Say what you will about Psystar, the community that continues to sell computers running OS X, despite bankruptcy, constant legal problems with Apple, and a case so slim even their own legal team gave up. Sure, they're out of reason, out of room, and way out of line, but at least they've got plenty of cojones, as the locals say.

Why else would they say the things they do in this Miami Times article? Our friends at Engadget lay out just what's wrong with that piece, from Robert and Rudy's Pedraza's claims that they "cracked the code" behind OS X, to the suggestions and hints that what they're doing just might not be a contract violation. Whether or not Apple's EULA is enforceable is, of course, one of the arguments at issue in Psystar's case, even though plenty of shrinkwrap licenses have been upheld in court before. Apple's also got a copyright infringement claim against Psystar; this will be one of the topics at today's summary judgement hearing in California.

But the kicker in all this is the statement that Rudy Pedraza makes about the famed Hackintosh scene -- a community of people who persist in running OS X on hardware and devices that it wasn't supposed to run on (not nearly as much of a problem to Apple, as they don't sell the capability like Psystar does, but still not technically allowed by the license agreement). Surely, you might think, this is where the Pedrazas could find friends; surely, despite all of the commotion they're causing, this is the place where they could find a kind ear and a helping hand. Nope. From the article: "The first thing you have to do is unlearn everything you've read online about how to make this work," Rudy says, "because it's all wrong."

Nice. Way to alienate the one group, the one community that might still support your cause. I wish Psystar the best of luck -- not, mind you, because I need to buy or run any of their machines (I buy Apple because I appreciate both the hardware and the software), but just because their story continues to be so darn entertaining.

Apple has a new General Counsel and senior vice president on its executive team. Bruce Sewell, who held the same position at Intel Corporation, will be joining Apple in place of Daniel Cooperman. Cooperman, who has been General Counsel and senior vice president of Legal and Government Affairs for the past two years, is retiring at the end of September.

Apple CEO Steve Jobs was quoted in a press release as saying "We are thrilled to have Bruce join our executive team, and wish Dan a very happy retirement. With Bruce's extensive experience in litigation, securities and intellectual property, we expect this to be a seamless transition."

Sewell has been responsible for leading Intel's legal, corporate affairs, and corporate social responsibility programs, managing a team of attorneys and policy professionals located throughout the world. In his new role at Apple, Sewell and his team will defend Apple against attacks on the company's intellectual property. We'd like to give Mr. Sewell one big piece of advice for his new job -- read up on the Psystar case as soon as you can.

Just before the release of Snow Leopard, Uncle Walt Mossberg did the unthinkable by writing that the $29 Leopard upgrade:

"will work properly on ...Tiger equipped Macs, so you can save the extra $140."

We reported that as well but didn't have all the facts verified at the time. Gizmodo likened Walt to a pirate and guessed that he'll have to apologize or at least clarify his position.

Now, after buying the family edition, I have done every sort of installation known to man and have the facts. It seems that Walt was right, but he didn't tell you the whole story. You can take the $29 upgrade disc and install it over Leopard, over Tiger, or over a freshly formatted hard drive. The disc doesn't care. Regardless of whether you pay $29, $49 or $169, you get the same disc with the same capabilities.

But just because you have a disc, if you use it for a purpose not intended upon purchase, you are breaking your agreement with Apple. The contents of the disc are the property of Apple and how that intellectual property is to be used is determined by the EULA (End User License Agreement) that you agree to before installation.

For each method of purchase the EULA is different. For the $169 package which includes iLife '09 and iWork '09 this is what you agree to:


Clear enough. You can use it on one computer. It doesn't say that you need any operating system to start with. I would assume that you can put it on as many hard disks as you want, as long as you only use those hard disks with one specified computer.

'Twas the night before Snow Leopard, and all through the 'net, Apple was sending takedowns for previews of software that technically wasn't out yet... Snow Leopard is almost out, but "almost" isn't quite good enough for Apple. Apparently they sent a last-minute takedown notice to The Register for posting their Snow Leopard preview a little early, and The Register is declining to do anything about it.

Similar previews have appeared around the 'net (our friends at Engadget have published their own review), and while Apple claims that images and descriptions in the post are still confidential, The Register disagrees, saying that many features of Snow Leopard were seen and known way before this week.

