Apple Inc. v. Psystar Corporation

Filing 183

Declaration of Megan C. Chung in Support of 180 Notice (Other) [DECLARATION OF MEGAN M. CHUNG IN SUPPORT OF APPLE INC.'S MOTION FOR SUMMARY JUDGMENT ON COPYRIGHT INFRINGEMENT, DMCA VIOLATIONS AND PSYSTARS AFFIRMATIVE DEFENSES] filed byApple Inc.. (Attachments: # 1 Exhibit (s) 1-2, # 2 Exhibit (s) 3-16 (under seal), # 3 Exhibit (s) 17-22, # 4 Exhibit 23 (under seal), # 5 Exhibit (s) 24-36, # 6 Exhibit (s) 37-40, # 7 Exhibit 41 (under seal), # 8 Exhibit (s) 42-49, # 9 Exhibit (s) 50-61, # 10 Exhibit (s) 62-64 (under seal), # 11 Exhibit (s) 65-68, # 12 Exhibit 69 (under seal))(Related document(s) 180 ) (Chung, Megan) (Filed on 10/8/2009)

Apple Inc. v. Psystar Corporation

Doc. 183

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TOWNSEND AND TOWNSEND AND CREW LLP JAMES G. GILLILAND, JR. (State Bar No. 107988) MEHRNAZ BOROUMAND SMITH (State Bar No. 197271) MEGAN M. CHUNG (State Bar No. 232044) J. JEB B. OBLAK (State Bar No. 241384) Two Embarcadero Center Eighth Floor San Francisco, CA 94111 Telephone: [phone] Facsimile: [phone] Email: [e-mail] Email: [e-mail] Email: [e-mail] Email: [e-mail] O'MELVENY & MYERS LLP GEORGE RILEY (State Bar No. 118304) Two Embarcadero Center, 28th Floor San Francisco, CA 94111 Telephone: [phone] Facsimile: [phone] Email: [e-mail] Attorneys for Plaintiff and Counterdefendant APPLE INC. UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

APPLE INC., Plaintiff, v. PSYSTAR CORPORATION, a Florida corporation, and DOES 1-10, inclusive, Defendants. AND RELATED COUNTERCLAIMS.

Case No. 08-3251 WHA DECLARATION OF MEGAN M. CHUNG IN SUPPORT OF APPLE INC.'S MOTION FOR SUMMARY JUDGMENT ON COPYRIGHT INFRINGEMENT, DMCA VIOLATIONS AND PSYSTAR'S AFFIRMATIVE DEFENSES

DECLARATION OF MEGAN M. CHUNG IN SUPPORT OF APPLE INC.'S MOTION FOR SUMMARY JUDGMENT ON COPYRIGHT INFRINGEMENT, DMCA VIOLATIONS AND PSYSTAR'S AFFIRMATIVE DEFENSES

CASE NO. 08-3251 WHA
Dockets.Justia.com

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I, Megan M. Chung, declare as follows: 1. I am an attorney licensed to practice law in the State of California and am admitted

to practice before this Court. I am an associate in the law firm of Townsend and Townsend and Crew LLP, and am one of the attorneys representing Plaintiff and Counterdefendant Apple Inc. ("Apple") in the above-captioned matter. I make this declaration on individual knowledge, and if called as a witness, I can and will competently testify with respect to the matters stated herein. 2. Attached hereto as Exhibit 1 is a true and correct copy of excerpts from Apple's 10-

K for period ending September 29, 2001, produced with a beginning Bates Number APP_PSY0021291. 3. Attached hereto as Exhibit 2 is a true and correct copy of portions of Apple's 10-K

for period ending September 27, 2008, produced with a beginning Bates Number APP_PSY0022299. 4. Attached hereto as Exhibit 3 is a true and correct copy of excerpts from the

deposition of Hector Benavides, taken in this matter on August 6, 2009. 5. Attached hereto as Exhibit 4 is a true and correct copy of excerpts from the

deposition of Michael Culbert, taken in this matter on August 14, 2009. 6. Attached hereto as Exhibit 5 is a true and correct copy of excerpts from the

deposition of David Elliott, taken on May 8, 2009. 7. Attached hereto as Exhibit 6 is a true and correct copy of excerpts from the

deposition of Bob Mansfield, taken in this matter on August 21, 2009. 8. Attached hereto as Exhibit 7 is a true and correct copy of excerpts from the

deposition of Simon Patience, taken on August 19, 2009. 9. Attached hereto as Exhibit 8 is a true and correct copy of excerpts from the

deposition of Roberto Pedraza taken on April 24, 2009. 10. Attached hereto as Exhibit 9 is a true and correct copy of excerpts from the 30(b)(6)

deposition of Psystar Corporation taken on March 19, 2009. Psystar designated its Rodolfo Pedraza for this 30(b)(6) deposition. 11. Attached hereto as Exhibit 10 is a true and correct copy of excerpts from the 30(b)(6) 1

