Apple, Psystar Move for Summary Judgements

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Apple and Psystar have both files for Summary Judgements in their legal battle over whether or not Psystar can build and sell Mac clones without Apple's permission. Should Judge Alsup decide to rule in favor of either side's motion, both sides would be able to avoid their scheduled January trial date, although only the winning company would be happy about it.

Apple and Psystar have been battling in U.S. District Court in northern California for several months over whether or not the PC maker can build and sell Mac clones without permission from Apple. Apple claimed that the company is violating its copyrights and the Digital Millenium Copyright Act with the steps it takes to get the OS on computers. Psystar countered that Apple is abusing its copyrights and is a monopoly.

In its motion for Summary Judgement, Apple argued that the licensing agreement for Mac OS X 10.5 states that the end user owns the disc the software ships on, but only licenses the use of the operating system. Since Leopard is licensed instead of owned, users are bound by Apple's terms that prohibit installing and running the software on non-Apple hardware.

In its Summary Judgement filing, Psystar argues that because users own the media Leopard ships on, they actually own the operating system as well. Owning the OS gives them the right to use it as they see fit, and in this case that includes installing it on Mac clones.

Assuming Psystar can present a compelling enough argument, it could potentially convince Judge Alsup that it can sell Mac clones even though Apple's licensing agreement says otherwise. Making that argument, however, may not be an easy task because there's a distinction between product -- in this case, Mac OS X 10.5 -- and the delivery medium.

"While copies of copyrighted works are as a matter of necessity and law encoded in some tangible material, which creates the licensed class of that material, there has always been a clear distinction between that medium of expression and the expression itself," an attorney familiar with this type of case told The Mac Observer. "Here Apple clearly intended to license the expression, Leopard, and control the DVD only to the extent that it contains Leopard."

Psystar's argument seems to hinge on whether or not owning the disc is the same as owning the software it contains, and that could be a big sticking point.

"This is a major point, because if Judge Alsup follows what appears to be the Ninth Circuit's current view, that a license which says that it is only selling a license and that functions as a license will be deemed to be a licensing agreement and not a sale, the entire logical structure of Psystar's Motion collapses," the attorney said.

Even if Psystar convinces Judge Alsup that end users own Leopard, Apple can still argue that its user license is in effect. Invalidating Leopard's licensing terms is important for Psystar since the company is relying on First Sale Doctrine and Essential Steps Doctrine arguments to justify its process for building and selling Mac clones.

The First Sale Doctrine lets the purchaser sell or give away a copyrighted work without the permission of the copyright holder. The Essential Steps Doctrine allows users to take the steps necessary to install and use software on their computer, or to make an archival copy of their software.

"At best the First Sale Doctrine would permit Psystar to resell Leopard subject to the terms of Leopard [licensing agreement], which does not permit unauthorized copying or running Leopard on non-Apple hardware," the attorney said. "And even with a sale, the Essential Steps Doctrine would not permit running Leopard on non-Apple hardware in breach of Leopard's EULA."

The arguments, at least on paper, seem to lean in Apple's favor, but that's no guarantee that Judge Alsup will buy into the Mac maker's logic. There's plenty of redacted information in both company's filings, leaving all kinds of unanswered questions for everyone outside of the courtroom.

Both sides have until November 7 to file their opposition to the other company's motion and will likely wait until then to submit their arguments.

Comments

fo

No mention of the DCMA? I thought that was a major pillar of Apple’s case - that Psystar was bypassing copyright be hacking code. I don’t recall re-distribution as a major part of the case, which is what First Sale covers. And I think the case really has nothing to do with Essential Steps. The attorney quoted may be familiar with “this type of case,” but doesn’t seem to be very familiar with this specific case.

Jeff Gamet

I think the case really has nothing to do with Essential Steps.

I think you just hit on a key flaw in Psystar’s motion for Summary Judgement. They’re using Essential Steps as an argument in the motion, but I doubt that will fly with the Judge. Claiming Essential Steps for reverse engineering Apple’s code so they can sell Mac clones feels like more than a stretch to me.

Lee Dronick

If Apple asked for a summary judgement then they must feel confident about winning.

geoduck

I would have figured that this would be a slam-dunk for Apple. This could all be over with shortly and Apple would win. But after Alsop’s ruling on the Florida 10.6 case, I’m a little nervous about it. You never know what a judge will decide.

geoduck

Can a summery judgement be appealed? By either party?

david1225

First, there’s no “e” in judgment.

Second, you can appeal a grant of summary judgment if it disposes of the entire case.  If some, but not all, claims are decided, then generally no appeal can be taken unless certain very narrow exceptions apply.

Third, people file for summary judgment for a wide range of reasons, some having little to do with confidence about winning.  Sometimes it’s to put the opponent through the cost and expense of motion practice, perhaps in the hopes of taking advantage of an underfunded adversary. Sometimes it’s to have some limited parts of the case resolved in order to narrow the issues.

Finally, I’d love to read Psystar’s brief.  As recounted here, it’s argument makes no sense. (Some folks have prevailed in avoiding licensing terms if those terms are only apparent after purchase, but I have idea if they’ve asserted that claim here.)

geoduck

The Online Dictionary lists judgement as a variation of judgment, which is likely why my spell checker didn’t flag it.

people file for summary judgment for a wide range of reasons, some having little to do with confidence about winning.? Sometimes it?s to put the opponent through the cost and expense of motion practice, perhaps in the hopes of taking advantage of an underfunded adversary.

