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.
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.