Apple moves to kill second Psystar lawsuit

Apple last week asked a Florida federal judge to kill a lawsuit filed in August by Psystar, saying that the case is a retread of the one in California that has the Mac clone maker on the ropes.

Failing an outright dismissal, Apple demanded that U.S. District Court Judge William Hoeveler transfer the lawsuit to the California federal court that since July 2008 has supervised the legal battle over Psystar's practice of installing Mac OS X on its machines.

"This case is a transparent attempt by Psystar Corp. to relitigate the same issues that Psystar and Apple have been contesting before the Honorable William Alsup on the Northern District of California for almost a year and a half," Apple argued in its motion for dismissal, which was filed with Hoeveler on Nov. 24.

Apple fired the first salvo in the long-running case by suing Psystar in July 2008, accusing it of violating its copyright and software license. Earlier this month, U.S. District Court Judge William Alsup gave Apple a huge win when he ruled that Psystar had violated Apple's copyright as well as the Digital Millennium Copyright Act (DMCA) when it installed Apple's operating system on its Intel-based computers.

Last week, Apple also asked Alsup to shut down Psystar's Mac clone business and make the Florida firm pay $2.1 million in damages. Alsup has not yet ruled on that motion.

The Florida case administered by Hoeveler was initiated by Psystar in August 2009, when it claimed Apple illegally ties Mac OS X 10.6, aka Snow Leopard, to Mac hardware. In late October, Psystar revised its complaint to ask Hoeveler to rule that its business was legitimate, and to stop Apple from saying otherwise. It was the second lawsuit filed by Psystar in the case; a 2008 suit that accused Apple of breaking multiple antirust laws was tossed out by Alsup more than a year ago.

In its motion to Hoeveler last week, Apple argued that there were no issues in the case -- including Psystar's focus on Snow Leopard -- that have not already been discussed, and in some cases decided, in the California lawsuit.

"This case is the inseparable twin of the California action, as the legal claims and issues, the technology, the parties, and most of the facts are virtually identical," Apple said in the Nov. 24 motion. "First, the Mac OS X technology at issue in both cases is substantially the same. Apple regularly releases upgrades to Mac OS X to add new features, but the basic structure of Mac OS X remains the same. Psystar's assertion that it 'expressly wishes to make all future versions of OS X ... part of this case' is a concession that there is sufficient similarity among the various versions of Mac OS X to justify their consideration in a single lawsuit."

Apple also said that the technology it uses to lock Snow Leopard to its own hardware was the same as that used to tie Mac OS X 10.5, aka Leopard, to Macs. In his mid-November ruling, Alsup said that Psystar illegally circumvented that technology in Leopard in order to install the operating system, which was replaced by Snow Leopard three months ago.

"There is no reason why these legal determinations [by Alsup] should be revisited in another court, and Psystar should not be permitted to seize upon Apple's release of a new version of Mac OS X as an opportunity to forum shop," Apple said in its motion.

Apple asked Hoeveler to dismiss Psystar's Florida complaint, which Psystar could then refile with Alsup's California court, or to transfer the case to Alsup.

In September, Alsup denied Apple's motion to stop the Florida case, and took the opportunity to chide Apple over the timing of Snow Leopard's release. In his ruling, Alsup told Apple that it had to petition Hoeveler if it wanted Psystar's lawsuit terminated or transferred.

Apple did just that last week, when it said Psystar was using Hoeveler's court to put off a final judgment. "The true purpose behind Psystar's attempt to move the parties' dispute to Florida is to forum shop and to buy Psystar more time to continue its ongoing acts of infringement. Given the seriousness of Psystar's continuing unlawful conduct, it is essential for Apple to stop that from happening and obtain a final, fast and comprehensive resolution of all of the parties' claims. The Northern District of California is best positioned to provide that determination."

The California case is scheduled to go to trial in January 2010. On Dec. 14, however, Alsup will hear oral arguments on Apple's request for an injunction that would halt Psystar's Mac clone sales.

Psystar did not respond Sunday to a request for comment.

Copyright © 2009 IDG Communications, Inc.

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