And 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.
Don’t get me wrong but in my honest opinion it is time for this ‘soap opera’ to be moved to Page 2.
I am interested in the outcome of this war but I find it overwhelming and tiring to read reports on all the battles. Maybe it’s just me, but I prefer to be an observer, not a voyeur.
Nothing against you Thom, I understand there are slow weeks.
Who knows for how long this is going to drag in Court… they are going to throw everything they can at each other.
Edited 2009-09-04 23:12 UTC
You just have to read them… I have to write them
.
I understand your frustration, but I find this a very interesting case to follow, and so do many OSAlert readers. You can always skip the items, of course.
“Paging Mr. The Shark. The Apple vs. Pystar case is on the line to inquire about their nine-o-clock jumping of you.”
pretty sad they’re updating OSAlert on this personally. I guess i finally understand Thom’s agenda on this and how so many Psystar ads were showing up on this site.
There’s nothing special about it. It was a standard email, not addressed to us specifically. It was sent to a list of people (using BCCs of course).
If you think it is uncommon for companies and lawyers to contact news websites, then you should take a look at my inbox. It’s crawling with PR crap from a gazillion companies – including the big ones,
when i read the post, it sounded like you had been personally emailed. it really wouldn’t surprise me if you were tho, you seem to be updating us every few hours on the situation.
anyways, consider my previous post my feelings toward this site the last few months and how its becoming boring with this tabloid material.
Pretty sad to try and find a conspiracy behind everything and not use some common sense (TM).
Yup. Clearly OSAlert is in league with the Illuminati, the New World Order, and the reptilian-humanoid aliens. Hope you’ve a good supply of tinfoil headware close by.
In fact, your best bet is to completely remove your head and then encase it in tinfoil. That will create a faraday cage, which will also prevent the gub’ment from stealing your brain waves.
i don’t see any other site going into such great detail into reporting tabloid news.
Sadly, Pamela continues to ignore her psychiatrist’s repeated recommendation to stick with her medication.
I’m a GPL advocate, deluxe. But I don’t do conspiracy theories. They are a waste of time. Much better, all around, to do something positive instead.
Edited 2009-09-04 23:26 UTC
I’m going easy on Pamela Jones of Groklaw because history has taught us that sometimes, conspiracy theories eventually turn out to be true even when they sounded outlandish or ridiculous at first! There are many parties in the tech industry who would like nothing better than see the GPL invalidated. While I don’t think this has anything to do with the Apple v. Psystar case it’s certainly understandable how Ms. Jones may believe such a thing.
On a related topic, I second the vote to see all future articles regarding the minutia of the Psystar case be moved to Page 2.
Specifically, which outlandish conspiracy theories, espoused by Ms. Pamela Jones, have turned out to be true?
Edited 2009-09-05 00:11 UTC
Well, Groklaw unearthed that Microsoft was behind the BayStar deal which funded SCO in their suit against IBM. Back then people also said it was a crazy conspiracy theory… only it turned out to be true. How funny if it should happen again.
But chill, so far all PJ said is that she finds it strange that all these lawsuits that would ultimately benefit Microsoft seem to pop up at the most interesting of times. And since in the SCO case it was already proven that Microsoft was implicated… you can see how one might feel enclined to be suspicious of the Psystar case as well.
These are not stupid lawsuits brought up by random nutjobs. They are extremely artfully put together cases, backed up by lots of money from unknown sources, and which attack core strengths of FOSS, namely copyright and the GPL. If it’s a coincidence it’s a damn big one.
And speaking of Microsoft and how Thom doesn’t see what they’d have to gain, two things. First, an earlier Groklaw article notes that Psystar is arguing in a very sly manner, which would attack the GPL and Apple but leave Microsoft’s EULAs alone:
http://www.groklaw.net/article.php?story=20090829201948789
Second, if Apple would find itself facing clones again, like it happened in the 90’s, yeah, it would be a short-term boom of Apple-like machines, but the whole thing would blow pretty soon, taking Apple down with it. Winner? Microsoft. That’s because the one thing that makes Apple stuff stand out is the tight control over every aspect of its design. The attack of the clones would dilute that value and make these fake-Macs undistinguishable from PC’s, while Apple would waste away in lawsuits and have its software powering their competitors.
