Apple asks judge to shutter Psystar's clone business

Wants injunction that bars Mac OS X systems, says its owed $US2.1M in damages

Apple has asked a federal judge to shut down Psystar's Mac clone operation and to pay more than $US2.1 million in damages, according to court documents.

The move was the first by Apple since U.S. District Court Judge William Alsup ruled that Psystar violated Apple's copyright and the Digital Millennium Copyright Act (DMCA) when it installed Mac OS X on clones it sold. Alsup's Nov. 13 order, which granted Apple's motion for summary judgment and quashed Psystar's similar request, was a crushing blow to the Florida company's legal campaign.

In a motion filed Monday, Apple asked Alsup to grant a permanent injunction that would force Psystar to stop selling any computer bundled with Mac OS X; using, selling or even owning software that lets it crack Apple's OS encryption key to trick Mac OS X to run on non-Apple hardware; and "inducing, aiding or inducing others in infringing Apple's copyright."

Apple also asked Alsup to award it $2.1 million in damages, even though Apple acknowledged that it's unlikely to collect from the financially-strapped company.

"Psystar's whole business is premised on stealing from Apple," the motion read. "Psystar pirates Apple's software, circumvents Apple's technological protection measures and illegally benefits from the good will and reputation Apple has built. Psystar's conduct, if permitted to continue, will both tarnish Apple's reputation for excellence and lead to the proliferation of copycats who also will free ride on Apple's investments, infringe Apple's intellectual property rights and cause further irreparable injury."

Apple argued that the injunction is the only way to make Psystar stop infringing its copyright. "Psystar has announced its intention to continue infringing (and to contribute to the infringement of) Apple's copyrights in, and circumventing the technology protections measures in, the current upgrade of Mac OS X, version 10.6," said Apple.

Psystar previously conceded that Apple could get an injunction to bar it from using Mac OS X, but said that that would apply only to Mac OS X 10.5, aka Leopard, not the newer Snow Leopard. Like Apple, Psystar has moved beyond Leopard and has been putting Snow Leopard exclusively on its clones since that operating systems' release last August.

At that time, Psystar sued Apple in a Florida federal court, claiming Apple illegally tied Snow Leopard to Mac hardware, essentially a repeat of moves it made in Alsup's California court during 2008. Alsup tossed out Psystar's countersuit last year -- the clone maker's first major legal defeat -- but in September 2009, he ruled for Psystar by refusing to stop the Florida lawsuit.

Apple this week again urged Alsup to disregard the Florida-based clone maker's slight-of-hand over Snow Leopard. "Psystar's admission that it has moved on to infringing subsequent versions of Mac OS X confirms that any injunction must extend beyond Mac OS X Leopard," Apple said in the motion for an injunction.

Philip Schiller, Apple's head marketing executive, spelled out the company's stance in a statement appended to the motion. "Apple should not be required to file a new lawsuit to stop Psystar from infringing Apple's intellectual property each time Apple releases a new version of Mac OS X," Schiller said in his declaration. "Requiring Apple to file multiple lawsuits to stop the same infringing conduct would be unfair, expensive, and a waste of the Court's and the parties' resources."

Besides the injunction, Apple is seeking $2.1 million in damages, less than half what it said was the maximum, as a sop to "a swift resolution of the issues." But it admitted it might have trouble collecting even the smaller amount. "There is compelling evidence that Psystar will not be able to pay any statutory damages," it said in the Monday motion. Apple cited the bankruptcy filing Psystar made last summer, then withdrew, as proof that Psystar may not be able to pay the money. It also used that purported inability to pay as another argument for an injunction.

Psystar and Apple have been tangling in court since July 2008, when Apple sued the clone maker over copyright and software licensing violations. Psystar started selling Intel machines with Mac OS X preinstalled in April 2008.

While Apple didn't spell out the impact on Psystar if an injunction were granted, it hinted that one would drive the small firm out of business, saying that by its estimates, 80% of the company's business is in Mac clones. It had no sympathy for Psystar, however. "A defendant whose entire business is premised on misappropriation of Apple's intellectual property cannot claim it suffers hardship by being forced to stop such infringement," Apple contended.

"Psystar has illegally profited from Apple's efforts rather than investing in developing its own products and building its own good will," Apple said.

Alsup will hear oral arguments Dec. 14 from both parties on Apple's request for an injunction. The case is slated to go to trial in January 2010.

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Gregg Keizer

Computerworld (US)
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