Mac clone maker Psystar claims it bought OS X from Apple
By Gregg Keizer
The Mac clone maker being sued by Apple because it installs Mac OS X on generic Intel-based systems said it bought copies of the operating system from Apple itself, court documents show.
In papers filed with a San Francisco federal court last week, Psystar repeated its argument that Apple has abused copyright laws by tying the Mac operating system to Apple hardware. The filing came in response to an Apple motion asking U.S. District Court Judge William Alsup, who tossed out Psystar’s original antitrust allegations against Apple last November, to also throw out the Florida company’s revamped countersuit.
“Apple contends that because Psystar is ‘distributing computers with Apple’s copyrighted software loaded on them’ that ‘Apple is within its rights in asserting copyright infringement’,” said Psystar in the papers filed Jan. 7. “Apple’s assertion that Psystar cannot distribute computers with Apple software (and that a purchaser could not use the same) would run roughshod over 17 U.S.C.,” Psystar added, referring to the section of U.S. law that pertains to copyright.
To make its point, Psystar claimed that it has purchased some copies of Mac OS X—which it pre-installs on the Intel-powered machines it sells under the “Open Computer” and “OpenPro” labels—straight from Apple.
“Psystar distributes computers with legitimately purchased copies of Mac OS loaded thereon,” the company said. “Many of those copies [were] directly obtained from Apple. While Psystar complies with Section 117(b) of the Copyright Act, Apple attempts to usurp those limitations by telling Psystar and its customers that Apple—and Apple alone—will say ‘whether, how or by whom its software is … distributed or used.'” Apple’s case relies on exactly that; it has claimed from the start of its July 2008 lawsuit that the Mac OS X end-user licensing agreement (EULA) forbids users from installing the operating system on hardware not sold by Apple.
Apple, argued Psystar, can’t have it both ways by taking Psystar’s money and then claiming its copyright has been infringed upon. “Psystar acquired lawful copies of the Mac OS from Apple,” Psystar said. “Those copies were lawfully acquired from authorized distributors, including some directly from Apple; Psystar paid good and valuable consideration for those copies; Psystar disposed of those lawfully acquired copies to third-parties.
“Once a copyright owner consents to the sale of particular copies of a work, the owner may not thereafter exercise distribution rights with respect to those copies,” Psystar added, citing U.S. law and the “first sale” doctrine.
The first sale doctrine, which traces its history to a 1908 U.S. Supreme Court decision and was codified by Congress in the Copyright Act of 1976, essentially says that the buyer of a copyrighted work may sell or give away a lawfully-made copy without the copyright holder’s permission.
For its part, Apple’s motion of Dec. 30 said that Psystar’s request to revise its countersuit was nothing more than smoke and mirrors. “Psystar attempts to repackage its dismissed antitrust allegations under the guise of copyright misuse,” Apple told Alsup.
“Apple is well within its rights to determine whether, how or by whom its software is reproduced and how it is to be licensed,” Apple added elsewhere in the motion.
Apple initiated the legal tussle—prompted by Psystar’s April 2008 launch of Intel-based computers running Mac OS X—but Psystar hit back with a countersuit in late August, when it argued that Apple violated antitrust laws by tying the operating system to its hardware.
When Alsup dismissed the antitrust allegations, he left the door open to an amended complaint. Psystar took advantage of the opportunity in mid-December and filed a revised lawsuit that instead claimed that Apple had stretched the copyright laws.
Apple declined to comment on the case, which is slated to go to trial in April.
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