Dear David,

I am in receipt of your letter. You are correct -- the general idea of appellate review is that the issues of fact are what they are, and if they are to be overturned it is on issues of law. If the court got the law wrong, the appellate court can remand or correct the issues. There's a burden to overcome, however.

In the case of a disposition of a matter by summary judgment (i.e. there was no trial and, at the request of the parties, the judge skipped right to judgment), I believe they review "de novo" at which point they can find issues of facts themselves. But the record is there, and it's not likely to change.

The circuit court is bound by precedent and statute just as much as the trial court is. No court makes law or pushes some kind of overt agenda, despite the fact that it's currently fashionable to lob that accusation when a court doesn't rule the way one would like. The ninth circuit (the circuit in which the Northern District of California sits) is known for being a little....out there at times, but remember you're talking about lawyers -- the most stick-in-the-mud people you'll ever meet. When the turtle moves faster than the snail, the snail thinks the turtle is a rocket ship.

This case doesn't really bring up any truly novel ideas, and very little attracts the attention of the Supreme Court. They take, what, less than 1% of the cases that petition for review? They're not interested in correcting legal wrongs, they're interested in making sure the legal landscape stays balanced and effective as an overall matter. Unless the case brings to light a conflict between two circuits or brings up gigantic issues of law to be handled as a legal policy matter going forward (and enough justices are willing to risk the outcome to wrangle with their peers and congress), the Supreme Court denies certiorari. You should see what they turn down.

Many cases just stop there that have obvious problems or contain a party that is aggrieved. Lawyers will frequently grasp at straws and try to spin a law in a new way in order to muddy the waters. But very few really push the envelope in any interesting way, and even fewer challenge the legal landscape in a way that would attract the attention of the Supreme Court. And even fewer attract that attention while providing a purpose for enough justices to make it to the docket.

And let's not forget, Psystar is a business. It's not going to appeal simply on the principle of the matter. This is not some issue of civil rights or some individual matter that cuts to the heart of something deeply personal. If Psystar can't get what it needs out of this court, its creditors will shut it down faster than you can say "hackintosh." It's not inherently interesting to them whether or not Psystar was an purchaser or a licensee of Mac OS X, or whether installations of an operating system from the original DVDs are legally distinguishable from duplicated disk images from an imaging station.

With best regards,

Barrister TUAW, Esq

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