The Unofficial Apple Weblog (TUAW)

Dear Auntie Barrister TUAW,

I've been following your coverage of the Psystar case and I'm a little confused by the discussion on your last post. I've always thought the original case to be one of fact and an appellate case one of law. This, to me, would mean that in the appellate process they would not argue the case again at all. It would all be based on if the legal decision in the original case was rendered improperly.

So all the sturm and drang would be gone, No?

With love & kisses,

David

Read on for Barrister TUAW, esq's response

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Yesterday, Judge William Alsup, United States District Judge for the Northern District of California, dealt Psystar a crushing blow in its ongoing litigation with Apple over whether or not Psystar could market and sell non-Apple computers running modified copies of Apple's operating system. If you're not familiar with the circus case, I refer you to, well...grab a coffee and click here. The two companies, embroiled in litigation since early last year, recently completed pre-trial discovery and each filed cross motions for summary judgment.

Judge Alsup put the ultimate hurt on Psystar when it granted Apple's motion for summary judgment and denied Psystar's motion for the same. In a sweeping order (courtesy Groklaw), the court agreed with Apple's take on the case and dismissed all of Psystar's defenses, both on the merits and for having waived and failed to properly plead.

The end result was a dramatic and startling court order in an ongoing series of dramatic legal squabbles between the two companies. And at least one of Psystar's attorneys saw this coming. The litigation doesn't end here; various issues still remain for trial such as breach of contract and trademark infringement, but Psystar has been gutted. The court is clearly unsympathetic to Psystar's core position and while damages on the copyright issues falling in Apple's favor in the order have not been ruled upon, it would probably behoove Psystar to start looking under the couch cushions for spare change.

A hearing is scheduled for December 14 on the remaining issues and for damages.

Read on for a more detailed analysis of the court's order....

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At a media preview event yesterday designed to create buzz for Apple's newest store opening in Manhattan, Ron Johnston, Apple's senior vice president of retail announced that Apple would be opening 40-50 more Apple retail stores in the coming year.

One focus will be on opening larger stores overall. While this is great news for anybody who has been frustrated by the zoo that is any Apple store on any given day recently (careful what you wish for when you wish for your platform of choice to finally get the market share it needs to ensure continued development), the bulk of these stores will be overseas in cities like Paris, London, and Shanghai.

So if you live in Paris, London, or Shanghai, congratulations! You, too, will have a store you can try to shop in when all you want is a new set of earphones for your iPhone and you can't get anywhere near the display.

Paul Carton, Director of Research at ChangeWave Research, reported yesterday at investorplace.com that Apple iPhone is gaining steadily on BlackBerry's market share, a great feat considering BlackBerry's entrenched position in the business sector. iPhone market share is now a heady 30%, still behind BlackBerry's 40%, but RIM products are not gaining new users at nearly the same rate. As for Palm? Well, the Pre seems to have leveled out the free fall, but there's nothing terribly encouraging about the data. My guess is they are still pining for those halcyon days of 2006 when Palm was king.



The smartphone market itself is rising; according to Mr. Carton's research, a full 39% of consumers now own some kind of smartphone. Compare that with last summer, when the smartphone market was just cracking 25%.



The good news for Apple is that RIM's stranglehold on the smartphone market appears to be loosening, and with so many consumers still to reach, Apple has the momentum. CNNMoney.com characterized Apple's market gains as putting Apple within "striking distance" of BlackBerry. What's driving the momentum? Customer satisfaction. Among those who plan to buy a smartphone within the next 90 days, 36% plan to buy an iPhone. And among current users, fully 73% of them are satisfied with the device, compared with only 43% of BlackBerry users.



Mr. Carton notes that BlackBerry is planning product launches this year, and Apple has already released the 3GS. If Apple holds true to its history, we won't see a significant upgrade to the phone until next June. Either way, Apple has carved itself out quite a niche and the iPhone can no longer be dismissed as a toy to BlackBerry's business device.