Edited 2009-09-05 00:39 UTC
I figured that was it. But that was not outlandish. It was more or less expected.
It was, indeed, something of a conspiracy theory. But a very believable one.
None of her other conspiracy theories have panned out. And I don’t expect that this one will, either.
Edited 2009-09-05 00:42 UTC
You are rewriting history there.
The conspiracy theory is that Microsoft did the deal with SCO exclusively to fund the law suit against IBM and Novell (i.e. Linux), this has never been proven and is only “reality” to die hard Groklaw fans.
… benefit Microsoft?
In this case it is quite the opposite! If Psystar wins it would directly harm Microsoft on many levels.
..core strengths of FOSS, namely copyright and the GPL.
WTF? Poor naive me.. I thought that a core strength of FOSS was better software. I’m so happy you corrected me in my naive belief. So you are in effect saying that the Psystar case that is attacking the EULA and associated software licensing (that benefits both Apple, Microsoft and FSF) is anti FOSS (narrowly defined as the part that uses the GPL)?
So according to yours an Groklaw’s world view FSF is now a major “commercial” software producer with a strong interest, through EULA’s and other licensing schemes (i.e. GPL), in the current state of the software industry. (This could of cause also explain why RMS lately has been so pro patents lately.)
If you are not actually working for the FSF then I believe you are being played, big time here
A very risky strategy for MS. If Apple hardware is so well designed as most Apple users seem to believe it would still sell. However, freeing OSX so that any one (including oems) could install OSX on a PC would introduce a major competitor to Windows, one with MS office etc and a lot of other commercial software. I don’t see why more competition in the OS market helps MS – Apple could be transformed into a direct competitor to MS.
I’m sure a lot of people would have chosen OSX over Vista if they had had the choice and OSX vs Windows 7 well MS would need to be more competitive with its pricing.
How exactly would Psystar winning benefit Microsoft? If there is another avenue available to buy Mac OS X … how does that help MS again?
Groklaw was once fun to read.
I stopped reading the site once it turned to a yet another GPL lobby spiced up with “anti-rhetorics” and loony conspiracy theories.
I wouldn’t count it as even remotely objective source of information any more.
Correct me if I’m wrong but Camara and Nesson are the lawyers who were responsible for the defense of both defendants in the RIAA cases. They are both (ok… maybe Nesson more than Camara) known to have some pretty peculiar tactics. So it might be the case that they actually posted confidential information. Remember how Nesson posted all the songs Tenenbaum downloaded on his website? I just hope that their tactics do not affect the outcome of the case… It’s funny how all the cases I’ve been following recently involve the same lawyers…
Psystar will talk themselves to death,
and Apple will bury them with their own confusion.
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
Are you kidding me?
Oh dear. I didn’t realize that the site and PJ had gone this wild.
Enemies, enemies… Everywhere, enemies of freedom. Enemies, enemies… I’ve got to pull this radio out from my tooth. Everywhere, enemies of GPL. I’ve got to launch another Windows7Sins.
<blockquote>”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.”</blockquote>
Even so, the thought of mac clones can throw a huge wrench into Apple’s finances whereas it would put a small dent into Microsoft’s.
If mac clones hit the market, the price of OS X could go up…either because Apple would want to license the heck out of OS X to the clone makers OR because it would be making significant investments into thwarting clone maker efforts.
Finally, if mac clones were offered at cheaper prices, there is a good chance that the allure of working with OS X would wear off as more users would have access to it that wouldn’t normally have access to it (financially speaking). I think right now, one of many things that attract people to OS X is the allure of owning a mac that only a select group of people can afford.
So I think a mac-clone market may hurt MS in the short-term, but there is a good chance it would be beneficial to MS in the long-term. Regardless, I do see this theory as a POSSIBILITY…just not a probability. I think MS has been making a lot positive strides lately (2 steps forwards, 1 step back) since Vista and I don’t think at this time they would be willing to risk ANYTHING that would tarnish their reputation nearing the soon release of Windows 7.
