Apple exec balks at testifying, Mac clone maker claims

Psystar wants judge to force Phil Schiller to explain how clones injure Apple

The Mac clone maker battling with Apple over copyright infringement allegations complained to a federal judge Tuesday that a top Apple executive was "unprepared" and "unwilling to testify" during a recent deposition.

In a separate brief, Florida-based Psystar also revealed the "bootloader" it initially used to start up Mac OS X 10.5, aka Leopard, on the generic Intel-based machines it sells.

On Tuesday, lawyers for Psystar told U.S. District Court Judge William Alsup that Philip Schiller, Apple's senior vice president of marketing, "appeared at his deposition wholly unprepared and unwilling to testify" on the subject of how Apple was damaged by the clone maker's practice of installing Mac OS X on its computers.

According to Psystar, Schiller was deposed a week ago, on Aug. 13, as part of a deal Psystar and Apple struck that to let both companies' lawyers take depositions from the other's employees.

Others on the deposition list included Bob Mansfield, Apple's senior vice president of Macintosh hardware engineering; Mike Culbert, the senior director of Mac hardware; Simon Patience, who heads Apple's core operating system development; and Mark Donnelly, a vice president of finance at Apple.

The letter claimed Apple had promised Schiller that would testify to the "the injury suffered by Apple as a result of the allegedly unlawful acts which Apple complains about in this action, and the injury that Apple is likely to suffer if these acts continue, including but not limited to the amount and manner of calculation of any lost profits."

Although Apple reportedly objected to the topic on a variety of grounds, the company eventually agreed to make a witness available, and assigned Schiller the job.

It's unclear from the heavily-redacted letter exactly what Psystar thought Schiller balked at saying, but one hint survived the deletion of all or part of 11 paragraphs.

"Nowhere in [Apple's] objection or in any other correspondence or communications between counsel did Apple take the position that the topic was limited to irreparable injury or even that Mr. Schiller's testimony would be limited to irreparable injury," the letter stated.

Psystar's lawyers asked Alsup to force Apple to "properly prepare Mr. Schiller for his deposition" and require Schiller to continue his deposition at their Houston, Texas office within the next two weeks.

Apple and Psystar have been waging legal warfare in federal court since July 2008, when Apple sued Psystar over copyright infringement and software licensing charges.

Psystar struck back the following month in a countersuit that accused Apple of breaking antitrust law, but those claims were tossed out by Alsup last November.

Since that defeat, Psystar has been on the defensive, and has resorted in an amended countersuit to arguing that Apple abused federal copyright laws when it tied Leopard to Apple's own hardware.

In a letter brief filed with the court yesterday, Psystar also answered Apple's charges that the clone maker had erased earlier versions of the software it uses to make Leopard X run on clones.

"At no point did Psystar take affirmative action to either destroy or not preserve these intermediate master copies," said Psystar's lawyers. "Rather, Psystar innocently failed to initiate new measures to preserve certain of its electronic data."

Psystar said that the three files at issue -- a pair of kernel extensions that decrypt Mac OS X, and a bootloader dubbed "Netkas" -- that Apple found on a Psystar machine were unintentionally left on the clone.

Psystar admitted that it had evaluated the extensions and the bootloader for possible use, but had rejected them for other options. It claimed that it had never used any of the files as part of the software it installs to allow its clones to run Apple's operating system.

"It is possible that any or all of these files may have accidentally appeared on a production machine," Psystar acknowledged, "since evaluation often occurred on the same machine used to manage the master copy for production machines. Psystar is a small business and cannot afford the equipment or personnel needed to fully isolate all of its activities to prevent these kinds of mishaps."

Also in the brief, Psystar confirmed that it had originally used its own variation of the open-source "boot123" bootloader to kick-start Leopard, but since then has created its own bootloader from scratch. "boot123" has been touted by computer enthusiasts as a way to run Mac OS X on "hackintosh" systems, such as Intel-based netbooks from Dell and other name brand PC makers who typically run Microsoft's Windows as their OS.

While admitting that it was unable to produce an earlier version of the bootloader derived from "boot123," Psystar said that the difference between that edition and what it later used amounted to "about three lines of code."

The company said it was willing to explain to Apple the changes it made to the missing version.

The case is currently scheduled to reach trial Jan. 11, 2010.

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