A judge has ruled in Apple's favor in its copyright-infringement case against Psystar, which has been selling Mac clones running Mac OS X.
U.S. District Court Judge William Alsup on Friday granted Apple's request for a summary judgment, while denying Psystar's counterclaim.
"In sum, Psystar has violated Apple's exclusive reproduction right, distribution right, and right to create derivative works," Alsup wrote in the ruling (PDF), which was posted by legal site Groklaw.net.
Apple filed its suit in July 2008, a few months after Psystar began selling Mac clones. The case revolved around Psystar's contention that it could run Apple's Mac OS X operating system on non-Apple machines. Apple denied this, stating that its Mac OS X end user license agreement allows people to install the OS on Apple computers only.
Both Apple and Psystar had a requested a summary judgment, which is a determination made without trial based on the merits of a case.
Neither Apple nor Psystar could immediately be reached for comment.
One of Psystar's contentions was fair use. The judge rejected this, stating the company "does not even attempt to address the four factors used to determine fair use." Another of Psystar's claims was "first sale" doctrine, which allows someone who buys copyrighted material to sell it. But Alsup said this doctrine applies only to legal copies, not to the "unauthorized copies" that Psystar produced.
The judge also ruled in favor of Apple's claim that Psystar violated the Digital Millennium Copyright Act. "Psystar has violated the DMCA by circumventing Apple's protection barrier and trafficking devices designed for circumvention," Alsup said.
In addition, the judge rejected Psystar's claims that Apple had misused its copyright and that Apple's licensing agreement was unduly restrictive.
Alsup's ruling did not include a permanent injunction against Miami-based Psystar because, he said, Apple has not requested one yet.
There are other claims Apple has made that could still go to trial, including breach of contract, trademark infringement, and trademark dilution. A hearing to determine remedies is set for December 14. The trial has been scheduled to begin in January.
Updated at 4:15 p.m. PST with more details from the ruling.
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CNET)
Last month we blogged about a bug marring Flash playback on the latest 27-inch Apple iMacs. Users on several Web sites, including the Apple Discussion Threads, noticed a problem with the Flash player that caused choppy audio and video playback, but it appears that the newest Mac OS X v10.6.2 update fixes the issue that was apparently caused by a conflict with the Airport driver.
According to Apple, the update "addresses video playback and performance issues for iMac (21.5-inch, late 2009) and iMac (27-inch, late 2009) computers that may occur in some situations while AirPort is turned on." Since our own 27-inch iMac also experienced slow Flash streaming and intermittent sound hiccups with the AirPort turned on, we downloaded the 10.6.2 update and left it to sleep overnight.
Prior to the update, the Flash Player consumed 114.4 percent of system resources, but 24 hours after the update we're happy to report 26.8 percent usage in the activity monitor and smooth performance across all popular streaming video Web sites like YouTube, Hulu, etc.
Much thanks to the Apple Forums and Apple itself for quickly addressing the needs of its community. If you haven't updated yet, simply choose Software Update from the Apple menu to install OS X v10.6.2.
Apple's new store on the Upper West Side opens on Saturday at 10 a.m.
(Credit: Marguerite Reardon/CNET)NEW YORK--Apple hopes to grow its market share with an increasingly aggressive retail strategy that includes opening bigger stores in more locations.
At a media preview of its fourth store here, which is located on the Upper West Side, Ron Johnson, Apple's senior vice president of retail, said Apple's retail strategy is all about getting consumers to switch from PCs to Macs.
"Our Apple stores are a magnet for switchers," he said. "About half the people who come into our retail locations are first-time Mac buyers."
Johnson said that Apple's Genius Bar, which provides face-to-face customer service and support, and other services, allow people to switch from a PC to a Mac with confidence. For example, Apple offers its One-to-One service, which allows new Mac users to drop off their old computer so that files can be transferred from the older computer to a new Mac.
The new Apple store on the Upper West Side is the first to have a glass ceiling.
(Credit: Marguerite Reardon/CNET)The service, which costs $99 for one year, then allows users to meet one-on-one with an Apple representative to discover where the new content is on the computer and to learn how to use more advanced features. Customers can use the one-on-one instruction service as much as they like for that one-year period.
Johnson also said that the Apple stores provide a good way for customers to test out and play with new products before they buy them. Even if customers don't buy their Mac, iPhone, or iPod in the Apple store, the experience they get from looking at it in the store is often enough to help them make a purchasing decision.
The strategy seems to be working. Apple has been increasing its overall sales and market share for its products over the past year, particularly for its Macs. In the third quarter of 2009, the company sold about 3 million new Macs, which was a 17 percent increase compared to a year earlier, according to IDC. This was well ahead of the overall global PC market, which grew by only about 2 percent, according to IDC. For 19 of the last 20 quarters, Apple has outpaced the market in terms of sales.
