[Wondercow]

dizzle said:

>First let me correct you on one point. Apple is arguing the merits of its EULA; however, that is not their primary offense.
I stand corrected :-)
>People wonder why Apple waited so long to file suit. They waited so that they gave Psystar enough rope to hang themselves and get cocky. They waited until Psystar modified Apple's updates and hosted them at their own site. But they are arguing the EULA, and it is taking more of a primary role as the case roles on.
Not to mention the lengthy process of collecting evidence, consulting attorneys, getting one's ducks in a row, .... Since the beginning I've found some humour in the oft-repeated statement "well why did Apple wait so long to file their lawsuit???????" Uh, 'cause they need to follow legal procedure and ensure that they have evidence.

Quote

Do you have a citation for that case? And you are generally correct that most contracts are severable in which the unenforceable part can be excised with the rest remaining.

From your subsequent posts it seems that you found the link, so I won't post it again.

Quote

You are correct. And Psystar did something very sneaky in their filings to the Court. When requoting back the filings they inserted the convenient ellipsis where the word "license" appeared.

Now I wish I'd finished reading the filings. To answer a question from a previous post: no, I haven't read all of the documents (I didn't explicitly state that previously, but I alluded to it a few times). I started but, as I've also alluded (or stated, even), I simply don't have the concentration and focus to do so anymore (MVA on the highway--I was stopped due to congestion, he was travelling at 105 km/h and didn't even try to stop....) Even simple posts like this can take upwards of an hour by the time I've collected my thoughts and corrected all of the mistakes--and many still make it through ;-) So, yeah, reading briefs, statements of claim, et cetera--while still interesting--is very low on my list of daily activities. (That being said, though, with my familiarity of, and interest in, this case maybe Ill take another crack at it; if you're to be believed there's a plethora of interestingly fun material.)

[dizzle]

Oh yeah, there is some fun material to be read. As a short cut, if you do trust that I extract the pertinent facts, you can get the Cliff Notes versions from my WOA articles.

Unfortunately I think there is going to very little of substance to report in future filings as they will be either under seal or heavily redacted.

In one of my article, I used PDFPen and marked up one of Psystar's filings to show all the blatant grammatical and spelling errors. I showed it to my boss, and she said definitely someone would be fired if work product came out of our office like that. It seems like they relied way too heavily on spell-check because the errors are of the type that spell-check wouldn't pick out but human eyes are needed. Even after multiple attorneys have been through a filing in our office, any substantive filing on any case I am assigned to gets proof-read by me last. And then I terrorize the secretaries about m-dashes. One thing I will give Psystar's attorneys; they know how to use the m-dash. So does Apple's attorneys by the way.

Oh and I keep using the term EULA as well, but to be technical, in this case, the relevant license is called a Software Licensing Agreement, so the abbreviation SLA is used.

Oh guess what I have as one of Apple's exhibits? Transcripts of each and every "I'm a Mac" ads. I can send a copy to anyone who would like it.

[Wondercow]

jman3001 said:

Like I said, "Supply & Demand".

Like we said: inept and pedestrian misuse of accepted, defined terminology.

[dizzle]

I would really like full disclosure of jman's interest in this matter. I have given mine. I don't hide my Apple bias, I am a staff editor at World of Apple; owner of the satire Apple fan blog i drank the koolaid; an admin a My Apple Space; and hostess of MAS tv. None of which I get a salary for. My work at World of Apple is pretty much strictly legal news and in-depth third party product reviews. I do not own any Apple stock unless my 401K does as part of a larger pool. I am not aware of owning any. I am in Florida so I do know people involved indirectly with the issues. I could drive to Psystar's HQ if I wished to. I am a certified legal assistant with over 12 years of experience, not an attorney, and our practice area is not intellectual property, but we did have an attorney there who had IP experience, and I spoke with him extensively when I was first learning the issues. Because of my job I have access to PACER and Westlaw, which my job graciously lets me use as long as I code the time/charges used to be deducted from my paycheck. I occasionally teach at my Mac Users Group. I co-own theologyweb.com; and own preteristsite.com; preteristpodcast.com; and preteristblog.com.

There is my full disclosure of my interest and my qualifications. What are yours jman?

