Regarding the John Does in Apple’s Amended Complaint Against Ersatz Mac Cloner Psystar

Saturday, 6 December 2008

On Wednesday, Pamela Jones of Groklaw published a report on the ongoing legal saga between Apple and would-be Mac cloner Psystar. What caught her eye was this passage in Apple’s amended complaint (PDF) against Psystar:

18. On information and belief, persons other than Psystar are involved in Psystar’s unlawful and improper activities described in this Amended Complaint. The true names or capacities, whether individual, corporate, or otherwise, of these persons are unknown to Apple. Consequently they are referred to herein as John Does 1 through 10 (collectively the “John Doe Defendants”). On information and belief, the John Doe Defendants are various individuals and/or corporations who have infringed Apple’s intellectual property rights, breached or induced the breach of Apple’s license agreements and violated state and common law unfair competition laws. Apple will seek leave to amend this complaint to show the unknown John Doe Defendants’ true names and capacities when they are ascertained.

Here’s how Jones interpreted that paragraph:

So, Apple apparently believes that somebody else is behind Psystar, which might help to explain why a major law firm would take on what seems like a fly-by-night’s case; also why Psystar has been so bold in continuing to sell its products. I knew this thing felt funny. As Alice in Wonderland might put it, “It gets interestinger and interestinger.”

Several others (e.g. Macworld’s Jim Dalrymple, CNet’s Tom Krazit) have taken the same interpretation — that Apple is alleging that Psystar is just a front for or is being backed by some nefarious and as-yet-unidentified bigger fish. Krazit, for example, writes:

It’s always been a bit puzzling to ponder how Psystar emerged seemingly overnight with designs on challenging one of the tech industry’s richest companies, retaining one of Silicon Valley’s star law firms along the way. And it made ambitious, expensive claims, such as attempting to argue that Apple was in violation of antitrust law by refusing to license Mac OS X.

I don’t buy it. I propose a different take: that the John Does whom Apple wishes to identify are the leading contributors to the OSx86 Project.

I don’t think there’s anything puzzling about Psystar at all. All it takes to do what they’ve done is a pair of brass balls. The idea that they would ever get away with it is stupid, so it doesn’t make much sense to think that there are any well-established companies backing Psystar’s endeavor. If it looks like a cockamamie scheme from a fly-by-night operation, it probably is. Hiring good lawyers indicates nothing more than that Psystar had the good sense to hire good lawyers.

Reselling generic x86 computers is easy — the hardware is commodity. Psystar’s secret sauce — getting Mac OS X to run on non-Apple computers — isn’t theirs, but rather comes from the OSx86 Project. Without the OSx86 Project, there would be no Psystar Mac clones. From Apple’s perspective, suing Psystar out of existence wouldn’t necessarily put an end to unauthorized Mac cloning. There wouldn’t be much that would stop some other company — one not based in the U.S., say — from doing what Psystar has done.

Apple has more to gain by shutting down the OSx86 Project — or at least shutting down its major contributors — than by shutting down Psystar.

To be clear, I have no idea whether this document indicates that Apple intends to vigorously pursue obtaining the identities of OSx86 Project members. Apple’s filing states that the “true names or capacities, whether individual, corporate, or otherwise, of these persons are unknown to Apple” — but there’s no evidence yet that they are known to Psystar, either.