This is a possibility. Apple knows Psystar is nearly broke and us pushing. Psystar knows it too and they’ve said all they can say so goes along. Maybe Psystar knows this one isn’t going to go anywhere and want’s to concentrate on Florida hoping they will do better there.

Michael

The major flaw in their argument is this: “Psystar argues that because users own the media Leopard ships on, they actually own the operating system as well. Owning the OS gives them the right to use it as they see fit,...” The truth of the matter is that the end user licenses the OS and doesn’t own it. It is proprietary intellectual property and purchasing a copy doesn’t entitle the buyer to re-write the code, modify it in any way, or “use it as they see fit”.

Nom

First, there?s no ?e? in judgment.

Are you sure about that? smile

PSMacintosh

The Online Dictionary lists judgement as a variation of judgment, which is likely why my spell checker didn?t flag it.

Wow, “judgement” IS a variant spelling.
First I heard of that.
If only I could tell this to my grade school teacher now.
(I don’t think “judgement” is acceptable in legal circles in the USA.  It would be considered a mis-spelling.)

Maybe if enough people mis-spell potato, then potatoe will become a variant as well.  : )

Lee Dronick

geoduck said: The Online Dictionary lists judgement as a variation of judgment, which is likely why my spell checker didn?t flag it.
Wow, ?judgement? IS a variant spelling.
First I heard of that.
If only I could tell this to my grade school teacher now.
(I don?t think ?judgement? is acceptable in legal circles in the USA.? It would be considered a mis-spelling.)

Maybe if enough people mis-spell potato, then potatoe will become a variant as well.? : )

The dictionary that comes with OSX, at least the one in Snow Leopard, also lists it as a variant.

geoduck

It looks wrong to me now that I see it. The trouble is that spelling is not my strong suit. If OS-X flags it I fix it. If knot than I assume its fin.
^_^

Nom

Wow, ?judgement? IS a variant spelling.
First I heard of that.
If only I could tell this to my grade school teacher now.

Remember that modern dictionaries are fundamentally descriptive, not prescriptive.  It’s entirely possible that “judgement” wasn’t an accepted variant spelling when you were in grade school, but is now accepted by dint of widespread (mis-) use.

Anyone see an analogy to web standards? smile

david1225

People split infinitives all the time.  It may be accepted to a degree, but it’s a pretty good indicator of the (lack of) quality of a person’s writing skills and education.  Using the variant “judgement” in a legal pleading, by the way, would almost certainly raise suspicions that your law school degree was from the Sally Struthers School of Law

cb50dc

First, there?s no ?e? in judgment…

As recounted here, it?s argument makes no sense…

but I have idea if they?ve asserted that claim here.)

Since the detour’s already established, david1225, I’ll point out a few other details:

1a. Others have pointed out that “judgement” is a legitimate variant. True. It appears more commonly in British English, but it’s not a problem in American English.

1b. As for whether it’s suitable in a legal document: this forum is not a legal document destined for a court. Lighten up.

And since you seem peculiarly concerned with a meticulous, perhaps anal-retentive eye for detail in others’ posts:

2. The possessive of “it” does NOT include an apostrophe. You entered the contraction for “it is.” This error goes back to, mmm, maybe fifth grade or so, if I recall correctly.

3.  I believe you probably meant to add “no” to “but I have idea if…” Just so you know: the word “no” does significantly change the meaning of a phrase.

And finally:

4. You failed to add a period to “he Sally Struthers School of Law,” thus leaving your sentence incomplete.

To sum:

I have no idea why you feel a need to correct others’ spelling. Since evidently this matters to you, then I suggest that you let someone more informed check YOUR posts for these and comparable errors before you send them. For the record, your OWN posts provide “a pretty good indicator of the (lack of) quality of a person?s writing skills and education.”

Class dismissed.

cb

david1225

I threw up a comment—I didn’t put a misspelling in a headline.

If you have time to edit quick posts for free, please let me know.  Your services might come in handy, though I’d rather you do it remotely.

papamaui

“I threw up a comment ...”  Is that the same as “I barfed”  a comment” or “I vomited a comment?”  grin

Lee Dronick

vomiter

?I threw up a comment ...?? Is that the same as ?I barfed?? a comment? or ?I vomited a comment??

Only if you make the comment in a
vomitory Follow that link for your word of the day smile

cb50dc

I threw up a comment?I didn?t put a misspelling in a headline.

I noticed the headline, too, and I found it more worth my time to read the article. And then I read your post. If you can’t handle having your own careless blunders pointed out (since you refused even to acknowledge any of them), then I suggest you refrain from playing English teacher.

Despite your avoiding any acknowledgment (or acknowledgement!) of your own flaws, still your own words do remain ?a pretty good indicator of the (lack of) quality of [david1225’s] writing skills and education.?

Feel free to take the last word on this diversion. Should you choose to do so, please
? don’t misspell any MORE words,
? don’t make any MORE punctuation errors,
and please, david1225,
? DO include all the words needed, especially those like “no” that completely change the meaning.

Good luck.

cb50dc

BTW, Jeff G., I forgot to tell you I enjoyed the story. I’m getting ^$%#! tired of Psystar, but I do want to keep up on details. I hope soon to read your story reporting their having their puny posteriors presented to them on a platinum platter.

Thanks for all the good work.

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