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Thursday, 26 November 2009 05:40

Apple requests permanent injunction against Psystar

Following up on its sweeping victory over Mac clonemaker Psystar on copyright infrigement, Apple has asked the court to permanently enjoin Psystar from selling its products.

The year-and-a-half-old lawsuit is the result of Psystar's selling generic Intel PCs modified to run OS X.

Apple alleged that the modifications infringed its copyrights, while Psystar countered that it was legally entitled to resell OS X on its computers.

Last week the Northern California District Court issued a summary judgment in Apple's favor, basically eviscerating every one of Psystar's arguments.

Now Apple has followed up with a request for a permanent injunction to prevent Psystar from continuing to traffic in OS X, as well as significant statutory damages.

One concern of Apple is that if Psystar gets to keep selling Mac clones, other people might follow. According to the "Memorandum In Support Of Its Motion For Permanent Injunction, Statutory Damages And Reasonable Attorneys’ Fees And Costs," "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....A permanent injunction therefore is necessary to stop Psystar from continuing its unlawful activity and to deter others from doing the same."

Another concern is that the original case dealt with infringement on OS X 10.5 Leopard, and Apple doesn't want Psystar to be able to sell OS X 10.6 Snow Leopard computers.

For more on the damages Apple is requesting, see Page 2.

The memorandum reads, "By infringing, or contributing to the infringement, of subsequent versions of Mac OS X, such as version 10.6 'Snow Leopard,' Psystar is also infringing, or contributing to the infringement of, Apple’s copyrights in Mac OS X and Mac OS X Leopard....Moreover, the software Psystar uses to run Mac OS X – either Leopard or Snow Leopard – on non-Apple computers, contains the same key that this Court found violated the anti-circumvention and anti-trafficking provisions of the DMCA....Because Apple’s requested injunction prohibits acts relating to Mac OS X, that injunction would prohibit Psystar from infringing current and future versions of Mac OS X, from engaging in contributory infringement of current and future versions of Mac OS X, and from trafficking in circumvention devices that enable others to make unauthorized copies of current and future versions of Mac OS X."

In addition to the injunction, Apple is also seeking statutory damages -- which it admits it may be unable to collect, since Psystar's costs exceed its revenues.

Nevertheless, Apple calculates that it is entitled to US$2,120,000 in damages.

That sum represents $2,000 for each of 1,030 Digital Millennium Copyright Act violations, based on the "undisputed evidence" that Psystar has sold 768 computers running OS X and shipped 262 restore disks. (The DMCA permits damages ranging from $200 to $2,500 per violation.)

Added to that is $30,000 damages for each of two infringements of Apple's OS X and OS X Leopard copyrights. Furthermore, Apple requests attorneys' fees and costs.

An interesting sidelight to Psystar's activities is revealed in the Memorandum and supporting documents (available, along with extensive analysis, from the Groklaw legal blog ).

The Memorandum alleges that "Psystar even seeks to profit from Apple's efforts to protect its rights, extolling this litigation as Psystar's 'opportunity to gain market share."

Sure enough, one of the attached exhibits is a slideshow supposedly presented by Psystar to venture capitalists, claiming that the litigation "presents us with a unique window of opportunity to gain market share and achieve brand recognition before competitors can even enter the market." In other words, Psystar was betting that once the court ruled in its favor, it would have a head start on other Mac clonemakers.


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