Psystar has raised another desperate, if novel claim in its ongoing legal battle with Apple, arguing before a federal judge that since the Mac clone-maker legally purchased its copies of Mac OS X from Apple and resellers, it has the right to do basically whatever it wants with that software under the first-sale doctrine.
In court filings described by Computerworld, Psystar told the court: “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. See, e.g., Bobbs-Merrill Co. v. Straus, 210 U.S. 339, 350-51 (1908) (recognizing more than 100 years ago the concept of first sale and the limitations imposed upon a copyright owner in light thereof). 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.”
Unfortunately for Psystar, courts have rarely held the first sale doctrine applies to software, considering it a product that is licensed, not sold, and can therefore be distributed with restrictions on further distribution. Psystar’s thin hopes likely hang on the precedent of a case involving Adobe, in which a court upheld the first sale doctrine’s application to software.
Via Cnet
Lonnie Lazar is a writer-musician-web designer-attorney. He writes about Apple for Cult of Mac and Mac|Life, and about VoIP and telecommunications for Voxilla. Follow Lonnie on Twitter @LonnieLazar, join the Cult of Mac on Facebook, and find Lonnie’s photos on Flickr.
10 responses to “Psystar Tells Court, “We bought the software!””
trouble here is that Psystar hacked the software to make it work on their machines, in violation of Apple’s court confirmed rights to tie hardware and software together. doing this they basically created a new software, which plagarizes on the non open source portions of Apple’s Mac OS.
and that’s not excused by the right of first sale.
It’s brilliant, but…
If the trick works this time for Pystar, Apple simply stops selling the software — DVDs in stores.
Then it only comes on Apple machines, or downloaded updates from Apple. Like on the iPhone.
Also as I understand it, box copies of OSX are all technically UPGRADE licenses so Psystar isn’t really compensating Apple for the FULL license price (which is theoretically bundled with the purchase of every Mac). The other posts make good points as well.
I want to know who’s funding their lawyers to keep up this fight. It’s obviously pointless and senseless, and they’re wasting time trying to find a legal loophole that will allow them to continue to exist.
Its like they are just throwing crap at the wall and hoping that something will stick.
My guess is that these guys are either trust fund babies on a rather pointless mission or they are being funded by someone big who has a vested interest in cracking open Apple’s licensing agreements. I guarantee if its the later it will eventually come out and Apple will unleash the hounds.