And so the court case between Apple and clone-maker Psystar continues. Claims are being thrown back and forth between the two companies, ranging from Apple invoking the DMCA, to Psystar claiming Apple’s Mac OS X copyright is invalid. We can add a new one to the list. Court documents reveal that Psystar claims it has bought its copies of Mac OS X fair and square – including some directly from Apple.
In the latest court documents, Psystar calls upon the first sale doctrine, which made its first appearance in the United States in 1908, but was made official by the US Congress in 1976. The doctrine states that buyers may give away or sell copyrighted material without the copyright holder’s permissions. Psystar claims:
Psystar acquired lawful copies of the Mac OS from Apple. Those copies were lawfully acquired from authorized distributors, including some directly from Apple; Psystar paid good and valuable consideration for those copies; Psystar disposed of those lawfully acquired copies to third-parties. Once a copyright owner consents to the sale of particular copies of a work, the owner may not thereafter exercise distribution rights with respect to those copies.
It remains to be seen if Psystar can actually invoke the first sale doctrine when it comes to software. Courts generally accept the fact that software is licensed, not sold, making the first sale doctrine irrelevant. However, there is a case regarding Adobe where the courts did agree that software can in fact be sold.
Apple declined to comment on the case, which will go to trial in April.