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Psystar, the maker of the now notorious Open Computer -- a PC that could be preloaded with OS X software -- has just about run out of legal options in its battle with Apple (Nasdaq: AAPL).
Judge William Alsup of San Francisco's District Court, who last month issued a summary judgment in Apple's lawsuit against Psystar, has just granted Apple's motion for a permanent injunction against the sale of Mac OS X software or any products that would infringe Apple's copyrights.
Alsup included sales of Snow Leopard and Rebel EFI in the injunction. Rebel EFI is a product Psystar released earlier this year -- a US$50 utility that installs and runs Apple's Snow Leopard operating system on generic PCs.
Psystar did not respond to MacNewsWorld's request for comment. Based on earlier court filings, though, it appeared the company was planning to build a new business model around Rebel EFI.
One Slim Chance
Incredibly, there is still a slim avenue open to Psystar if it wants to take it -- and has the funds to continue its legal adventure, according to Christopher M. Collins, an attorney withVanderpool, Frostick & Nishanian.
Psystar was very vague in describing Rebel EFI in the court documents -- an evasiveness that the judge noted, Collins told MacNewsWorld.
"What he essentially said was that since you didn't tell me anything about Rebel EFI, I don't know what the product is -- but if it violates my injunction you will be held in contempt," Collins said.
"Psystar's opposition brief appears to purposefully avoid providing a straightforward description of what Rebel EFI actually does," Alsup wrote in his order granting the injunction. "Thus, it is not only inappropriate, but impossible to determine on this record whether Rebel EFI falls within 'the same type or class of unlawful acts' found at summary judgment. This order declines to 'bless' a product about which it knows little of substance."
Psystar could therefore sell Rebel EFI "at its peril," according to the judge.
In other words, it could sell Rebel EFI and then make its case in a new motion -- or at the inevitable contempt hearing -- that the product should not be included in the scope of the injunction.
"The bottom line for Psystar is that the court expressly includes the Snow Leopard operating system in the scope of its injunction, and refuses to expressly exclude Rebel EFI, so that if Psystar keeps selling it, it does so, as the court notes, 'at its peril,'" Timothy J. Connors, an attorney with Calfee, Halter & Griswold, told MacNewsWorld.
"Since the injunction prohibits Psystar from circumventing any technological protection measure in Mac OS X, and inducing, aiding or assisting others to infringe Apple's copyrights in Mac OS X, Psystar will have an uphill battle persuading the court that Rebel EFI does not violate the injunction," said Connors.
A Long Road
It has been a long road for Psystar since the company first burst into national view with its Mac clones. From the beginning, legal experts have been surprised at its boldness in taking on Apple, which filed a lawsuit in July 2008, claiming that in selling its Open Computers, Psystar was violating Apple's reproduction and distribution rights, as well as its right to create derivative works.
The following month, Psystar countersued on the grounds that Apple's business practices were "monopolistic" and amounted to copyright misuse; that case was dismissed.
Psystar also filed claims that its actions were not a derivative work; because of modifications made to the source code and kernel extensions, Psystar's Mac clones should be considered "fair use," it argued.
Most of Psystar's arguments have been rejected in court proceedings.
This summer, Psystar filed a separate lawsuit against Apple in Florida claiming that Apple was violating antitrust laws by locking Snow Leopard to its own hardware.
At the end of November, Apple filed a motion with Judge William Hoeveler in U.S. District Court in southern Florida, requesting that Psystar's case be dismissed -- or transferred to Alsup's court, as the the Florida case was essentially identical to the California lawsuit.
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