Dotan Cohen wrote:
>> Well, yes. Dotan's original message spoke of losing formatting, which would
>> only be relevant if you were sending HTML. Plain text, by definition, has no
>> formatting.
>>
>>
>
> I _strongly_ disagree that plain text cannot have *any* formatting. In
> fact, there are some *very* popular plain text markup languages
> available, such as Markdown.
>
> http://en.wikipedia.org/wiki/Markdown
>
>
How is this different from HTML or XML? You still have to add tags for
this to work and if included in a plain text email, those tags will be
visible. As an example, I've included below some HTML source from
Groklaw. As you can see, it's all plain text, with tags added. Doesn't
Markdown do similar, so that if read in a plain text email, the tags
will be visible? I don't think I'd care to receive a plain text email
containing Markdown tags, any more that I'd care to receive one
containing HTML or XML tags.
<br>
Lots of activity in <a href="http://
www.groklaw.net/staticpages/index.php?page=Psystar">Apple v. Psystar</a>,
including Apple's filing its <a href="http://www.groklaw.net/
pdf/Psystar-146.pdf">Reply Memorandum</a> [PDF] regarding <a href="http://
groklaw.net/article.php?story=20090915010225235">Apple's motion to dismiss or
enjoin</a> prosecution of the Psystar Florida litigation. Here's what Apple is
responding to, if you'd like to compare, <a href="http://
www.groklaw.net/article.php?story=20090919111108345">Psystar's Memorandum in
Opposition</a> to Apple's motion. Also there are three declarations in
support of Apple's motion, one sealed, and <a
href="http://www.groklaw.net/pdf/Psystar-149.pdf";>one</a> in which the
declarant tells about registering copyright in Snow Leopard on Sept. 16 and it
issuing on Sept. 21. So much for Psystar's allegation that there was no
registered copyright on Snow Leopard. I couldn't figure out why Psystar even
said that, frankly. <P> And the parties are fighting about Jacques Vidrine
again. If you noticed, Apple filed under seal a declaration by Vidrine, docket
number 137, with its motion to dismiss or enjoin prosecution, after telling
the judge at the <a
href="http://www.groklaw.net/article.php?story=20090904231314920";>last
hearing</a> that it wouldn't be using him as an expert for trial and the judge
so ordering. So once again, Psystar is claiming Apple violated that order by
submitting the Vidrine declaration and is asking for sanctions, also that
Vidrine's declaration be stricken. One thing is clear. Psystar really, really,
really doesn't want Jacques Vidrine to testify about changes in Apple's
technological protection measures in Snow Leopard.<br><br> We only find out
what Psystar wants by reading <a
href="http://www.groklaw.net/pdf/Psystar-144.pdf";>Apple's Memorandum in
Opposition</a> [PDF], because Psystar sealed its motion. Psystar seems to be
sealing a lot more than Apple is, but that could just be my impression. The
essence of the Apple argument is that Apple says that it said it wasn't going
to use Vidrine back when the case was only about Leopard, prior to Psystar
starting to sell Snow Leopard. That changed things. Now, Vidrine's the very man
Apple needs to explain the tech: <blockquote> But Psystar contends the
Court should not consider it because Apple in its Initial Disclosures never
identified Mr. Vidrine as a witness Apple intended to rely upon. However,
prior to August 27, 2009, when Psystar announced that it was going to sell a
computer running Snow Leopard, Mr. Vidrine’s knowledge was not relevant to the
matters in dispute between the parties. Now it is. Because of the recent
change in circumstances, Apple has asked this Court to re-open discovery and
to allow it to supplement its Initial Disclosure of witnesses pursuant to
Federal Rule of Civil Procedure 37. Nothing in that Rule, or in anything Apple
has previously said to this Court, precludes such a request. Psystar’s
selective citation of the Status Conference Hearing Transcript to suggest
otherwise is purposefully misleading. <P> Psystar also moves to strike Mr.