OK, so it's not nearly as exciting as a shiny new iMac or a Mac mini server, but the Airport Extreme Base Station and Time Capsule also received a mild update today. Both are now certified to the 802.11n specification (not draft-n), and along with this certification come improvements in antenna design, which promises 50% better Wi-Fi performance and 25% better range.

So, not earth-shattering, but for those of us who rely on complex Wi-Fi setups, having the extra range and more optimized antenna design may make or break the setup. And with many more non-geek homes adding devices that stream media in places where they never thought they'd ever need a wired network connection, better throughput can make all the difference.

Price is still $179 for the AEBS, $299 for the 1TB Time Capsule, $499 for the 2TB Time Capsule.

Apple and Psystar have been embroiled in litigation for quite a while now. At the core of the dispute: Psystar modifies Apple's operating system software so that it can run on its clone machines. It then sells its computers with Mac OS installed to, well, anybody who wants one. As you can imagine, this does not make Apple happy.

Anybody familiar with The Great Clone Crackdown of 1997 will tell you that Apple likes to keep a very tight grip on any device that presumes to run its software. Apple points out that Windows machines are a mishmash of often conflicting hardware and suffer from quirks and errors and incompatibilities that such a set up can bring.

So Apple's cadre of lawyers descended quickly on Psystar. In July of last year, the company sued Psystar for copyright and software licensing violations, quickly amending its lawsuit to additionally charge Psystar with violations of the Digital Millennium Copyright Act (DMCA).

And there was much lawyering.

More than a year later, now that discovery has been completed, the two parties have each filed for summary judgment, which, in effect, asks the judge to rule in favor of the filing party because enough evidence has been shown that either makes or breaks the lawsuit.

Psystar's argument, and the one covered in its motion, somewhat relies on the "first sale doctrine" which says that any purchaser of a copyrighted product can then take that lawfully-made copy and sell it, so long as no additional copies can be made. For its part, Apple says that when one "purchases" its OS, you are only purchasing a license to use the product. Its Software Licensing Agreement (SLA) quite clearly states [PDF link to Snow Leopard SLA] that the user cannot modify the software to run on a non-Apple system.

The idea that what you are purchasing is a license to use the product is pretty commonplace among software manufacturers, because, the argument runs, you can cut any software company's profits off at the knees if every purchaser became an owner with free rein to redistribute the software. Apple states that no software company in its right mind would put the money into research and development of any software product at all if that were the end result of bringing its product to market. Groklaw suggests this could have ramifications for FOSS and and the GPL.

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Hong Kong-based China Unicom released details today concerning its August announcement of a three-year deal to sell the iPhone. Sales of the iPhone will begin in October, dovetailing with its October 1st 3G network launch, and will be priced at approximately 5000 Yuan, or around US$730. The iPhone will be sold in both Apple retail stores and through Unicom's own network of stores, and plans for the iPhone will range from 126 Yuan to 886 Yuan, or about US$18 to US$130. There will also be a handset subsidy, depending on the chosen plan above 126 Yuan, which maxes out at 4253 Yuan, or about US$623.

China Unicom competes heavily with the larger China Telecom, which is believed to be in negotiations to distribute the Palm Pre.

Details here (in Chinese.)

In the wake of our earlier post on possibly time-bombed Time Capsules, there was some confusion as to whether or not the Time Capsule would be covered under any AppleCare Protection Plan you might have. The suggestion was made in the comments to Mel's post that extended coverage would apply, but we decided to double-check.

In short, it's true. if you have an AppleCare Protection Plan that is currently in-force for a Mac that you own, your Time Capsule is covered under that agreement. In fact, there is no need for the Time Capsule to be on the same receipt as the computer you purchased. As long as the Time Capsule is owned by you and "in use" along with the covered Mac system, it is covered along with the product for which you have an existing AppleCare Protection Plan.