So. Will Apple be angry? Will The Register be locked out of any future events (actually, we can identify with that one, given our metaliveblogging chops here on TUAW)? Will they care? It does seem a bit strange that Apple has targeted them with a takedown -- we doubt, as The Register suspects, that Walt Mossberg will be getting any takedown notices. Then again, maybe Apple was just trying (or their lawyers were just aiming for some extra legal fees), and they won't bother enforcing what seems like a shaky case anyway.

Most likely Apple will pass. We'll probably hear them exclaim, however, though it may be less staunch: Merry updates to all, and to all a good launch!

Over the weekend, The Mac Observer posted a detailed analysis of the latest chapter in the Psystar saga. It's taken me a few days to come down from vacation and try to wrap my brain around the legalese, but here's the condensed version of what happened.

Psystar was granted its motion to dismiss its Chapter 11 bankruptcy filing in the State of Florida. The judge in the case must feel that Psystar will either try to file for Chapter 7 (liquidation) bankruptcy or try to delay Apple's case in California against the clone maker (now scheduled to start on January 11, 2010) with another Chapter 11 filing. Why? The judge has stipulated that Psystar will not be granted an automatic stay in the case if they file for Chapter 7 bankruptcy, and has blocked Psystar against filing Chapter 11 again for another six months.

Translation: "Hey, Psystar! You can't use bankruptcy to weasel out of Apple's case against you."

We don't know if Psystar has been selling a lot of Mac clones or if there is a secret admirer with deep pockets lurking in the wings, but by removing Chapter 11 protection, creditors who are owed money can now file suit for financial relief. Those creditors include Psystar's previous law firm, Carr & Farrell, which is owed about $88,000. One of the other companies that may line up for compensation could be Apple, which may very well be owed payment for shrink-wrapped copies of Mac OS X that were purchased by Psystar.

More legal moves will undoubtedly unfold in the months leading up to the January court date, so keep your browser pointed to Court TV TUAW for updates about this seemingly never-ending battle.

It's official. The iPhone has come into its own in the legal world. It took a little time, and lawyers are notorious Luddites (you can pry the WordPerfect out of their cold, dead hands) but they do like Bright Shiny Objects, and nothing fills the lapel pocket like an iPhone.

The iPhone finally cracked the law-firm standards stranglehold by virtue of its compatibility with Microsoft Exchange, which freed lawyers from the non-choice of "would you like a Blackberry, or a Blackberry?" Granted, the Blackberry still seems to have a better handle on business needs, but for some, the iPhone is worth getting to know.

It should go without saying -- I will say it, though -- many of the productivity apps that are useful to everybody are useful to lawyers, so two of these apps are not strictly law-related. (See if you can spot them! It's a brain teaser and a post!) Also, certain obvious apps don't exist yet, such as a standalone LexisNexis or WestLaw legal research app. That said, the web will suffice for now. In fact, though I've artificially constrained myself to only standalone applications, the iPhone really shines for accessing web research sites given that Mobile Safari is (mostly) a full-featured browser.

So, without further ado, here are five apps that give a glimpse into what the iPhone can do for attorneys.

1) DataViz's DocumentsToGo. Nobody expects to write a brief or a memorandum from start to finish on an iPhone (though I am waiting for a good enough voice-recognition app so that getting a draft started is feasible), but any legal writing usually goes through more revisions than your average pre-1.0 beta software. Often this happens right as you were planning on leaving for the day.

DocumentsToGo allows you to edit and change documents, as well as email them over Exchange (requires $9.99US Exchange version) to other team members. Of course, iPhone OS 3.0's cut/copy/paste was a prerequisite to making any word processing application workable, but now document editing has become at least moderately feasible. Nothing replaces your desk, covered in open books or a large monitor with LexisNexis or WestLaw opened to 18 different searches, but this gives you just a bit more flexibility and just may save you a panicky trip back to the office at 11:30pm on Saturday night.

Across the pond in the UK, in what may be a bit of a legal "lost in translation," an 11-year-old girl was using her iPod when, according to her, there was a hissing noise and an ominous pop. It rapidly heated, and then allegedly jumped 10 feet into the air. She was left with a melted mass of unplayable music. Needless to say, not usual iPod behavior. (To be fair, you might not be surprised at spontaneous suicidal combustion after asking it to play anything by, say, Paris Hilton, though there's no evidence the girl committed that particular crime against nature.)

