Psystar skates on thin ice

As you may have read, Mac clone maker Psystar is now distributing Apple’s own software updates. That’s right—you can now download things like iTunes 7.6.2, QuickTime 7.4.5, Front Row 2.1.3, and various other Apple updates (along with some Psystar-specific updates) directly from Psystar. Just to be certain these were Apple’s own updates, I downloaded iTunes 7.6.2 from both Psystar and Apple and compared the package files: they are identical, byte for byte and file for file.

When Psystar opened its doors, the initial reaction was that the company wouldn’t last a day or two before Apple sued them. However, based on what Psystar said it was doing, there was some discussion that Apple wouldn’t actually have a very good case against Psystar—at the most, Apple might be able to get the Florida-based company on an end user license agreement (EULA) violation. However, as patent attorney Raj Abhyanker, who used to work for Apple, noted in this Wired article, suing over an EULA violation might not make sense for Apple:

“Those types of litigation ultimately have a lot more remedies for a plaintiff,” he says. “But if you look at breach of contract, it’s usually limited (depending on the state) to the amount of services or the amount of goods as subject to the contract. The maximum damage Apple would be able to claim is the price of Leopard — actually, the OEM (original equipment manufacturer) price of Leopard, which might be a few dollars.”

From what I’ve read about EULAs and what Psystar was doing, my non-lawyerly opinion was along those lines as well—while Apple was probably not thrilled with Psystar, there wasn’t much it could do from a legal perspective.

But that all changes with the news that Psystar is hosting Apple’s own downloads. Offering another company’s software for download—unless such software is in the public domain, under some sort of open source license, or you have a legal agreement to do so—is an obvious violation of copyright law. Psystar hosting Apple’s copy of the iTunes installer is no different than if I were to put it up for download on my blog, or if Macworld.com were to host it. I have no rights to distribute software from Apple (or any other software developer) without that developer’s explicit permission. As far as I know, Psystar has no such agreement with Apple—if it did, we would more than likely have heard about it from Apple and/or Psystar’s public relations departments, as it would be a truly groundbreaking agreement.

By distributing Apple’s own software on their site, Psystar has stepped over a large legal line—one that it really should have done its best to stay well away from. As noted elsewhere in the Wired article, once you get into the realm of copyright infringement, then you’ve entered the territory where lawyers love to play ball:

If Apple sued Psystar, a private company, it would likely need to come up with a much better legal basis — something like patent or copyright infringement, or misappropriation of trade secrets.

Even though I’m not a lawyer, it doesn’t take a law degree to make a compelling argument that Psystar is now definitively violating Apple’s copyrights. As such, I expect Apple’s silence relative to Psystar to end soon, and to end with lots of words on legal-length paperwork written by folks who are lawyers.

Update: As of 2:00 p.m. PT on Thursday, Psystar’s udpates page now links to Apple’s own software updates, so the company has stopped directly hosting these downloads. This wasn’t the case earlier when I tested the downloads from Psystar’s servers (as this cached page suggests). Whether or not this will clear the company of any pending legal troubles with Apple—assuming there is any pending legal trouble—remains to be seen.

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