Apple Set to Propose Damages in Psystar Case

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Apple is set to files its brief on Monday detailing the damages and injunction details it wants to see imposed on Psystar for building and selling unauthorized Mac clones.

Apple filed a lawsuit against Psystar in Northern California several months ago claiming the small PC maker was violating the Mac OS X end user license agreement, and that it was violating the Digital Millennium Copyright Act with the steps it used to install the Mac operating system on PCs. Psystar claimed that it should be allowed to build and sell PCs with Mac OS X pre-installed and that Apple is overstepping its bounds by blocking companies from selling Mac clones.

Both companies filed motions for Summary Judgement, and in the end Judge William Alsup ruled in favor of Apple and against Psystar.

In its motion for Summary Judgement, Apple argued that the licensing agreement for Mac OS X states that the end user owns the disc the software ships on, but only licenses the use of the operating system. Since Mac OS X is licensed instead of owned, users are bound by Apple's terms that prohibit installing and running the software on non-Apple hardware.

In its Summary Judgement filing, Psystar claimed that because users own the media Mac OS X ships on, they own the operating system as well. Owning the OS gives them the right to use it as they see fit, and in this case that includes installing it on Mac clones.

Apple is expected to ask for an injunction blocking Psystar from selling any PCs with any version of Mac OS X installed.

"It will be Apple's opening argument to get Judge Alsup to impose an injunction that will cover Snow Leopard, Psystar's Rebel EFI, and any future conduct by Psystar that infringes Apples copyright in OS X and violates the DMCA, even though those items of software and Psystar's future misconduct were not part of the case," an attorney familiar with this type of case told The Mac Observer.

After Apple files its brief, Psystar will have an opportunity to respond.

Psystar hasn't been issued an injunction blocking it from selling Mac clones yet, so the company is still offering its PCs with Mac OS X pre-installed along with the Rebel EFI product through its Web site. Rebel EFI lets users install Mac OS X on any PC.

At one point, Psystar said it was taking on Apple with "guns blazin'." It looks, however, like the company failed to take aim with any of those shots.


Jeff Gamet

I expect Judge Alsup will include all versions of Mac OS X in his injunction, and Psystar will try to fight. I’m wondering of those blazing guns Psystar promised were loaded with blanks.


I?m wondering of those blazing guns Psystar promised were loaded with blanks.

Good one. smile

Psystar has been awful quiet to the public in the past few weeks. I’m guessing it’s finally sinking in that they are pretty much out of options.


I think a fine that is the equivalent of that Apple lost on each machine FryStar sold sounds fair. Since they can’t file for bankruptcy for a bit since they abused that route there’s not much life left in this rather stupid company.

Lee Dronick

“Psystar said it was taking on Apple with “guns blazin’.”

Psystar, those orange pistols are not real guns.




I wonder if it will ever come out who has been footing PsyStar’s legal bills through this whole thing. I cannot imagine PsyStar has that much cash on hand. Nor would their legal team (idiots though they are) would continue to plug away the way they are - in two states no less - if PsyStar was behind on their payments.

Terrin Bell

I think if Apple gets an injunction, Psystar is going to have a real hard time going forward. Usually, the party losing prior to an appeal will have to put up a very large sum of money to over turn the injunction.

I expect Judge Alsup will include all versions of Mac OS X in his injunction, and Psystar will try to fight. I?m wondering of those blazing guns Psystar promised were loaded with blanks.


If Judge Alsup enjoins Psystar from committing all of the acts that he found to be illegal, then Psystar must on the effective date of the injunction cease committing those acts, which would mean that, pursuant to the injunctions, Psystar won’t be able to make Mac clones or its Rebel EFI software for hacking OS X, unless Judge Alsup or the Ninth Circuit Court of Appeals stays Judge Alsup’s injunction, and even with a stay, Psystar would normally have to post a bond to cover the award of Apple’s damages, and Psystar will, if Judge Alsup enjoins the illegal acts, have to augment that bond a regular intervals to reflect Apple’s increased damages for every Mac clone and copy of Rebel EFI that it makes.

Now, Judge Alsup or the Ninth Circuit can waive the requirement of the bond, but Psystar would have to meet a very high standard to win such a waiver.  To begin with, Psystar must no only show that the hardship of such a bond would put it out of business but also that it is likely win on the merits on appeal.  Well, we already have some idea of what Judge Alsup thinks of the merits of Psystar’s case.  I doubt, based on the record, that the Ninth Circuit would have any better view of Psystar’s case.

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