News about Psystar’s appeal battle against Apple over Mac clones has been thin thanks to the PC maker’s move to keep its Opening Brief sealed. Apple’s Answering Brief, however, wasn’t sealed and offers some insight into Psystar’s tactics.
The two companies have been embroiled in a legal battle over Apple’s claims that Psystar was infringing on its copyrights by building and selling PCs with Mac OS X installed. The court eventually sided with Apple and issued a permanent injunction against Psystar that blocks the company from selling Mac clones, software that helps people install Mac OS X on non-Apple hardware, and from helping people circumvent Apple’s controls that bind Mac OS X to its own hardware.
Psystar kept the legal ball rolling by filing an appeal in the ruling with the Ninth Circuit Court of Appeals earlier this year. In a move that contradicted the company’s earlier tactic of trying to keep all court filings open, however, it moved to keep its Opening Brief in the appeal sealed.
Psystar also filed a case in Florida arguing essentially the same points, but focused on Mac OS X 10.6, or Snow Leopard.
Based on Apple’s responses to Psystar’s Opening Brief, it appears that the PC maker is hoping it can convince the court to change how copyright law is interpreted. “It seems that Psystar is pinning all its hopes in the 9th Circuit on getting the court to adopt a radical revision of the Copyright Misuse doctrine that would in effect destroy copyright and force all copyrighted works to be licensed,” an attorney familiar with this type of case told The Mac Observer.
“Because Psystar has no proof that Apple has inhibited competition or suppressed creativity, Psystar urges this Court to abandon long-standing precedent and create a new doctrine of per se copyright misuse,” Apple’s Answer Briefing stated. “Under this doctrine, any license agreement — such as Apple’s SLA — that restricts the use of copyrighted software to particular hardware is per se copyright misuse.”
Apple added “Psystar’s grossly overbroad per se theory of copyright misuse would eliminate fundamental rights guaranteed by the Copyright Act — the rights to control the reproduction, modification, and distribution of copyrighted works.”
Psystar also claimed in its brief that Judge Alsup, the Judge overseeing the original case, over-stepped his bounds by including Mac OS X 10.6 in his injunction along with Psystar’s own Rebel EFI tool for installing Mac OS X on generic PC hardware. Psystar felt Mac OS X 10.6 shouldn’t be included in the injunction since it wasn’t shipping when the case was originally filed, and the company attempted to argue that the new version of the Mac OS constituted a new product that wasn’t explicitly included in the legal battle.
“Psystar claims the district court should have excluded from the injunction Psystar’s more recent products, such as Rebel EFI, that use Apple’s latest version of Mac OS X (Snow Leopard). Psystar argues for exclusion on the ground that these products are ‘at issue’ in Psystar’s later-filed action in Florida,” Apple said in its brief. “But Psystar seeks to turn the proper analysis on its head: the question is not whether some purportedly new conduct or product should be excluded from the injunction; the question is what infringing conduct was proven and what injunctive relief flows from that proof.”
Exactly why Psystar pushed to keep its Opening Brief in the appeal case sealed is something of a mystery, especially since Apple’s Answering Brief was not.
TMO’s legal contact added “It is ironic for Psystar to petition the court in its Opening Brief to lift the order protecting the secrecy of the measures that Apple uses to protect OS X from running on non-Apple-labeled hardware, because the public has a right and a need to know how the court is deciding this case, while unnecessarily filing its entire Opening Brief under seal so that we won’t know what Psystar’s arguments are, as the court rules on them.”