Judge Shoots Down Motion to Dismiss Florida Psystar Case

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U.S. District Court Judge Alsup denied Apple's motion to dismiss Psystar's case against it in Florida on Thursday. The denial means that, at least for now, the unauthorized Mac clone maker is free to pursue its parallel case against Apple in Florida while Judge Alsup moves forward in Northern California.

Apple and Psystar have been battling in court in California for several months over whether or not the PC maker can build and sell Mac clones without permission from Apple. The company made a surprise move at the end of August by filing a similar case in Florida with the assertion that a separate case is warranted because Mac OS X 10.6, or Snow Leopard, wasn't covered in the California court proceedings.

According to Psystar, the case that's before Judge Alsup in U.S. District Court in Northern California has always focused on Mac OS X 10.5, or Leopard, and Apple never made any indication that it planned on rolling Snow Leopard into the mix. Apple, however, claimed Snow Leopard is a derivative work and asked Judge Alsup to force Psystar to drop its case in Florida.

Judge Alsup ruled against Apple, clearing the path for Psystar's parallel case in Florida because he felt Apple hindered the PC maker's ability to include Snow Leopard in the discovery process. The ruling could put Apple and Psystar back at the starting block in Florida to face another Judge over the same arguments that Judge Alsup has already ruled on.

"If Snow Leopard was within the scope of its own complaint herein, as it now suggests, then Apple should have welcomed discovery theron rather than, as it did, object to discovery directed at Snow Leopard and effectively taking Snow Leopard out of the case," Judge Alsup said.

"This is too severe a sanction for the discovery abuse that Judge Alsup found, especially in light of Psystar's discovery abuse in this case, which included lying in open court," an attorney familiar with this type of case told The Mac Observer. "Keeping the case in California, contingent on Apple paying some monetary sanction, would have been the more appropriate remedy for the discovery abuse identified by Judge Alsup."

Judge Alsup's ruling isn't necessarily the final word on the matter. Apple can ask the Judge to reconsider his decision or try to appeal.

If Apple can convince the court to change its mind, Psystar's case in Florida could still be dismissed. If not, the two companies will find themselves squaring off in two courts, and unless Psystar has very deep pockets loaded with cash, Apple will be in a much better position to take on both cases at the same time.

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I just wonder who is financing Psystar.

As the old saying goes, “follow the money”.

Psystar went through bankruptcy and then came out saying that they couldn’t deal with two legal actions (Apple and the bankruptcy).

And now they initiate a second case very similar to the existing one. Maybe not identical (not a lawyer and haven’t seen all the details) but quite close.

So the money is coming from somewhere.

I don’t think it’s from sales. So where is it from??


“If Snow Leopard was within the scope of its own complaint herein, as it now suggests, then Apple should have welcomed discovery theron rather than, as it did, object to discovery directed at Snow Leopard and effectively taking Snow Leopard out of the case,” Judge Alsup said.

IANAL so I have no idea what this means.


I haven’t read the docs (and don’t have time now) so I’ll accept the quote as reported for now.

What the Judge is saying is that Apple blocked or objected to discovery regarding Snow Leopard, and that took it out of the case before him. So Psystar initiation of a separate suit on SL is not precluded by the current case.

I still don’t understand what they’re up to, although some have suggested that the new lawyers are following a different strategy and trying to recover ground lost earlier.

If the Florida case seems to get going then I won’t be surprised if Psystar move to have the current case transferred there and consolidated, since Snow Leopard is now the main event. After all, Apple doesn’t sell Leopard any more (although perhaps it’s still available for late-adopters with PPC machines).

But I *do* hope that Apple asks in Florida why they filed a new suit when their testimony for leaving bankruptcy was that they didn’t have the resources to fight two at the same time (I’m paraphrasing). Contradicting previous sworn testimony is always a risky proposition. Someone needs to call them on this.

And also to follow the money trail ...


Judge wasn’t reasonable at all. Psystar changes its mind all the time and gets away with it. Why can’t Apple? It’s not really that big of a deal as Apple can fight Psystar for years and years with no money problems at all. Unless Psystar found a billionaire to help them, they’re going to be hurting even more sooner than later.

Bosco (Brad Hutchings)

This judge should know better than to mess with Apple lawyers. I heard that an Apple lawyer can eat an actual apple with a dash of cinnamon and 20 minutes later, crap out a freshly baked apple stroodle.

But seriously… The reality of this is that Psystar has nothing to lose. There is no conspiracy, no deep pockets backing them. Every bit of news out of this case drives curious people to Psystar’s website. Psystar has negligible sales of a marginal (at best) product. They won’t attract current Mac users, but might attract small fleet purchasers and a few adventurous new switchers. Apple would have been way better off dealing with Psystar the way it deals with Palm Pre’s hijacking of iTunes right now: a little cat and mouse with the technology. Apple should draw a thick legal line in the sand with larger companies, so that a Dell or HP doesn’t get into this game, but going after the small fries won’t win anything.

I’d recommend that Apple just drop the sideshow with Psystar, but the problem is that they can’t without granting Psystar an official license to clone. Had they not dragged Psystar into court, Psystar would not have countersued. See how that works when one party is completely overmatched on paper? So the process will have to take its course and Apple will make all the blunders a big company makes in these kinds of cases. Sure they will win eventually, but they will take 1000 small hits to their legal reputation. That will be far more damaging than anything Psystar was doing. If just 5 new Psystars pop up in the next year, Apple legal will sink.


Pystar’s lawyers have something to lose - payment for their legal work.  I believe Psystar shafted its first lawyers and is likely to do so again.  Of course, its new lawyers may think the risk of non-payment is worth it if the long-shot bet of beating Apple pans out.

It sounds like Apple is still free to move in the Florida court for a transfer of the case to California, and consolidation.  Or to have the Florida case stayed until the identical issues are resolved in California. 

It is unlikely that the Florida judge will want to waste court resources on the case since the issues - the enforceability of the EULA and the various DMCA provisions, are the same in Snow Leopard as in Leopard.


And let’s not forget that Psystar can NOT get bankruptcy protection again for some time (six months, twelve months - I forget).

So this might be the same kind of error that SCO made in their case against Novell when they bit on the very thin sliver for refiling their damages claim, and Novell (being well prepared) whopped them with counterclaims that ultimately were SCO’s undoing.

Heck - maybe Apple will treat the Florida case as the main event, request a stay in California and then grind Psystar with re-discovery? Who knows, but this will be fascinating to watch.

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