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Mac clone maker may take fight with Apple to Supreme Court

Even after appeals court ruling this week, 'this is far from over,' promises Psystar's attorney

September 30, 2011 01:58 PM ET

Computerworld - A U.S. appellate court this week rejected an appeal by Mac clone maker Psystar in a long-running case related to copyright infringement of Apple's Mac OS X operating system.

But Psystar's lawyer said he will continue the fight to the U.S. Supreme Court if necessary.

"This is far from over," K.A.D. Camera of the Houston firm Camera & Sibley LLP, who represents Psystar, said in an interview today.

In a ruling Wednesday, the U.S. Court of Appeals for the Ninth Circuit confirmed a lower court's late-2009 permanent injunction against Florida-based Psystar that prevented the company from copying, using or selling Mac OS X, and blocked it from selling any system with Apple's operating system preinstalled.

Psystar, which began selling Mac clones in the spring of 2008, customized Mac OS X so it would run on non-Apple hardware, then used the software to power the machines it sold. In July 2008, Apple sued Psystar, claiming that the latter infringed Apple's copyright and that its use of Mac OS X violated the software's license agreement.

That license banned the use of Mac OS X on any but Apple's own hardware.

Several months before the district court slapped Psystar with the injunction, the company filed for bankruptcy, revealing that it owed hundreds of thousands of dollars in fees to the law firm which was representing it in the Apple lawsuit.

Although Psystar came out of bankruptcy later that year, it has not sold Mac clones since December 2009.

In an opinion issued Wednesday, Circuit Judge Mary Schroeder affirmed the lower court's injunction.

"We conclude that the district court correctly ruled that Apple had not engaged in copyright misuse," Schroeder wrote. "This is principally because its licensing agreement was intended to require the operating system to be used on the computer it was designed to operate, and it did not prevent others from developing their own computer or operating systems."

Psystar had contended that it could do whatever it wanted with the copies of Mac OS X it purchased, since it bought those copies on the open market, including from Apple's own online store as well as Amazon's.

Schroeder confirmed the district court's ruling that Psystar's reasoning didn't hold water.

"[Psystar's] argument falsely assumes that Apple transferred ownership of Mac OS X when it sold a retail-packaged DVD containing software designed to enable Apple's existing customers to upgrade to the latest version of the operating system," she wrote in the opinion. "The buyers of that DVD purchased the disc. They knew, however, they were not buying the software. Apple's SLA clearly explained this."

The only win Psystar received from the appellate court involved the numerous motions Apple was granted to seal court documents in the case. Apple had asked that the documents not be made public because they purportedly revealed technical details of Mac OS X, including how Apple locked the software to its Mac hardware.

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