Another week, another instalment in the Apple vs. Psystar soap opera. Last week, we left off when Apple was accusing Psystar of destroying evidence, and even though we had a blunt response to El Reg in which the clone maker denied ever having done such a thing, we did not yet have an official court filing from them. Well, we do now.
When it comes to the destroyed evidence, Apple focusses on three pieces of non-Apple and non-Psystar code Apple allegedly found on Psystar production machines – namely, dsmos.kext, AppleDecrypt.kext, and Netkas. However, Psystar alleges that those pieces of code were never part of any Psystar production machine at all. “None of these files have ever formed a part of the Psystar system; have been necessary to run a Psystar computer; or currently exist in any form on Psystar production machines,” they state, “Nor has Psystar ever possessed or viewed the source code to dsmos, AppleDecrypt, or Netkas.”
Still, the clone maker offers an explanation for why said code could have ended up on certain machines. Even though Psystar makes use of “OpenCojones” to “[facilitate] the decryption by OS X of certain binaries licensed to OS X users”, Psystar claims that they have, in the past, “downloaded and evaluated” binary versions of similar tools, more specifically dsmos and AppleDecrypt. However, these last two have never been part of any official Psystar product, but – and here comes the catch – they may have still, accidentally, ended up on master copies of the software Psystar installs, and that’s how Apple may have found them.
So, when Apple asked for the source code of the tools Psystar uses, Psystar only produced the code to OpenCojones, and not those of possible other, similar tools. “But Psystar never deleted or failed to produce the source code for dsmos or AppleDecrypt, because Pystar has never possessed or even viewed that source code,” the clone maker explains, “The two kernel extensions – dsmos and AppleDecrypt – are widely available on the internet (see Exhibit A) in binary form and can be downloaded by anyone.”
An interesting aspect of this story is that even though Psystar denies having used Netkas, the company used to have an open source page which gave credit to Netkas. It is important to note that Psystar was using an old version of Netkas’ code, from before he changed the license to not allow commercial usage.
Furthermore, Psystar states that they have not kept copies of every master hard drive image used on Psystar machines; more specifically, a few small changes were made in the 10.5.4 image during its production run, and not every copy was saved properly. As such, they cannot be handed over to Apple. “At no point did Pystar take affirmative action to either destroy or not preserve these intermediate master copies,” they explain, “Rather, Psystar innocently failed to initiate new measures to preserve certain of its electronic data.” According to Psystar, their previous legal team never advised them to do so.
As Groklaw notes, this is no longer a normal lawsuit. Sadly, Groklaw has to go all black helicoptry by suggesting Microsoft is somehow behind it and that it’s all related to SCO.
In any case, this is no longer a simple case, and it doesn’t seem like we geeks will get any decent answer out of this case about the idiocy of Apple’s – and other companies’ – EULAs. Psystar is making a bit of a mess out of all this, and Apple is of course trying to steer the case towards the DMCA and possible copyright infringement.
Sad.
I agree that this has become a bit of a circus, and psystar does not seem like a well-run company – at least not in safe business practices.
Anyway, I have this itch that I cannot scratch regarding the honesty and forthrightness of Psystar. Apple is obvious regarding their motive, but Psystar just seems a little shady regarding their own code (is it really theirs), missing documents, just… I don’t know, they just seem to raise more questions about themselves with every phase of this lawsuit.
http://news.worldofapple.com/archives/2009/08/25/apple-v-psystar-co…
You can all now go back to your regularly scheduled fantasies that Psystar is in any way legitimate.
Right, because no legitimate companies have ever had to pay sanctions… $5k? seriously?
I’m confused. Are you saying that Psystar is an illegitimate company but the sanctions are a not big deal or are you saying that Psystar is a legitimate company but sometimes legitimate companies have to pay sanctions. To me, it sounds like the former.
Which is strange contention because legitimate companies rarely have to pay sanctions directly. Their legal firms might, on occasion, but for a legitimate company to do something that irritates a judge so much that he goes after the company itself instead of their counsel … well, it isn’t much of a legitimate company then.
So, now that the judge is fining Psystar, and all the relevant case law is against them, I am eagerly awaiting the new osnews fantasy of how Psystar is going to come from behind and win. I’m sure it will be very exciting.
You fail at sarcasm.
Paying sanctions because of this stupid discovery dispute is nothing. You’re making a mountain out of a molehill, and the case will continue anyway.
Weren’t Microsoft’s penalties upped to the tune of $40 Million in the i4i case because of continual misrepresentation of the law? Seems like a judge slammed a legitimate company, not their counsel, because they irritated the judge.
I’m just curious about the laws in this case: The trial seems to be getting way off track, and it’s not going to address the issues it was started for. Isn’t that usually a mistrial? You can’t charge someone with theft and then find them guilty of murder in the same trial can you? If evidence of a murder comes to light, that’s a new charge, and a new trial isn’t it? I’m certainly no lawyer, so I’m not trying to be sarcastic here, I really want to know.
IANAL, but if Psystar actually destroyed evidence, then it’s completely relevant to this case.
My question is: Psystar is by no means a big bussiness so the fact that documentation gets lost doesn’t surprise me. Can this really be used against them in a trial? Can a bussiness be penalized because they fail at keeping track of their work?
Now, those files that got distributed “by accident” are a different thing alltogether…
As far as I can tell from the article, they’re not being pinged for losing documents, but rather the loss of the master images of their computers.
There are countless laws requiring corporations to keep various documents, in Australia for up to 5 years!
However losing or deleting master disk images I think would be pretty much up to the company, as it is just a purge of outdated data.
I thought they were talking about development images, test one’s before the final master was created. If you have to keep all development images then that is a huge store of data to keep track of.