DECLARATION OF MEGAN M. CHUNG IN SUPPORT OF APPLE INC.'S MOTION FOR SUMMARY JUDGMENT ON COPYRIGHT INFRINGEMENT, DMCA VIOLATIONS AND PSYSTAR'S AFFIRMATIVE DEFENSES CASE NO. 08-3251 WHA

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deposition of Psystar Corporation taken on August 7, 2009 12. Attached hereto as Exhibit 11 is a true and correct copy of excerpts from the 30(b)(6)

deposition of Rodolfo Pedraza, taken on August 26, 2009. Psystar designated Rodolfo Pedraza for this 30(b)(6) deposition. 13. Attached hereto as Exhibit 12 is a true and correct copy of excerpts from the

deposition of Philip W. Schiller, taken on August 13, 2009. 14. Attached hereto as Exhibit 13 is a true and correct copy of excerpts from the

deposition of Kevin Van Vechten taken on August 12, 2009. 15. Attached hereto as Exhibit 14 is a true and correct copy of excerpts from the 30(b)(6)

deposition of Apple Inc. taken on August 12, 2009. Apple designated Kevin Van Vechten for this 30(b)(6) deposition. 16. Attached hereto as Exhibit 15 is a true and correct copy of excerpts from the

deposition of John Wright taken in this matter on August 7, 2009. 17. Attached hereto as Exhibit 16 is a true and correct copy of excerpts from the 30(b)(6)

deposition of Apple Inc. taken in this matter on August 7, 2009. Apple designated John Wright for this 30(b)(6) deposition. 18. Attached hereto as Exhibit 17 are true and correct copies of Psystar Corporation's

Responses to Apple Inc.'s Second Set of Request for Admissions (Set Nos. 30-100) dated December 11, 2008. 19. Attached hereto as Exhibit 18 are true and correct copies of Psystar Corporation's

Supplemental Responses to Apple Inc.'s Second Set of Request for Admissions dated January 9, 2009. 20. Attached hereto as Exhibit 19 are true and correct copies of Psystar Corporation's

Responses to Apple Inc.'s Third Set of Requests for Admission (Nos. 101-161) dated January 16, 2001. 21. Attached hereto as Exhibit 20 are true and correct copies of Psystar Corporation's

Second Supplemental Responses to Apple Inc.'s Requests for Admission Nos. 14-18 and 23-27; and Psystar Corporation's First Supplemental Responses to Apple Inc.'s Request for Admission No. 19
DECLARATION OF MEGAN M. CHUNG IN SUPPORT OF APPLE INC.'S MOTION FOR SUMMARY JUDGMENT ON COPYRIGHT INFRINGEMENT, DMCA VIOLATIONS AND PSYSTAR'S AFFIRMATIVE DEFENSES CASE NO. 08-3251 WHA

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and 20-22, all dated March 6, 2009. 22. Attached hereto as Exhibit 21 is a true and correct copy of Psystar Corporation's

Response to Apple Inc.'s Fourth (Corrected) Set of Requests for Admission (Nos. 162-226) dated August 6, 2009. 23. Attached hereto as Exhibit 22 is a true and correct copy of Psystar Corporation's

Response to Apple Inc.'s Fifth (Corrected) Set of Requests for Admission (Nos. 227-306) dated August 19, 2009. 24. Attached hereto as Exhibit 23 are true and correct copies of Psystar Corporation's

Second Supplemental Responses to Apple Inc.'s First Set of Interrogatories dated March 6, 2009. 25. Attached hereto as Exhibit 24 are true and correct copies of Psystar Corporation's

Responses to Apple Inc.'s Second Set of Interrogatories (Nos. 16-25) dated August 17, 2009. 26. Attached hereto as Exhibit 25 are true and correct copies of Psystar Corporation's

