Remember scrappy upstart Psystar and their pesky Mac clones? While the company was basically forced out of business at the end of last year by Apple’s legal maneuvering, Psystar filed an appeal, which Cupertino has finally responded to.
The Mac Observer is reporting that the epic David and Goliath struggle between Psystar and Apple isn’t quite over yet. While the story has been mostly washed away this year in the shadow of the iPad and iPhone 4, Psystar filed an appeal after mostly being shut down by the courts. Despite Psystar’s Opening Brief being sealed, Apple’s Answering Brief is not, and offers some insight into where things stand now.
You may recall that Psystar was building and selling PCs with Mac OS X installed. While the copies were legally purchased, they were not licensed from Apple (who refuses to go down the clone path again after flirting with it in the mid-‘90s) and therefore against Cupertino’s terms of use. Apple sued to stop Psystar and the court agreed, blocking the company from selling Mac clones or offering software to help people install Mac OS X on non-Apple hardware.
With their appeal filed in the Ninth Circuit Court of Appeals earlier this year, Psystar now appears to be using the tactic of convincing the court that copyright law itself might be interpreted wrong. “It seems that Psystar is pinning all its hopes in the Ninth Circuit on getting the court to adopt a radical revision of the Copyright Misuse doctrine that would in effect destroy copyright and force all copyrighted works to be licensed,” claims an attorney consulted by The Mac Observer.
“Because Psystar has no proof that Apple has inhibited competition or suppressed creativity, Psystar urges this Court to abandon long-standing precedent and create a new doctrine of per se copyright misuse,” Apple’s Answer Briefing stated. “Under this doctrine, any license agreement -- such as Apple’s SLA -- that restricts the use of copyrighted software to particular hardware is per se copyright misuse.
“Psystar’s grossly overbroad per se theory of copyright misuse would eliminate fundamental rights guaranteed by the Copyright Act -- the rights to control the reproduction, modification, and distribution of copyrighted works,” Apple concludes.
It’s still a mystery why Psystar has chosen to keep their own Opening Brief sealed, but the company clearly believes they have some kind of trump card in their interpretation of the copyright law which could help them battle Apple.
“It is ironic for Psystar to petition the court in its Opening Brief to lift the order protecting the secrecy of the measures that Apple uses to protect OS X from running on non-Apple-labeled hardware,” The Mac Observer’s legal consultant concludes, “because the public has a right and a need to know how the court is deciding this case, while unnecessarily filing its entire Opening Brief under seal so that we won’t know what Psystar’s arguments are, as the court rules on them.”
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