The arguments get weaker and weaker every time Psystar tries to justify installing Mac OS X on non-Apple computers. And seeing how the courts keep kicking Psystar to the curb with its claims, you'd think that the Miami-based company would start thinking about throwing in the towel. But, nooooo. This time around, instead of trying to turn the tables on Apple with a countersuit, Psystar is launching an actual defense: arguing that it did not violate copyrights because it bought some copies of OS X directly from Apple.
That argument points to the first-sale doctrine, which allows a purchaser of copyrighted material to re-sell it without permission from the copyright holder. A slam-dunk example is a book that you buy, read and no longer have a use for, so you sell it. Done. Easy. You didn't alter it, change the words or the title. Nor did you photocopy every page, bind them together and try to resell multiple copies.
For Psystar to now try to use the first-sale doctrine as a defense - simply because it bought some copies from Apple - is weak, at best. Licensed software clearly isn't the same as a book, music CD or DVD. In court filings just before the Christmas holiday, Psystar threw out some defenses that are so filled with holes that I'm surprised they didn't just float away. Consider this example highlighted in an ArsTechnica blog post:
Psystar criticizes Apple for purposely adding checks in Mac OS X that prevent the OS from running on non-Apple hardware, describing in detail the methods Apple uses, such as the kernel entering an infinite loop unless certain CPUs are detected. In the next breath, Psystar denies that it creates or sells any computer with modified versions of Mac OS X that, as Psystar says, won't run on unauthorized hardware. Psystar doesn't explain how it enables unmodified Mac OS X to run on its hardware.
The two sides are scheduled for court mediation in February and have a trial date scheduled for April. Given that Psystar has fought this long and really has nothing to lose - and everything to gain - it's probably safe to say that the two sides will have their day in court.
CNET's Don Reisinger has some interesting thoughts on how Apple might be better off licensing the OS, despite the position Steve Jobs has taken in the past.
Previous Apple-Psystar coverage:
Does Psystar have a legit argument in Apple countersuit? Apple strikes back against Psystar, asks for counterclaim to be dismissed Apple, Psystar agree to resolution talks Psystar countersues Apple, alleges anticompetitive business practices Apple vs. Psystar complaint excerpts: ‘Invaluable good is being eroded’