Apple Inc. v. Psystar Corporation

Filing 232

AFFIDAVIT re 231 Notice (Other), Notice (Other) DECLARATION OF JOHN P.J. KELLY IN SUPPORT OF APPLE INC.'S MOTION FOR PERMANENT INJUNCTION by Apple Inc.. (Gilliland, James) (Filed on 11/23/2009)

Apple Inc. v. Psystar Corporation

Doc. 232

Case3:08-cv-03251-WHA Document232

Filed11/23/09 Page1 of 5

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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] [e-mail] [e-mail] [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, Defendant. AND RELATED COUNTERCLAIMS.

Case No. 08-3251 WHA DECLARATION OF JOHN P. J. KELLY IN SUPPORT OF APPLE INC.'S MOTION FOR A PERMANENT INJUNCTION, STATUTORY DAMAGES AND REASONABLE ATTORNEYS' FEES AND COSTS Date: Time: Courtroom: Judge: Trial Date: December 14, 2009 8:00 a.m. 9 Hon. William Alsup January 11, 2010

DECLARATION OF JOHN P. J. KELLY IN SUPPORT OF APPLE INC.'S MOTION FOR A PERMANENT INJUNCTION, STATUTORY DAMAGES AND REASONABLE ATTORNEYS' FEES AND COSTS, CASE NO. 08-3251 WHA

Dockets.Justia.com

Case3:08-cv-03251-WHA Document232

Filed11/23/09 Page2 of 5

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A B C D E F G H I

I, JOHN P. J. KELLY, declare as follows: 1. I make this declaration on personal knowledge and if called as a witness, could and

would competently testify with respect to the matters stated herein. I am the principal of Kelly Computing Incorporated in Santa Barbara, California. I have been retained by the law firm of Townsend and Townsend and Crew LLP on behalf of Apple Inc. ("Apple") to provide testimony and expert opinion in the above-captioned matter. I have submitted an expert report in this matter as well as a Declaration in Support of Apple's Motion for Summary Judgment dated October 8, 2009 (the "October 8 Declaration"). My background and credentials are set forth in that declaration. 2. As part of my analysis, I studied several Psystar computers, which are listed in my

expert report, my October 8 Declaration, and set forth in Table 1 below:

Table 1. Psystar computers examined and the dates that the computers were either ordered by Apple or produced in discovery by Psystar.

Computer Open OpenPro OpenPro Open OpenPro Open OpenPro Open(3) Open(7)

Date ordered by Apple 5/6/2008 7/21/2008 9/26/2008 3/5/2009 3/5/2009 -- -- -- --

Date produced by Psystar -- -- -- -- -- 4/21/2009 4/21/2009 4/21/2009 8/17/2009

3.

As shown in Table 1, Psystar Computers A-E were purchased from Psystar by

Apple or its agents. Psystar Computers F-H were made available for inspection at the offices of Psystar's former counsel, and Computer I was produced by Psystar during discovery. 4. Psystar Computers A-I all have a hard drive installed with a modified version of

Mac OS X. In my report, I included Table 2 (reproduced below) to show the version and build of Mac OS X installed on each Psystar computer I studied and the version and build of the Mac OS X DVD shipped with that computer. Table 2 was also included in my October 8 Declaration.
DECLARATION OF JOHN P. J. KELLY IN SUPPORT OF APPLE INC.'S MOTION FOR A PERMANENT INJUNCTION, STATUTORY DAMAGES AND REASONABLE ATTORNEYS' FEES AND COSTS CASE NO. 08-3251 WHA

1

Case3:08-cv-03251-WHA Document232

Filed11/23/09 Page3 of 5

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6. 5. A B C D E F G H I

Table 2. Version of Mac OS X installed on each Psystar Computer.

