The U.S. Supreme Court on Monday declined to review the Ninth Circuit’s rejection of the Mac clone maker’s claims that Apple violated antitrust law by refusing to license Mac OS X to third-party hardware manufacturers. In doing so, the court let stand an earlier ruling barring Psystar from peddling PCs with the Mac OS X operating system preinstalled, circumventing the technological measures Apple uses to prevent unauthorized copying of Mac OS X and assisting others in doing so.

Which means this is likely the last we’ll be hearing from Psystar, which was already bankrupt when it embarked on this little adventure, though the company’s legal counsel continues to put on a brave face.

“I’m sure that the Supreme Court will take a case on this important issue eventually,” K.A.D. Camara of Houston law firm Camara & Sibley, told CNET.

Somehow, I doubt that. Recall that Psystar was found to have violated Apple’s exclusive reproduction right, distribution right, and right to create derivative works by installing Mac OS X on its hackintoshes in violation of the Digital Millennium Copyright Act.

Of all the many job openings in tech, perhaps the most interesting to watch will be who Groupon selects as its next COO.

The search has been on for a while for the critical hire for the Chicago-based social buying company, well before the recent announcement that it was parting ways with President and COO Rob Solomon.

Among those approached, said sources close to Groupon: Former Doubleclick and Google exec David Rosenblatt.

He’s not taking the job for a variety of reasons, sources said, but
finding someone to step up for the job will be tough, since it is likely to be one that will require a wide range of talents.

That includes: epic cat-wrangling of thousands of employees in far-flung locations; deep marketing and advertising prowess; high-level technology, product, mobile and e-commerce chops; and international experience.

The last is perhaps the most critical of all, since global growth–especially in Europe and Asia–is increasingly becoming Groupon’s main revenue driver, and the COO will have to pull together a crack team across the world.

That will become even more important after Groupon’s top international managers–Germany’s entrepreneurial Samwer brothers–move out of active management by the end of this year.

While company sources said this has been long planned, the Samwers (pictured here) have been fully involved in Groupon’s fast trajectory in Europe and elsewhere, since it bought their Citydeal discounting clone last May.

Thus, sources said, Groupon is looking at a range of candidates with experience abroad, as well as talent in scaling businesses quickly and to huge size.

And that means looking to companies such as Google and Amazon for an exec, where there are quite a few choices.

While BoomTown could not confirm whether Groupon has spoken to any of them, possible COO types are obvious.

At Amazon, some qualified execs include: Sebastian J. Gunningham, SVP of Seller Services; Diego Piacentini, SVP of International Retail; H. Brian Valentine, SVP of Ecommerce Platform; and Jeffrey A. Wilke, SVP of North America Retail.

At Google, there are tons of good candidates that Facebook has not yet raided, including: Stephanie Tilenius, VP of eCommerce; Henrique de Castro, VP of Media and Global Platforms; Dennis Woodside, VP of Americas Operations; and Margo Georgiadis, VP of Global Sales Operations (plus a Chicagoan!).

Other names being raised include Hulu’s Jason Kilar (unlikely, but I’d like it), various Microsoft execs and a spate of others.

(I say, let’s bring in Zynga’s Owen Van Natta, who was once COO of Facebook, since he’s missing a big pile of Groupon stock to add to his enviable collection of hot Web 2.0 company shares.)

While there are probably qualified execs outside the tech industry at retail and media outfits, sources said it is likely Groupon will select within the digital ranks.

Lastly, and perhaps most important, the Groupon COO candidate is going to have to accept that the role will not be a CEO-in-waiting, either before or after its inevitable IPO in the next year.

While I have received several tips that Co-founder and CEO Andrew Mason (pictured here) might not stay its principal exec, extensive checking with sources inside and outside the company indicate that such a move is highly unlikely.

“Andrew is beloved to the board, by investors and, most of all, by employees,” said one source. “He’s not going anywhere.”

Indeed, Mason has a close working relationship with Co-founder Brad Keywell, as well as Groupon Co-founder and Chairman Eric Lefkofsky.

In fact, despite other business interests, Lefkofsky has been very involved in all key decisions with Mason.

That job, presumably, would fall to the new COO, which Groupon should be hiring sooner rather than later.

“Groupon needs a world-class COO, who can manage hyper-growth, but also who knows that a No. 2 stays in the background while doing it,” said another source. “That’s a tall order.”

As we await the decision of which uneasy head gets the COO crown at Groupon, here is the opening from the Swisher boys fave Animal Planet cable television show, “Must Love Cats,” to get you in the mood:

Groupon is in talks with Chinese Internet giant Tencent to form a partnership to accelerate its effort in the critical Asian arena, said several sources with knowledge of the situation.

Terms of the deal are unclear, but sources said that it is likely to involve some sort of co-branded joint venture effort between the two–a key strategic move for Groupon, given the hard-to-penetrate-if-you’re-not-Chinese Chinese market.

More typical for Groupon has been to buy a top local player abroad and rebrand it, such as its launch of Groupon Hong Kong, Groupon Singapore and Groupon Philippines and Groupon Taiwan through the early December acquisition of daily deal sites uBuyiBuy, Beeconomic and Atlaspost, respectively.