She and her father contacted Apple, seeking a refund for the presumably out-of-warranty iPod. Apple apparently agreed to return the purchase price of the iPod, and sent a letter to the family offering the refund, denying overall liability with regard to the incident, and included a standard confidentiality clause in it.

This is where things went a bit off the rails.

The little girl's father went ballistic, refused to sign, and soon enough, there was press coverage. The Times UK covered the incident, complete with photograph of the girl holding her toasted iPod, accusing Apple of slapping the girl with a "gagging order" and attempting to "silence" them, mafia-style. Whoa, there, Times.

1) This is no gagging order. As nice and evil and meaty as such an accusation sounds, a gagging order comes from a court and no court is involved here. It implies that Apple has gone after this family legally, and that there's been a hearing and a decision and a court order. Quite the opposite. This is just a regular, ho-hum contract between two parties, describing the things they want out of each other.

While the family may be shocked they got a letter, from a legal perspective they should be shocked if they didn't get one. Apple doesn't feel like they've done anything wrong and isn't going to start admitting its products are combustion risks by returning money out of warranty, which is exactly what it would do it if gave money to these people without some sort of settlement agreement.

2) A confidentiality agreement is standard operating procedure. Sure, a letter filled with legalese is a little heavy-handed, but hey, the iPod was out of warranty and when a company agrees to give you money it doesn't feel it owes you, especially in a situation such as this one, it can very well request confidentiality you keep your trap shut about it going forward. It's standard practice even when the company thinks it probably does owe you money. No courts are involved, and litigation is spared where the parties would fight over whether or not the money is owed. And when a confidentiality agreement is sought, it's also pretty standard to remind the parties the possible consequences of breaching the agreement.

Remember: no court is involved here and Apple and this family can reach whatever agreement they want. If the family wants an admission of liability from Apple, they remain absolutely free to pursue a lawsuit in which it will be determined whether or not Apple is at fault. And now, of course, having disclosed all the contents of the letter, Apple I'm sure has rescinded whatever refund it offered.

The UK Times has vastly overstated the standard form letter that Apple sent to them when they sought an out-of-warranty refund. I suspect, however, that Apple could have averted this public relations issue had it said, "look, we're happy to give you your money back. We have no idea why that iPod went kablooey. It could be any number of reasons, including many that don't involve us at all. So if you want us to give your money back, we will, but you have to agree not to discuss it. Why? Because that way people won't think we make defective and dangerous products when it's not at all clear that we do, and giving you your money back is good business, not an admission of liability." And then, when a legal-sounding letter shows up in the mail, nobody is shocked.

Last week provided a lot of legal fun for Apple, complete with news of the US Federal Communications Commission (FCC) sending a letter to the company asking for information about the removal of the Google Voice app from the App Store, and word that upstart Mac cloner Psystar has retained a new law firm. Meanwhile, over at the hallowed halls of the U.S. Patent Office, things were afoot that could cause even more problems for not only Apple, but most of the personal computing world.

The first hint of patent madness appeared earlier this week when online auction house eBay filed its Form 10-Q for the quarter ending June, 2009 with the Securities and Exchange Commission (SEC). One of the nuggets of information in the 10-Q was a warning from eBay that its popular voice over IP (VoIP) service Skype could be forced to shut down over a patent licensing dispute.

When eBay bought Skype for US$2.6 billion in 2005, one key piece of patented technology from Joltid Limited was not included in the purchase price. eBay and Joltid signed a licensing agreement, and Skype continued to flourish. Since 2005, eBay has apparently revealed details of Joltid's patented technologies in the course of litigating other lawsuits. Joltid, under the terms of the license agreement with eBay, unilaterally terminated the agreement as a result. eBay has now filed suit against Joltid in the UK, asking that eBay and Skype be declared not in violation of the agreement, and that the licensing agreement be reinstated.

You'll probably see these as soon as you try to update an app or make a new purchase (along with a "This content may not be appropriate for children under 17" warning for some apps). We haven't gone through all the new terms with a fine-tooth comb yet, but it is important to note the following:

items purchased IN an app (like new levels, dresses for virtual dogs, map packs, etc.) may not transfer among devices; our developer friends tell us they are absolutely supposed to transfer, but the effort to make that work is on the individual developer and Apple is simply doing a CYA here in the terms. If you have 2 iPhones with the same iTunes account, you can have the same app on both devices -- but you won't be able to reuse anything purchased in one instance of the app onto the other iPhone, nor are you guaranteed to be able to get all your In App content back if you replace your iPhone.

