Laptop-DRV » law

Apple, Mac Cloner Concur to Arrange Lawsuit; Psystar Quiet Kicking

admin — Wed, 02 Dec 2009 00:22:19 +0000

Mac cloner Psystar claims it has entered a partial settlement with Apple, which will prevent Psystar from selling PCs preinstalled with the Mac operating system. However, Psystar isn’t completely surrendering.

As part of the settlement, the Mac cloner said it will pay Apple an amount of damages that has yet to be specified. In the Monday f iling, Psystar argued to exclude Rebel EFI, a $50 piece of software that the company started selling in October, from any potential injunction. Rebel EFI is a program that enables ow ners of some Intel PCs to install Mac OS X onto their systems.

An excerpt from the court document [pdf] filed Monday by Psystar follows:

Psystar and Apple today entered into a partial settlement that is embodied in a stipulation that will be filed with the Court tomorrow. Psystar has agreed on certain amounts to be awarded as statutory damages on App le’s copyright cl aims in exchange for Apple’s agreement not to execute on these awards until all appeals in this matter have been concluded. M oreover, Apple has agreed to voluntarily dismiss all its trademark, trade-dress, and state-law claims. This par tial settlement eliminates the need for a trial and reduces the is sues before this Court to the scope of any permanent injunction on Apple’s copyright claims.

….

The summary judgment in this case turned on the manner in which Psystar assembled its Open Computers. It turned on such things as the use of the Psystar imaging station and what this Court found to be the creation of multiple copies and derivative works of Mac OS X along the way…. No ne of these same facts is involved in Rebel EFI. Rebel EFI is entirely a software product. It does not i nvolve the assembly by Psystar of any computers…. Nor does Rebel EFI contain or include Mac OS X. A Mac OS X DVD does not even accompan y sales of Rebel EFI. Rebel EFI consists solely of Psystar software availabl e for sale and download through Psystar’s website. In particular, whether sales of Rebel EFI are lawful or not depends on whether Psystar’s end users have a defense under 17 U.S.C. § 117. This issue has not been litigated in this case at all. Psystar’s end users do not engage in commercial use of Mac OS X and their use would qualify as use for “internal purposes” even under the standards articulated by Apple in its summary-judgment briefing. If Psystar’s end users are protected by § 117, then Psystar cannot be violating the DMCA by selling Rebel EFI because Rebel EFI, as used by the end users, does not facilitate infringement.

In short, Psystar wishes to continue providing a DIY solution for owners to make their own Mac clones, thereby shifting the responsibility (i.e., breaking Apple’s End User License Agreement) onto the consumer.

However, it’s unlikely this workaround w ill pan out for Psytar. In 2008, W ired.com reported on a company called Open Tech, which said it would sell PCs bundled with instruction kits for consumers to install Mac OS X themselves. However, Carole Handler, an intellectual property la wyer with Wildman Harrold, told Wired.com th at Open Tech would be subjecting itself to contributory infringement of Apple’s end-user agreement.

“Making the user instead of the company the perpetrator of any violation will not avoid the issue of a new company’s con tributory infringement and/or vicarious liab ility for what it facilitates and enables the user to undertake,” Handler said in an e-mail interview. “This kind of workaround is not a bar to Apple bringing contributory infringement or vicarious liability claims.”

Though slightly different, Psystar’s solution could also be considering aiding the consumer to break Apple’s EULA, which reads, “You a gree not to install, use or run the Apple Software on any non-Apple-labeled computer, or to enable others to do so.”

Psystar, a company based in Florida, opened its Mac clone business in April 2008. Three months later, Apple filed a lawsuit alleging Psystar was committing copyright, trademark and shrink-wrap license infringement. Judge William Alsup in November ruled that by selling PCs hacked to run Mac OS X, Psystar had violated Apple’s copyrights.

Additional details regarding the settlement will be filed today, according to Psystar.