I really wish I had access to the admin panel here to do an IP address check. I think I would have pretty good odds that it is out of Dade County.

Here is what I am curious about. Mediation occurred on 2/18/09. A mediator's report was due to be filed within ten business days of the mediation, yet there is no report. Are the parties still mediating informally so that an official impasse has not been declared? Judge Alsup will probably file an Order to Show Cause why a report has not been filed if things work in California Federal Court as it does here. Oh yeah, most of work is with cases in Federal Court, not state court.

The funny thing is that no matter what happens, Psystar is done. If Apple were forced by a socialist ruling to license its software to anyone, Dell and HP will squish Psystar showing them the backside of the free market they are trying to subvert. They are hoping to gain some noteriety and some money to cut and run. This is a gamble, like investing in the stock market. That is what pisses me off even more about the case. If it were Dell or some other large legitimate company rather than a couple of punks out of Miami I could stomach it easier. These are just sleazy opportunists in my book.

[Grapho]

I don't think you will get a straight answer from him. But from my past encounters, this is what I have gathered:
He is not affiliated with Psystar although he claims to have purchased one of their products.
He also has stated that the reason he dislikes Apple is because the last two Apple towers he has purchased, a G5 and Mac Pro, both have had "design flaws".
This is his entire position for supporting Psystar. He claims unequivocally that they make better Macs then Apple.

Now all of this is off course, how he has represented him self as. If he is indeed involved with Psystar, he has not disclosed that in these forums.

In my opinion he is simply a Troll out to get a reaction out of people. I would not waste much time debating with him. No point in trying to reason with the unreasonable.

[orgopete]

I knew I was going to be in for some tough sledding.

dizzle said:

>* You have a low context reading ability?
>* As far as your "simple" question, I don't find it to be ?
>* 1. You didn't bother to read the actual arguments in the case. If you did, ?
>* ? should have been a huge honkin' clue to you that you are barking up the wrong tree.
>* ? you betray your ignorance by saying "I asked a simple question, sniffle, sob, and you didn't answer it."
>* Have you YET read any ?
>* You can't be bothered. Why should I hold your hand? Show some minimal effort.
>* After I read that case I will let you know what I think though if Wondercow and Dawson have understood it properly (and it seems just on common sense that they have understood it correctly) you have already been answered.
>* I find it takes great chutzpah that you think you found some ringer case ?

As I had noted initially, this was the reply to another writer,
>

dizzle said:

> Ahh the ad hom attack. First, it is you my blustery ignorant friend that doesn't understand LAWFUL ?

So, I concede, how stupid must I be to ask a question? This point has been reiterated by several others posters as well, so I have little acumen to defend.

However, since dizzle did divulge his/her bias, I'll divulge mine. I have been a Mac user since a Mac 512. I am answering this on my Intel iMac, and I am an Apple shareholder. As such, I concede to being curious as to the issues in the Psystar v Apple case. I am guilty of,

dizzle said:

traipzing around the interwebz.

For me, this seems like a logical and expeditious path to follow. While I don't recall the search terms and sites I followed, it wasn't difficult to find the Vernor v AutoDesk case and the review of "Copyright Misuse" by professors Frischmann and Moylan. After reading what others thought were the importance of those cases, I raised the questions that seemed relevant to this case (I hope I don't regret that sentence). They weren't intended to befuddle anyone except as anyone might have found their relevancy to be so. Here, the reader is free to determine for themselves whether the answers to the questions I asked have proven those principles did or did not apply. (However, I fear diversions may well have diluted any reasonable answers.)

dizzle said:

So explain why YOU think it applies here.

As much as I would like to answer that and as much as this question does not require volumes of knowledge, but rather understanding the wording and meaning, even with a double dare, I am not that stupid.

In my circle of friends, we might wonder what Psystar must have thought or known that the rest of us did not in order to challenge Apple? Was it raw stupidity and a desire to burn money with $500/hr lawyers? Could they have actually thought that Apple's EULA was invalid? Are any and all EULA's valid because they have been agreed to? Can you agree to an EULA and still find that its terms are actually invalid? Why didn't Apple seek an injunction early on when the Psystar was called an OpenMac. (This would seem an obvious trademark violation. Apple had successfully blocked sales of a PineApple and an eMac Windows look alike.) Why didn't Judge Alsup halt the sales of Psystar? I acknowledge that this forum may not bring the greatest insight to those questions when I asked them (it does have a high level of activity however). I will leave it to the readers (if there are any left to this point) to determine the answer to that question. (I could have imagined a lot of other interesting questions here. It seems likely to be my last post in this thread, so belittle to your hearts content.)