Responses to Court Ordered Interrogatories (Nos. 1-15) dated August 31, 2009. 27. Attached hereto as Exhibit 26 is a true and correct copy of Apple Inc.'s Software

License Agreement for Mac OS X produced with Bates Numbers APP_PSY0002759-761. 28. Attached hereto as Exhibit 27 is a true and correct copy of Apple Inc.'s Copyright

Registration No. TX5-401-457 produced by Apple with Bates Numbers APP_PSY0050611-613. The effective date of the registration is June 22, 2001. 29. Attached hereto as Exhibit 28 is a true and correct copy of Apple Inc.'s Copyright

Registration No. TX6-849-489 produced by Apple with Bates Numbers APP_PSY0050614-616. The effective date of the registration is January 24, 2008. 30. Attached hereto as Exhibit 29 is a true and correct copy of Apple Inc.'s Copyright

Registration No. TX6-336-643 produced by Apple with Bates Numbers APP-PSY0050608-610. The effective date of the registration is March 29, 2006. 31. Attached hereto as Exhibit 30 is a true and correct copy of Microsoft's Software

License Terms, produced with Bates Numbers APP_PSY0038972-986. 32. Attached hereto as Exhibit 31 is a true and correct copy of Amazon Kindle: License

Agreement and Terms of Use (last updated on February 9, 2009), produced with Bates Numbers
DECLARATION OF MEGAN M. CHUNG IN SUPPORT OF APPLE INC.'S MOTION FOR SUMMARY JUDGMENT ON COPYRIGHT INFRINGEMENT, DMCA VIOLATIONS AND PSYSTAR'S AFFIRMATIVE DEFENSES CASE NO. 08-3251 WHA

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APP_PSY0038961-971. 33. Attached hereto as Exhibit 32 is a true and correct copy of Interface Software

License Agreement for National Semiconductor Corporation (effective as of August 7, 2008), produced with Bates Numbers APP_PSY0038987-988. 34. Attached hereto as Exhibit 33 is a true and correct copy of an End User Software

License Agreement for Epson America, Inc., produced with Bates Numbers APP_PSY0055967969. 35. Attached hereto as Exhibit 34 is a true and correct copy of a Pantech End User

License Agreement, produced with Bates Numbers APP_PSY0038992-998. 36. Attached hereto as Exhibit 35 is a true and correct copy of an End User License

Agreement for Hewlett-Packard Co. produced with Bates Numbers APP_PSY0055970-971. 37. Attached hereto as Exhibit 36 is a true and correct copy of the Wii Network

Services User Agreement for Nintendo (last updated on March 25, 2009). It was produced with Bates Numbers APP_PSY0055972-976. 38. Attached hereto as Exhibit 37 are a true and correct copies of Systems Software

License Agreements (version 1.2 and 2.0) for Sony Computer Entertainment's Playstation® 3 System dated June 18, 2008. They were produced with Bates Numbers APP_PSY0055977-986. 39. Attached hereto as Exhibit 38 is a true and correct copy of the Xbox LIVE and

Games for Windows LIVE Terms of Use (last updated on September 2008) for Microsoft Corp. It was produced with Bates Numbers APP_PSY0055987-999. 40. Attached hereto as Exhibit 39 is a true and correct copy of an End User License

Agreement for Cisco Systems, Inc., produced by Apple as Bates Numbers APP_PSY0056084-087. 41. Attached hereto as Exhibit 40 is a true and correct copy of the Blackberry Software

License Agreement for Research in Motion Limited, produced with Bates Numbers APP_PSY0039413-425. 42. Attached hereto as Exhibit 41 is a true and correct copy of excerpts from a

Presentation entitled "Psystar Open Computing" that made by Psystar Corporation to various venture capital firms. It was produced with beginning Bates Number PS009258.
DECLARATION OF MEGAN M. CHUNG IN SUPPORT OF APPLE INC.'S MOTION FOR SUMMARY JUDGMENT ON COPYRIGHT INFRINGEMENT, DMCA VIOLATIONS AND PSYSTAR'S AFFIRMATIVE DEFENSES CASE NO. 08-3251 WHA

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43.

