By Scott M. Fulton, III, Betanews
It would appear that Apple Inc. and Mac clone maker Psystar were on the way to a complete settlement that would have been announced today, but for one small hitch: Psystar wants to continue selling a $49.99 software package called Rebel EFI, which claims to enable the installation of "every operating system" on an Intel-based computer. However, it's clear from the product's Snow Leopard skin exactly which OS it's really referring to.
Just when this whole conflict might have ended, Apple referred to this piece of software in its request for a permanent injunction against Psystar last week, calling it a "circumvention device." In fact, the company came dangerously close to suggesting that it was this device, not the Psystar Open computer itself, that was the infringing element -- a suggestion that, if the judge had agreed with it, might have ended up endangering a big money award for Apple.
"As this Court found, Psystar is trafficking in devices that enable others to circumvent Apple's technological protection measure to gain access to and copy Mac OS X," Apple stated in its request for injunction last week. "Psystar is continuing to actively market those devices and has announced its intention [to] continue to do so to enable others to infringe Apple's copyrights. If Psystar is not permanently enjoined from marketing unlawful circumvention devices, other parties will be encouraged and enabled to continue infringing Apple's copyrights in Mac OS X."
Yesterday, in a filing with US District Court in San Francisco, Psystar admitted it had reached a partial settlement with Apple, more details about which it will reveal tomorrow. However, the one issue left on the table -- the issue which compelled Psystar to go ahead with its opposition to the permanent injunction, rather than just stop here -- concerned Rebel EFI. Psystar claims, contrary to Apple's statement, that the Court actually did not produce any finding that pertained to Psystar software.
"Indeed, Apple asks this Court to go one step further and enjoin not only Psystar computers running Mac OS X Snow Leopard, but also an entirely new software-only product, Rebel EFI, that has not been the subject of any discovery at all in this action," Psystar's attorneys wrote yesterday. "This Court should not give Apple an injunction covering a software product the legality of which Apple has yet to litigate anywhere. Such an injunction would give Apple relief on the very issues that it decided not to include in this case."
The irony here appears to be that Apple already began legal action against Psystar's software in that company's native state of Florida. Apple petitioned the judge in San Francisco to enjoin its action with that of the Florida court -- a petition which the California district judge denied, chiding Apple in so doing and giving Psystar some choice words to throw back at Apple:
"If this limitation prejudices Apple [citing the court's prior order denying Apple's motion to enjoin the Florida action], 'The problem is one largely of Apple's own making.' If Apple needed an injunction broad enough to cover Psystar's new products, it should have welcomed discovery on Snow Leopard and sought to timely amend its complaint."
Copyright Betanews, Inc. 2009