Moving into the lucrative international arena, where there are innumerable clones of the dominant social buying service, is one of the big strategic reasons for Groupon’s recent $1 billion funding and also last week’s very noisy IPO toe-dipping.

(How much is BoomTown wishing I could be a fly on the wall to see all those investment bankers courting kooky Groupon CEO Andrew Mason? Memo to Andrew: Act like Snooki from “Jersey Shore” and see how they still slavishly kiss up to you like the soul-sucking suck-ups they are.)

Back to China, where cloning popular U.S. Internet brands has become an art form.

That includes one particularly appalling rip-off (pictured here) in China that looks exactly like Groupon and is actually called Groupon.cn.

(Although you’ve got to be in awe of the complete non-effort to pretend it is anything but a complete shoplifting of the brand.)

But, no matter how much that digital swiping goes on, much of Groupon’s growth recently has been outside the U.S., and the company’s strategic future lies internationally.

Of course, global expansion–especially in the famously difficult Chinese market, where the government favors native companies to an unprecedented degree–has stymied many other U.S. Internet phenoms, from eBay to Google to Facebook. (In fact, for obviously thorny privacy reasons, the social networking site has no presence in China.)

But for Groupon, especially with its public offering plans and need to distance itself from close rivals such as LivingSocial, it is a must-do to reach the deal-crazy and huge audience in China.

Thus, having Tencent as its partner is an obvious plus, given it is one of the biggest Internet services in the country, including its huge QQ instant messaging offering.

In addition, there is a strong link between Tencent and one of Groupon’s key investors, Mail.ru Group.

Mail.ru owns five percent of Groupon, said numerous sources, and Tencent is an investor in Mail.ru, which recently had an IPO.

And DST Global, an investment vehicle that is now separate from Mail.ru–although it shares Russian exec Yuri Milner, who is Mail.ru’s chairman and also DST’s CEO–is also a Groupon investor.

Got all that? As BoomTown has written before: It’s a small and way-too-connected world after all, especially when it comes to the goat rodeo of Groupon investors.

What will be interesting to see is if this makes a difference in China, which has been a consistent black hole for most major Internet companies.

Groupon declined comment, and there has been no response yet to an email query sent to Tencent’s PR group.

Even as Groupon is poised to sell itself to Google for badillions of dollars, the attack of the social buying clones continues.

Today, it is the launch of FamilyFinds, a Santa Monica, Calif., start-up aimed at offering daily deals to families, with $5.75 million in funding to help it get going.

“Think relevance, plus an explosive market plus a great team,” said FamilyFinds CEO Matt Coffin, in an interview yesterday about the new site, whose first “holi-deal” today is “$10 Only-in-LA Santa Photos.”

Others to come include kid-focused live shows, skate rentals and holiday cruises that Coffin said are “hyper-local and demographically targeted.”

Coffin said, as a longtime entrepreneur, he was intrigued with the booming social e-commerce space. But, as a parent, he was less impressed, because of little in the way of personalization.

“I was somewhat disenchanted by the same offers that did not target me accurately,” he said.

(So is BoomTown, who is going to scream if I get another spa treatment or stripper pole lesson offer this week. Not that there’s anything wrong with that.)

Thus, Coffin said FamilyFinds drills down on one audience–those who need to entertain and serve the little ones.

The former founder of LowerMyBills co-founded FamilyFinds with, among others, a blast from the Web 1.0 past: Former Disney Internet Group head Jake Winebaum.

At launch, FamilyFinds said it will focus on numerous communities across Los Angeles, although a national rollout is coming in 2011.

Split Rock Partners provided the Series A funding.

Here’s the official FamilyFinds press release:

FAMILYFINDS.COM ENTERS $1B LOCAL SOCIAL ECOMMERCE SPACE

Backed by $5.75 Million Investment, Leading Internet Veterans
Launch Vertical Family Daily Deal Site

(Santa Monica, CA) December 1, 2010–FamilyFinds, an online daily promotions site exclusively focused on services and experiences for families, officially launched today. This community-suggested and expert-curated destination advances the online daily deal space by combining a family focus with hyper-local geo targeting. The company also announced that it recently closed on a $5.75M Series A funding round backed by Split Rock Partners, strongly positioning them to be involved in of one of the fastest growing industries of all time.

FamilyFinds is led by Internet industry veterans who founded and ran several successful consumer businesses valued at over $1 billion, including the founder of FamilyFun magazine, who also ran the Disney Internet Group, and the founder of LowerMyBills. The team, all of them now parents, have created an online destination that will not only offer member families great deals on new and favorite neighborhood merchants, but will also provide information and resources to help them discover the best family activities in their own and nearby communities.

According to a recent study of moms*, over 70% use the Internet to find deals and discounts (the most popular activity) and 62% go online for entertainment and family activities. FamilyFinds addresses this trend by directly creating a single destination for moms and dads seeking deals and family activity ideas.

