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Psystar rebuts second Apple dismissal motion

updated 10:45 am EST, Wed January 14, 2009

Psystar rebuts Apple

Psystar has challenged a second Apple motion to dismiss the countersuit over the former's Mac clones, filings show. A first dismissal motion forced Psystar to drop any monopoly claims, but the company subsequently submitted a modified complaint, accusing Apple of abusing copyright to prevent fair competition. In rebuffing Apple's second dismissal attempt, Psystar has criticized Apple for maintaining a simplistic view of the lawsuit.

"Apple contends that because Psystar is 'distributing computers with Apple's copyrighted software loaded on them' that 'Apple is within its rights in asserting copyright infringement'," Psystar observes. Reiterating its own view, the company notes that "Apple's assertion that Psystar cannot distribute computers with Apple software (and that a purchaser could not use the same) would run roughshod over 17 U.S.C. [copyright law]."

Psystar further notes that it buys legal copies of Mac OS X Leopard, directly from Apple in some cases, and that Apple is undermining Section 117(b) of the Copyright Act by trying to dictate "whether, how or by whom its software is...distributed or used." As reference Psystar cites the legal concept of "first sale," which states that after a copyrighted work's first transfer, it can be resold or given away without the original copyright holder's permission. The law is what allows items like used books to be sold.

It is not known when the District Court judge in the case, William Alsup, will decide whether or not to grant Apple's second motion.




by MacNN Staff

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Comments

  1. Bobfozz

    Joined: Dec 1969

    -2

    Content and purpose...

    will kill this suit from Pystar.
    Throughout computer history it has always been OK to integrate front end and back end systems from one source only. There is more precedence for this than there is Pystar's theft... though if Pystar gets away with this (which I don't believe will happen) you will see wholesale screwups everywhere. So "intent" should play a part. I wonder if the Pystar lawyer is doing this on contingency. After he falls on his butt he will still have clients who will flock to him because of his renegade (congest the court system) attitude.

  1. ptklenk

    Joined: Dec 1969

    +3

    Interesting theory

    I'm a lawyer, but know virtually nothing about copyright law although it is feasible that the "intent" concept may not play a role. Once again, I have not read the statutory language. However, I will remark on whether this is being done on a contingency fee. Frankly, I doubt it. A suit of this variety would take a load of preparation hours and it's not the type of action usually taken on a contingency basis. Those are usually reserved to actions in negligence, such as personal injury.

  1. testudo

    Joined: Dec 1969

    +2

    Re: Content and purpose

    Throughout computer history it has always been OK to integrate front end and back end systems from one source only.

    Um, actually, no it hasn't. It is OK if you sell the whole thing as one, but it is different to sell hardware, then sell software, and then say "You can run the software only on the hardware we say".

    And, if you look back at the history of IBM, you will note that they were sued antitrust violations for, among other things, bundling software with hardware, which reduced competition.

  1. Guest

    Joined: Dec 1969

    -1

    If Apple would only....

    If Apple produced a mid-range, headless, upgradable tower that EVERYONE wants to fill the enormous gap between the iMac and the Mac Pro, neither Psystar nor Apple would be in this predicament.

    Apple brought this on themselves by not offering an affordable, upgradable tower.

    P.S. MacWorld 09 = EpicFAIL

  1. JackWebb

    Joined: Dec 1969

    +2

    Consumer demand

    All legality aside, it is annoying to have such constrained choices. Apple won't make the computer I want. There's nothing in the middle and middle-high end for computers without displays built-in. That fact alone annoys me enough to encourage Pystar. Apple still hasn't updated the mini to get closer to that and then they fight any outside efforts to fill that gap of demand from consumers.

  1. Guest

    Joined: Dec 1969

    -1

    make sense

    @Guest-If Apple would only...

    absolutely right. i also wish bmw would release a small family size vehicle at an affordable price along the lines of a gm. but since they are not, i will buy parts from them and build my own bmw. use their branding, and advertise that my clients are getting bmw quality and make millions.


  1. Guest

    Joined: Dec 1969

    -1

    wannabe geeks

    Will the iMacs are non-upgradable people get over it already? There's seems little point in upgrading computers nowadays. They are cheap and rapidly changing. Back in the late 80s/early 90s, yes, that might have been a valid complaint. Buy a cheap iMac, use it, enjoy it, replace it.

  1. JackWebb

    Joined: Dec 1969

    0

    Re: Makes sense

    Flawed analogy. There are lots of brands of cars and most all travel the same roads so that's a stupid analogy.

    Fact is I have to pay a minimum of $2,299.00 for the privilege of being able to add my own 2nd internal HDD so I can do my backups. Otherwise I have to have an external appendage HDD to do my backups. And, for those who only believe that it is good when Apple does it, I've been doing backups far before Time Machine and it was always a good idea.

  1. ptklenk

    Joined: Dec 1969

    -1

    Flawed Analogy?

    I think not. The user can buy a variety of Macs and with each purchase the user has a direct opportunity to make revisions. Sundry options are presented including hard drive size, type of optical drive, graphic card in some cases. and additional RAM. The necessity of having a second internal hard drive for backup purposes borders on nonsense. Since external Firewire drives are relatively cheap, does it not make more sense to make the purchase and use a utility such as SuperDuper to accomplish the task? I have back-ups of four machines following this configuration and I'm perfectly happy. All these partitions are bootable as well. What is the origin of this 2K figure? In addition, the the iMac comment is directly on point. There's a resale value if the user doesn't wait to long. I've also done this many times and there's no shortage of willing buyers. Finally, Apple offers refurbished machines, under warranty, at bargain prices. And, I have personal experience in this realm as well; never been disappointed. And if all else fails build your own, or try to. Just like a car the cost of individual parts is more than the cost of a whole product.

  1. Guest

    Joined: Dec 1969

    -1

    What you all forget...

    is that Apple will never release a headless iMac machine because it would completely cannibalize the sales of MacPro towers. I used to work for Apple, and that's where the real money is in sales... If you could get your customers to buy a higher percentage of "Pro" models and accessories (i.e, items with much higher profit margins) then you could make some nice money.

    Apple will not change the model unless someone forces them to... I think that's why even though I know they won't win... I'm rooting for Psystar on this one.

    I'm hopeful that the introduction of the Core i7 might do something to change this paradigm, but I doubt it.

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