Monday, 03 October 2011 11:56

Psystar loses appeal against Apple verdict


Mac cloner Psystar has lost its appeal against a key aspect of the Apple v Psystar decision. Using licence terms to tie the use of software to a particular manufacturer's hardware is not copyright abuse.

Remember Psystar? (If not, you can refresh your memory here.) The Mac 'cloner' has lost its appeal against the judge's decision that Apple's tying of Mac OS X to the company's own hardware did not constitute copyright misuse.

Ninth Circuit Court of Appeals judge William Alsup upheld the concept that the 'first sale doctrine' which allows the purchaser of a copyrighted item to resell it does not apply to copies acquired by a licensee rather than a buyer. Just because Psystar acquired and resold retail-packaged copies of Mac OS X, it could not rely on the first sale doctrine.

Furthermore, Apple's licence agreement did not aim to prevent competitors such as Psystar from developing an operating system to compete with Mac OS X: "Apple's SLA [software licence agreement], like the one we reviewed in Triad, represents the legitimate exercise of a copyright holder's right to conditionally transfer works of authorship, and does not constitute copyright misuse," Judge Alsup ruled.

The only part of Psystar's appeal accepted by the judge was that the sealing Apple's motion for summary judgement was overturned pending further consideration by the District Court.

You can find the court's ruling at Groklaw. Groklaw's commentary points out that this decision essentially puts to rest any suggestions that someone could obtain a copy of GPLed software such as Linux and then resell copies under a different licence by relying on the first sale doctrine.

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Stephen Withers

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Stephen Withers is one of Australia¹s most experienced IT journalists, having begun his career in the days of 8-bit 'microcomputers'. He covers the gamut from gadgets to enterprise systems. In previous lives he has been an academic, a systems programmer, an IT support manager, and an online services manager. Stephen holds an honours degree in Management Sciences and a PhD in Industrial and Business Studies.

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