Even though overall sales have increased, Apple hasn't made huge gains in market share. But it has made modest improvements. Over the past year, the company has managed to bump its market share up to 9.4 percent in the third quarter of 2009 from about 8.6 percent in the third quarter of 2008. Apple is in fourth place in the overall computer market, lagging PC makers Hewlett-Packard, Dell, and Acer.
In 2001 when Apple opened its first store, plenty of people questioned whether Apple's retail strategy would even work. But eight years and 279 stores later, the retail business has become a big revenue driver for the company. In fiscal 2009, Apple generated $6.6 billion of the company's $29.9 billion in revenue from its retail stores, Johnson said.
Some of the stores, such as the Fifth Avenue store in Manhattan, which sits below a glass cube across the street from the Plaza Hotel, have become tourist destinations.
Apple purposely puts stores in high-traffic areas to attract customers, Johnson said. And in the case of big stores like the ones in Manhattan, it's also important to put them where people visit. Worldwide some 170 million visitors entered an Apple store in fiscal 2009.
Apple's flagship stores, or as the company calls them "significant stores," are especially designed to draw in visitors with eye-catching design and architecture. And the new Upper West Side store at Broadway and 67th Street is no exception. The new store features a glass roof, the first ever for an Apple store. And it also features 45-foot-tall stone walls, a large ground floor to showcase products, and a glass spiral staircase that leads to the lower level of the store where Apple provides service.
Apple plans to open between 40 and 50 new retail stores in 2010. More than half of these new stores are expected to be outside the U.S. Some of the countries where Apple will open new stores include the United Kingdom, Canada, Australia, Italy, Switzerland, Germany, France, and China, Johnson said.
Apple's main competitor, Microsoft, is trying to emulate Apple's retail success by opening up stores of its own. Recently, the software maker opened locations in Scottsdale, Ariz., and Mission Viejo, Calif.
Apple's latest Manhattan store on Broadway at West 67th Street will open to the public at 10 a.m. EST on Saturday.
Apple's newest retail store is on Broadway and 67th Street in Manhattan.
(Credit: Sarah Tew/CNET)Apple's latest Manhattan store doesn't officially open until this Saturday, but it had the press in today for a sneak peek. Of course, because the store's made mostly of glass, the general public can get a pretty good idea of what everything looks like inside--except for what's below ground.
Click on any of the images to launch the slideshow.
Comments?
Corporations can be heinous places. All day, people wander around, playing politics like so many Lindsay Lohans in "Mean Girls."
So today, one wonders just what machinations are being endured by Simon Aldous, the Microsoft Partner Group manager who was Wednesday quoted by PCR as suggesting that Windows 7 was rather inspired by the simplicity of the Mac OS. Indeed, Aldous declared that Microsoft's new operating system was designed to "create a Mac look."
In what appears to be a somewhat hurriedly written post on the Windows Team blog titled, "How we really designed the look and feel of Windows 7," Microsoft showed that perhaps some of its underwear is currently a little twisted.
The post read: "An inaccurate quote has been floating around the Internet today about the design origins of Windows 7 and whether its look and feel was 'borrowed' from Mac OS X."
This would suggest that Aldous was, in fact, misquoted.
However, the post, written by Brandon LeBlanc, continued, "Unfortunately, this came from a Microsoft employee who was not involved in any aspect of designing Windows 7. I hate to say this about one of our own, but his comments were inaccurate and uninformed."
"I'm Steve Jobs, and Windows 7 was my idea?"
(Credit: Stephen Shankland/CNET)Some would therefore now conclude that he was quoted accurately, but he didn't quite get his facts right. This is entirely possible, though one might wonder why he would have made comments with a ring of such endearing honesty.
However, perhaps the most interesting aspect of this Windows Team post is a comment left by someone with the handle "i-dont-do-tat".
This commenter wrote: "I know Simon Aldous, having worked in the same U.K. subsidiary as him for a few years. He's a good guy who, for me, is telling it like it is. He's paying testament to the common view that a Mac is cool and a great template to copy."
As many in the world of business will tell you, copying happens all the time. The competition is scrutinized religiously, and the best articles of faith are taken and sometimes even improved. This happens in every product category.
The "i-dont-do-tat" poster concluded that perhaps honesty might not be such a bad thing: "Denying this to your customers just makes you look stupid because the very look and feel of Windows 7 is desperately trying to look like a Mac OS--just admit it."
Oh, of course one mightn't expect honesty in the mass-market arena. It is a very dangerous place in which to say anything at all. Equally, though, in a tech world interview, perhaps a little nod toward the opposition is not such a bad thing. It might even lull it into a little complacent smugness.
One can only hope that Simon Aldous had a good breakfast Thursday and that he hasn't endured any untoward communications. Unless it's a job offer from Apple, of course, which he should accept only if the company gives him a better deal and appears to come from nicer people.
That's how the corporate world works, you see. Like high school, it's all temporary, so you have to make the most of it while you can.
Sometimes you take a wrong turning in life and, Wednesday, a slight concussion led my eyes to fall upon the pages of PCR.
