Apple Inc. v. Psystar Corporation

Filing 273

ORDER DENYING MOTIONS TO SEAL by Hon. William Alsup denying 267 Administrative Motion to File Under Seal.(whalc1, COURT STAFF) (Filed on 1/3/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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APPLE INC.,

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For the Northern District of California

United States District Court

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No. C 08-03251 WHA
Plaintiff,

v.

ORDER DENYING
MOTIONS TO SEAL

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PSYSTAR CORPORATION, a Florida
corporation,

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Defendant.
/

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INTRODUCTION
In this copyright-infringement action, plaintiff moves to seal portions of the parties’

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summary judgment filings and the Patience declaration in support of its renewed motion to seal.

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For the following reasons, the motions are DENIED.

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STATEMENT
In November 2009, this Court granted summary judgment for plaintiff Apple Inc. on

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copyright infringement and DMCA violations, and also granted Apple’s motions to seal

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documents in the summary judgment filings. Defendant Psystar Corporation appealed. Our court

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of appeals affirmed the order granting summary judgment, but vacated the orders granting

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Apple’s motions to seal. This order follows additional briefing by both parties on remand.

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Apple seeks to seal documents relating to three aspects of its Mac OS X operating system
and computer products: Apple’s Technological Protection Measure (TPM), Apple’s system

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integrity checks, and Apple’s thermal management techniques. Apple asserts that these

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documents contained “compelling trade secrets” (Br. 1). Apple asserts that these trade secrets

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had value by not being known to the general public or to those who could make use of the secrets.

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Specifically, Apple argues that this information could have been used to facilitate the type of

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infringement Psystar had undertaken (Br. 4).

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ANALYSIS
To overcome the strong presumption of public access to judicial records, the party seeking

“compelling reasons” sufficient to outweigh the public’s interest in disclosure and justify sealing

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court records exist when such “court files might have become a vehicle for improper purposes,”

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For the Northern District of California

to seal must articulate compelling reasons supported by specific factual findings. In general,

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United States District Court

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such as the use of records to gratify private spite, promote public scandal, circulate libelous

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statements, or release trade secrets. The strong presumption of access to judicial records applies

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fully to dispositive pleadings, including motions for summary judgment and related attachments.

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Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1178–79 (9th Cir. 2006)

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(citations omitted).

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California defines a trade secret as “information, including a formula, pattern,

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compilation, program, device, method, technique, or process, that: (1) Derives independent

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economic value, actual or potential, from not being generally known to the public or to other

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persons who can obtain economic value from its disclosure or use; and (2) Is the subject of efforts

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that are reasonable under the circumstances to maintain its secrecy.” Cal. Civ. Code 3426.1.

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Public disclosure (absence of secrecy) is fatal to the existence of a trade secret. In re Providian

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Credit Card Cases, 96 Cal. App. 4th 292, 304 (2002) (upholding the trial court’s determination

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that a certain matter designated as confidential be unsealed because the party asserting trade

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secret status did not meet its burden of proof). “It is well recognized that a trade secret does not

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offer protection against discovery by fair and honest means such as by independent invention,

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accidental disclosure or by so-called reverse engineering, that is, starting with the known product

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and working backward to divine the process.” Chicago Lock Co. V. Fanberg, 676 F.2d 400 (9th

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Cir. 1982).
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Apple argues that accurate “public speculation” cannot strip trade secret protection (Br.

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4). That is, even if the information that Apple seeks to seal is publicly available, trade secret

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protection will still exist if Apple is not the source of that publicly available information, and has

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not endorsed or confirmed any of that information. This order disagrees.

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What Apple calls “public speculation” is more appropriately termed “reverse engineering”

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under these circumstances. Much of the information that Apple seeks to seal is publicly available

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by examining OS X itself or by consulting publicly available sources such as the website for the

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book OS X Internals by Amit Singh. Comparing the information Apple seeks to seal and the

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information publicly available reveals that much of the publicly available information is accurate.
For example, Apple seeks to seal documents listing the encrypted executable binaries: Dock,

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For the Northern District of California

United States District Court

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Finder, loginwindow, SystemUIServer, mds, and translate (see, e.g., Apple Motion Tab 2 at 3).

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This same information is available online and in print (see Dkt. No. 268 Exh. 1 at 2 (webpage of

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Mac OS X Internals)). Another example: Apple seeks to seal information relating to “Don’t

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Steal Mac OS X.kext” kernel extension (see, e.g., Apple Motion Tab 2 at 4). This same

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information is available online (see Dkt. No. 268 Exh. 1 at 5). One more example: Apple seeks

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to seal information relating to its decryption key haiku, “our hard work / by these words guarded /

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please don’t steal (c) Apple Computer Inc” (see, e.g., Apple Motion Tab 2 at 5). This haiku is

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available to any user who compiles and runs publicly available code on a MacBook Air laptop

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computer (Dkt. No. 187 at Exh. D). Apple even seeks to seal quotes from online published works

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written by others (compare Apple Motion Tab 19 with Dkt. No. 268 Exh. 2 at 1–2).

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Apple does not deny that some of the information it seeks to seal are publicly available

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(Patience Decl. ¶ 20). Notably, Apple does not argue that any of the publicly available

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information was unlawfully learned or misappropriated. In fact, Apple’s Vice-President of Core

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OS Software admits that “third parties may have accurately deduced and published some of the

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material Apple seeks to maintain as sealed” (ibid. (emphasis added)).

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It is unnecessary to go through the entire record and list every instances where Apple is
seeking to seal information that is publicly available. There are too many examples. For the

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purposes of this order, it is sufficient that Apple’s motion to seal is too broad and not narrowly

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tailored to compelling trade secrets.

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There is no compelling reason to justify sealing the documents if the information is

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already available to the public. The information about technological protection measure and

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system integrity checks that Apple seeks to seal was relied on by the order granting Apple’s

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motion for summary judgment (Dkt. No. 214 at 3). Thus, the public interest in disclosure of such

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information to better understand the judicial proceeding is very strong. Apple cannot have this

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Court seal information merely to avoid confirming that the publicly available sources got it right.

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CONCLUSION
For the reasons stated, Apple’s renewed motion to seal portions of the parties’ summary

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For the Northern District of California

United States District Court

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judgment filings and motion to seal the Patience declaration in support of its renewed motion to

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seal are DENIED. The clerk shall publicly file the unredacted versions of the documents.

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IT IS SO ORDERED.

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Dated: January 3, 2012.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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