posted by Thom Holwerda on Tue 3rd Nov 2009 10:13 UTC
IconWhile the Apple v. Psystar case is currently on hold until the hearing regarding the motions for a summary judgement takes place (November 12) the Psystar v. Apple case (still with me?) is only just beginning. Psystar has amended its original complaint in this second lawsuit, asking the judge to order Apple to cease calling Psystar's business "illegal", claiming it hurts the clone maker financially.

There are two cases running in parallel between Apple and Psystar. The first one, Apple v. Psystar, is the one we reported on a whole lot already; it's filed in California, and is currently in the summary judgement phase. This means that both parties have presented what they consider to be the undisputed facts, and then ask the judge to rule in either one's favour to end the case before it officially goes to trial. A hearing will take place on these motions November 12, and the official trial date is set for January 11, 2010.

The second case was filed by Psystar in Florida, and concerns Snow Leopard - Apple successfully kept Snow Leopard out of the first lawsuit. As a result, the lawsuit above might end in a puff of smoke, since Psystar has already agreed to an injunction against selling Leopard anyway, because it doesn't sell Leopard any more. Apple tried to have the two cases enjoined, but Judge Alsup denied this request.

In the amended complaint in this second lawsuit (sadly, the documents for this case require PACER access. If you have access, and you are allowed to share these documents [please double-check!], I'd love to get a copy), Psystar asks the court to stop Apple from saying that it is illegal for Psystar to buy Snow Leopard on the open market and then resell it.

"A declaration by this Court of the legal rights of Apple and Psystar with respect to Psystar computers running Mac OS X Snow Leopard would clarify, to put it bluntly, the legality of Psystar's business -- and would remove the substantial negative effect on Psystar's business of continued uncertainty and legal wrangling between Apple and Psystar," the amended complaint reads.

"[Apple's] violations of the federal antitrust acts have damaged and will damage Psystar in its business and property because they deny Psystar business that otherwise would go to Psystar by creating doubt about the legality of Psystar computers running Mac OS X Snow Leopard," Psystar's lawyers state, "The items of damage to Psystar include damage to Psystar's business reputation and to the reputation of its products and sales lost that could have been made absent Apple's attempts to restrict Mac OS X Snow Leopard to Macintoshes."

Psystar asks the court to slap an injunction on Apple that would make it impossible for the Cupertino giant to "[represent] that Psystar's making and selling such computers is other than perfectly legal."

The amended complaint also stated that Psystar's Rebel EFI package is a perfectly legitimate use of features Apple has purposefully included in Mac OS X. On top of that, the clone maker finally plays the open source card.

Psystar's position with respect to Mac OS X Snow Leopard is analogous to that of a person developing a software application to run on top of Mac OS X Snow Leopard. Just as Microsoft writes Word to run with Mac OS X and Google writes its Web browser Chrome to run with Mac OS X, Psystar writes its software to run with Mac OS X Snow Leopard. In fact, the part of Mac OS X Snow Leopard that Psystar interacts with is within the open-source portion of Mac OS X and makes use of features of Mac OS X Snow Leopard designed to allow software developers to extend Mac OS X Snow Leopard to work with different hardware.

What Psystar is referring to here is of course the open source portion of Mac OS X, Darwin, which is perfectly fine to hack. Running custom kernels on Mac OS X is perfectly normal - it's just that many people who install Mac OS X on non-Apple labelled computers use this to create custom kernels better suited for their hardware.

Psystar is also referring to Mac OS X drivers, known as kexts, which are used to extend the hardware support for Mac OS X. This is of course also a perfectly valid use of Mac OS X's capabilities - imagine not being allowed to write drivers for Mac OS X!

There's no reply yet from Apple, so we'll have to wait what Apple has to say about this one. The open source and kext arguments are strong ones indeed, and it's a mystery to me as to why the clone maker didn't make them more prominent in the other lawsuit. Well, thanks to Apple purposefully and successfully keeping Snow Leopard out of the first case, Psystar's new lawyers (who only joined later on during the first case) get the chance to do it properly this time around.

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