Psystar sues Apple for Snow Leopard

Clone Mac maker Psystar filed a new lawsuit this week to sell systems with Snow Leopard.

Florida-based Psystar is hoping to bring Apple's latest operating system to its line of knock-off Macs. In a complaint filed in a Florida court Thursday, Psystar seeks an injunction and damages due to Apple's "anticompetitive attempts to tie Mac OS X Snow Leopard to its Macintosh line of computers."

The filing claims that Psystar is entitled to be able to buy copies of Snow Leopard on the market and install them onto its own computers that it re-sells. The suit alleges that the company is already capable of installing the new operating system on its hardware.

"The Psystar computers that run Mac OS X Snow Leopard are able to do so by running software, written by Psystar, that interfaces with the open-source portion of Mac OS X Snow Leopard," the filing reads. "The manner in which Psystar computers run Mac OS X Snow Leopard is entirely different from the manner in which Psystar computers run Mac OS X Leopard."

The company asks for a court to grant an injunction requiring Apple to cease tying Snow Leopard only to official Mac computers. It also asserts that the company is entitled to a court injunction preventing Apple from blocking Psystar from selling computers with Snow Leopard.

Recently, the Florida company deposed Apple executive Phil Schiller, only to suggest he was unprepared during attorney questioning. Psystar's deposition of numerous Apple executives was part of a lawsuit filed by the official Mac maker. That trial is set to begin in California in January of 2010.

Not format shifting for resale.

I actually haven't heard any cases to support that. I do know the iPod loading industry is pretty big, and hasn't been sued. That is a business built on format shifting. True, that's just the business doing what the consumer could have himself done, but then so is a hackintosh. All Psystar has to do to make it exactly equal is run two purchases through for each system: one for OS X and then one for the hardware and the service of loading the customer's copy of OS X onto it.

But format shifting doesn't really apply, since nobody's shifting format for OS X. First Sale is what applies. Apple loses control of the further sale and use of a copy of OS X once it's been sold.

You know I love Apple, and I also hate hackintoshes, but to me the principle of balanced copyright is much more important than one company.

I do know the iPod loading industry is pretty big, and hasn't been sued.

The music industry was making a lot of noise about doing exactly that... but Apple's agreement with them explicitly allowed it. Note, however, that Apple does NOT preload music onto any iPod it sells. Several companies tried that and were recipients of Cease and Desist letters threatening legal action. They ceased and desisted.

Also, there were media shifting suits in which the offending company WAS held liable... a Utah company was taking Hollywood movies, and without the permission of the copyright owners, re-editing them to remove what they considered offensive material, recording the movie onto a VHS tape and then selling and/or renting the bowdlerized version of the movie to the general public. The studios sued them for both unauthorized distribution and copyright infringement, and modification of copyrighted materials for material gain. Their defense was basically the same as Psystar's: they were merely filling a market niche that the studios were not filling with their original content. The copier lost.

But format shifting doesn't really apply, since nobody's shifting format for OS X. First Sale is what applies. Apple loses control of the further sale and use of a copy of OS X once it's been sold.

Apparently, Psystar IS format shifting in a way. They have admitted that they are not installing OSX from the Apple brand installer disk but rather from a modified OSX image (a violation of the copyright act) on a hard drive on a computer at their shop. They are selling a hard drive (installed in the Psystar computer) with a modified, working copy of the latest updated OSX on it. They are then also selling a separate sealed OSX install disk that may be several updates older. Psystar is also not the end user... they are an unauthorized reseller of the unopened Apple product, but they are also selling (or giving away) an "unlawfully made copy" made from a reference platform, and therefore, since the doctrine of "first sale" by definition only applies to "lawfully made copies," the doctrine of "First Sale" probably does not apply.

The music industry was making a lot of noise about doing exactly that

The industry was making noise about simply putting your own songs on your iPod before Apple got in the game. They lost to Diamond over the Rio.

a Utah company was taking Hollywood movies, and without the permission of the copyright owners, re-editing them to remove what they considered offensive material

I know that case. The problem was that in censoring the movies they were creating substantially differing derivative works.

They have admitted that they are not installing OSX from the Apple brand installer disk but rather from a modified OSX image

That was a big question a while back for any businesses that use install images instead of manually installing every copy. I don't know how it was resolved, but it appears that the industry has accepted the practice in general to avoid thousands of pissed-off corporate customers.

But this act would be format shifting. Copyright was designed to compensate authors for their works. If Psystar's claims are correct, Apple gets paid for every copy of OS X they shipped. The spirit of copyright has been maintained. However, the technical act of copying can cause problems.

As I've said before, I don't believe Apple has the right to tell you what you run OS X on. All hackintoshes should be legal, and so should selling them. Maybe Psystar should just set up an automated DVD install and rid themselves of the copying question. Then they're stuck with the DMCA and Apple's abusive EULA.

Thanks for story behind the story but you know me..... I’m with the little guy, the underdog. I’m pulling for Los Hermanos Psystar

You like crooks as long as they are small timers? How about the small neighborhood drug dealers? How about the small time "fence" who receives and resells stolen property? How about the underdog who cheats to win?

Lots of problems with your logic.

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