Also, note that "The Application Provider is solely responsible for In App Purchases." So if Stinky the chihuahua's sweater never makes it into your device, you'll need to hit up the guys who wrote the app for some refund or re-download or... something. It's not 100% clear on how all that will work, since we have yet to get our grubby, unwashed masses' mitts on the system, but Apple is reportedly leaning hard on developers to make sure In App purchasing works as advertised -- while making sure we all acknowledge who's responsible if something goes awry.

If you notice other changes in the T&C, leave 'em in the comments.

As Mike mentioned in the news roundup yesterday, word is going around that the corporate overlords at Apple are planning to build a massive server farm in the state of North Carolina within the next decade or so. How do we know? Because the company is working on getting a few nice tax breaks to go along with the deal, eventually worth about $46 million if Apple fulfills their end of the agreement. Their end of the agreement being a huge investment of a whopping $1 billion (that's over 333,000 Xserves, if that is indeed what they're installing -- and we bet not) into an economy that could probably use it. What exactly will go in there? We aren't sure -- lawmakers say the investment is worth it, and obviously Apple isn't showing their cards.

[Note: the $1B investment figure is not an upfront number, but rather a total investment over the first 9 years of operation. –Ed.]

But the facility, once up and running, will start by employing at least 100 people, so that's a nice start. Google has apparently gone through the same deal with North Carolina recently, though their deal was a little smaller: $600 million investment for a server farm that opened last year.

More backend for Mobile Me? More power for the App Store or a project like it? A giant building full of Cubes running 24 hours a day? Or something we haven't even dreamt of yet?

Say, just for the sake of argument, that you're Psystar. You've been served by Apple for selling (they claim) illegal clones of their machines, and selling their OS (which you claim isn't even copyrighted) on illegitimate hardware. Sure, you've won a minor victory in the battle, but generally, the opinion is that you're a dead company walking -- when a company like Apple not only has it out for you but has pretty legit claims to back themselves up, you could be said to be in trouble. And so, what do you do?

Well if you are Psystar, you apparently release more computers. Determined to stick it to Apple as hard as they possibly can before they're legally wiped off the map, Psystar has announced the release of the Open(3), a desktop running OS X and packing up to a 2.53GHz Core2Quad Q8200 processor, up to 4GB of RAM and 1TB of storage, and all of the other usual options you'd want on a machine like this (6x Blu-ray burner, GeForce 9500GT). Technically, the box starts at $599, but as Engagdet notes, even if you max it out to around $2000, you're still paying less than an equivalent Mac Pro.

This is pretty much the computer retail equivalent of Bugs Bunny kissing the hunter. We can imagine Apple's lawyers steaming from the ears at this point -- here's hoping Psystar gets to have their fun while they can.

Apple has issued a cease and desist letter to Pivotal, creators of Podium, a hands-free iPhone stand - namely over the use of the word "Pod" in Podium.

An excerpt from the cease and desist letter provided to TUAW states that "The term POD has also been adopted and used extensively in the marketplace by consumers as an abbreviation to refer to Apple's IPOD player. The IPOD and POD marks indicate to consumers that a broad range of products, including portable electronic devices, computer software, and related goods and services bearing those marks and marks similar thereto originate from or are sponsored or endorsed by Apple."

"If you look at our product and then look up the word Podium in the dictionary, I think it becomes pretty clear where our branding inspiration came from" said Scott Baumann, president of Pivotal.

Podium (noun)
Etmyology: Latin
Date originally used: 1743 (a good 243 years before Apple was founded)
1: a low wall serving as a foundation or terrace wall: as a: one around the arena of an ancient amphitheater serving as a base for the tiers of seats b: the masonry under the stylobate of a temple
2: a dais especially for an orchestral conductor
Source: Merriam-Webster

The letter also alleges that Podium infringes on Apple's trademark because the stand mimics recent iMac models and that Pivotal's site for the product is also ripping off Apple's brand stylization. The cease and desist also covers Pivotal's currently in-development product, FlyPod. Pivotal states that the company will be seeking legal advice on the matter.

