Psystar Tries Another Angle in Case Against Apple

Lora Bentley

Last week in my Open for Business blog, I bemoaned the fact that SCO Group just won't die and is refusing to let go of its intellectual property litigation against Novell and other Linux distributors. This week, the "Give it up, already!" theme continues.


Florida-based Psystar, which notoriously began selling Mac clones last year, has again amended its lawsuit against Apple. The first claim centered around antitrust violations, but the judge rejected that argument and gave the company a chance to try again. Psystar then added copyright abuse claims, and is now adding an argument based on the "first sale doctrine."


Citing Computerworld, CNET News' Tom Krazit says:

[Psystar] plans to argue that since [it] legally purchased its copies of Mac OS X from Apple and resellers, it has the right to do basically whatever it wants with that software.

However, as Krazit also points out, the first sale doctrine is rarely, if ever, applied to software because it is not sold to customers. It is licensed.


As much as I like to root for the underdog when smaller companies have the guts to clash with big ones, they need to make sure their cases are solid before they do. I'm not sure Psystar's is going to go anywhere. The company would be wise to learn from the SCO situation and let go while it can.

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Jan 22, 2009 4:25 AM John Mitchell John Mitchell  says:
This "software is licensed, not sold" argument is pretty much a red herring. Although Microsoft is a huge champion of it, the argument is flawed. First of all, there is no copyright protection in "software" as such. Copyrights protect "works of authorship." If a copyright owner licenses their work, they can only licence the rights Congress gave them: the rights of reproduction or distribution of copies, for example. There is no question that the owner of a lawfully made copy of an Apple "work" is entitled, without Apple's consent, to sell it. There is no question that Apple alone has the right to authorize reproductions of its work from the disc to the hard drive. In effect, it sells a disc (to which Section 109 of the Copyright Act applies, giving the new owner of the disc the right to resell it), along with a license to reproduce the work from the disc onto the computer's hard drive. It sells the copy of the work, and licenses the reproduction of a copy of the work. The real question is whether it may be allowed to license the reproduction of the work only onto certain media (Apple products) and not other media. Think of it as an author of a poem that is very popular, who authorizes the reproduction of the poem to anyone who will pay $1, but then adding a limitation: "you may only reproduce it onto paper manufactured by me." That, I believe, constitutes a misuse of the copyright, for it leverages the exclusive right of reproduction of the work into the market for non-exclusive paper. Reply
Jan 23, 2009 9:13 AM Arnie B. Arnie B.  says:
Psystar isn't just copying OSX onto their boxes they are modifying the code with a hack . They may be buying retail versions of OSX and including them with the purchase, but that disk was not used to load the computer, just try to load it onto a Psystar box out of the box.This has nothing to do with a poem or paper or anything of the kind, it has everything to do with taking someone else's protected IP work and changing it to make a profit Reply
Feb 3, 2009 9:20 AM Ray Ray  says: in response to Arnie B.


Your missing the point, Apple is, in Psystar's view, engineering their product to cut out the competition in the hardware sector.  The fact that Pystar has to modify the OS is proof in itself.

In fact if you open up an Intel MAC you will find exactly the same configurations and hardware as in many PCs around the world. There's no difference. Apple would try to make you believe that their is, but wont try to prove it other then take their word for it.

By the way what is Apple afraid of anyhow, They can allow OSX to be installed on PCs and they can just say your on your own as far as support goes. Their worried about their bottom line that's why and don't give me this malarkey about it will hurt our reputation, that just doesn't cut it.

It's all about control!

Feb 4, 2009 4:41 AM eddy eddy  says: in response to Ray

It is interesting how people accuse Apple trying to cut competition from the hardware. Apple has always been very clear about their product which is hardware + software (OS X). Most arguments become pointless because it based on the wrong assumption.

Feb 6, 2009 11:52 AM Jason Jason  says: in response to eddy

Yet Apple still produces software that runs on non-apple hardware. Such as Safari. Why should their operating system be any different? And the hardware that it runs on isn't even "theirs". It's the same hardware the PCs are made of, just with a different casing. If they built it on hardware that they only had access to, it wouldn't even be an issue.

That said, I do think that Psystar is approaching this in the wrong way. They should have first sued Apple, and once they won, starting producing computers, not the other way around.


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