Apple adds DMCA charge to lawsuit against Psystar

It accuses clone maker of breaking Mac OS copy-protection scheme

Apple Inc. last week added new charges to the federal lawsuit it filed nearly five months ago against a Florida clone maker, claiming that Psystar Corp. broke antipiracy defenses that lock Apple's operating system to its own hardware.

Apple also said others besides Psystar were involved, but it did not spell out who.

In a filing dated Nov. 26, Apple amended its original suit of July after it had "discovered additional information."

Among the additions is a new accusation -- that Psystar violated the Digital Millennium Copyright Act (DMCA) by dodging copy-protection technologies Apple uses to protect Mac OS X.

"Apple employs technological protection measures that effectively control access to Apple's copyrighted works," the revised complaint read. "Defendant has illegally circumvented Apple's technological copyright-protection measures."

Specifically, Apple charged Psystar with acquiring or creating "code" that "avoids, bypasses, removes, descrambles, decrypts, deactivates or impairs a technological protection measure without Apple's authority for the purpose of gaining unauthorized access to Apple's copyrighted works."

Apple also accused Psystar of marketing the protection-breaking code to others.

In its original lawsuit against Psystar, Apple charged the clone maker with copyright infringement, breach of contract and trademark infringement. At the time, it stressed that Psystar had violated Apple's end-user licensing agreement (EULA) for Mac OS X by installing it on hardware not sold by Apple, something the EULA expressly forbids. In July, however, Apple did not mention any copy-protection scheme it used to prevent that practice, nor did it bring up the DMCA.

Although Apple started the lawsuit -- prompted by Psystar's April launch of Intel-based computers with Mac OS X preinstalled -- Psystar hit back with a countersuit in late August, when it argued that Apple was a monopoly by virtue of the uniqueness of its operating system, and thus violated antitrust laws by tying the operating system to its hardware.

U.S. District Court Judge William Alsup dismissed Psystar's claims two weeks ago.

In its just-revised complaint, Apple also alleged that Psystar was not acting alone, although it did not name names. "Persons other than Psystar are involved in Psystar's unlawful and improper activities described in this amended complaint," Apple said. "The true names or capacities, whether individual, corporate or otherwise, of these persons are unknown to Apple. Consequently they are referred to herein as John Does 1 through 10." Apple said it would reveal the John Does' names when it uncovered them.

Elsewhere in the revised claim, Apple said Psystar had released a restore disk last August and thus "assists its customers to install Mac OS X software in violation of the terms of the software license agreement."

Apple also took note of Psystar's public claim that the clone maker was working on a Mac laptop knockoff. During a press conference in August when he announced the antitrust lawsuit, Psystar President and co-founder Rudy Pedraza said his company was developing a "mobile system" able to run Mac OS X. However, he declined to provide details of the potential portable computer.

Psystar's Web site continues to list systems for sale with Mac OS X 10.5, a.k.a. Leopard, preinstalled at prices starting at $554.99.

Copyright © 2008 IDG Communications, Inc.

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