Of course, this does not cover any damage you inflict on the Time Capsule, and it must not be hacked or used in any way other than it was intended. In other words, don't use your Time Capsule as a doorstop and expect to get AppleCare coverage on it when it breaks.

In addition to the Time Capsule, this "in use" coverage extends to the following products:

• AirPort Extreme Card
• AirPort Express
• AirPort Extreme Base Station
• Apple-branded DVI to ADC display adapter
• Apple RAM modules
• MacBook Air SuperDrive

And, naturally, while coverage does not extend to products that are subject to their own AppleCare Protection Plans (such as an iPhone, iPod, or, of course, another computer) it does extend to a single Apple-branded display if the display was purchased at the same time as the computer you're using it with. Otherwise you need to purchase a separate AppleCare Protection Plan for the display. Clear as mud?

All of the above is contained within the terms and conditions of the AppleCare Protection Plan for North America. In addition to those actual terms, an Apple Genius I spoke with said that coverage also typically extends to Apple-branded hardware on the same receipt as the covered computer purchase, and in general he and his colleagues endeavor to extend the best courtesy they can to their customers when the situation permits. So you may, in fact, receive coverage better than the terms within the agreement itself if you are pleasant, don't yell at the nice Geniuses and say "pretty please." Complimenting their shoes is always a nice touch. They also like chocolate.

If you'd like to check to see what agreements are current, you can click here to check them out, see when they expire, and read the terms and conditions yourself. If your agreement is not registered or is not listed under your Apple ID, you can check by agreement number and computer serial number. Also, if you are not in North America, you can read the terms specific to your agreement here -- many European countries have stronger consumer protections than the US does, and longer warranties may be standard where you live.

We've seen the benchmarks. We've heard from the techno-geeks. According to Apple, Snow Leopard should result in some impressive speed gains, and hefty hard drive space recapture. But does this speed bump actually result in tangible benefits for the average user? Do you really get back a functional amount of hard drive space? I undertook an intentionally low-tech approach to find out, looking at the space on the drive, and using my iPhone's stopwatch function to time various functions before and after upgrade. I took measurements on two computers: a low-end, bare bones white MacBook used lightly as a secondary computer, and a higher-end MacBook Pro used heavily as a primary computer. The white MacBook was generally speedy and efficient before the upgrade, due to the fact that it had very little installed on it. However, the MacBook Pro was bloated and slow due to lots of programs, with problems magnified by years of hard drive image flashes over various computer upgrades, typical of the non-technical business user.

All start up times are true start up times. In other words, I didn't deem the computer to have "started up" until I had full, no-lag control of a fully-propagated desktop. Same went for the programs whose start up times I tested -- none were deemed started up until the program was responding to input and usable. I picked some common programs that I felt reflected typical use. I turned on auto-login to the primary account on both computers to gain timing accuracy. Not all the results are comparable between computers; certain programs were on one computer but not the other. But, in general, the task was instructive.

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Apple products and the bike go together well. They seem to appeal to the same sort of folks: evangelistic, committed aficionados willing to pay any premium, to be brutally honest about it. Oh, and let's not forget, they love to talk at length about these objects of their affection at parties. You know who you are. You've got a copy of Colorado Cyclist in your bathroom.

So it seems like getting the iPhone working for you on the bike would be a no-brainer. And it pretty much is. Here are five apps that I've found I like, most centered around the fact that the iPhone's built-in GPS gives cyclists the kind of on-bike information they want, and the après vélo experience they crave until the next fix, I mean "ride." From the outset, you'll need a bike mount, if you want to take advantage of these apps' functions en route. Otherwise, the iPhone slips just fine into a jersey pocket, and will hold a GPS lock even though a ziploc sandwich baggie. Mount-wise, pickings are slim, but there are a few out there that are relatively low-profile. Plus, battery life can be a problem. Most endurance athletes are out there for hours at a time, and GPS tracking can quickly drain an iPhone battery. if you take care to turn off everything non-essential, you may be able to get that whole ride in. Or, you can do what this guy is doing; he's building an iPhone bike mount with power. Maybe now the iPhone can make its RAAM debut.