This site used to be plastered with Psystar ads, Thom will anti-Apple rant in a NY minute, and now he’s privy to pending litigation by getting emails from the lawyers trying the case themselves? What gives man? Say you aren’t suckling from the Psystar teet.
Edited 2009-09-05 05:16 UTC
I seriously doubt that Apple will let clone makers just get away with it, EULAs or not. They’re just going to change some agreement conditions, or employ some insane OS protection but it’s not likely we have a booming clone market ahead of us. It’s Apple, technically they can do whatever they want, including installing some very custom protection module into Macs. Heck, Sony could manage it sucessfully so far with the PS.
Thom, do you understand why if Apple loses it would affect the GPL one way or the other?
It seems that what is at issue with the GPL is copyright, your power to make copies and derivative works. That is forbidden by copyright without permission, and the GPL gives you permission to do both under certain conditions.
However what is at issue here is your right to make copies essential to use, which in the present case means installation, and that right seems to be given you in the US by Title 17 section 117.
I understand that if Psystar made copies in the process of installation (which it necessarily did) and then sold them on, it was violating copyright. If on the other hand it merely acted as the agent of the owner in installing and thus making copies, it was not.
In either case it was violating the click through EULA which specifies that you have to install only on a machine ‘Apple labeled’, and that might or might not be enforceable. But why does any of this have any bearing on the permissions given under Title 17 to people who make copies or derivative works from GPL software?
The reason why you are not violating copyright by doing an installation of a retail copy of software in an environment the copyright owner does not approve, is that Title 17 117 gives you the right to use what you own, and installing is an essential step in using at least most software, and certainly OSX, which does not come in a usable ‘live’ version.
But 117 does not give you the right to copy for any other purpose except use, archiving, and repair. So how does Apple losing on the basis of 117 have any effect on the GPL, which gives permission to copy for quite other purposes under specific conditions?
Pamela Jones needs to explain exactly what the implications are for the GPL of a loss by Apple. I am inclined to conclude that excitement about the supposed dire consequences for the GPL are simply FUD and spin emerging at third hand from Cupertino marketing. It seems a much more plausible explanation, if people cannot get real specific real fast about what the problem is.
Aside from being generally skeptical of conspiracy theories, there is one key reason to doubt the “Microsoft is secretly behind Pystar” theory: namely, the media/marketing savvy that Pystar has demonstrated. Since the Apple vs. Pystar case started, Pystar has taken several actions that don’t make much sense in terms of helping their case in court. But they do make sense as attempts to get the “geek public” on their side.
And, frankly, I don’t think Microsoft has ever demonstrated that degree of media/marketing savvy (as inane as the “I’m a Mac, I’m a PC” ads are, the “laptop hunter” ads are even worse).
>>It’s unclear which part of the emails is supposed to be privileged information<<
The problem is not the content, per se, but rather their nature – they are, by default, privileged communications between client and attorney. Ordinarily, they are considered confidential such that Apple would not be allowed to see them. The privilege can be waived by the client, but not by the attorney; however, here it appears that Camara (the attorney) forwarded them to Neeson unilaterally without first getting permission, which is improper.
In a previous filing, Apple pointed out that Psystar had solicited questions to ask during depositions, and then stated that it might not be able to release the answers until after the end of the litigation. Again, that would be improper – any confidentiality restrictions would continue in force.
SCO was not above playing games either – it leaked the contents of at least one confidential IBM document to Maureen O’Gara, who published it in a story.
Disclaimer: IANAL, and the above might be completely wrong.
How in the hell could this be a conspiracy to destroy the GPL? Apple doesn’t distribute anything under the GPL, so what could it have to do with this case? Same with Linux/SCO, whatever.
Microsoft needs Apple around so they can say they have competitors, so I really don’t know what they would have to gain by this, especially because if Apple loses, more people will by OS X and not install Windows. So MS would lose.
I certainly would run out and buy a 29 dollar copy of snow leopard, and I would build a machine to do it.
The argument is (probably quite wrong) that the same set of rights that may give Apple the right to restrict which machine you install OSX on, are also the rights that allow the GPL to restrict copying without distributing source code.
