Apple Asks for Permanent Injunction, Psystar Sold 768 Machines

We’ve got some progress in the other legal case Apple is involved in. The California case, Apple vs. Psystar, is more or less a done deal, but the Florida case, Psystar vs. Apple, is only just beginning. As it promised it would do, Apple has now asked the court in California to either dismiss the Florida case, or transfer it to California. Apple is also asking for a permanent injuction against Psystar. Through this motion, we also gain some juicy insight into Psystar’s sales projections – and more interestingly, how many machines the clone maker actually sold.

A small recap might be in order. I’ll do it in staccato mode. Psystar offers non-Apple labelled machines with Mac OS X Leopard installed. Apple sues Psystar in California. Lots of legal back-and-forth. Psystar sues Apple in Florida over Snow Leopard. Apple more or less wins California case hands-down, but it only covers Leopard (by Apple’s own request). That’s more or less the story so far.

The Florida case hasn’t really started yet, but Apple thinks it should be either dismissed, or transferred to California. This second case is the result of an error on Apple’s end, as the computer maker successfully argued that Snow Leopard should not be part of this case – giving Psystar the opportunity to file a separate, Snow Leopard-focussed lawsuit.

More specifically, Apple is asking for a permanent injunction, forbidding Psystar from selling any computer with Mac OS X pre-installed. This would also cover the Rebel EFI package. In addition, Apple asks for 2.1 million USD in damages from Psystar.

“Psystar’s whole business is premised on stealing from Apple,” Apple argues, “Psystar pirates Apple’s software, circumvents Apple’s technological protection measures and illegally benefits from the good will and reputation Apple has built. Psystar’s conduct, if permitted to continue, will both tarnish Apple’s reputation for excellence and lead to the proliferation of copycats who also will free ride on Apple’s investments, infringe Apple’s intellectual property rights and cause further irreparable injury.”

This either makes you feel righteous and proud, or it makes your stomach uneasy. I guess it’s pretty obvious in which category I belong. Even Apple’s senior vice-president for worldwide product marketing, Phil Schiller, deigned this motion worthy enough to append a personal note.

“Apple should not be required to file a new lawsuit to stop Psystar from infringing Apple’s intellectual property each time Apple releases a new version of Mac OS X,” Schiller said, “Requiring Apple to file multiple lawsuits to stop the same infringing conduct would be unfair, expensive, and a waste of the Court’s and the parties’ resources.”

What is interesting is whether or not the infringing really is the same. From the words of judge Alsup in the California case it became clear that Psystar’s infringing activity came forth from the rather complex method with which it installed Leopard, which required multiple copies to be made – mind, this was before the days of boot-132. The method for installing Snow Leopard is most likely far less intrusive. Still, different installation method or no, Apple’s win in the California will help the company greatly in the legal battle in Florida.

Attached to Apple’s motion was a very interested document, a presentation shown by Psystar to venture capitalists in 2008. This presentation shows that the clone maker thought it could sell between 1.45 million and 12 million machines in 2011 – with the former being the conservative estimate, and the latter the aggressive one. Much of this hinged on the OpenBook, an announced but as of yet unreleased laptop.

In the conservative model, Psystar would sell 70000 machines in 2009, 470000 in 2010, and 1.45 million in 2011. The aggressive model would have them sell 130000 machines in 2009, 1.87 million in 2010, and 12 million in 2011. Pretty… Interesting. And confident. Overly.

More painful are what Apple claims are the real sales figures. Apple hired an economist to go over Psystar’s (incomplete) financial records, and he claims that Psystar sold only 768 machines between April 2008 and mid-August 2009. “Psystar has not challenged my analysis of its financial records,” the economist said.

So, this is the company that Apple is so afraid of. A company that sold only 768 machines in over a year. In roughly the same timespan (Apple’s 2009 fiscal year which ended September 30) Apple sold 768 machines every 40 minutes.

Dangerous, those clone makers. They are destroying Apple!


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