It is a little more intelligent than my normal reading matter, but I am very grateful for its interview with Simon Aldous, Microsoft's partner group manager.
He was quoted, for example, as saying: "One of the things that people say an awful lot about the Apple Mac is that the OS is fantastic, that it's very graphical and easy to use."
You're waiting for the punchline, right? You know, the one about how he was kidding.
Wait away because he continued: "What we've tried to do with Windows 7--whether it's traditional format or in a touch format--is create a Mac look and feel in terms of graphics."
I know that such words might cause some entrenched foot soldiers in both of the fanchildren camps to hoot, hiss, sigh and reach for the nearest farming implement.
However, isn't it rather charming to hear someone admit that a competitor's product isn't overly expensive or overly pretentious, but that it has something about it that is good and that real people who buy real products actually appreciate?
Google plans to release a Mac beta of Chrome in early December, judging by some chatter on a mailing list for the browser.
Chrome 4.0 is available today as a beta version for Windows but only as a rougher developer-preview version on Linux and Mac OS X. The standout feature of the new version is customization through extensions, a technology that long has been a core asset of another open-source browser, Firefox.
Google has been moving to a new extensions presentation technology called Browser Actions that let people interact with extensions through a small button toward the upper right of the browser window. "We've noticed that many of you have updated your extensions to take advantage of the new UI. We'd like to encourage the rest of you to do so as well," said Nick Baum, a Google Chrome product manager, in a mailing list posting.
But here's the hitch: Browser Actions only work on Windows and Linux right now. That means those building extensions will leave Mac Chrome users behind for a time. But in telling those developers they won't have long to wait, Baum mentioned the deadline for the beta version.
"The earlier you switch, the more time you will have to polish your experience for our Beta launch in early December," he said.
And Google is on the case for adding Browser Actions to the Mac version of Chrome.
"We realize this means dropping Mac support for a couple of weeks, but we already have people working on that," Baum said. "If you prioritize the Windows and Linux versions, we'll bring you cross-platform parity as soon as we can!"
U.K. wireless carrier Orange just started selling the iPhone, and it is trumpeting first-day sales numbers for the device.
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Apple)
The carrier signed up 30,000 people with a new iPhone contract on Tuesday, its first day selling Apple's smartphone, according to a post on Twitter from a member of Orange's marketing department.
While 30,000 isn't necessarily a lot, compared to the "hundreds of thousands" of iPhones AT&T sold in its first weekend selling the iPhone 3GS in the United States, it's not bad for being the second carrier in a much smaller country, where the iPhone 3GS has been available for four months.
Until Tuesday, wireless provider O2 was the exclusive carrier of the iPhone in the United Kingdom. Orange currently has 16 million mobile customers, compared to O2's 22 million. Incidentally, Orange's experience as the second carrier of the device in a country would seem to make a decent case for Apple releasing the iPhone to more than one carrier in many other countries, including the United States.
The numbers were far more impressive than the iPhone's debut on China Unicom's network last week. China's first crack at selling the iPhone was by most accounts disappointing, with 5,000 units sold over the first four-day period.
Of course, China Unicom is dealing with factors Orange is not. Besides having to sell the iPhone without Wi-Fi connectivity, China has to contend with something U.K. and U.S. carriers largely do not: a vast market for iPhone knockoffs, or gray-market phones.
In the race for mobile phone profits, Apple has overtaken Nokia, according to figures for the latest quarter.
Apple earned $1.6 billion in the third quarter from the iPhone, outpacing Nokia's $1.1 billion cell phone profit to grab the top spot among all mobile phone vendors, said research firm Strategy Analytics on Wednesday.
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Strategy Analytics)
This is the first quarter that Strategy Analytics has seen Apple surge past Nokia in mobile phone profits, according to Alex Spektor, the author of the research, who spoke with CNET News.
The contest between Apple and Nokia for top phone profits has been tight in recent months. ... Read more
A Mad Magazine contributor has been told by Apple that his iPhone app featuring drawings and contact information of members of the 111th Congress has been rejected because it depicts politicians in an objectionable light.
Richmond's iPhone app in action.
(Credit: Tom Richmond)According to Tom Richmond, who wrote about his app's rejection on his personal blog, his app--dubbed Bobble Rep-111th Congress Edition--in no way should have been construed as objectionable.
Richmond said that the focus of the app was to create a "database of all the members of the United States Congress which allowed the user to find the names and contact information of their senators and congressional representative either via Zip code or by using the iPhone's GPS location services." Rather than use the politicians' individual portraits, the app depicts each senator and representative in caricature form, which Richmond drew himself. All told, the app features 540 caricatures of the politicians.
... Read moreDon Reisinger is a technology columnist who has written about everything from HDTVs to computers to Flowbee Haircut Systems. Don is a member of the CNET Blog Network, and posts at The Digital Home. He is not an employee of CNET. Disclosure.