Attached hereto as Exhibit 42 is a true and correct copy of a review of Apple's New

Operating System dated October 25, 2007, from MIT's Technology Review. It was produced by Psystar with Bates Numbers PS002944-ud946. 44. Attached hereto as Exhibit 43 is a true and correct copy of an article from New York

Times entitled "Apple Offers New Goodies In Leopard System" dated October 25, 2007. It was produced by Psystar with Bates Numbers PS002986-2989. 45. Attached hereto as Exhibit 44 is a true and correct copy of CNet's review of Mac OS

X 10.5 Leopard dated November 2, 2007. It was produced by Psystar with Bates Numbers PS0002925-2929. 46. Attached hereto as Exhibit 45 is a true and correct copy of an article from

MacWorld.com entitled "Apple tops Consumer Reports tech support rating" dated May 5, 2008. It was produced with Bates Numbers APP_PSY0002915-2918. 47. Attached hereto as Exhibit 46 is a true and correct copy of a page from Psystar

Corporation's website (www.psystar.com) entitled "Open Computer: The Apple Alternative" produced with Bates Numbers APP_PSY0020988-20991. 48. Attached hereto as Exhibit 47 is a true and correct copy of a page from Psystar

Corporation's website (www.psystar.com) entitled "Take control of your choices Open Computer products from Psystar" produced with Bates Number APP_PSY0003497. 49. Attached hereto as Exhibit 48 is a true and correct copy of Psystar Corporation's

Psystar Meta Update Newsletter dated July 2009. It was produced by Psystar with Bates Numbers PS017924-926. 50. Attached hereto as Exhibit 49 is a true and correct copy of a page from Psystar

Corporation's website (www.psystar.com) entitled "Open Computer: The Smart Alternative to an Apple" produced with Bates Number APP_PSY0020992. 51. Attached hereto as Exhibit 50 is a true and correct copy of Psystar Corporation's

advertisement used with Google content network entitled "Installing Mac OS on your PC" produced with Bates Number APP_PSY0021063. 52. Attached hereto as Exhibit 51 is a true and correct copy of an email string between 5

DECLARATION OF MEGAN M. CHUNG IN SUPPORT OF APPLE INC.'S MOTION FOR SUMMARY JUDGMENT ON COPYRIGHT INFRINGEMENT, DMCA VIOLATIONS AND PSYSTAR'S AFFIRMATIVE DEFENSES CASE NO. 08-3251 WHA

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Psystar and a customer dated June 17, 2008 produced by Psystar with Bates Number PS003503. 53. Attached hereto as Exhibit 52 is a true and correct copy of an email string between

Psystar and a customer dated July 15, 2008 produced by Psystar with Bates Number PS002046. 54. Attached hereto as Exhibit 53 is a true and correct copy of an email string between

Psystar and a customer dated June 11, 2008 produced by Psystar with Bates Number PS003542. 55. Attached hereto as Exhibit 54 is a true and correct copy of an email string between

Psystar and a customer dated October 3, 2008 produced by Psystar with Bates Number PS007865. 56. Attached hereto as Exhibit 55 is a true and correct copy of an email string between

Psystar and a customer dated November 8, 2008 produced by Psystar with Bates Numbers PS002268-272. 57. Attached hereto as Exhibit 56 is a true and correct copy of an email from a customer

to Psystar dated May 7, 2008 produced by Psystar with Bates Number PS007237. 58. Attached hereto as Exhibit 57 is a true and correct copy of an email from a customer

to Psystar dated November 7, 2008 produced by Psystar with Bates Number PS003021. 59. Attached hereto as Exhibit 58 is a true and correct copy of an email from a customer

to Psystar dated October 10, 2008 produced by Psystar with Bates Number PS007822. 60. Attached hereto as Exhibit 59 is a true and correct copy of an email from a customer

to Psystar dated May 7, 2008 produced by Psystar with Bates Number PS005904. 61. Attached hereto as Exhibit 60 is a true and correct copy of an email string between

Psystar and customer dated August 7, 2008 produced by Psystar with Bates Numbers PS000825826. 62. Attached hereto as Exhibit 61 is a true and correct copy of an email from a customer

to Psystar dated May 29, 2008 produced by Psystar with Bates Numbers PS004201. 63. Attached hereto as Exhibit 62 is a true and correct copy of an email string between

Psystar and customer dated March 5, 2009 produced by Psystar with Bates Numbers PS014616-17. 64. Attached hereto as Exhibit 63 is a true and correct copy of an email from Rodolfo

Pedraza to David Elliott dated June 9, 2008 produced by David Elliott with Bates Number Elliot000033, marked as "Highly Confidential ­ AEO."
DECLARATION OF MEGAN M. CHUNG IN SUPPORT OF APPLE INC.'S MOTION FOR SUMMARY JUDGMENT ON COPYRIGHT INFRINGEMENT, DMCA VIOLATIONS AND PSYSTAR'S AFFIRMATIVE DEFENSES CASE NO. 08-3251 WHA

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65.

