Psystar Continues to Fight Apple With New Tactics

Now that Psystar's counterclaim against Apple, based on an antitrust argument, has been dismissed, the company has embarked on a new legal twist: arguing that Apple has exceeded its rights granted under the U.S. Copyright Act. That could be a tough sell based on precedent.

Psystar's new line of argument is that the copyright act does not permit Apple to restrict Mac OS X to Apple labelled hardware and is asking the court to invalidates Apple's EULA and CMCA claims.

An attorney who has been following the case along with TMO, but wishes to remain anonymous, explained, in his opinion, the significant problems with Psystar's new approach.

"Despite its creativity, I think that Psystar's new counterclaims are also fatally flawed, because the Act gives Apple precisely the rights that Psystar disputes.  As the Act permits a writer to restrict his novel to one publisher or a song to one record company, the Act permits the legitimate holder of a copyright to exclusively license the right to make reproductions of a copyrighted work.  Indeed, an author can forbid the publication of a copyrighted work or license it to one or many or, as is the case with open source licenses, license a work to everyone according to certain terms.

"This broad right to license to one or many according to certain terms is what gives a copyright much, if not all, of its commercial value.  Take that away, and you take away the very benefit that Congress meant to confer on authors by means of the Act.

"Psystar seeks to take away Apple's right, as a copyright holder, to exclusively license OS X to itself and to replace it with a rule that would require Apple and other copyright holders to license their copyrighted works to everyone on the same terms.

"However, under well settled precedent and practice, the Act places the decision on whether to license a copyrighted work exclusively or broadly or not at all to the copyrighted holder so that the copyright holder can enjoy the use and benefit of a legal monopoly for a period of time as set forth in the Act.  

"The only restrictions on this right are those found in antitrust law, and Judge Alsup has already determined that Psystar's antitrust claims are fatally defective. So, there is nothing to do but create from whole cloth new restrictions on copyright, which appear neither in the Act or antitrust law."

Grasping at Straws

In other words, Psystar would like to see a new rule that says, when a competitor doesn't like that exclusive right afforded by the copyright law, it can seek a mandatory licensing even when anticompetitive effects are not present -- all in the name of healthy competition. This goes against well established legal precedent, and it's hard to see how Psystar can make that stick in a court well versed in copyright law, the Northern District of California.

Psystar's claim that Apple's copyright protection and licensing diminishes competition sounds good, but violates historical principles of protecting an author's rights.

The attorney continued with analysis:

"To the extent that a copyrighted work is valuable and superior to other copyrighted works, works that are expressed in that particular medium, it will win the competition against other instances of that medium. For example, popular band, such as the Coldplay, will sell more records with its record company than other records from other record companies.

 "For Mac OS X, the tangible medium is a computer.  To the extent that a customer prefers Mac OS X, he will choose a computer that has it over one that doesn't.  That copyright affects competition in the medium which expresses it has never been a grounds for prohibiting exclusive licensing of copyrighted works. " [Emphasis added by TMO.]

Previously, the courts have only limited a copyright holder's Congressionally granted rights when the exercise of those rights have confered market (monopoly) power on the copyright holder and they use it to squeeze out the competition

Absent that argument, there does not appear to be a basis for Judge Alsup to find that Apple has misused its copyrights. Meanwhile, Psystar continues to accrue very large legal bills, so large that Apple wants to know if there is an an anonymous benefactor.