Edible Apple

The ongoing legal dispute between Psystar and Apple continues to soldier on, with the latest dispute centering on a Psystar motion which seeks to make Apple’s technological circumvention measures in OS X publicly available information.

When this case first started, Judge Alsup issued a ruling which allowed both parties to keep confidential information private.  So last week, when Psystar and Apple filed their respective motions for Summary Judgment, both motions were heavily redacted whenever the security measures that tie OS X to Apple hardware were referenced.

Psystar now argues that much of the redacted information contained in both their and Apple’s briefs should be made visible to the public, and that the standard for “confidential information” has been applied too broadly.

Psystar asserts that only extremely sensitive information, such as “the recipe for Coca Cola”, can be labeled confidential in motions for summary judgment.  And since, Psystar argues, a good deal of information detailing the technological security measures in OS X are already available on the web, there’s no reason that that such information can be considered a trade secret, and subsequently kept from the public.

In an attempt to back up its assertion, Psystar compiled and submitted to the Court a list of publicly accessible websites which not only detail OS X security measures, but provide information on how to circumvent them and get a Hackintosh up and running.  Psystar notes that it was able to find its list of sites in just 10 minutes using a few Google searches (the list includes hackintosh.com, lifehacker, osnews, and even a link to a YouTube video).

Psystar is basically arguing that Apple can’t designate its security measures in OS X as confidential information when it’s freely available all over the web.

Psystar writes:

Apple is attempting to hide evidence from the public in complete disregard of the applicable standards, in just the same way it designated whole swathes of documents and entire deposition transcripts as confidential or attorneys’ eyes only throughout this litigation.

… This case pits the efforts of one company to dictate every aspect of the use of its technology against a much smaller company that defends itself on the law.  The public has a right to understand and a strong interest in understanding the facts and circumstances leading to the final rulings of this Court.

This past Wednesday, Apple filed a response to Psystar’s motion and asserted that while it’s important for the public to be aware of the outcome of the lawsuit, that in no way implies that Apple should be forced to disclose details of their security mechanisms in OS X.

The need for public access can be satisfied here by the same methods used by many other federal courts in DMCA cases – generally describing the technological protection measure in dispute, explaining the legal reasoning and outcome, but not revealing the details of the technological protection measure.

… Like many other technology companies, Apple uses encryption as a lock and key mechanism designed to restrict access to its copyrighted work, Mac OS X. Psystar asks that the Court require Apple to publicly disclose the details regarding its implementation of its encryption method and Psystar’s circumvention of that lock and key mechanism. There is no need to do this, and only harm can result. The public can easily understand the judicial proceedings taking place between Apple and Psystar without learning the implementation details of Apple’s technological protection measure or its other proprietary technology.

Apple goes on to argue that the “relevant facts needed to understand the significance of this case are that Apple uses an encryption method and Psystar has found a way to circumvent it.”  Detailing that encryption scheme and Psystar’s circumvention method, Apple writes, will serve no purpose and will only encourage others to illegally hack OS X.

Apple even makes a point of noting that the technological protection measures it uses in OS X have never been publicly disclosed, and that that information “is only disseminated on a need-to-know basis even within Apple.”

But what about Psystar’s argument that that information is readily available on the web?

Apple astutely points out that information on the Internet does not “deprive Apple’s information of its trade secret or confidential status.”  Moreover, Apple points out that an ordinary consumer would not be able to understand or utilize much, if any, of the information detailed on the list of websites supplied by Psystar.

Moreover, Apple writes there is “as much mis-information available on the Internet as information”, and there’s no way for an ordinary consumer to distinguish between them.  In short, Apple argues that just because some websites purport to detail everything about Apple’s security measures and how to bypass them does not mean that they be required to refute or corroborate those details in a public forum.

