By Neil Hughes
Published: 03:40 PM EST (12:40 PM PST)
Apple this week requested a permanent injunction against clone Mac maker Psystar that would prevent it from selling machines with Mac OS X and assisting others to install the operating system on unauthorized machines.
In a filing with Judge William Alsup made Monday, Apple asserted that it is entitled to a permanent judgment against Psystar under the U.S. Copyright Act and Digital Millennium Copyright Act. Apple has argued that Psystar's continued business will irreparably harm Apple, and that Psystar has also spawned other infringers by "trafficking in circumvention devices."
In October, the company began to
license its virtualization technology to third-party hardware vendors with a product named Rebel EFI. The Psystar OEM Licensing Program intends to allow manufacturers of Intel machines other than Apple to run Mac OS X 10.6.
Apple also said that the amount of damages that the Florida corporation is capable of paying are inadequate. The filing alleges that Psystar's costs exceeded its revenues in both 2008 and 2009, and the value of its assets, according to
its bankruptcy filings, are less than $50,000.
"Even if Psystar could pay damages, the harm to Apple's brand, reputation and goodwill is unquantifiable," Apple said.
The filing includes an affidavit declaration from Phil Schiller, Apple's senior vice president of Worldwide Product Marketing. Schiller
found himself at the center of the Psystar controversy when the Florida company accused him of being "unprepared" for testimony. Schiller met with Psystar's lawyers for a deposition that Apple alleged was "nothing more than an effort to harass" him.
Schiller's affidavit filed this week attempts to convince the court to side with Apple, based on the logic that it would be a waste for Apple to have to file another suit.
"So long as Psystar continues these practices, the harm to Apple and its brand will continue," he said in the affidavit. "I believe Apple should not be required to file a new lawsuit to stop Psystar from infringing Apple's intellectual property each time Apple releases a new version of Mac OS X. Requiring Apple to file multiple lawsuits to stop the same infringing conduct would be unfair, expensive, and a waste of the Court's and the parties' resources."
A motion hearing has been scheduled for Dec. 14 in a San Francisco court.
The tide of the lawsuit officially turned in Apple's favor last week, when the Mac maker won a number of decisions in a
preliminary judgment from Alsup. The court ruled that Psystar infringed on copyrights owned by Apple in order to place Mac OS X on unauthorized computers built and sold by the company. In addition, they were found to be in violation of the Digital Millennium Copyright Act by circumventing Apple's protection barrier that prevents installation of its operating system on third-party hardware. The decision came after both parties
requested summary judgments.
