Apple, Psystar Move for Summary Judgements

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.