Legally speaking, the above-mentioned dispute will ultimately boil down to whether or not there are “compelling reasons” to keep the technological security mechanisms in OS X confidential.  On that topic, Apple writes:

In this case, there are compelling reasons why the details of Apple’s security mechanism and Psystar’s circumvention of it should not be publicly disclosed. Apple has spent hundreds of millions of dollars writing and refining the best computer operating system in the world and integrating it with computers that are easy to use and reliable. Apple has created the technological protection measure at issue in order to prevent unauthorized access to, copying of, and use of its copyrighted Mac OS X software. In order to protect Apple’s reputation for extraordinary, high-quality, products, and to ensure its customers have a uniformly excellent experience with its computers, Mac OS X is licensed only for use on Apple hardware.

Requiring Apple to publicly disclose the trade secret details of how it technically limits its software to its hardware and how those restrictions can be disabled would directly undermine Apple’s business model in a case where the legality of Psystar’s evasion of those very limitations is the central issue. Indeed, disclosing this information would provide the public with specific details of how a user might evade Apple’s limitations, thereby enabling the type of behavior that this lawsuit seeks to stop…

That’s a solid point by Apple, and highlights Psystar’s typically shady lawyering tactics.  Think about it –   Psystar’s un-authorized use of OS X on non-Apple hardware is what this case is all about, and now Psystar wants the Court to rule that any information which would help others do what Psystar already does be made publicly available.

An apt analogy, using the Coke example from above, would be if Psystar copied Coke’s formula, placed it in a different can and sold it to the public.  Would Psystar then be able to demand that Coke’s secret and trademarked formula be made publicly available so that the public could get a better grasp on the case?  It’s a blatantly ludicrous proposition, and it would make no difference if Psystar could similarly compile a list of websites which claimed to have figured out Coke’s secret formula down to the last drop.

And finally, there’s one last aspect of Psystar’s motion that we haven’t touched upon yet, and as you might expect, it involves some more asinine legal reasoning from Psystar.

Psystar’s recently filed motion also argues that because Apple improperly used broad strokes to label information as being confidential (which is a no-no), that the Court should sanction Apple by striking its entire motion for summary judgment.  Psystar acknowledges that this is a harsh response, but writes that it’s appropriate given Apple’s “cavalier attitude towards the Rules of Civil Procedure and this Court’s orders.”

Psystar then lists a few examples which, it can be argued, Psystar knows are deceptive.

For example, Psystar lists as its third example:

Apple agreed to provide a witness, Phil Schiller, to testify about damages; at his deposition, Mr. Schiller refused to testify about this subject at all, even though Apple had agreed to the deposition on that topic and had not moved for any protective order in advance of the deposition.

Now this is a bunch of legal BS if we’ve ever seen it.  If you recall, Psystar wanted Phil Schiller to testify about Apple’s profit margins and he refused to do so, arguing that such information was outside the scope of the deposition.  Psystar then filed a motion with the Court seeking to compel Schiller to disclose Apple’s confidential profit margin data.  Not too long afterwards, the Court ruled that Psystar was not entitled to Apple’s profit margin data.  Moreover, almost every one of the cases cited in Psystar’s motion was torn apart for being either inapplicable or wrongly interpreted by Psystar.  And now Psystar has the audacity to use Schiller’s unwillingness to testify on a topic that the Court ruled he didn’t have to testify about as an example of Apple’s “cavalier” attitude?  What a bunch of morons.  There’s a fine line between strategic lawyering and frivolous legal arguments, and Psystar has ventured into the latter yet again.

In response to Psystar’s idiotic assertion that Apple’s motion for summary be judgment be disregarded, Apple writes:

Psystar’s contention that Apple’s motion for summary judgment should be stricken is baseless. Psystar’s patch-work quilt of arguments regarding prior discovery rulings adds nothing to its contentions. This Court is well aware of its own rulings and knows that the only litigant in this matter that has been sanctioned for discovery abuse is Psystar. Psystar understandably may wish to avoid having the Court consider Apple’s Motion for Summary Judgment on the merits, but there is no factual or legal basis to do so.

So yeah, it’s ironic that Psystar attempts to portray Apple as disregarding court orders and proper procedure when it was Psystar CEO Rudy Pedraza who ran into trouble for flat out lying under oath during his deposition.

In the end, we fully expect Judge Alsup to throw out Psystar’s most recent motion – and not because of any blind allegiance to Apple, but rather because Psystar’s arguments have no legal legs to stand on whatsoever.