"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.