There’s been a lot of commentary on the Apple/Psystar case, though I believe most of it is based on misunderstanding of the legal process and the normal dance steps that take place before trial. In such cases a “loss” on either side is really not a loss at all, it’s just the standard pre-trial theatrics leading to the main event.
There is a good article on World of Apple about the latest developments, which include a new twist.
A decision on Apple’s motion for dismissal is expected by 11/20 (i.e., within two weeks of the oral arguments presented last Thursday, 11/6). The article makes the following claim regarding the motion to dismiss:
Now I will repeat what I have said multiple times before: Apple will not prevail on its Motion to Dismiss, and the Apple web will completely blow the significance of Apple’s loss out of proportion. I believe that Apple will not prevail simply on sheer statistics, and the philosophy that courts do not like to take cases out of the hands of the jury.
I can’t help but agree with both sentiments.
- Even without a legal background, it’s clear to me no judge in his right mind wants to keep a case from a jury. It gives the appearance that a judge is not allowing someone to be tried by the classic “jury of their peers.” If there’s even a shred of doubt, then a judge will almost certainly allow it to proceed. In my view, the motion to dismiss is simply the standard first step Apple makes, but they know full well it’s a shot in the dark. They’d likely faint if it were granted.
- Based on what I’ve seen blogged on this case, the article’s claim that the blogosphere will make a big deal out of Apple “losing” this round seems pretty solid. And yet, bloggers aside, the truth is it won’t mean much of anything.
Meanwhile, there’s a much bigger story going on. It’s been discovered that one of the attorneys representing Apple (Megan Chung) used to clerk for Judge Alsup, the judge presiding over this case. Alsup has given Psystar until Monday, 11/10 at noon to file a motion for him to recuse himself from the case.
So while we’re not likely to get a decision on Apple’s motion to dismiss on 11/10, we will get action from Psystar. I’m curious to see how they go: Will they ask the judge to recuse himself or not? Their action (or inaction) on this will be interesting. A lot could — and probably will — be made of what Psyster does tomorrow, but in the end only the attorneys know the strategy they’re employing.
The article points out that if the general feeling from Psystar is that the judge isn’t buying their arguments, they may file the motion for recusal and try again with another judge. That certainly makes sense, but if they feel their argument is somewhat weak to begin with, they may just be looking to get in front of a jury anyway. A motion to recuse could lead some people to believe that Psystar isn’t sold on their own case, and just wants to “start over”, which is not likely to be taken favorably.