[dizzle]

You have been answered, not only by myself, but by the others in this thread. Now answer the answers or admit they are correct. You do realize that the issue of the "first sale doctrine" in this case has nothing to do with the rights of Psystar to resell the software right? Or are you really that ignorant?

Asking that is not belitting. It is asking if you even know what the heck you are talking about. You claim it didn't take much work to track down that information. It would take even less work to ACTUALLY READ THE FILINGS IN THIS CASE? Precisely why do you refuse to do so? Is that so difficult a question to answer? Or do you just enjoy talking about your posterior?

As far as the $500/hour lawyers, many people file a lawsuit as an elephant hurl. Apple alleges that there is unidentified backers behind Psystar. From what I know of the Pedraza brothers, I believe Apple is onto something.

[dizzle]

Hi Grapho, as you may have gathered I have a lot of experience in admining forums. ?s such I have developed a fairly accurate spidey sense about such people. I believe he is affiliated with Psystar. He can put that suspicion to rest. Write the admins of this site and give them permission to disclose your IP location jman. I dare you.


Also you claim you purchased prior Macs that had design flaws? When did you buy them? As close to precise dates as you can give please. Also from where.

I eagerly await your non-response.

I currently own three Macs. I have a Mac Pro bought June 2007 from the Apple refurb site. I own a MacBook bought around Dec 2007 from the Apple refurb site. I own a G4 iMac which I traded for my iPod touch at the time the iPhone 3G came out. In fact, I bargained for the trade while in line waiting for the iPhone. I bought the iPhone from an Apple store. I have a last generation nano from the Apple refurb site.

See how transparent I am. Go ahead. I dare you. Disclose your affiliations.

[orgopete]

dizzle said:

>>Ahh the ad hom attack. First, it is you my blustery ignorant friend that doesn't understand LAWFUL ?

Quote

? are you really that ignorant?

Quote

Asking that is not belitting. ? Or do you just enjoy talking about your posterior?

Quote

As far as the $500/hour lawyers, many people file a lawsuit as an elephant hurl. ?

Because I am so ignorant and enjoy talking about my posterior, I am totally unable to top that hurl.

[dizzle]

Do you even know what an elephant hurl is? Care to show you are not ignorant on the questions asked?

Have you gotten around to reading the filings yet? No? Gotcha, you don't want to be educated on the facts but would rather play the hurt puppy. If you haven't noticed; I am not the cuddly type.


@MacPro

I have been thinking about your post since the time you posted it. With our common background of that literary work, I think perhaps maybe you understand what I meant when I said I really didn't care what people thought. I say that with the same attitude that John Galt would. I don't require affirmation or ego strokes from others. I have a great many faults, but one of my strengths is an unflappable internal self-assurance. I understand why you would think I would be looking for some ego-stroke; that is how many people are today. Emotional; insecure; seeking affirmation. You made a statistically safe assumption. I just am outside of the mold a bit. Not that it is always a good thing. As I think you have also seen, one of my great faults is a lack to have empathy that my words may sting more than I intended. I'm working on that. Sometimes my social skills aren't the greatest. "Plays well with others" was never on my report card.

[mdawson]

Quote

dizzle wrote:

>

Quote

As I think you have also seen, one of my great faults is a lack to have empathy that my words may sting more than I intended.

Well, it all depends on whom you scathe. In general, any opposing response can come off worse than intended because we cannot communicate in writing as we do face-to-face. In this forum there are only your words, in person more is being interpreted than what you say; facial expressions and body language convey as much as that which is stated.

Differing opinions are what forums are all about, but as you quickly discovered, there are people here that are more interested in berating than debating. While my background is not in law, I do have a background in research and am also published in peer-reviewed scientific journals so I can understand your position about people not checking the facts. Factual errors can happen to the best of us in as rush to post a response, but I have little tolerance for people that make weak baseless arguments or that insist on posting mistruths and misinformation after they have been called on it. Much of the time these people are anti-Apple/anti-Mac trolls and trolls need to be put in check.