“Families, local and national brands, and member-based deals is a great combination for a big vertically focused business, and one that we believe is untapped,” said Matt Coffin, chief executive officer, FamilyFinds.com. “As parents and consumers ourselves, we know the key to unlocking this market is relevance, which means being local, curating deals and fun discoveries that create family memories, and delivering great value-based pricing.”

Through consumer testing and an early beta, FamilyFinds learned that consumer demand, especially for busy families, while value influenced, is also heavily influenced by proximity to the merchant. The company will follow a hyper-local model, offering great finds not just within specific cities around the United States, but within specific neighborhoods. For launch, prior to the nationwide roll-out in 2011, FamilyFinds will serve numerous communities across Los Angeles, including neighborhoods in the Valley, Pasadena, South Bay, City Central, and the Westside.

“We know that moms and families are social and use the Internet not just to find great opportunities for themselves, but also to share and coordinate these opportunities and their experiences with other families, friends and neighbors,: said Brian Barnum, president. “FamilyFinds is building a social layer over everything we do to infuse our core value proposition with insight and access to the larger community of families in our customers’ extended networks.”

FamilyFinds is the collaborative effort of Internet industry veterans and parents, including:

• CEO Matt Coffin, founder of LowerMyBills.com (sold to Experian) and active Internet investor including Demand Media, Buscape (sold), Rubicon Project, Mahalo, Machinima and social eCommerce companies Hautelook, ShoeDazzle and ecoMom.

• Jake Winebaum, who was co-founder of eCompanies, which launched Business.com, Jamdat and Boingo, and founder of FamilyFun magazine and led Disney’s entry to the Internet as Chairman of the Disney Internet Group.

• Doug Hirsch, who was VP of Product at Facebook, GM Yahoo Entertainment and Founder of DailyStrength.org.

• President Brian Barnum who was the President of RHD Interactive (a division of R.H. Donnelly, now Dex One Corp.) and both COO and CFO of Business.com and CFO of Rent.com (sold to eBay).

• Leading content and merchandising is Elizabeth Hurchalla, previous editor of BlackboardEats and co-founding producer of Yahoo! Food.

• Leading editorial is Julie Taylor, previous editor-in-chief at Momlogic.

• Leading sales is Terry McGovern, previous Director of Interactive Sales at Los Angeles Times and sales at AT&T local

Last week in Vancouver, BoomTown reunited with Groupon founder and CEO Andrew Mason, in an onstage interview at the Grow2010 conference being held in the lovely Canadian city.

While affable and unusually sweet-looking, Mason was cagey as can be about the really juicy stuff–revenue, IPO plans and acquisition interest–but he also had a lot to say about the spectacular growth of the social buying service.

That’s growth in all aspects–from cities served to sales to employees to, especially, giant piles of funding from VCs and a valuation of more than $1 billion.

But that’s not to say Groupon is going to have it easy, necessarily. While companies such as Google (GOOG), eBay (EBAY), Yahoo (YHOO) and even Facebook are obvious candidates to acquire the Chicago-based start-up, they all could just as easily decide to compete and try to replicate the service.

In fact, it is likely that at least one of them will.

In the video below, Mason tries to avoid these queries, but he gives a good update about Groupon, including its first national social discount offer at the Gap (GPS) last week.

Here’s the video, which is short:

And here is an older interview I did with Mason in March, when times were simpler:

]]> http://allthingsd.com/20100824/update-groupons-andrew-mason-on-clones-the-gap-and-mugging-larry-page/feed/ 1 http://allthingsd.com/20100127/apple-ipad-impressions/ http://allthingsd.com/20100127/apple-ipad-impressions/#comments Thu, 28 Jan 2010 02:49:41 +0000 Walt Mossberg http://mossblog.allthingsd.com/?p=386 It’s about the software, stupid. While all sorts of commentators were focusing on how much Apple’s new $499 iPad tablet computer looks like an oversized iPhone, the key to whether it can be the first multi-function tablet to win wide public acceptance probably lies in whether consumers perceive it as a suitable replacement for a laptop in key scenarios. And that, in my view, depends heavily on the software and services that flow through its handsome little body.

I have only spent a short time hands-on with the iPad–too short to fully run it through its paces and formally review it yet. But, after attending the rollout of the new device today, and trying out some of its features for myself, I have some first impressions.

Apple CEO Steve Jobs positioned the iPad as belonging to a new category of device between the smartphone and the laptop (since the netbook, in his view and mine, is really just a small, cheap laptop). But, as the demos unfolded, I kept thinking it was more like a hybrid of the two. 

It uses the iPhone’s basic user interface and physical design. But, taking advantage of a 9.7″ screen and a fast Apple-designed processor, the iPad adds some user interface elements and functionality that aren’t available–or at least typical–on smart phones, but look more like computer software. For instance, its photo program works more like iPhoto on a Mac than the photo app on an iPhone, and it will be available with a touch version of Apple’s iWork productivity suite, which is Apple’s take on Microsoft Office. This is a much more powerful program than the phone-based office suites for the iPhone or BlackBerry, and Apple (AAPL) is only charging $30 for it.