Computer Open OpenPro OpenPro Open OpenPro Open OpenPro Open(3) Open(7)

Mac OS X version & build installed on hard drive 10.5.2 (9C7010) 10.5.4 (9E17) 10.5.5 (9F33) 10.5.6 (9G55) 10.5.6 (9G55) 10.5.6 (9G55) 10.5.6 (9G55) 10.5.6 (9G55) 10.5.6 (9G66)

Mac OS X version & build on Mac OS X DVD shipped 10.5.0 (9A581) 10.5.1 (9B21) 10.5.4 (9E25) 10.5.6 (9G66) 10.5.6 (9G66) -- -- -- 10.5.6 (9G66)

As can be seen from Table 2 above, Psystar has copied and installed at least five (5)

different versions or builds of Mac OS X onto its computers' hard drives between May, 2008 and August, 2009: (i) version 10.5.2 (Computer A); (ii) version 10.5.4 (Computer B); (iii) version 10.5.5 (Computer C); (iv) version 10.5.6, build 9G55 (Computers D-H); and (v) version 10.5.6, build 9G66 (Computer I). I have been informed that Apple first released version 10.5.2 on February 11, 2008, version 10.5.4 on June 30, 2008, version 10.5.5 on September 15, 2008, and version 10.5.6 on December 15, 2008. As can be discerned from this data, Psystar repeatedly created modified versions of Mac OS X and shipped them to customers shortly after Apple released each new version of Mac OS X. Following the release of Apple's Mac OS X version 10.6 Snow Leopard ("Snow

Leopard"), I examined a Psystar computer installed with Snow Leopard. I also examined Psystar's newest product, called Rebel EFI, which is software that Psystar distributes to enable
DECLARATION OF JOHN P. J. KELLY IN SUPPORT OF APPLE INC.'S MOTION FOR A PERMANENT INJUNCTION, STATUTORY DAMAGES AND REASONABLE ATTORNEYS' FEES AND COSTS CASE NO. 08-3251 WHA

2

Case3:08-cv-03251-WHA Document232

Filed11/23/09 Page4 of 5

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

third parties to run Snow Leopard on non-Apple computers even if the computers were not purchased from Psystar. In both instances, I found that to force Snow Leopard to run on nonApple computers, Psystar does not use the bootloader in Mac OS X. Instead, Psystar substitutes its own bootloader. (A bootloader is the initial set of code used to start the operation of Mac OS X. Further details regarding bootloaders are set forth at paragraphs 16-17 of my October 8 Declaration.) And, as with the circumvention software used by Psystar to run Mac OS X version 10.5 Leopard on Psystar computers, the circumvention software used by Psystar to run Snow Leopard (or enable others to do so) generates Apple's decryption key and uses it to access the encrypted files in Snow Leopard. 7. In sum, Psystar takes the following steps to enable Mac OS X to run on non-Apple

hardware: (a) Psystar uses Apple's decryption key to circumvent Apple's technological protection measures and gain access to the encrypted files in Mac OS X; and (b) Psystar modifies Mac OS X by, at a minimum, using a different bootloader. Psystar took both of these steps with respect to every Psystar computer that I inspected, whether that computer was running Leopard or Snow Leopard. In my opinion, Psystar must take both of those steps to enable any retail DVD version of Mac OS X Leopard or Snow Leopard to run on non-Apple hardware. 8. The key used by Apple to decrypt the encrypted files in Mac OS X version 10.6

Snow Leopard is the same key used by Apple to protect the encrypted files within Mac OS X version 10.5 Leopard and is stored in the hardware of a genuine Apple computer. Because of the importance of compatibility between new versions of Mac OS X and existing Apple hardware, it is not surprising that Apple uses the same key. If Apple had required use of a different hardwarestored key to decrypt and access the encrypted files in Snow Leopard, owners of existing Apple computers with Intel processors would have had to purchase new computers or modify their existing hardware in order to upgrade to Snow Leopard. Apple has never released a version of Snow Leopard that runs on anything other than an Intel processor. /// ///

DECLARATION OF JOHN P. J. KELLY IN SUPPORT OF APPLE INC.'S MOTION FOR A PERMANENT INJUNCTION, STATUTORY DAMAGES AND REASONABLE ATTORNEYS' FEES AND COSTS CASE NO. 08-3251 WHA

3

Case3:08-cv-03251-WHA Document232

Filed11/23/09 Page5 of 5

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

/// I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed this 23rd day of November, 2009 at Santa Barbara, California.

John P.J. Kelly, Ph.D.

DECLARATION OF JOHN P. J. KELLY IN SUPPORT OF APPLE INC.'S MOTION FOR A PERMANENT INJUNCTION, STATUTORY DAMAGES AND REASONABLE ATTORNEYS' FEES AND COSTS CASE NO. 08-3251 WHA

4