Vidrine’s declaration pursuant to Rule 37(c) on the ground that it is improper
expert testimony. Yet, Rule 37(c) does not govern whether opinion testimony is
admissible. Under Federal Rule of Evidence 701, which is the appropriate
standard, Mr. Vidrine’s testimony is admissible. </blockquote> And they offer
him for deposition by Psystar, if the court grants their request for more
discovery. Apple quotes from the hearing transcript, showing where Apple
said in open court it was requesting to reopen discovery and indicated its
intent to use Vidrine in that connection. The court suggested at the hearing
that Apple file a motion about reopening discovery, and so it did. Hence the
reappearance of Vidrine: <blockquote> Psystar’s assertion that Mr. Vidrine’s
declaration violates an Order of this Court is wrong. At the September 4,
2009, Status Conference, the Court invited Apple to file a motion responding
to Psystar’s new product announcement and duplicative lawsuit. The Court
allowed Apple to attempt to establish through a motion that there is
substantial justification for reopening discovery and amending its Initial
Disclosures. That is precisely what Apple has done. <P> Trying to convince
the Court that Apple cannot use evidence from Mr. Vidrine to demonstrate a
substantial justification for amending its Initial Disclosures, Psystar
selectively cites the September 4, 2009, Status Conference Hearing Transcript,
but ignores the most relevant portions. A more complete review of the
transcript clearly shows that the first half of the hearing related to issues
that did not involve Psystar’s sales of computers running Snow Leopard. That
is the part of the transcript Psystar quotes. But it was the second half of
the Status Conference which involved Snow Leopard. That is the part of the
transcript Psystar ignores. A complete review shows that Apple specifically
requested that the Court re-open discovery on the issue of Snow Leopard and
informed the Court and Psystar that Mr. Vidrine would be made available to
testify as to any changes in the technological protection measure in Snow
Leopard. Apple’s counsel stated:<blockquote>
Consequently, we suggest as follows: That the parties — that the Court
allow discovery for another 30 days; that Psystar turn over the source code
for its new product; that we be allowed to ask Mr. Pedraza what he did; and
<i>Apple will make Mr. Vidrine available to testify about any changes in the
technological protection measure</i>, so that those issues can be finally
resolved at trial in January. . . . [O]ur request is that the Court allow us
to take the small amount of discovery specifically related to the newest
product, released seven days ago. <i>And, in exchange, we will offer to make
Mr. Vidrine available for anything that relates to the changes as between
Leopard and Snow Leopard.</i> </blockquote>
28 September 4, 2009, Status Conference Hearing Transcript, p. 28:6-21
(emphasis added). <P> (Declaration of James G. Gilliland, Jr. in Opposition
to Psystar Corporation’s Motion to Strike, Ex. 1.)<P>
The Court responded by asking Psystar’s counsel whether it released new
products using Snow Leopard after the August 21, 2009, fact discovery
cut-off:<blockquote> The Court: Help me understand. When did Snow Leopard
10.6 come out? <P> Mr. Camara: I believe it was August 28th, which is – <P>The
Court: Of this year? <P> Mr. Camara: Of this year. <P> The Court: August 28th.
<P> Mr. Camara: Which is after the close of fact discovery in this case. <P>
The Court: And when did your company make this announcement about your
product? <P> Mr. Camara: It was last week. I don’t remember precisely which
day last week.<P> The Court: And just tell me, what did your announcement
say? <P> Mr. Camara: We announced we are offering for sale computers running
Snow Leopard.</blockquote> September 4, 2009, Status Conference Hearing
Transcript, pp. 31:17-32:8. <P> After having heard this sequence of events,
the Court went on to state that these new facts might warrant revised Initial
Disclosures including the identification of Mr. Vidrine as a witness:
<blockquote> Mr. Camara: Your Honor, the change – the new discovery that would
have to be taken is not trivial. For example, Mr. Vidrine, who the Court has
already ordered will not be able to testify, is the person who is charged with
designing the new technological protection measures for Snow Leopard. If
Apple thought Snow Leopard was covered by this case, they should have
disclosed Mr. Vidrine. He is the guy who designed the protection measures.
We would have to take his deposition. <P> The Court: Well, I understand that.