Also, Apple has rewritten most of the core iPhone apps so they look more like, and have more of the features of, Mac or PC programs. But they aren’t mere clones of full computer apps. For instance, many forego standard menus for clever overlays and sidebars that work more naturally with the iPad’s multi-touch interface. Other app developers can do this, too. But, even if they don’t, the company said the iPad will run most of the current 140,000 iPhone apps, either in a small window on the screen, or in a full-screen mode. That’s a huge plus for a new device.

Mr. Jobs said after the onstage program ended that he sees the iPad’s user interface as a fuller expression of the one on the iPhone, which had been limited by screen real estate.

And, although the reported video and music streaming services were nowhere to be seen at this preview, Mr. Jobs did offer a taste of how the iPad could deliver content, beyond simply downloads from the iTunes store. He showed off a new e-book reader app with built-in online book store that, visually at least, blew away the Amazon (AMZN) Kindle, even if it seemed to lack all of the Kindle’s features and may have a smaller catalog. Representatives of the New York Times (NYT) showed an iPad digital version of their newspaper that seemed vastly more usable than the clumsy version now on the Kindle and its ilk.

So, the iPad is more than just a giant iPod Touch or iPhone, even though it looks like one. But the question is, will that be enough to get consumers to shell out for it, and make it part of their daily lives? Or will it be a niche product, like Microsoft’s (MSFT) Tablet PC or Mr. Jobs’ own Apple TV?

On the plus side, the device is handsome, feels comfortable and solid to hold, and has all that beautiful software built in. Oh, and it’s amazingly low-priced for an Apple product, with that modest $499 price tag for a base version with 16 gigabytes of memory and Wi-Fi, but no cell phone data connectivity. (A fully loaded model with 64 gigabytes, Wi-Fi and a no-contract 3G cellular data plan is $829, and there are variations in between.)

It also boasts a decent 10 hours of battery life, and Mr, Jobs told me after the event that, for some functions, like playing video and music, the battery should last even longer. 

But there are minuses. First, since it’s too big to go in a pocket, people might perceive it as just another thing to carry around, despite the fact that it’s only a half inch thick and weighs just 1.5 pounds. It also lacks a common and popular laptop feature–a web cam. So, it can’t be used for video chats or for the creation of web videos.

Also, the carrier for the iPad’s 3G plan is the deeply unpopular AT&T–there were groans and boos among Mr. Jobs’ otherwise excited audience when this was announced. AT&T is offering bargain prices for iPad data service compared to what it charges laptop owners. But its network is overwhelmed in many big cities and many iPhone lovers, who are strong candidates to buy an iPad, curse the carrier daily.

Finally, while it’s too early for me to say without lots of testing, the size of the iPad’s virtual keyboard may be a liability. I found it almost too wide for thumb typing, and a colleague who’s a whiz at touch typing and tried it briefly found it awkward to type on. Apple is offering an auxiliary physical keyboard that docks with, and charges, the iPad. But you won’t want to lug that around.

Still, the software looked impressive, and that could help Steve Jobs do the one thing even he has never done in an amazing career: get the public to love not just a better version of an existing type of gadget, but a whole new category of gadget.

View the slideshow

]]> http://allthingsd.com/20100127/apple-ipad-impressions/feed/ 143 http://allthingsd.com/20100113/sonys-e-reader-opens-new-chapter-in-kindle-rivalry/ http://allthingsd.com/20100113/sonys-e-reader-opens-new-chapter-in-kindle-rivalry/#comments Thu, 14 Jan 2010 02:03:18 +0000 Walter S. Mossberg http://ptech.allthingsd.com/?p=1145 Sony, the Japanese electronics giant, was a pioneer in the current wave of electronic book readers, introducing its first Sony Reader model back in 2006. But, it has been overtaken by Amazon.com, whose Kindle e-book reader, introduced in 2007, has become almost synonymous with the category. Now, Sony (SNE) is out with a much-improved model that could make it more competitive.

Unlike the Kindle, Sony’s readers weren’t wireless and their owners couldn’t download books or newspapers directly to the device, instead of via a computer. Now, that problem has finally been solved with Sony’s new Reader Daily Edition, a handsome $400 wireless model that I’ve been testing.

The Daily Edition can be bought at Sony’s stores; at its Web site, sonystyle.com; and at Best Buy’s (BBY) site, bestbuy.com. It was sold out for the holidays, but Sony says it expects new stock soon.

The Daily Edition isn’t a mere clone of the Kindle. It has a different design philosophy and is stronger in some areas, weaker in others. In general, I enjoyed using it, once I mastered its user interface, which took several days. I especially liked the fact that it packs a larger screen into a comfortably small device, and mostly uses touch navigation instead of all physical controls. For instance, while the Sony does have a small page-turning button, you can more easily turn pages by just swiping your finger across the screen. It’s also better at navigating digital newspapers, something I’ve never found very satisfying on the Kindle.

(Full disclosure: Sony has struck a special deal with Dow Jones, which owns The Wall Street Journal and this Web site. Under the deal, a special late-day edition of the Journal, containing updated news, will be available on the Daily Edition for an extra charge starting later in January.)