Leap Plan denied prohibition on sales of Barnes & Nobleman Cranny

admin — Tue, 01 Dec 2009 19:45:02 +0000

This shouldn’t be seen as an indicator of future rulings, but Spring Design has been denied its injunction to halt Barnes & Noble from selling the Nook. According to court documents, there is “genuine dispute” over whether the Nook was derived by Spring Design’s contributions or was independently developed prior — in a nutshell, there’s no way for the court, or anyone at this point, to know what’s really going on her e. The creator of Alex, who as we’ve previo usly chronicled had many behind-the-scenes meetings on developing the Android-assisted e-book reader before BN pulled out of the d eal, can take solace in an expedited pre-trial process to accommodate for an earlier hearing date. So now the only thing stopping Barnes and Noble from selling Nook is… Barnes and Noble itself. Turns out that’s a pretty formidable foe.

[Thanks to everyone who sent thi s in]

Mac Cloner Psystar Sold Fewer Than 1,000 Hackintoshes

admin — Mon, 30 Nov 2009 21:06:45 +0000

The story keeps getting worse for Psystar, a small Florida-based startup that was selling Mac clones. In its court battle with Apple, a judg e recently found Psystar guilty of violating Apple’s copyrights. What’s more, the payoff for being a rebel was meager for Psystar: the startup sold only 768 sy stems, according to an economist App le hired to analyze Psystar’s business records.

On top of that, Psystar told investors that it projected it would sell between 1.45 million and 12 million machi nes in 2011. The small company opened shop in April 2008; Apple sued three months later. 12 million units? Talk a bout absurdly optimistic.

768 shipments is a puny number, but I’m not all that surprised. Back w hen I worked as an editor at Macworld, I remember how difficult it was for us to order a Psystar desktop for lab testing. Only after numerous attempts did our order go through; the process felt shady from start to finish. Also, I would imagine that the people who are nerdy enough to desire — and put up with — a PC hacked to run Mac OS X would take it upon themselv es to build a Hackintosh of their own (like Wired.com’s Charlie Sorrel and I did with our netbooks).

Plus, I can’t imagine man y would opt to throw money at a company that’s battling Apple’s legal sharks. That circumstance brought the longev ity of Psystar, and its ability to provide customer support, into question. Psystar’s spin for investors is even more bizarre: Psystar argued that its leg al battle with Apple would frighten off other potential competitors, thus insulating its success. However, plenty of businesses offering Hackintosh solutions have emerge d throughout the course of Psystar’s fight with Apple.

ComputerWorld, the first to report this story, happened upon a slide presentation containing the shipment projections, which Psystar showed to venture capitalists in 2008. Get the f ull story there.

Datel sues Microsoft, wants its Xbox 360 market-place invest in

admin — Mon, 23 Nov 2009 22:05:30 +0000

Seems like we just can’t go a week without some corporate power plays or mudslinging making our pages. Back in October, Datel promised it would “remedy” the situation created by Microsoft’s forthcoming (now present) Dashboard update locking out its higher capacity memory modules. The accessory company was the first (and only) third-party supplier of memory cards for the X box 360, but it seems that MS took a dislike to the MicroSD-expandable Max Memo ry units and has since taken the unusual step of downgrading the console to being able to read only chips up to 512MB, essentially taking Datel’s 2G B+ wares out of commission. Y eah, classy. Datel’s retaliation is in the finest Anglo-Saxon legal tradition, namely to assert antitrust concerns and to claim its right to act as a competitor to Microsoft in the memory market for Redmond’s own console. It all sounds rather silly to us too, and could probably have been avoided by a rational compromise, but what’s the fun in that?

Jailbroken iPhones exposed to subsequent worm, this period malicious

admin — Sun, 22 Nov 2009 23:10:36 +0000

As inevitable as the sun rising in the East and setting in the West, an innocuous iP hone worm has been tr ansformed into a malicious bank details-stealing virus. The second recorded iPhone infection operates on exactly the same principles as the first, as it targets jailbroken handsets with SSH installed, but this tim e adds the ability for the hacker to remotely control and access the phone. By throwing up a purported ING Direct login page, he (or she, or they) can collect your online banking credentials and, presumably, all the cash they are supposed to protect. Presently isolated within the Netherlands, this outbreak may spread further still, as it is capable of infecting other jailbroken iPhones on the same WiFi network.