Psystar loses big in court
By Jake Widman
Tuesday, 17 November 2009 02:19
Page 1 of 3
Last Friday (Northern California time), the court filed its Order Re Cross Motions for Summary Judgment. The order (PDF) represents a solid win for Apple in every issue it addressed -- law blog Groklaw calls it a "total massacre."
Apple charged that Psystar was in violation in three areas: reproduction, distribution, and the creation of derivative works.
Psystar's first loss came on the company's failure to assert a particular defense. The law "permits the owner of a copy of a computer program to copy or modify the program for limited purposes without incurring liability for copyright infringement," according to the court order. But Psystar never asserted that defense and, in the court's view, waived it.
As for distribution, Psystar argued that distributing Mac OS X on its computers was protected by the "first-sale doctrine," which states that "the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord."
In other words, argued Psystar, because it bought a copy of OS X for each clone it distributed, it was allowed to resell them.
The problem, said the court, is with that phrase "lawfully made." Psystar didn't make individual copies of each DVD it bought; rather, it made one master copy from a Mac mini and then duplicated that one over and over. First sale does not apply.
For more on the judgment, see Page 2.
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