Possibly – I’m not saying it would be, but possibly this new development which
just occurred would constitute, quote, substantial justification for a revised
disclosure, even at this late date, add to Mr. Vidrine. And then he would be
made available and so forth.</blockquote> The Court then explicitly
authorized Apple to file a motion seeking that specific relief:<blockquote>
The Court: Look, here is the answer to this, The answer is: You’ve got to
bring a motion. </blockquote> September 4, 2009, Status Conference Hearing
Transcript, pp. 33:12-34:2. <P> Apple has now filed its Motion seeking to
dismiss or enjoin the Florida lawsuit and also to re-open discovery in this
case. [redacted] Psystar’s argument to strike Mr. Vidrine’s
declaration is based solely on a purposefully selective misreading of the
Court’s statements and should be denied. </blockquote> Even if the court wishes
to sanction Apple, striking the Vidrine declaration is overkill, Apple argues,
citing a number of legal arguments that would allow the testimony in even if he
couldn't testify as an expert witness.<P>
Most interesting in the reply memorandum on the Apple motion to dismiss or
enjoin is that Apple says that while it has indeed registered a copyright in
Snow Leopard, despite Psystar's allegation otherwise, it says it didn't
really need to for the court to order injunctive relief, because once a court
has jurisdiction over a case, any further copyright infringement is covered
with respect to injunctive relief. Apple quotes from the case <i> Perfect
10</i>:<blockquote> Once a court has jurisdiction over an action for copyright
infringement under ( 17 U.S.C.) section 411, the court may grant injunctive
relief to restrain infringement of any copyright, whether registered or
unregistered. <i>See, e.g., Olan Mils, Inc. v. Linn Photo Co.</i>, 23 F .3d
1345, 1349 (8th Cir. 1994); <i>Pac. & S. Co., Inc. v. Duncan</i>, 744 F.2d
1490, 1499 n. 17 (11th Cir. 1984). </blockquote>Not only that, but since Snow
Leopard evolved from Leopard, it's a derivative work, and "once a court has
jurisdiction over a registered work," Apple says, "it also has jurisdiction
over unregistered works that are derivative of the registered work. That leads
Apple to this conclusion: "Pystar's copying infringes Apple's copyrights in
<u>both</u> works. Accordingly, this Court has jurisdiction over all of
Apple's copyright claims against Psystar."
<P>The filings:
<blockquote>
<p>
09/21/2009 - <a href="http://www.groklaw.net/pdf/Psystar-143.pdf";>143</a> -
MOTION to Seal PORTIONS OF APPLE INC.'S OPPOSITION TO PSYSTAR CORPORATION'S
MOTION TO STRIKE THE DECLARATION OF JACQUES VIDRINE AND FOR SANCTIONS filed by
Apple Inc.. (Attachments: # 1 <a
href="http://www.groklaw.net/pdf/Psystar-143-1.pdf";>Affidavit J. Jeb B.
Oblak</a>, # 2 <a href="http://www.groklaw.net/pdf/Psystar-143-2.pdf";>Proposed
Order</a>)(Boroumand Smith, Mehrnaz) (Filed on 9/21/2009) (Entered: 09/21/2009)
</p>
<p>
09/21/2009 - <a href="http://www.groklaw.net/pdf/Psystar-144.pdf";>144</a> -
Memorandum in Opposition TO PSYSTAR CORPORATION'S MOTION TO STRIKE THE
DECLARATION OF JACQUES VIDRINE AND FOR SANCTIONS, 139 MOTION File Document
Under Seal filed by Apple Inc.. (Attachments: # 1 <a
