posted by Thom Holwerda on Mon 12th Oct 2009 18:25 UTC
IconNow that all the nastiness of the discovery phase is behind us in the Apple vs. Psystar case, both parties are trying to get the case settled before it goes to court, much like the recent Vernor vs. Autodesk case. Both Apple and Psystar have filed motions asking for a summary judgement.

In its motion for a summary judgement, Psystar more or less takes the exact same approach as Vernor, claiming that Apple sold their copies of Mac OS X to Psystar, instead of licensing them, and that as such, the First Sale Doctrine (section 109 of the US Copyright Act) and the Reproduction Exception (Section 117 of the US Copyright Act) apply.

In case you don't recall what these two mean, this is how I put it in the Vernor vs. Autodesk write up: "The first Sale Doctrine dictates that owners of copyrighted material may resell this material, despite the monopoly copyright holders have over said material. The Reproduction Exception states that owners of software may make any copies necessary to use the program. Without the latter, you would be unable to run software without breaking copyright law."

More specifically, the Reproduction Exception states that you are allowed to make a copy (or authorise someone to do so) of a copyrighted computer program, provided that "such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine". Psystar argues that therefore, the steps it takes to get Mac OS X Leopard to run on its computers do not constitute as copyright infringement (Apple's claim), because those steps are "essential [...] in the utilization of the computer program [Mac OS X Leopard] in conjunction with a machine [the Psystar computer]".

Furthermore, Psystar states that because of the First Sale Doctrine, they are allowed to resell copies of Mac OS X Leopard that they legally purchased. Section 109 of the US Copyright Act does not make any reference to it only being valid for individuals, and not for commercial entities (like Psystar); a claim often made by those in support of Apple.

Psystar also dismisses Apple's claim that the clone maker is in violation of the Digital Millennium Copyright Act. "Apple cannot assert claims under the DMCA for circumvention of a technological protection measure because such claims can be brought only when the circumvention is for the purpose of and has the effect of infringement," the motion reads, "Circumvention alone is not a violation of the DMCA; only circumvention to gain unauthorized access to that which copyright protects is actionable."

Psystar further dismisses Apple's claims of trademark infringement, and makes a pretty strong case there, too:

Psystar uses Apple's trademarks and trade dress to describe Apple's products, which Psystar resells. This is nominative fair use. It is not the basis for a claim for either trademark infringement or trade-dress infringement. Just as the owner of a Honda Accord may describe the Accord he is reselling as a "Honda Accord" and may include pictures of the Accord in his advertisements (and just as the owner of a used-car dealership may do the same), Psystar, the owner of copies of OS X Leopard, may describe these copies as "Mac OS X Leopard" and may include pictures of OS X Leopard in its advertisements. The harm at which the Lanham Act is addressed - a misrepresentation as to origin or sponsorship of the defendant's goods that confuses the public - is not present here because Psystar nowhere represents that OS X Leopard is its own product rather than Apple's.

Apple's motion for a summary judgement is pretty much (as expected) the exact opposite of Psystar's. Apple insists that Psystar violates copyright and the DMCA. Apple of course points to its Software License Agreement, and claims that it is licensing its software, not selling it.

There is no genuine factual dispute that Psystar makes unauthorized copies of Mac OS X and then installs those copies on computers its sells to the public. Nor is there any genuine factual dispute that, in order to make these illicit copies run on its computers, Psystar modifies Mac OS X, circumvents Apple's security protections and distributes the circumvention technology to Psystar's customers. Because it cannot dispute these facts, Psystar attempts to justify its conduct by relying on the doctrines of "copyright misuse", "first sale" and "essential steps". Psystar's arguments are contrary to established law and have been squarely rejected by the courts.

Apple's motion dismisses the arguments regarding the Reproduction Exception, but it's all based on the Software License Agreement; heck, even copying to RAM is considered a breach of copyright by Apple, because the computer in question is not an "Apple-labelled computer". Most - if not all - of Apple's claims hinge on the applicability and validity of the terms in its SLA.

The interesting thing is that throughout the entire motion, Apple maintains that Psystar is making illegal copies (the word "pirated" even occurs), but that's only because Apple believes its SLA makes installation of Mac OS X on non Apple-labelled computers illegal. Apple makes it seem as if Psystar only bought like three copies of Mac OS X, and then copied those ten thousand times, and sold those copies. This is of course false, but it is a nice effort to conflate the Reproduction Exception with piracy.

All in all, whereas Psystar's motion is built on the US Copyright Act and some of its exceptions, Apple's motion relies heavily on the Software License Agreement. This case bears a remarkable resemblance to the Autodesk case, and this case is also mentioned in Psystar's motion. In that case, it was established (multiple times) that the AutoCAD software was sold, not licensed. If Judge William Alsup comes to the same conclusion in this case, Apple's motion more or less crumbles like an old cookie.

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