Apple wants to take Psystar and its clone customers to the cleaners

Stephen Withers
Thursday, 17 July 2008 12:19

Opinion and Analysis

Apple has pulled out all the stops and come out swinging against Mac cloner Psystar, asking for all profits made from its clones and a total recall of all Psystar clones sold into the market. The Cupertino company is making a total of ten claims against the Miami based system builder, covering copyright, trademark and trade dress infringement, trademark dilution, breach of contract, and unfair competition.

Central to Apple's case are the terms in the Mac OS X licence agreement that state the licensee agrees not to use the software "on any non-Apple-labeled computer or enable another to do so" and that the "License will terminate automatically from Apple if [the licensee] fail[s] to comply with any term(s) of this License".

The copyright claims appear to revolve around Psystar's factory installation of Mac OS X on its own hardware. Since use on "non-Apple-labeled" hardware is not permitted under the licence, copying the operating system from the DVD to the hard disc could e construed as making an unauthorised copy. Selling the computer would be the distribution of an infringing copy.

Similarly, selling Mac OS X with Psystar hardware (even if copies of the operating system had been purchased through legitimate channels) can be seen as inducing, causing or materially contributing to copyright infringement by purchasers.

What about breach of contract? Apple claims to have been informed that Psystar installs Mac OS X on the computers it sells directly from the original disc that is subsequently supplied to the customer, in which case it has breached the licence agreement that it agreed to by breaking the seals and installing the software.

The claim of trademark infringement seems a bit of a reach to me. As far as I can see Psystar has only used Apple's trademarks to identify Apple products, but Apple claims they have been used in a way "likely, if not certain to deceive or cause confusion or mistake among consumers".

Are Apple and its lawyers trying it on? I think so, and I'll explain why on page 2.