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Apple, Psystar strike deal in copyright case

December 1, 2009 06:44 AM ET

"Psystar argues only that any injunction from this Court should not extend to Rebel EFI, a Psystar product that is presently the subject of litigation in the Florida case, that is composed exclusively of Psystar software, that is not sold in conjunction with any hardware, and that is sold entirely apart from any copy of Mac OS X or any computer running Mac OS X," Psystar said.

By excluding Rebel EFI from any injunction, Psystar seems to be conceding Apple's copyright victory and acknowledging that it can live with a ban on pre-installing Snow Leopard. If that tactic works, it appears that Psystar's plan would be to be to shift the responsibility of installing Mac OS X onto customers. Psystar would presumably sell Rebel EFI to customers without a corresponding copy of Mac OS X, and then have those customers obtain a copy of the operating system elsewhere and use the utility to install and run the purchased copy of Snow Leopard.

Psystar spelled out its argument for letting it continue to market Rebel EFI -- and presumably Snow Leopard-ready computers that, with Rebel EFI's help, could be configured to run Mac OS X.

"The summary judgment in this case turned on the manner in which Psystar assembled its Open Computers," stated Psystar, referring to the November ruling by Alsup that granted Apple's motion for summary judgment. "It turned on such things as the use of the Psystar imaging station and what this Court found to be the creation of multiple copies and derivative works of Mac OS X along the way. None of these same facts is involved in Rebel EFI. Rebel EFI is entirely a software product. It does not involve the assembly by Psystar of any computers. Nor does Rebel EFI contain or include Mac OS X. Rebel EFI consists solely of Psystar software available for sale and download through Psystar's website."

According to Psystar's reasoning, its customers would not be open to legal attack by Apple for using Rebel EFI. "Psystar's end users do not engage in commercial use of Mac OS X and their use would qualify as use for 'internal purposes' even under the standards articulated by Apple in its summary-judgment briefing," Psystar said.

Psystar and Apple have been tangling in court since July 2008, when Apple sued the clone maker over copyright and software licensing violations. Psystar started selling Intel machines with Mac OS X pre-installed in April 2008.

As of 6 a.m. Eastern time today, Psystar's Web site continued to offer clones with Snow Leopard installed.

Apple and Psystar were not available for comment early today.

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