posted by Thom Holwerda on Fri 4th Sep 2009 21:21 UTC
IconAnd the Apple vs. Psystar case continues to roll onwards. A lot of mud is going back and forth between the two companies: Apple has accused Psystar of making information public which was under a protective order, and obviously, Psystar denied. In addition, Groklaw's Pamela Jones continues to suspect that this Psystar case is related to the SCO case, and is part of a concentrated effort to destroy the GPL. Update: I've just been emailed (on behalf of Psystar's lawyers, actually) the outcome (in the form of a court order) of the hearing held this morning. Sadly, it's very late here, so I won't be able to analyse it properly until tomorrow.


Leaking & Margins

So, what protected information is Apple accusing Psystar of leaking? Well, that's a bit unclear, but it is somehow related to two emails between Psystar CEO Rudy Pedraza and Psystar lawyer K.D. Camara. These emails ended up on Professor Charles Nesson's weblog, and Apple is not amused, and asks for further protection.

It's unclear which part of the emails is supposed to be privileged information, but Pamela Jones suspects it's the deposition schedule - although I must admit I don't really see a schedule in there. All I see is that it is mentioned they will be able to pin down a schedule in the coming days.

Camara, the Psystar lawyer in question, denies all of this, of course, stating it's nothing but an "entirely unprofessional personal attack" on him. "Neither Psystar nor I plan to violate the protective order; neither Psystar nor I have violated the protective order; and Apple's suggestion to the contrary is unprofessional in the extreme," Camara writes.

Camara further states that Apple's accusations are an attempt to draw attention of the court away from the issue that is currently being debated between the two companies: whether or not Apple should be allowed to keep certain financial information (regarding margins) a secret. Psystar claims that Apple's margin information is important for the case, Apple believes it is not.

The meat of the matter regarding Apple's profit margins is this: Psystar believes that if it can prove Apple's profit margins are too high, it means that Apple has market dominance. Apple disagrees, stating that "Even if Psystar could allege that Apple's profit margins were high, this would not show any unlawful extension of Apple's copyrights; at most those margins would show that Apple's computers are in high demand, or are efficiently produced, or both".

This is also why Apple seeks for an injunction, preventing Psystar from continuing its business of selling non-Apple labelled computers with Mac OS X installed. Apple contends that the damage done/being done by Psystar to the Apple brand cannot be expressed in money, and as such, an injunction is the best course of action. Apple thinks that money made by selling Mac clones is money taken from Apple.

This discovery dispute about Apple's margins was the subject of a hearing earlier today, but the outcome of that is not yet known.

In any case, maybe the hearing will reveal whether or not the information in the emails falls under the protective order. If it does, Apple of course has a very strong case when it comes to asking for additional protection. If it indeed turns out that this information fell under the protective order, then I'm in full agreement with Apple when they ask for additional protection. It would be a blunder of seriously epic proportions on Psystar's lawyers' ends.


Black helicopters!

Moving on, there are now two conspiracy-ish ideas around this whole thing. Apple has reiterated once more that it believes super-secret people are behind this whole thing; Apple continues to list not only Psystar as the defendant, but also "DOES 1-10".

Groklaw's Pamela Jones, however, suspects the conspiracy goes even deeper than mere unknown people financing this whole deal. She suspects it is all part of a concentrated effort to destroy the GPL, and that it is related to the SCO case. She also implies quite strongly that Microsoft - in one way or another - is behind it all.

Another reason I am following the case is that I am nagged by the growing suspicion that the same people who are behind SCO may be behind this case also. It's still just a suspicion, I wonder if it's another, more subtle step in an anti-GPL, anti-FOSS strategy somebody wants to play out in the courts, and now that SCO is on the ropes, up pops another case where somebody wants to make money from code they didn't write but can't clean up monetarily with unless they can get the terms under which the software is made available tossed overboard. I definitely care about watching something like that closely. Time will tell if I am right about this, but if I am, I'd rather watch from the beginning than after it's too late. But frankly, I find it strange that all Microsoft's competitors find themselves dealing with legal attacks on their businesses that seem designed to harm their reputations at best, and their businesses, at worst.

It's quite difficult how to respond to these suspicions. The fact of the matter is that Pamela Jones is not just some random nutjob - she's a very, very respected journalist with an amazing service record, and a very popular website to back it up. I read Groklaw quite often, and her work is invaluable in making sense of all the legal gibberish going on between not only Apple and Psystar, but of course also SCO and the Linux/UNIX world.

That being said, the idea that this is related to the SCO case, as well as the implication that Microsoft is behind it, seems rather out-of-this-world to me. There is strong evidence Microsoft indeed played a role in the SCO case, but with this new case between Psystar and Apple, it seems like Microsoft has more to lose than to win.

This case deals with the concept of the EULA, and lest we forget, Microsoft itself is quite an EULA-happy company. If Psystar were to make major wins in this case, and the EULA would be challanged in court in such a high-profile case, which gets detailed all over the internet, it would only hurt Microsoft's use of EULAs. Remember, Microsoft is restricting its software to machines or operating systems much in the same way Apple does (the OEM license, for instance). An additional point is that if it would indeed turn out to be possible for companies to build and sell Mac clones, that might actually hurt Microsoft quite a bit.

Time will tell if Jones' suspicions will turn out to have an anchor in reality. She knows what she's writing about, so who knows. As soon as the outcome of today's hearing gets out, we'll inform you about it.

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