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Psystar Takes Another Nip at Apple's Heels

By Jeff Meisner MacNewsWorld ECT News Network
Dec 11, 2008 8:15 AM PT

A Florida-based company that makes Mac clones has upped the ante in its ongoing copyright litigation against Apple.

Psystar Takes Another Nip at Apple's Heels

In its latest claim in U.S. District Court in San Francisco, Psystar claims that Apple has injected code into a version of its Mac OS X software that makes it impossible for unauthorized third-party computers to run the operating system.

The dispute between Apple and Psystar started in July when Apple sued the upstart company for copyright infringement. Psystar responded with a claim that Apple held a monopoly in the market for Mac computers. The claim was thrown out by a federal judge in San Francisco.

Now, Psystar is back, claiming that Apple's use of new software code to render third-party hardware from running its proprietary operating system is itself a violation of copyright law.

Copyright Misuse

Psystar's claim is a classic "copyright misuse" legal strategy, said Chris Collins, an intellectual property attorney with Vanderpool, Frostick & Nishanian.

"In general, the copyright laws grant copyright owners a bundle of rights. The theory is that the owner is seeking additional rights that the statute doesn't allow," he told MacNewsWorld.

Psystar's argument is that in preventing the use of OS X on other companies' hardware, Apple is exceeding the bounds of its copyright, Collins said.

"This has been used in patent misuse cases in the past," he said. "It fits hand in glove with Psystar's claim that Apple was a monopoly -- which Psystar lost. The district court judge didn't see Apple as a monopoly under antitrust law."

Under U.S. copyright law, Apple can place certain restrictions on how its proprietary technology is used. Apple can restrict licensees from copying or making derivatives of its operating system, Collins said

"Apple is saying, you're using too much of our proprietary technology which you obtained illegally," he said. "We'll wait to see how the judge rules."

Psystar Is All In

Psystar is playing a risky legal game with Apple, according to Collins.

"This is their second shot at it," he said. "The first one didn't work. In this case, it seems that a significant portion of Psystar's future rests on being able to beat Apple in this case. This is a bet-the-company sort of case. They will probably then fight it all the way."

On the other hand, Psystar could attempt to obtain a legitimate copyright license from Apple that specifically allows it to use Apple's technology for the purpose of creating and selling Mac clones, but it's not likely Apple would be amenable to that idea.

"Psystar probably won't be able to obtain a license for the purposes of what they want to do because they'd become head-to-head competitors with Apple," Collins said. "The only way that would make any sense is if Psystar is going to break into new markets that Apple thinks it won't be able to reach otherwise."

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