The Electronic Frontier Foundation has posted the news that Apple has filed comments with the US Copyright Office stating that the act of jailbreaking your iPhone is a copyright infringement and a DMCA violation, and therefore illegal. The EFF says that Apple is claiming that jailbreak apps still require modified versions of Apple's software, and Apple apparently believes that those versions are infringing on their copyrights.

The EFF responds, in turn, that "reverse engineering is a fair use when done for purposes of fostering interoperability with independently created software," saying that yes, even though jailbreakers are using Apple's copyrighted code, they are doing so in a way that allows them functionality that Apple doesn't provide access to on their own.

At this point, of course, this is just a complaint in the copyright office, and Apple hasn't made any legal moves yet against anyone responsible for jailbreaking. As the EFF states, it would be extremely hard for them to go after individual jailbreakers -- if you buy an iPhone, it should be your right to "get under the hood," as they say, and do what you want.

But (and keep in mind that this is TUAW, not The Unofficial Legal Weblog, and we are not lawyers) it seems Apple may be able to try and make a case against anyone offering software that does modify or otherwise "misuse" their copyrighted code. We'll have to see if they explore that position more in the future. You can read Apple's full response here (27 pages). You can see the EFF's initial filings here.

Stay tuned for more news and analysis on the issue.

Matthias Kremp, of German periodical Der Spiegel, has an interesting story about PearC, "Der PC mit Mac OS X." You don't need Google Translate to figure out what that means, though a mechanical translation of the story is available here.

PearC is offering three flavors of Mac clones in Germany, starting at €499. All of the options are built to order: The Starter edition can be equipped with anything from an Intel Pentium Dual Core E2200 to a Core 2 Duo E7300. The Professional version, though, starts at €1,499, and can be powered by a 3.2GHz Intel Core i7 Extreme processor for an extra €720 -- a processor that Apple does not offer. PearC also offers Blu-Ray optical drives as an option.

All come with the option to install Mac OS X. Kremp notes that PearC's parent company, Hypermeganet, says that since the End User License Agreement (EULA) is sealed inside retail copies of Mac OS X, there's no legal way to review the EULA. If you'll pardon the bad translation, "the restrictions that Apple [has] for its Mac OS X in the EULA [...] in Germany [has] no legal explanation," said Hypermeganet spokesman Dirk Blößl.

"Hypermeganet assumes, therefore, that the product (meaning the Mac clone) in Germany is legal," he says.

Similarly, Psystar, possibly bankrolled by a larger PC clone maker, is defending itself now against charges that it violated Apple's EULA by selling clones with Mac OS X. That dispute is ongoing.

Apple did not return Spiegel Online's request for comment. However, Kremp concluded by suggesting "one may probably assume" that Apple will pursue legal action against the clone maker.

Thanks, Hauke, Holger and Martin!

There's been some growling and teeth-baring between Apple and Palm lately, but Engadget wanted to know: does Apple really have a case against Palm for their patented technology? They put their (and our) legal correspondent, Nilay Patel, on the case, and in this long but very interesting analysis piece, he answers: probably.

But things, as usual, aren't that simple. Apple's patents don't just cover "multitouch" -- they cover very specific behaviors using the multitouch feature, and if Palm's Pre phone doesn't use those behaviors, there's no infringement. Of course, Patel is only going off of video of the Pre -- they don't have it in hand yet -- so things could change before the unit is released, but they do find significant evidence that Palm may have stepped on some lines it shouldn't have.

Then again, as Patel and patent attorney Mathew Gavronski discovered, Palm's got some tricks of their own -- they've got a whole slew of easily findable patents that the iPhone appears to infringe upon, including using an ambient light sensor to define brightness, looking up contacts just by using initials, and a number of other functions. Then again again, Apple's got pending patents in the fire that it can revise in case they think Palm is really trying to hone in on their business.

So bottom line, this could be really messy or it could be really simple, and Engadget concludes that the ball is in Apple's court -- if there's going to be a war, they say, the first shot will be from them. Personally, I think it's all corporate posturing -- as Patel points out, Palm has much less to lose, not having sold a single unit yet, and Apple is just making sure they know what's what. But there is a lot of money here, and if one side decides it'll cost less to go after the other, the fur could fly.