Game over for Mac clone maker Psystar

A federal judge officially banned Mac clone maker Psystar from selling computers with Apple's Leopard or Snow Leopard operating systems, effectively putting an end to a 17-month-old lawsuit.

In an order granting Apple's request for a permanent injunction, U.S. District Court William Alsup said Florida-based Psystar has until midnight, Dec. 31, 2009, to comply with the injunction, and told the company not to drag its feet. “Defendant must immediately begin this process, and take the quickest path to compliance,” Alsup wrote in the order, which was filed Tuesday in a San Francisco federal court.

The injunction, however, is more or less moot, as Psystar shut down its Mac clone business earlier this month when it struck a settlement deal with Apple that requires it to pay nearly $2.7 million in damages if it loses appeals to the next level.

Two weeks ago, Psystar's chief counsel announced that the company had halted sales of systems with Apple's operating system pre-loaded. As of today, its Web site still showed all Mac clone models as “out of stock.”

Instead, Psystar's Mac clone business will hinge on Rebel EFI, a $50 utility that the company debuted in October. Rebel EFI lets owners of generic PCs install and run Apple's Snow Leopard operating system. By continuing to market Rebel EFI, Psystar would shift the responsibility of installing Mac OS X onto customers. Psystar would presumably sell Rebel EFI to customers, who would have to obtain a copy of Snow Leopard, then use Rebel EFI to install and run the operating system on a Psystar system.

Although Alsup's injunction did not expressly include Rebel EFI — he said Psystar had not provided enough detail on the program for him to rule — he warned Psystar it's on thin ice. “Whether Rebel EFI violates the terms of the injunction set forth in this order is a factual issue more appropriate for a contempt action,” Alsup said. “[But] this order declines to 'bless' a product about which it knows little of substance … and Psystar — if it continues to do so — sells Rebel EFI at its peril.”

Previously, Psystar has argued that Rebel EFI should not be liable to any injunction ordered by Alsup, in part because a second federal court, that one in south Florida, is considering the software's propriety.

Alsup shot down that reasoning as well, saying that if Apple did bring contempt proceedings against Psystar over Rebel EFI, the Florida judge's territory would be respected. “But these questions are for another day,” Alsup added.

Elsewhere in the injunctive order, Alsup took shots at both Apple and Psystar for what he considered unfair tactics. Apple, he said, wanted to “have it both ways” when it originally brushed off all discussion of Mac OS X 10.6, aka Snow Leopard, but then asked to reopen discovery concerning the upgrade after Psystar filed its own lawsuit in Florida related to Snow Leopard and Rebel EFI. “The high-handed unilateral self-help by Apple certainly smacked of trying to 'have it both ways,' and offended the undersigned's sense of fair play,” said Alsup.

He also blasted Psystar's lawyers for “continuing to grossly mischaracterize prior rulings in this case to justify their position” on the Snow Leopard issue.

Psystar and Apple have been battling in court since July 2008, when Apple sued the clone maker over copyright and software licensing violations.

The case began to wind down more than a month ago, when Alsup granted Apple's motion for summary judgment and quashed Psystar's similar request, ruling that the latter had, in fact, violated Apple's copyright as well as the Digital Millennium Copyright Act (DMCA) when it installed Mac OS X on Intel-based computers.

Although not every issue has been settled — Rebel EFI is the biggest bone of contention between the two parties — Alsup didn't pull any punches about what he saw as the likely outcome. “Whether [Psystar's defense of Rebel EFI] would be successful on the merits, or face preclusion or other hurdles, this order cannot predict,” Alsup concluded. “What is certain, however, is that until such a motion is brought, Psystar will be selling Rebel EFI at its peril, and risks finding itself held in contempt if its new venture falls within the scope of the injunction.”