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Psystar Argues Its Florida Case Should Stay There

By Pamela Jones et al.

Psystar has filed its Memorandum in Opposition [PDF] to Apple's Motion to Dismiss or Enjoin Prosecution of the Florida action Psystar recently initiated.

Psystar claims that the California case cannot possibly include Snow Leopard because "put simply and starkly -- neither Snow Leopard nor the Psystar computers that run Snow Leopard existed when it was filed." Also, Psystar claims that Snow Leopard cannot be included in the California action because Apple had not registered a copyright for Snow Leopard at the time it filed its California complaint. If Apple wants the two cases joined, Psystar argues, or wants to make arguments about preclusion on the antitrust claims, it should go to Florida and file a motion there:

It is within this Court's power to enjoin prosecution of a suit in a different federal forum. But this should be done only when the second suit involves the same claims, the same facts, and the same parties to such a degree that, in this Court's discretion, it would be a waste of the federal judiciary's resources to have the cases proceed in parallel. An injunction barring Psystar from prosecuting the Florida case would be appropriate if that case were simply a mirror image of this case, raising the same legal questions on the same evidence. But the Florida case is nothing like that. The Florida case concerns a new Apple product, Snow Leopard; a new series of Psystar products, including both computers running Snow Leopard and dongles permitting end users to run their own copies of Snow Leopard on their own non-Psystar computers; a new virtualization technology developed by Psystar; a new license for Snow Leopard with at least four major differences from the Leopard license affecting everything from choice of law to the enforceability of the license to whether the first-sale doctrine and § 117 apply; and entirely new market definitions for the antitrust claims.

Emphasis added. So Psystar is selling USB sticks so you can run Apple virtually on whatever computer you already have? What's the real deal here? Non-Psystar computers? I thought they just told us they were entering the high-end hardware market with Snow Leopard. It's so hard to keep up, when everything Psystar keeps changing.

Well. OK. USB sticks. The question is whether the Psystar code on the sticks is legal, but my other question is why would anyone buy that? How badly do people want to buy Mac OS X Snow Leopard plus the Psystar USB stick plus hardware not designed to work specifically with Snow Leopard when the owner of the copyright says you are infringing? What's the point? Why *not* just buy a Mac? Ain't nothing like the real thing, the song says, and it's true. It doesn't seem a very tempting business proposition, more a legal workaround. And if what you are selling is now a virtualization USB stick, what happened to Psystar's first sale argument?

Full post as published by Groklaw on September 19, 2009 (boomark / email).