On the downside, the Daily Edition has three main flaws when compared with the Kindle. First, it’s much more expensive—$400 versus just $259. Second, it has only about half of the commercial, copyrighted digital books that Amazon (AMZN) does—around 200,000 versus the Kindle’s roughly 400,000. Sony also throws in a million out-of-copyright, old books, for a total of 1.2 million.

But many of these added million titles are obscure and of little interest to mainstream consumers. The Reader also has just eight newspapers, versus 92 for the Kindle, though Sony says 10 more are coming soon.

Third, the technology that makes the screen touch sensitive also dims it a bit, so the Daily Edition’s screen is darker than the Kindle’s. (Both are unlit monochrome screens with gray-scale graphics.) I found the Sony screen adequate, but it’s tougher to read in lower light.

The Daily Edition is a slender device with a black metal body that contrasts sharply with the wider, white plastic body of the Kindle. While both products use the same basic screen technology, and the same screen width, the Daily Edition’s screen is longer; it measures 7 inches versus 6 inches for the Kindle. In my tests, I found this a big advantage, because, when both devices were set for roughly comparable text sizes, the Sony could hold more text on a page, cutting down on the need for page turns, which interrupt reading.

In addition, the Daily Edition is narrower than the Kindle, because the borders around the screen are thinner, since they don’t have to accommodate the Kindle’s various large buttons or physical keyboard. (You can enter text for notes or searches on the Daily Edition using a stylus for handwriting or a virtual onscreen keyboard.) This longer, narrower shape gives the new Sony a nice feel in the hand.

I also preferred the Sony’s method for presenting newspapers, which allowed more headlines to be viewed at once and required fewer steps to navigate through the paper.

Sony’s new Daily Edition Electronic Reader

The Sony also claims more battery life with wireless turned off, comes with a cover included—an extra-cost item on the Kindle—and can handle more book formats, including the free digital books offered by public libraries. Built-in memory is the same, but the Daily Edition’s can be expanded while the Kindle’s can’t.

Like the Kindle, the new Sony also allows you to drag songs, pictures and some personal documents onto the device from your computer. I did this with no problems.

The Daily Edition has companion software for buying, reading and storing books on both PCs and Macs. But it has no app for a smart phone, and doesn’t synchronize your last-read place in your book among the reader and the computer.

Also, I found the Daily Edition required a harder learning process than the Kindle. First, it takes awhile to get the hang of the touch gestures, partly because they require much more pressure than on, say, an iPhone. Second, using touch to bring up features and menus can be a mystery until you consult the manual. For instance, it took days to discover that you could set a bookmark by double-tapping on the upper right corner.

But, all in all, despite its higher price, the Daily Edition is a big leap for Sony and adds another good choice for consumers.

Find all of Walt Mossberg’s columns and videos online, free, at the All Things Digital Web site, walt.allthingsd.com. Email mossberg@wsj.com.

]]> http://allthingsd.com/20100113/sonys-e-reader-opens-new-chapter-in-kindle-rivalry/feed/ 0 http://allthingsd.com/20091125/apple-to-psystar-and-dont-get-any-bright-ideas-about-a-black-friday-sale-either/ http://allthingsd.com/20091125/apple-to-psystar-and-dont-get-any-bright-ideas-about-a-black-friday-sale-either/#comments Wed, 25 Nov 2009 11:00:29 +0000 John Paczkowski http://digitaldaily.allthingsd.com/?p=29818 Having diligently hewn Psytar’s legal coffin over the past year and a half, Apple has now taken up its hammer and set about nailing the Mac clone maker into it. This week, the company called for a permanent injunction against Psystar’s operations.

“Psystar…has built its business on infringing Apple’s copyrights and trademarks, free-riding on Apple’s research and development efforts, and trading on Apple’s hard-earned reputation for high quality, innovative and easy-to-use computers,” Apple said in its motion.

“Psystar’s appropriation of Apple’s intellectual property and goodwill has been systematic and brazen, from the name of Psystar’s ‘OpenMac’ computers to its deliberate pirating of Apple’s Mac OS X,” the company added.

“Psystar even seeks to profit from Apple’s efforts to protect its rights, extolling this litigation as Psystar’s ‘opportunity to gain market share,’ in a pitch to venture capitalists….Unless Psystar is permanently enjoined, it will not stop its unlawful conduct–conduct that is causing irreparable harm to Apple’s business, brand and goodwill.”

Catch that? Psystar was pitching VCs on its plan to use Apple’s IP to “compete directly against Apple.” Shameless. Little wonder Cupertino is so intent on burying the would-be rival.

And make no mistake, Apple legal is going to grind Psystar into fine silicon dust. In addition to the injunction, Apple is requesting compensation for legal costs and statutory damages owed under the Copyright Act and the Digital Millennium Copyright Act. And according to Apple’s expert witness, statutory damages for the former should run “between $1500 and $300,000″ and for the latter “between $449,500 and $4,495,000.”

