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Psystar Tries to Wriggle Around Any Permanent Injunction; Partial Settlement Filed; Hearing 12/14 UPDATE

By Pamela Jones et al.

[ Update 2, Dec. 2: Psystar has stopped selling everything but Rebel EFI, according to AppleInsider. - end update]

Psystar has filed its response in opposition to Apple's Motion for a Permanent Injunction. In it, it claims a partial agreement has been reached with Apple. I, however, will wait until I hear Apple confirm the terms, not relying on Pystar's representations alone. The response says the partial settlement will be filed with the court tomorrow. This is not the first time Psystar has tried to argue that there is no need for a trial, but the parties keep moving toward one inexorably anyway.

According to Psystar, it has agreed to pay statutory damages for infringing Leopard, and Apple has agreed not to make them pay it until after the appeals. Psystar claims that Apple will drop its trademark and state-law claims. We'll see. But Psystar still asks the court to leave Snow Leopard and Rebel EFI -- its new do-hickey that helps *you* infringe Apple's copyrights and violate its EULA and the DMCA -- out of this injunction, and that tells me that despite the spin Psystar is putting on this agreement, there is no deal as far as the big picture is concerned. This is just telling us that the parties have figured out a sum certain for how much Psystar owes Apple *so far*. This case is not over by a mile. Now Psystar is trying to argue that you and I have the right to use Rebel EFI because we are not commercial users. As you can see, Psystar is still angling to stay in business some way, somehow. Here's their argument:

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. Apple correctly explains that this Court has power "to restrain acts which are the same type or class as unlawful acts which the court has found to have been committed." M. at 9. But Rebel EFI is a different kind of act altogether.

More cuteness. The end users are not commercial users, but the seller of Rebel EFI is, and he knows exactly what they'll be doing with it, so it's amazing they'd even try this after Grokster, but somebody behind all this nonsense seems to wants to destroy the US tech market leaders, invalidate the enforceability of licenses on software, and then make a bundle on other people's code. I don't believe for one second that Psystar is about two guys in a basement. I have come to suspect that someone, somewhere behind all this is trying to destroy Apple's business, for personal profit, nothing less, just as SCO has been trying to destroy IBM's and Red Hat's business and Linux, for personal profit. Two strange cases, each threatening damage to major players in the US technology sector -- the two major competitors of Microsoft, actually now that I think of it, Linux and Apple -- and it's all happening at once.

[Note Update: the agreement itself is now filed.]

Full post as published by Groklaw on December 01, 2009 (boomark / email).