In my experience, some of the people defending Psystar, or at least Psystar?s position, are disgruntled Mac users that cannot get past Apple?s decision not to offer something between the iMac and Mac Pro, but the vast majority are trolls that have just recently joined these boards with the intent to incite flame wars and misguide lurkers that are not better informed.

On the other hand, I also realize that for any given forum one has to be realistic about the primary audience. While you have an interest in law this is not a board for legal professionals and most of the forum regulars are interested in technology and the Mac, not law. Therefore, the mostly technical posters that frequent these boards are not going to spend hours reading through briefings written in legalese regardless of their position in this matter or any other issue related to the Apple and legal proceedings. I can understand that such things are of interest to you, but the average person here is no more inclined to read through legal documents than you may be to read through technical white papers. In either instance, we are inclined to read secondary sources that summarize the issues for a general audience.

I freely admit that I have not read the briefings and I doubt I would even if I had the time to do so. That stated, reading the briefings is not required to debate this matter, but those engaged in the debate should at least have a basic understanding of what they are writing about. As you have probably already discerned, some people actually remember the elementary concepts taught to them in high school political science and economics, and have the basic research skills required to properly cite references that back up their position. Others? not so much.

[MacPro2007]

Hello mdawson,
First - let me say you have maintained a very high standard in this discussion. Also - I am not at all offended by what you say, though I think you may have misidentified me as a Psystar supporter. I am NOT of that group at all; in fact I agree with you, dizzle and WonderCow (sp?) on the essential point: Apple is correct and in fact is necessarily launching its legal assault on the... let me find a description low enough... "people" behind Psystar.

I may have invited your criticism by veering into a more general discussion (than the case at hand) by bringing up Apple's overall marketing strategy. So it's on me to clarify a few points:

1. I'm not an unmitigated "fan" of Apple, I have suspicions, questions and outright objections to a FEW things "coming out of Apple, Inc." While I criticized Apple for "going for the lower tier" - the fact is that I was one of those campaigning for Apple to do just that! They responded: mainly in the form of the Mac Mini. I was fool enough to believe that would quell the call for a product mimicking the conventional PC tower. I was wrong - and I'm guessing but I think Apple may have drawn the same conclusion.

So that's what I meant by their being disingenuous: they still "refuse" to put out what a large segment of the market wants: a lower-cost tower (somewhat expandable) "Mac." Within a couple weeks of the introduction of the Mac Mini, the Mac-using internet was "alive" with (ILLUSTRATED!) instructions for hacking Mac Minis. Clear evidence that Apple's effort to enter the lower tier market by the back door had failed.

2. Specifically, I have just one other real gripe with Apple's strategy: it's the fact that they created Apple Stores - and made them seem like "car dealerships." One can go to an auto dealer, order a car with options, get service and maintenance. - But if you try to order Mac options at an Apple Store: they tell you (at least they told me): We aren't allowed to accept extra-option orders, only orders for "basic" models. So again, my belief is that Apple wants to "give the impression" of satisfying existing (strong) markets while avoiding actual fulfillment of the market's expressed desires.

I know: if you go to a "PC dealer" (say, a Best Buy store) - you can't order a PC with options, either. To me, this whole idea is a blow to consumers. We have the money (at least I did on the day I went to the Apple store intending to buy a "loaded" iMac - $2500). The customer is "first" in that case. Buyers have legitimate reason to expect satisfaction of the desires they are ready to PAY FOR.

This is distinct from those who merely wish to whine about the "unfairness" of Apple's tight hold on its legitimate market. To them, I say "go figure" - but quit calling for fantasies which involve material harm to Apple.

3. I think we may have an argument about the meaning of "lower tier." So be it. I still think that the "demographics" indicate there are "bottom of the barrel" users (I'd call them "minimally appreciative of potential use... users") who would love to have a computer made by Apple - but they are "stuck" with the "manufactured" perception of what a "computer" really is. As you surely recall: Ford had a fair success in selling the Pinto model to this same kind of "user." Until, that is, some owners got rear-ended by larger cars and became, uh, "toast." I don't mean that Apple should be selling "Pinto type computers" - I mean that Apple COULD produce a lower cost alternative to the Mac Pro. I think it might be to their advantage: but agree that I have no right to FORCE them to do that.

