Court papers reveal that the day before Thanksgiving Apple added new charges to the five-month old federal lawsuit against mac-clone maker Psystar. The new charges claim that Psystar, along with ten John Does, violated the Digital Millennium Copyright Act (DMCA) by bypassing copy-protection mechanisms used by Apple to protect Mac OS X.
Through this motion, Apple seeks leave to file its Amended Complaint pursuant to Federal Rule of Civil Procedure 15(a) and this Court’s November 7, 2008 Case Management Order. Apple’s Amended Complaint, attached hereto as Exhibit A, adds a Digital Millennium Copyright Act claim, additional factual allegations relating to Apple’s previously asserted claims and Doe defendants. The DMCA claim is based on new information that Apple has learned since the filing of its original complaint.
14. In August, 2008, without authorization from Apple, Psystar began distributing a "restore disk" which allows for the installation of Mac OS X, in violation of the terms of the Software License Agreement governing the use of Mac OS X software and Apple's intellectual property. On information and belief, without authorization from Apple, Psystar intentionally provides specific instructions to its customers that allow customers to install Mac OS X software on non-Apple-labeled hardware, in violation of the terms of the Software License Agreement. On information and belief, Psystar also provides technical support and assists its customers to install Mac OS X software in violation of the terms of the Software License Agreement.
15. On information and belief, in fall 2008, Psystar worked to develop a laptop product that runs Mac OS X and in October, 2008, Psystar announced that it is planning to sell in commerce additional computers, servers, laptops, and/or hard drives that are preinstalled with or which will run a modified, unauthorized, version of Mac OS X operating system, including but not limited to a product referred to on Psystar's website as the "mobile Open Computer."
45. Defendant has illegally circumvented Apple’s technological copyright protection measures that control access to Apple’s Copyrighted Works.
46. Defendant has admitted that Apple’s Mac OS X normally “will not operate on anything other than Apple-labeled computer hardware” but that Defendant has “developed [its] own code that allows it to operate on a non-Apple-labeled computer system” and that such code overrides or gets around Apple’s embedded codes.
47. Apple is informed and believes, and on that basis alleges, that Defendant’s “code” is used to circumvent a technological protection measure since it avoids, bypasses, removes, descrambles, decrypts, deactivates, or impairs a technological protection measure without Apple’s authority for the purpose of gaining unauthorized access to Apple’s Copyrighted Works.
48. Apple is informed and believes, and on that basis alleges, that Defendant has manufactured, imported, offered to the public, provided or otherwise trafficked a product, device, component, technology, software, or “code” ("the Circumvention Devices") that are primarily designed or produced for the purpose of either circumventing Apple’s technological protection measures that effectively control access to Copyrighted Works, or allowing third parties to access Apple’s Copyrighted Works without authorization.
49. Apple is informed and believes that that the Circumvention Devices have only limited commercially significant purpose or use other than to circumvent a technological protection measure that effectively controls access to Copyrighted Works, or are marketed by Defendant for use in circumventing a technological protection measure that effectively controls access to Copyrighted Works.
50. Apple is informed and believes, and on that basis alleges, that Defendant has realized profit by virtue of its circumvention of Apple’s technological protection measure and trafficking in circumvention devices.
51. Apple has sustained economic damage as a result of Defendant's circumvention of technological protection measures and trafficking in the Circumvention Devices in an amount to be proven at trial.
52. Apple is entitled to recover the actual damages it has suffered and/or any profits gained by Defendant that are attributable to its circumvention of access controls and trafficking in the Circumvention Devices pursuant to 17 U.S.C. § 1203(c)(1). Alternatively, Apple is entitled to the maximum statutory damages allowed under 17 U.S.C. § 1203(c)(2). Apple will make its election at the appropriate time before final judgment is rendered.
53. Pursuant to 17 U.S.C. § 1203(b), Apple is entitled to an injunction against Defendant's continuing circumvention of access controls and trafficking in the Circumvention Devices.
54. Apple is further entitled to recover its full costs and reasonable attorneys' fees pursuant to 17 U.S.C. § 1203(b). [emphasis added]
This reads to me like Apple has finally grown weary of Psystar continuing to sell Mac clones and is looking at the DMCA as a way of putting a stop to this through injunction.
New filings available here: Filing 35_1 (PDF 25KB) | Filing 35_2 (PDF 955KB)