Lora Bentley spoke with Madison Spach, Jr., a partner in the law firm of Spach, Capaldi & Waggaman, where litigation over media and technology assets and related trade secrets is one area of focus. He is also a Mac user, and as such, has been watching the litigation between Apple and Psystar. Spach says Psystar sees a market for less-expensive boxes running the OS X operating system and is trying to make money while it can. Apple, on the other hand, is pursuing litigation to protect the Apple hardware and OS X brands.

Bentley: I saw not long ago that Psystar has released a new version of its Mac clone. Why would the company do that in the middle of an infringement lawsuit?
Spach: The market issue that Psystar is trying to address is the fact that people generally believe that Apple charges a premium for its hardware.

Bentley: You're a Mac user, what do you think?
Spach: What I have found is that I am particularly wedded to the Apple hardware because it's reliable. In my practice, reliability is well worth what you pay for it, which I think ends up being very economical.

Bentley: And the other side of the argument?
Spach: There's a large group that believes strongly that Apple should provide a very cheap alternative to its hardware, or in other words, that Apple should go down one rung in the market and provide cheaper machines. That is the role that Psystar has tried to fill.

Bentley: So why would they keep trying even though their first complaint was dismissed? What's the point?
Spach: The developments in the pleadings that were filed in December through February -- well, amendments to Apple's complaint and Psystar's new complaint that the court accepted -- both parties allege that other people are affected or involved in the process of supporting Psystar and its new version machine. It's called the Open 3. These people are as-yet unnamed and are brought in by what are called "Doe allegations," meaning they're alleged as unknown actors. That gives a hint that Apple believes other people are involved and that Psystar is willing to affect parties other than itself.

So Psystar sees that market opening and is attempting to exploit that market since there's no injunction preventing it from doing so. If Psystar itself has resources, it can devote them to the manufacture of the machines and making what money they can. If it turns out that their conduct has been wrongful -- and it seems under the allegations that several of the claims would support liability -- whether or not Psystar will then be in a position to respond to damages will be an open question.

Bentley: What's Apple's recourse if Psystar can't respond?
Spach: If the entity itself can't, then the only way for Apple to recover damages would be to essentially put Psystar out of business and then go after the founders or supporters. So they're cashing in while they can, and Apple is pursuing them.

They both have very, very good law firms representing them, so even though Psystar is not a large player in the market at the present time, both Apple and Psystar have managed to engage heavy-hitting law firms to battle out the dispute, which is extraordinarily expensive to do.

Bentley: Assuming that Apple prevails, how does it quantify damages?
Spach: Well, that depends on which claim is successful. But regardless which one it is, it is very unlikely that Psystar would, from its own resources, be able to respond unless it has been very, very heavily capitalized. I think the purpose of the lawsuit by Apple is not to recover damages per se, but to stop the modification of the OS X operating system and the placing of it on non-Apple hardware. That would be the thing that would make sense, and that way they protect the Apple hardware brand, as well as the OS X brand. And that is not only worth protecting, but I think there's a great value to consumers in protecting that as well because of the reliability of Apple hardware.