stop selling retail copies of OSX to prevent other companies legally using it. They will be forced to offer only service packs to existing owners.

Reply Score: 4

RE[2]: Apple Are Going to Lose
by segedunum on Tue 5th May 2009 15:45 UTC in reply to "RE: Apple Are Going to Lose"
segedunum Member since:
2005-07-06

Apple won't lose overall. If they lose the case they will simply change their licence and the cost of the product.

Like it or lump it but I'm afraid Apple aren't going to be able to change their license and make this all go away. The central point is whether Apple are able to intimately control through an EULA what their software gets installed on and whether it is enforceable. If that can't be done then no license clause will help. Copyright restricts the making of copies but it doesn't restrict how they are used, so that route is closed off.

while those who don't have a registered Apple Labelled computer will be slugged the full price

Such registration schemes have never worked because it is just simply too bureaucratic to control. Upping the face value of a full Mac OS license is just going to hurt Apple's existing userbase and business regardless of what the hidden discount price might be. It also won't stop the reselling of such media purchased in a registered manner.

People are just not likely to register to get an updated version of Mac OS, they're not going to buy a new Mac to get a new version and they're far less likely to buy Macs knowing just what the restrictions are.

Apple could also cave in when they realise what a money spinner this could be.

At the end of the day - whether it's right or wrong, whether you like it or not - Pystar will lose out in this.

If that were the case then Apple would be supremely confident and they would not be trying to cast aspersions on Psystar's non-dealings rather than focusing on the central tenet of the case. Apple are obviously quite worried.

Reply Score: 2

RE[3]: Apple Are Going to Lose
by nonono on Thu 7th May 2009 19:55 UTC in reply to "RE[2]: Apple Are Going to Lose"
nonono Member since:
2009-05-07

"Apple are obviously quite worried."

You base this entire claim on a 3 page filing written by one of Apples attorneys. This document was not released to the public by Apple, nor has Apple made any PR or public comment of any kind.

Pystar has so far failed in it's legal obligations to the court and to Apple, and the letter was nothing more than a procedural reminder of such occurrences.

Reply Score: 1

And in all of this...
by mrhasbean on Tue 5th May 2009 13:20 UTC
mrhasbean
Member since:
2006-04-03

...Microsoft have been doing a similar thing for years but because Apple are using it to prevent clones nobody likes it. Take these scenarios...

Mac Scenario
I buy a retail OSX Leopard to install on an G5 iMac, and in moving house one day I trip down the stairs while carrying the iMac and it meets an early demise. I do some searches and find an original Intel iMac to replace my bent G5. I bring it home, set it up and legitimately install my copy of OSX Leopard onto it.

Windows Scenario
I buy a retail XP to put on my P4 box (or I have a P4 box with an OEM XP on it), and in moving house one day I trip down the stairs while carrying the P4 and it meets an early demise. I do some searches and find a cheap 2nd hand dual-core box to replace my P4. I bring it home, set it up, and the Windows licence that is on it is no longer valid 'cause its changed owners, and I can't use the licence I had on my P4 box 'cause it is tied to that old machine.

Those Windows licenses aren't restrictive at all...

Reply Score: 1

RE: And in all of this...
by Thom_Holwerda on Tue 5th May 2009 13:33 UTC in reply to "And in all of this..."
Thom_Holwerda Member since:
2005-06-29

I bring it home, set it up, and the Windows licence that is on it is no longer valid 'cause its changed owners, and I can't use the licence I had on my P4 box 'cause it is tied to that old machine.

Those Windows licenses aren't restrictive at all...


That's a bold-faced lie. You can transfer licenses as often as you want, but after a few times, you have to call Microsoft in order to verify your serial code. This even works reliably, with a 100% accuracy rate, for OEM copies.

Do a Google search if you don't believe me.

Reply Score: 2

RE: And in all of this...
by segedunum on Tue 5th May 2009 15:50 UTC in reply to "And in all of this..."
segedunum Member since:
2005-07-06

I bring it home, set it up, and the Windows licence that is on it is no longer valid 'cause its changed owners, and I can't use the licence I had on my P4 box 'cause it is tied to that old machine.

That is completely, totally and utterly wrong. It's so wrong it isn't even funny.

Reply Score: 3

RE: And in all of this...
by Vanders on Tue 5th May 2009 16:47 UTC in reply to "And in all of this..."
Vanders Member since:
2005-07-06

Apart from the fact that you're wrong. what does Microsoft's licensing policy have to do with Apple v. PyStar?

Reply Score: 3

RE[2]: And in all of this...
by Thom_Holwerda on Tue 5th May 2009 16:52 UTC in reply to "RE: And in all of this..."
Thom_Holwerda Member since:
2005-06-29

Apart from the fact that you're wrong. what does Microsoft's licensing policy have to do with Apple v. PyStar?


It's the tactic Apple fanatics resort to when they have run out of other ways to defend their object of affection.

"If all else fails, say that Microsoft does the same thing, and therefore, Apple is allowed to do so as well."

It stems from this weird idea that many Mac fanatics have that if you criticize even just one single aspect of Apple, you are automatically a proponent and fan of everything Microsoft is doing or has done.

Reply Score: 1

Tuishimi
Member since:
2005-07-06

That ain't gonna fly with a judge. Companies are responsible for maintaining records - especially financial records.

Reply Score: 3

hmm
by Mellin on Wed 6th May 2009 06:18 UTC
Mellin
Member since:
2005-07-06

can a court force a company to sell their product to competitors ?

Reply Score: 2