4. I have every right to be skeptical of Mr. Jobs. He is a salesman, first, last and always. He has, I would argue from personal experience with sales types, "been very lucky" on the creative end. I don't dispute his "effectiveness" on a captive Mac fan base, nor do I fault his creative approach to capturing Windows users by seduction. His chosen mode of presenting himself to the public is something that is still "his right" - I just don't have to buy into the image he projects. Whether it catches up to him in his role as a CEO or catches up to him in the form of death from practicing "mystic medicine" - he'll be the one to pay the price. I have - decades! - of experience with salesmen: I had to learn as part of my job that they sell "sizzle" rather than steak. When Mr. Jobs demos something at MacWorld Expo: it all looks flawless. Only when the product reaches buyers do we see the complaints about actual performance - and purported "ease of use." Classic example: iMovie '08!!

Your "advice" might be right if you were properly positioned, meaning you didn't have a clue to my actual experience when you said to me: "get over yourself." You were just a little too ready to categorize and label someone you thought to be in opposition to YOUR fealty to Apple and its products. I'm the expert in "buyer beware" - let me counsel you to be less the loyal, defending fan and more the astute, informed buyer.

5. As for my "total disregard" and "uninformed" status: above you see the facts you say I lack, and above you see that I am speaking in favor of Apple's ultimate good - but including the buyer's ultimate good as well. This is not the kind of "whining" you've become (rightly!) habituated to rebutting. So I object to your egregious characterization. :-)

6. mdawson wrote: " These statements demonstrate that you have absolutely no idea about anything associated with the Mac."

Duh! I have deeper "roots" in the Mac than you can imagine. I also have MIT graduate friends who have nearly 25 years of professional experience with Macs (and PCs) - we all agree that Apple is great, we all agree that Macs are "superior" - but NONE of us thinks Apple's strategies or products are "perfect." Get over yourself. Statements like yours only enforce the impression that you're an Apple ideologue. It's unseemly in view of your otherwise excellent handling of things here.

7. At last: you point to an actual error I made: when I made the assumption (in haste, I now admit) that Apple is "failing to cross that particular Rubicon." Correcting myself: While Apple is rightly and properly defending its market rights in the Psystar case, they still show (by my previous bringing of facts) that they have no interest in entering the lower tier market. Despite that this is exactly how they might thwart the Psystar-charlatans and make money doing it.

In the hope my reply has cleared up your objections to my post,
Best Regards,
MacPro2007

[dizzle]

On the other hand, I also realize that for any given forum one has to be realistic about the primary audience. While you have an interest in law this is not a board for legal professionals and most of the forum regulars are interested in technology and the Mac, not law. Therefore, the mostly technical posters that frequent these boards are not going to spend hours reading through briefings written in legalese regardless of their position in this matter or any other issue related to the Apple and legal proceedings. I can understand that such things are of interest to you, but the average person here is no more inclined to read through legal documents than you may be to read through technical white papers. In either instance, we are inclined to read secondary sources that summarize the issues for a general audience.

The problem is that people are opining on the law. Ignorant opinions are inexcusable IMHO. As far as technical white papers, I just wrote on the jailbreaking DMCA issue. I read everything, including the white paper which was sourced by the EFF.

http://news.worldofa...eakers-to-jail/

If you are interested. I hold myself to the same standard. Notice how late I am to that story. Why? I told my editor I would not write on something until I educated myself on the topic. I have turned down some sweet third-party reviews because I knew I was not qualified.

So yes when MacPro2007 opines on the issue of the low-end Mac market, sure, one does not need to read the filings to do that. But if one is going to claim Apple is legally wrong, I expect that person to have some knowledge to support that.

BTW MacPro2007, I disagree that Apple needs to enter that market. Sure it might stop punks like Psystar, but it simply isn't their "brand." They are a boutique market. It has served them well.

And you dissed The Steve!!!!! I am going to cry all night.

[dizzle]

Now in all seriousness, I have some serious misgiving about the business ethics of Apple's PR department. I am reserving judgment for the time being, at least as it concerns the health issue, but it appears they lied about the layoff of 50 corporate sales force.