Suffice it to say, that’s quite a bit more than the current value of Psystar’s assets which, according to its bankruptcy filing, are no more than $50,000.

]]> http://allthingsd.com/20091125/apple-to-psystar-and-dont-get-any-bright-ideas-about-a-black-friday-sale-either/feed/ 0 http://allthingsd.com/20091115/psyonara-2/ http://allthingsd.com/20091115/psyonara-2/#comments Sun, 15 Nov 2009 16:23:52 +0000 John Paczkowski http://digitaldaily.allthingsd.com/?p=29046 U.S. District Court Judge William Alsup on Friday dropped the hammer on Mac clone maker Psysar, granting Apple’s request for a summary judgment and denying Psystar’s counterclaim.

“Psystar has violated Apple’s exclusive reproduction right, distribution right, and right to create derivative works,” Alsup wrote in his ruling (see full text below). Not only did the company infringe on Apple’s (AAPL) copyrights by installing Mac OS X on its hackintoshes, he explained, it violated the Digital Millennium Copyright Act to do so.

An ugly defeat for Psystar, which just a few weeks ago asked a judge to bless its business and rule that it is legally allowed to sell machines with Apple’s Mac OS X pre-installed. Still, it doesn’t mean that the acrimonious legal battle between the two companies is finished. Psystar could appeal, though Alsup’s ruling would seem to leave the company pretty far up that certain creek it’s been traveling lately–without a paddle.

There remain a number of accusations to be decided at trial, among them, Apple’s claims of breach of contract, trademark infringement, trademark dilution and unfair competition. Beyond these, there are the damages that will almost certainly be brought against Psystar on the copyright issues in the case.

“The court asked for briefs on that subject,” Pamela Jones notes over at Groklaw. “In short, Psystar is toast. Psystar’s only hope now is Florida, and frankly I wouldn’t bet the house on that one. Judges notice if you were just found guilty of a similar cause of action in another state.”

Psystar –

]]> http://allthingsd.com/20091115/psyonara-2/feed/ 0 http://allthingsd.com/20090526/psyonara-redux/ http://allthingsd.com/20090526/psyonara-redux/#comments Tue, 26 May 2009 17:51:43 +0000 John Paczkowski http://digitaldaily.allthingsd.com/?p=18323 Interesting turn of events in the Apple-Psystar spat. Psystar, the unauthorized Mac clone maker, has filed for bankruptcy. Seems the company’s acrimonious legal battle with Apple and the souring economy have had a deleterious effect on its finances. “Due to the weakened economy, Debtor has had no alternative but to commence these Chapter 11 proceedings,” Psystar explained in its Chapter 11 filing. “Debtor sales have been greatly affected by the decrease in consumer spending. The financial crisis has also caused creditors to tighten up their terms and become more demanding for immediate payment. Debtor’s vendors due to their own financial problems are not being able to supply all necessary items to allow Debtor to produce their product, thus, forcing Debtor to pay higher prices for parts in order to fulfill customer orders in a timely manner and to assure satisfaction with the product. These factors seriously contribute to the Debtor not being able to turn a significant profit in each sale.”

Also: Debtor is suffering under mounting legal costs as it is steadily beaten into submission by Apple (AAPL) and its notoriously vicious legal team.

Pystar’s bankruptcy declaration will delay Apple’s copyright-infringement suit against it, but only temporarily. In the meantime, the company will be allowed to continue to do business and perhaps, strengthen its defense. But on June 5, the date of its bankruptcy hearing, things could get nasty. Psystar will almost certainly be forced to reveal its financial backers, and if they are the nefarious Svengalis that Apple claims, there may be hell to pay.

]]> http://allthingsd.com/20090526/psyonara-redux/feed/ 2 http://allthingsd.com/20090209/tenacious-p/ http://allthingsd.com/20090209/tenacious-p/#comments Mon, 09 Feb 2009 14:59:04 +0000 John Paczkowski http://digitaldaily.allthingsd.com/?p=12699 Score one for Psystar.

The unauthorized Mac clone maker has won the right to continue its countersuit against Apple. In an order signed last Friday, U.S. District Court Judge William Alsup ruled that Psystar–whose antitrust complaint against Apple was tentatively dismissed last year–can refocus that complaint around copyright misuse. “Psystar may well have a legitimate interest in establishing misuse [of copyright] independent of Apple’s claims against it–for example, to clarify the risks it confronts by marketing the products at issue in this case or others it may wish to develop,” Alsup wrote in his order. “Moreover, if established, misuse would bar enforcement (for the period of misuse) not only as to defendants who are actually party to the challenged license but also as to potential defendants not themselves injured by the misuse who may have similar interests.”

The ruling is something of a setback for Apple (AAPL), which had argued that Psystar’s request to resubmit an amended counterclaim was a transparent “attempt to repackage its dismissed antitrust allegations under the guise of copyright misuse.” Because if Psystar does somehow manage to prove that Apple abused copyright laws, it could open up the market for Mac clones–or at least make it quite a bit more difficult for Apple to drop the hammer on other companies intent on peddling them.