href="http://www.groklaw.net/pdf/Psystar-144-1.pdf";>Affidavit DECLARATION OF
JAMES G. GILLILAND, JR.</a>, # 2 <a
href="http://www.groklaw.net/pdf/Psystar-144-2.pdf";>Exhibit 1 TO DECLARATION OF
JAMES G. GILLILAND, JR.</a>, # 3 <a
href="http://www.groklaw.net/pdf/Psystar-144-3.pdf";>Exhibit 2 TO DECLARATION OF
JAMES G. GILLILAND, JR.</a>, # 4 <a
href="http://www.groklaw.net/pdf/Psystar-144.pdf";>Proposed Order</a>)(Boroumand
Smith, Mehrnaz) (Filed on 9/21/2009) (Entered: 09/21/2009)
</p>
<p>
09/21/2009 - <a href="http://www.groklaw.net/pdf/Psystar-145.pdf";>145</a> -
MOTION to Seal [MISCELLANEOUS ADMINISTRATIVE REQUEST TO FILE UNDER SEAL (1)
PORTIONS OF APPLE INC.'S REPLY BRIEF IN SUPPORT OF ITS MOTION TO DISMISS OR
ENJOIN, (2) CERTAIN EXHIBITS TO THE REPLY DECLARATION OF J. JEB B. OBLAK IN
SUPPORT THEROF; (3) REPLY DECLARATION OF DR. JOHN P. J. KELLY AND EXHIBITS
THERETO IN SUPPORT THEREOF] filed by Apple Inc.. (Attachments: # 1 <a
href="http://www.groklaw.net/pdf/Psystar-145-1.pdf";>Affidavit of Mehrnaz
Boroumand Smith in Support Thereof</a>, # 2 <a
href="http://www.groklaw.net/pdf/Psystar-145-2.pdf";>Proposed
Order</a>)(Boroumand Smith, Mehrnaz) (Filed on 9/21/2009) (Entered: 09/21/2009)
</p>
<p>
09/21/2009 - <a href="http://www.groklaw.net/pdf/Psystar-146.pdf";>146</a> -
Reply Memorandum re 138 MOTION to Dismiss OR ENJOIN PROSECUTION OF THE
RECENTLY-FILED FLORIDA ACTION AND TO RE-OPEN DISCOVERY FOR LIMITED PURPOSES
filed by Apple Inc.. (Gilliland, James) (Filed on 9/21/2009) (Entered:
09/21/2009)
</p>
<p>
09/21/2009 - <a href="http://www.groklaw.net/pdf/Psystar-147.pdf";>147</a> -
Declaration of J. Jeb B. Oblak in Support of 138 MOTION to Dismiss OR ENJOIN
PROSECUTION OF THE RECENTLY-FILED FLORIDA ACTION AND TO RE-OPEN DISCOVERY FOR
LIMITED PURPOSES [REPLY DECLARATION OF J. JEB B. OBLAK IN SUPPORT OF APPLE
INC.S MOTION TO DISMISS OR ENJOIN] filed by Apple Inc.. (Attachments: # 1
Exhibit (s) 1-2 [submitted under seal])(Related document(s) 138 ) (Gilliland,
James) (Filed on 9/21/2009) (Entered: 09/21/2009)
</p>
<p>
09/21/2009 - <a href="http://www.groklaw.net/pdf/Psystar-148.pdf";>148</a> -
Declaration of Dr. John P. J. Kelly in Support of 138 MOTION to Dismiss OR
ENJOIN PROSECUTION OF THE RECENTLY-FILED FLORIDA ACTION AND TO RE-OPEN
DISCOVERY FOR LIMITED PURPOSES [REPLY DECLARATION OF DR. JOHN P. J. KELLY IN
SUPPORT OF APPLE INC.'S MOTION TO DISMISS OR ENJOIN, SUBMITTED UNDER SEAL]
filed byApple Inc.. (Attachments: # 1 Exhibit (s) 1-2 [submitted under
seal])(Related document(s) 138 ) (Gilliland, James) (Filed on 9/21/2009)
(Entered: 09/21/2009)
</p>
<p>
09/21/2009 - <a href="http://www.groklaw.net/pdf/Psystar-149.pdf";>149</a> -
Declaration of Susan D. Carroll in Support of 138 MOTION to Dismiss OR ENJOIN
PROSECUTION OF THE RECENTLY-FILED FLORIDA ACTION AND TO RE-OPEN DISCOVERY FOR
LIMITED PURPOSES [REPLY DECLARATION OF SUSAN D. CARROLL IN SUPPORT OF APPLE
INC.'S MOTION TO DISMISS OR ENJOIN] filed byApple Inc.. (Attachments: # 1 <a
href="http://www.groklaw.net/pdf/Psystar-149-1.pdf";>Exhibit (s) 1-4)</a>
(Related document(s) 138 ) (Gilliland, James) (Filed on 9/21/2009) (Entered:
09/21/2009)
</p>
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