The argument seems to go something like this. To install is to copy. To copy is regulated by copyright law. Therefore you can only copy in way of installation or use by permission of the copyright holder. Therefore if Apple were to lose, all restrictions on copying would become invalid.
It makes no sense of course. The reason is that the law in the US treats computer programs differently from any other copyright materials, in particular Title 17 S117 specifically says that an owner of a copy may make any copies essential for use, and also says that he may authorize others to do that for him.
So it is very difficult to see the argument as anything other than MacFud.
Another way of looking at it is that it proves too much. Apple could lose the case in respect of installing on non-Apple labeled computers, but that does not mean that copyright would have been abolished. But that is what the argument implies. If the reason you may not install is copyright permission, and that alone, and if it turns out that if Apple loses you are allowed to make copies without authorization, then anyone will be allowed to make copies of anything.
But this is totally absurd. No-one in their right mind believes that there are only two possibilities in this case, either Apple wins on the question of where you may install, or all copyright is abolished. It is much more plausible that Apple and everyone else retains their rights under S106 (which forbids copying and duplication) but that the exceptions to S106 which are contained in S117, which allow installation of computer programs and copying by the owner for use, archiving, and repair, in all cases without permission of the copyright holder, are upheld.
If this is the case the only thing that would fall is Apple’s right to restrict by copyright the installation environment.
They might retain the right to restrict by EULA, while not having the right to restrict under copyright. As far as I can tell, they are not even claiming that they can restrict the installation environment by copyright, so its a ridiculous argument.
MacFud.
Edited 2009-09-06 07:28 UTC
Nice article, overall… however:
No, not exactly.
An OEM license is a set of restrictions to qualify for a reduced product price – as an OEM version of Windows is lower priced than that of a retail version.
Apple’s license is trying to take away rights from the general retail market.
You can buy Windows with a more liberal license ( not MUCH more liberal ) by buying at retail.
One should also note that there are many projects which publicly hack Windows for compatibility every which way, and Microsoft doesn’t sue. As evil as Microsoft is, they aren’t as evil as Apple in this regard.
Besides… this leak probably even came from Apple – on purpose!
God, Psystar better win! We have more riding on this than most realize. It goes beyond computers very quickly when it comes to terms of use legislation. If Apple wins, we revert rather quickly to the dark ages of consumer rights.
–The loon
Edited 2009-09-06 03:56 UTC
Yes, this is more MacFUD. The argument is that MS restricting transfer of OEM copies from one machine to another is the same as Apple restricting the kind of machine.
Its not. MS sells at a discount a copy with, if you like, the restriction that it may only be installed once on one machine. Which machine is up to the buyer. There is no restriction on the kind of machine or where you buy it.
Apple is not restricting the number of times you do the installation (as long as its running on one machine at a time, or 5 in the case of the family pack). It is restricting where you buy the machine you do the installation on.
So it is entirely possible that the MS restrictions on OEM copies are binding and enforceable, but the Apple restrictions on where you install are not.
I do have doubts about the enforceability of the MS restrictions in some jurisdictions. But they are not the same as or as shaky as the Apple ones. Consider one thing, as an example. Everyone knows that OEM copies are different from retail copies and have different licensing terms. So you probably do not have to present explicitly those restrictions to a buyer for them to be enforceable. Apple on the other hand is selling full retail versions, not labelled upgrades or OEM. So the assumption must be, unless the packaging or sales documentation says differently, that you can install them on anything they will install on, like all other software. Same applies to Windows and MS Office, one suspects.
yeah, this doesn’t have potential to hurt the gpl, it has more poetential to hurt microsoft.
not only does the court have a good chance to declare eula’s wrong. but they also have a good chance to restore competition in the OS market, AND the apple hardware market. so consumers would benefit greatly because of this. not only would they be able to choose between hardwares to use for apple’s os. but microsoft and apple would have to compete on the OS front directly. competition is good.
I realize that things have been somewhat problematic over the weekend.
Have you had time to look at the ruling?
Do you have a comment to offer or a post that contains the information so that we might look at it?
TIA