Of course, if legal avenues fail it, Apple could easily hamstring clone makers in other ways. After all, it’s not incumbent on the company to ensure that its operating system works on non-Apple hardware, is it?

]]> http://allthingsd.com/20090209/tenacious-p/feed/ 0 http://allthingsd.com/20081210/psyonara-pt-ii/ http://allthingsd.com/20081210/psyonara-pt-ii/#comments Wed, 10 Dec 2008 23:04:28 +0000 John Paczkowski http://digitaldaily.allthingsd.com/?p=9470 In its last legal salvo against Psystar, Apple suggested the Mac clone maker was backed by a silent third party or two. And at this point it better be, because there’s going to be hell to pay when Apple legal is through with it, regardless of how Psystar revises its original complaint. Its antitrust allegations against Apple (AAPL) dismissed, Psystar today renewed its copyright claims against the company, alleging the Mac OS is designed to go into a kernel panic if it determines it’s being run on non-Apple hardware. From the amended complaint:

On information and belief, PSYSTAR alleges that APPLE intentionally embeds code in the Mac OS that causes the Mac OS to malfunction on any computer hardware system that is not an Apple-Labeled Computer Hardware System. Upon recognizing that a computer hardware system is not an Apple-Labeled Computer Hardware System, the Mac OS will not operate properly, if at all, and will go into what is colloquially known as ‘kernel panic.’

PSYSTAR is informed and believes, and thereon alleges, that APPLE is engaged in anticompetitive conduct that prevents the proper operation of the Mac OS on any computer hardware system that is not an Apple-Labeled Computer Hardware System–a Mac OS Capable Computer Hardware System–thereby forcing customers of the Mac OS to purchase–and only purchase–an Apple-Labeled Computer Hardware System if they wish to have the Mac OS operate sans kernel panic or an infinite loop.”

That’s an intriguing allegation. Risky though, since it’s also an admission that Psystar has circumvented the technological copyright-protection measures built into OS X, just as Apple claims in its amended complaint against the company. Apple contends Psystar has done so illegally, in violation of The Digital Millennium Copyright Act. Psystar says that’s impossible because the kernel panic-forcing code at issue here isn’t a copyright-protection measure.

Who’s right? Who knows? But if it’s Apple, then Psystar presumably is guilty of circumventing Apple’s copyright protection systems under the DMCA. And that’s a felony, because Psystar profited from the circumvention.

]]> http://allthingsd.com/20081210/psyonara-pt-ii/feed/ 0 http://allthingsd.com/20081119/psyanora/ http://allthingsd.com/20081119/psyanora/#comments Wed, 19 Nov 2008 14:20:19 +0000 John Paczkowski http://digitaldaily.allthingsd.com/?p=8654 Psystar’s ideological crusade against Apple is fast turning into a boondoggle for the Mac clone maker. On Tuesday, a federal judge dismissed Psystar’s antitrust lawsuit against Apple and with it, one of the company’s last remaining chances to stay in business peddling PCs with Apple’s Mac OS X Leopard preinstalled, an apparent violation of Apple’s software license agreement.

Sued by Apple in August for violating the terms of its shrink-wrap license, trademark and copyright on OS X, Psystar replied in kind with a countersuit charging Cupertino with restraint of trade, unfair competition, and other violations of antitrust law. Apple, Psystar argued, engages in all manner of anticompetitive conduct to “protect its valuable monopoly in the Mac OS market.”

But according to the California judge presiding over the case, Apple’s products don’t constitute a market to dominate. And that being the case, Apple (AAPL) can’t be considered a monopolist.

“The counterclaim explains that Mac OS performs the same functions as other operating systems,” Judge William Alsup wrote in his order dismissing the suit. “The counterclaim admits that market studies indicate that, although Apple computers with Mac OS enjoy strong brand recognition and loyalty, they are not wholly lacking in competition. Psystar also points to Apple’s extensive advertising campaigns. Those advertising campaigns more plausibly support an inference contrary to that asserted in the counterclaim–vigorous advertising is a sign of competition, not a lack thereof. If Mac OS simply had no reasonable substitute, Apple’s vigorous advertising would be wasted money. The advertising campaigns suggest a need to enhance brand recognition and lure consumers from a competitor…. Apple asks its customers to purchase Mac OS knowing that it is to be used only with Apple computers. It is certainly entitled to do so.”

]]> http://allthingsd.com/20081119/psyanora/feed/ 4 http://allthingsd.com/20081104/honey-is-the-mammoth-meat-from-that-exotic-animal-buffet-still-in-the-freezer/ http://allthingsd.com/20081104/honey-is-the-mammoth-meat-from-that-exotic-animal-buffet-still-in-the-freezer/#comments Tue, 04 Nov 2008 17:05:11 +0000 John Paczkowski http://digitaldaily.allthingsd.com/?p=7762 Looks like the Alcor Life Extension Foundation may be able to do something with the cryogenically frozen remains of Ted Williams after all.