Attached hereto as Exhibit 64 is a true and correct copy of a screenshot of a disk

marked as deposition exhibit 84. This and other files were produced by David Elliott on a disk with Bates Number Elliot00040P. These were produced attached to an email (Exhibit 63) marked as "Highly Confidential - AEO." 66. Attached hereto as Exhibit 65 is a true and correct copy of a restore disk and

installation instructions produced by Psystar with Bates Number PS009288P. 67. Attached hereto as Exhibit 66 is a true and correct copy of an email string between

Psystar and a customer dated May 2, 2008 produced by Psystar with Bates Numbers PSY006527534. 68. Attached hereto as Exhibit 67 is a true and correct copy of an email string between

Psystar and a customer dated May 7, 2008 produced by Psystar with Bates Numbers PSY006653655. 69. Attached hereto as Exhibit 68 is a true and correct copy of an email between Psystar

and customer dated October 23, 2008 produced by Psystar with Bates Number PS07620. 70. Attached here as Exhibit 69 is a true and correct copy of OpenCojones source code

produced by Psystar with Bates Numbers PS011927-932. Executed on October 8, 2009, at San Francisco, California.

/s/ Megan M. Chung Megan M. Chung

62255848 v1

DECLARATION OF MEGAN M. CHUNG IN SUPPORT OF APPLE INC.'S MOTION FOR SUMMARY JUDGMENT ON COPYRIGHT INFRINGEMENT, DMCA VIOLATIONS AND PSYSTAR'S AFFIRMATIVE DEFENSES CASE NO. 08-3251 WHA

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CERTIFICATE OF SERVICE I, Diane G. Sunnen, declare I am employed in the City and County of San Francisco, California in the office of a member of the bar of this court at whose direction this service was made. I am over the age of eighteen and not a party to this action. My business address is Townsend and Townsend and Crew LLP, Two Embarcadero Center, Eighth Floor, San Francisco, California, 94111. I served the following documents exactly entitled: DECLARATION OF MEGAN M. CHUNG IN SUPPORT OF APPLE INC.'S MOTION FOR SUMMARY JUDGMENT ON COPYRIGHT INFRINGEMENT, DMCA VIOLATIONS AND PSYSTAR'S AFFIRMATIVE DEFENSES, on the interested parties in this action following the ordinary business practice of Townsend and Townsend and Crew LLP, as follows: K.A.D. Camara Camara & Sibley LLP 2339 University Boulevard Houston, TX 77005 Tel: [phone] Fax: [phone] Email: [e-mail] Eugene Action Attorney at Law 1780 E. Barstow Avenue, #5 Fresno, CA 93710 Email: [e-mail]

[By First Class Mail] I am readily familiar with my employer's practice for collecting and processing documents for mailing with the United States Postal Service. On the date listed herein, following ordinary business practice, I served the within document(s) at my place of business, by placing a true copy thereof, enclosed in a sealed envelope, with postage thereon fully prepaid, for collection and mailing with the United States Postal Service where it would be deposited with the United States Postal Service that same day in the ordinary course of business. [By Overnight Courier] I caused each envelope to be delivered by a commercial carrier service for overnight delivery to the offices of the addressee(s). [By Hand] I directed each envelope to the party(ies) so designated on the service list to be delivered by courier this date. [By Facsimile Transmission] I caused said document to be sent by facsimile transmission to the fax Number indicated for the party(ies) listed above. [By Electronic Transmission] I caused said document to be sent by electronic transmission to the e-mail address indicated for the party(ies) listed above via the court's ECF notification system. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct, and that this declaration was executed on October 8, 2009, at San Francisco, California. /s/Diane G. Sunnen Diane G. Sunnen

CASE NO. 08-3251 WHA