John Paczkowski

Recent Posts by John Paczkowski

Psyonara: Apple Wins Permanent Injunction Against Mac Clone Maker

psystarstompedAfter 17 months of litigation, the hammer has finally fallen on Psystar. The U.S. District Court for the Northern District of California on Tuesday granted Apple’s request for permanent injunction against the Mac clone maker, barring it from peddling PCs with the Mac OS X operating system preinstalled, circumventing the technological measures Apple (AAPL) uses to prevent unauthorized copying of Mac OS X and assisting others in doing so.

“Defendant must bring its conduct into compliance with the injunction by midnight on December 31, 2009, at the latest,” U.S. District Judge William Alsup wrote in his ruling. “Defendant must immediately begin this process, and take the quickest path to compliance; thus, if compliance can be achieved within one hour after this order is filed, defendant shall reasonably see it done.”

It would seem, then, to be over for Psystar, though we likely haven’t yet heard the last of it. Alsup’s injunction doesn’t include the company’s Rebel EFI software, which allows Mac OS X to be installed on PCs. So for now, the company can continue to sell it, though Alsup warns that to do so is a risky legal proposition at best.

“Rebel EFI will not be expressly excluded from the terms of the injunction,” Alsup wrote. “It should be clear, however, that this ruling is without prejudice to Psystar bringing a new motion before the undersigned that includes real details about Rebel EFI, and opening itself up to formal discovery thereon. This would serve the purpose–akin to a post-injunction motion vetting a ‘design-around’ in a patent action–of potentially vetting (or not vetting) a product like Rebel EFI under this order’s decree.”

The wiggle room allowed, however, is scant. “Moreover, Psystar may raise in such a motion any defenses it believes should apply to the factual circumstances of its new product, such as the 17 U.S.C. 117 defense raised in its opposition and at oral argument. Whether such a defense would be successful on the merits, or face preclusion or other hurdles, this order cannot predict. What is certain, however, is that until such a motion is brought, Psystar will be selling Rebel EFI at its peril, and risks finding itself held in contempt if its new venture falls within the scope of the injunction.”

Below, the injunction in full:


Case3-08-cv-03251-WHADocument242


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I think the NSA has a job to do and we need the NSA. But as (physicist) Robert Oppenheimer said, “When you see something that is technically sweet, you go ahead and do it and argue about what to do about it only after you’ve had your technical success. That is the way it was with the atomic bomb.”

— Phil Zimmerman, PGP inventor and Silent Circle co-founder, in an interview with Om Malik