On to the apps!

1) Ascent Mobile. I have a warm place in my heart for Montebello Software's Ascent. If I harken back to the old days, Garmin could barely be bothered to come out with a Mac version of its then-popular TrainingCenter software and had shunted all its Mac users to MotionBased. Ascent came through with elegant desktop software that tapped into the data side of the bike geek. Finally, a place to really churn through the routes and elevation, while watching your heart rate, speed and cadence throughout that quad-shredding ride. You can zoom right into your loop post-ride and slice and dice the data to see any element of it you like. What's more, Ascent really made it look good. By the time Garmin came out with its watered-down and feature-hobbled Mac version of TrainingCenter I was so over Garmin software. I used it strictly for the route-upload function and kept everything else on Ascent, with an online version stored on MotionBased for route sharing (though I've since moved from MotionBased to RunningAhead now that RA has GPS upload.) So I was thrilled to hear that Ascent was coming out with Ascent Mobile, $9.99US.

Ascent Mobile gives you all the relevant data you could want on a ride, plus lots of ways to check out your ride right on the iPhone afterward. Best of all, it naturally syncs with the desktop version of Ascent, sold separately. Can I let go of my trusty Garmin Edge 705? Quite possibly. We'll see where this little relationship goes. (Oh, and yes, Erica, it gives your max speed.)

2) B.iCycle. Ok, maybe you're more of a "just the facts, ma'am" kind of rider. We've got one for you, too. B.iCycle, $9.99US, is a simple, GPS-based tracker that gives you some easy stats during your ride. It saves your tracks for later viewing on a map, and gives you all of the essential features you might want, without too much feature clutter. It has a nice map view for on-bike routing, and a way to email your route to yourself afterward. Think of it as a very inspired bike computer.

3) Bicycle Gear Calculator. Ok, grease monkeys, this one is for you. It's obviously not intended for on-bike use, but half the fun of the sport is the tinkering you get to do with your bike while you're not on it, talking about it at parties, or relentlessly reloading chainlove.com for the next steal. Now you can talk gear ratios with ease. Input chainring size, sprocket size, and crank length and all the relevant math is done for you. Plan ahead for a big hill ride and get your bike properly geared so you look like Laurent, Stefano, or Marco (may he rest in peace) on those hills. $4.99US at the iTunes store.

4) iMapMyRide. iMapMyRide is another GPS tracker, but is borne out of the website mapmyride.com, which is the sister site to mapmyrun.com, a favorite of mine, pre-Garmin Forerunner. The nice thing about this app -- other than the fact that it's free -- is that it is built to work well with the website, which is a great place to discover new routes and make connections with other like-sported people. I can't say the app itself is revolutionary in any way, but if you're already multi-sport and have been taking advantage of the MapMyFitness community-based functions, iMapMyRide may be a useful way to go for you.

5) TrailGuru. I didn't want to leave the mountain bikers completely out of the loop, so here's something for you singletrackers. I'm not entirely sure how this differs from some of the other GPS-based tracking software, but the community associated with it seems to be more interested in off-road use, so you may find that you discover new and interesting ways to tear up the trails near you. It seems to be a fave around TUAW, so I'd be remiss not to mention it. If you have experience with this app, let us know in the comments.

I'm still working on integrating the iPhone into my fitness endeavors. I admit I love my Garmins (yes, I have both the Edge and the Forerunner.) And I can't imagine I'd be brave enough to do with my iPhone what I did with my Forerunner 305: put it under my swim cap at the start of a triathlon. But you never know. If you ever see a fellow race participant with what seems to be a very oddly-shaped head under that swim cap, come and introduce yourself to me.