By injecting nuclei from mice frozen for 16 years directly into unfertilized mice eggs, a team of Japanese geneticists was able to create healthy clones of the dead animals. Quite a breakthrough, and one that implies the cloning of cryogenically frozen humans and the resurrection of extinct animals frozen in permafrost is perhaps a little less improbable than originally thought. “Cloning animals by nuclear transfer provides an opportunity to preserve endangered mammalian species,” the researchers wrote in a paper submitted to The Proceedings of the National Academy of Sciences “[The technique] could be used to ‘resurrect’ animals or maintain valuable genomic stocks from tissues frozen for prolonged periods without any cryopreservation.”

Using it to produce a Crichtonian Jurassic Park, however, is quite a ways off. “It remains to be shown whether nuclei can be collected from whole bodies frozen without cryoprotectants and whether they will be viable for use in generating offspring following nuclear transfer,” the researchers noted. “However, it has been suggested that the ‘resurrection’ of frozen extinct species (such as the woolly mammoth) is impracticable, as no live cells are available, and the genomic material that remains is inevitably degraded.”

]]> http://allthingsd.com/20081104/honey-is-the-mammoth-meat-from-that-exotic-animal-buffet-still-in-the-freezer/feed/ 0 http://allthingsd.com/20080829/speaking-of-destroying-competition-meet-our-legal-team-from-mortify-debase-and-demolish-llp/ http://allthingsd.com/20080829/speaking-of-destroying-competition-meet-our-legal-team-from-mortify-debase-and-demolish-llp/#comments Fri, 29 Aug 2008 19:09:27 +0000 John Paczkowski http://digitaldaily.allthingsd.com/?p=4128 Apple legal has some interesting weekend reading ahead of it. Mac clone maker Psystar filed its 54-page countersuit against Apple late Thursday, and as expected, it accuses the company of restraint of trade, unfair competition, and other violations of antitrust law. “[Apple has] engaged in copyright misuse through the use of an illicit tying provision in its end-user license agreement for the Mac OS X with respect to only utilizing the Mac OS X software on Apple-Labeled Computer Hardware Systems and as is further detailed in PSYSTAR’s counterclaims for violations of the Sherman Act, Clayton Act, and Cartwright Act, which are incorporated herein by reference,” the suit claims. “By attempting to enforce this illicit tying provision, [Apple] is attempting to obtain, maintain, and/or enjoy rights not granted by the Copyright Act including, but not limited to, destroying competition in the Mac OS Capable Computer Hardware Systems market, which is wholly unrelated to any valid copyright.”

The suit, filed in U.S. District Court for the Northern District of California, seeks unspecified, triple damages and, more importantly, an order voiding Apple’s end-user license agreements (EULA). If successful, it will allow OS X to be installed on hardware it was never intended to run on, opening the door for the first legitimate Mac clones in more than a decade. Hard to see Apple (AAPL) allowing that to happen, though. My guess is the company would sooner kill retail sales of OS X and manage upgrades through iTunes, than allow it to be run on inferior machines over whose quality it has no control.

]]> http://allthingsd.com/20080829/speaking-of-destroying-competition-meet-our-legal-team-from-mortify-debase-and-demolish-llp/feed/ 1 http://allthingsd.com/20080829/speaking-of-destroying-competition-meet-our-legal-team-from-mortify-debase-and-demolish-llp-2/ http://allthingsd.com/20080829/speaking-of-destroying-competition-meet-our-legal-team-from-mortify-debase-and-demolish-llp-2/#comments Fri, 29 Aug 2008 19:09:27 +0000 John Paczkowski http://digitaldaily.allthingsd.com/?p=4128 Apple legal has some interesting weekend reading ahead of it. Mac clone maker Psystar filed its 54-page countersuit against Apple late Thursday, and as expected, it accuses the company of restraint of trade, unfair competition, and other violations of antitrust law. “[Apple has] engaged in copyright misuse through the use of an illicit tying provision in its end-user license agreement for the Mac OS X with respect to only utilizing the Mac OS X software on Apple-Labeled Computer Hardware Systems and as is further detailed in PSYSTAR’s counterclaims for violations of the Sherman Act, Clayton Act, and Cartwright Act, which are incorporated herein by reference,” the suit claims. “By attempting to enforce this illicit tying provision, [Apple] is attempting to obtain, maintain, and/or enjoy rights not granted by the Copyright Act including, but not limited to, destroying competition in the Mac OS Capable Computer Hardware Systems market, which is wholly unrelated to any valid copyright.”

The suit, filed in U.S. District Court for the Northern District of California, seeks unspecified, triple damages and, more importantly, an order voiding Apple’s end-user license agreements (EULA). If successful, it will allow OS X to be installed on hardware it was never intended to run on, opening the door for the first legitimate Mac clones in more than a decade. Hard to see Apple (AAPL) allowing that to happen, though. My guess is the company would sooner kill retail sales of OS X and manage upgrades through iTunes, than allow it to be run on inferior machines over whose quality it has no control.

]]> http://allthingsd.com/20080829/speaking-of-destroying-competition-meet-our-legal-team-from-mortify-debase-and-demolish-llp-2/feed/ 0