Edible Apple

After months of contentious litigation, Judge Alsup today granted Apple’s request for a permanent injunction and ruled that the injunction encompasses not only Snow Leopard, but Psystar’s Rebel EFI software as well.  As a quick reminder, Rebel EFI is a piece of downloadable software available on Psystar’s website that allows users to install OS X onto non-Apple hardware.  The order notes that Psystar has until December 31, 2009 to cease all infringing activities, with the Court specifically stating that Psystar “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.”

Put simply, Psystar’s entire OS X “business” is completely shut down.

Over the past few weeks, Psystar has suffered a series of legal blows in California.  In mid-November, Apple’s motion for Summary Judgement was granted when the Court found that Psystar’s business of selling their own hardware with pre-installed copies of OS X violated the DMCA (Digital Millennium Copyright Act) and infringed on Apple’s OS X copyrights as well.  Two weeks later, things got worse when Judge Alsup ruled that Psystar owed Apple $2.66 million in damages for said infringement.  Apple and Psystar, however, stipulated that Apple would not exercise its right to collect damages until Psystar has exhausted all appeals on the matter.

Psystar, always looking for a way to skirt around the law, had no choice but to accept the Court’s ruling, but argued at the same time that any permanent injunction handed down shouldn’t include Snow Leopard or its Rebel EFI software. In a motion filed last week, Psystar argued that because Rebel EFI didn’t even exist during the course of the original discovery process, it should therefore fall outside the scope of the permanent injunction.  And in a separate motion filed in Florida yesterday, Psystar argued, yet again, that Snow Leopard should fall outside the scope of the permanent injunction because it wasn’t part of the original litigation and raises new factual and legal considerations that shouldn’t be subject to a broad sweeping injunction.

But in a 17-page ruling handed down today, Judge Alsup tossed Psystar’s arguments out the window, essentially stopping Psystar dead in their tracks.

When it comes to a permanent injunction, the law holds that its scope must be “reasonable to prevent or restrain” further infringement of a copyright or violation of the DMCA:

In situations where there is a clear pattern of copyright infringement by the defendant, and there is a threat that other copyrights of the plaintiff may be infringed by the defendant, an injunction may be issued as to future works of the plaintiff as well as existing works.  This principle undoubtedly applies here, as Psystar has been found liable of not only direct infringement of Apple’s copyrights in numerous releases of Mac OS X, but contributory infringement and multiple violations of the DMCA related to Apple’s protected works. Additionally, a continuing threat to Apple’s future works — specifically, future versions of Mac OS X — is clearly evidenced by the very existence.

The ruling goes on to state that the scope of a permanent injunction should include all works where the underlying infringement is the same, even if the actual copyrighted work has changed.  This makes sense because if an injunction was limited solely to OS X Leopard, Psystar would conveniently ble to sidestep any court order every time Apple released a new version of OS X.  It goes without saying that such a scenario would run contrary to the entire purpose of the injunction in the first place.

In reaching its conclusion, the Court cited a case from 1984 which involved an individual who illegally sold t-shirts featuring copyrighted images of Mickey and Minnie Mouse.  The court in that case enjoined the defendant from selling t-shirts that featured images of other Disney characters that weren’t at issue in the case, such as Donald Duck and Goofy.  Though the defendant argued that the injunction was overly broad because it covered images not at issue in the actual case, the court ruled that when “liability has been determined adversely to the infringer” and there is a significant possibility of future infringement, “it is appropriate to permanently enjoin the future infringement of works owned by the plaintiff but not in suit.”

So within that legal framework, the Court found that even though Snow Leopard may not have been part of the original litigation, the underlying principles are exactly the same.

And for anyone who has followed the legal saga between Apple and Psystar, it shouldn’t come as too much of a surprise that Judge Alsup chastised Psystar, yet again, for questionable legal tactics.  “Finally, it must be noted that Psystar continues to grossly mischaracterize prior rulings in this case to justify their position on this issue.”

Ouch.

As to the Snow Leopard issue, Judge Alsup concludes that “because a copyrighted work need not be included within the scope of discovery to fall within the scope of a permanent injunction, Snow Leopard will not be excluded from the scope of the injunction. Rather, it will be included to the extent that it — and any other non-litigated Apple software programs of similar character to Mac OS X — qualifies as a protected work under the Copyright Act.”

Now as for Psystar’s Rebel EFI software, things are a bit trickier since the software consists solely of Psystar’s own code.  As mentioned above, Psystar argued that its Rebel EFI software raises new factual and legal issues that should preclude it from falling under the umbrella of an injunction.  But Judge Alsup points out that Psystar cited absolutely no decisions to back up its assertions.  And proceeding to call Psystar out for sloppy lawyering, Judge Alsup notes that Psystar’s interpretation of the Disney precedent discussed above gives off the impression that Psystar never even gave it more than a casual once over.

Judge Alsup also disuades Psystar from even thinking about continuing to sell its Rebel EFI software, writing that “Psystar – if it continues to do so – sells Rebel EFI at its own peril.”  According to the Court, one of the fundamental problems with Rebel EFI was that Psystar attempted to argue that its Rebel EFI software was different from its hardware business, but never took the time to explain to the Court how it exactly worked.

Moreover, Psystar’s opposition brief appears to purposefully avoid providing a straightforward description of what Rebel EFI actually does. Thus, it is not only inappropriate, but impossible to determine on this record whether Rebel EFI falls within “the same type or class of unlawful acts” found at summary judgment. This order declines to “bless” a product about which it knows little of substance.

Judge Alsup, though, does note that if Psystar so chooses, it can file a new motion that “includes real details about Rebel EFI” if it later wants to open up formal discovery on the matter.  But as mentioned above, continuing to sell the software in the interim would be a risky move for Psystar.

Next, the ruling address’s Psystar’s argument that the Court in California shouldn’t address the Rebel EFI issue because its ruling may subsequently interfere with and contradict established rulings on the very same topic in Florida.  Remember that Psytar, in the midst of the California litigation, filed a similar lawsuit in the state of Florida.

Judge Alsup, however, astutely calls Psystar’s bluff in noting that there are no established rulings regarding the legality of Rebel EFI in Florida, and as such, “Psystar’s argument lacks merit.”

So there you have it, Psystar seems to be toast, and again, they have until December 31, 2009 to comply with the ruling.

For all you legal hounds, the scope of the injunction reads as follows:

IT IS HEREBY ORDERED that Apple’s motion for a permanent injunction is GRANTED, and defendant is permanently and immediately enjoined from:

1. Copying, selling, offering to sell, distributing, or creating derivative works of plaintiff’s copyrighted Mac OS X software without authorization from the copyright holder;

2. Intentionally inducing, aiding, assisting, abetting, or encouraging any other person or entity to infringe plaintiff’s copyrighted Mac OS X software;

3. Circumventing any technological measure that effectively controls access to plaintiff’s copyrighted Mac OS X software, including, but not limited to, the technological measure used by Apple to prevent unauthorized copying of Mac OS X on non-Apple computers;

4. Manufacturing, importing, offering to the public, providing, or otherwise trafficking in any technology, product, service, device, component, or part thereof that is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to plaintiff’s copyrighted Mac OS X software, including, but not limited to, the technological measure used by Apple to prevent unauthorized copying of Mac OS X on non-Apple computers;

5. Manufacturing, importing, offering to the public, providing, or otherwise trafficking in any technology, product, service, device, component, or part thereof that is primarily designed or produced for the purpose of circumventing a technological measure that effectively protects the rights held by plaintiff under the Copyright Act with respect to its copyrighted Mac OS X software.