Mac clone maker's lawyer hints at antitrust defense

Apple lawsuit not just about copyright or EULA issues, says Psystar attorney

One of the attorneys hired by Psystar Corp. to defend it in a copyright- and trademark-infringement lawsuit brought by Apple Inc. hinted that the clone maker will bring up antitrust issues if the case goes to trial.

Colby Springer, one of the three lawyers from the Palo Alto, Calif., firm of Carr & Ferrell LLP who will represent Psystar, wouldn't go into details about legal strategies but spoke in general terms about the case during an interview on Thursday.

"This case has been mischaracterized," said Springer. "There are a lot more complicated issues than just copyright or trademark. There are more complex issues [than those] in respect to the end-user licensing agreement. And antitrust issues come into play, too."

In a lawsuit filed July 8, Apple charged the Florida-based computer maker with copyright and trademark infringement, breach of contract and unfair competition. The accusations stem from Psystar's practice of installing Mac OS X 10.5 on the Intel-based computers it has sold since April. According to the lawsuit, Psystar violated the Mac OS X end-user licensing agreement (EULA) by factory-installing Leopard on its OpenComputer desktops and OpenServ servers.

The EULA forbids users from installing the operating system on non-Apple hardware. "You agree not to install, use or run the Apple software on any non-Apple-labeled computer, or to enable others to do so," Apple's license reads (download PDF).

When asked to expand on his comments about using antitrust as a possible defense, Springer demurred. "But take a look at the Web site of the lead attorney representing Apple," he said. "Apple knows where this is going."

James Gilliland Jr., a partner in the San Francisco firm Townsend and Townsend and Crew LLP, is the first attorney for Apple named on court documents. As Springer intimated, Gilliland's biography mentions his antitrust expertise, but it also lists patent, copyright and trademark infringement, unfair competition and breach of contract experience.

Gilliland was on the Townsend team that successfully collected more than $1.1 billion from Microsoft Corp. in a class-action antitrust lawsuit after the software and operating system developer settled before that case went to trial in early 2003.

"This will be an interesting case," promised Springer.

Psystar hired Carr & Ferrell about two weeks ago, said Springer. "They came to us, I think, because this is a much bigger issue than just copyright," he said. "There's the fact that we are in [the jurisdiction of the U.S. District Court for Northern California], but we've also tangled with Apple before. We've dealt with Apple. So we're familiar with the courts and the parties.

"And we have an antitrust background," he said.

Other intellectual property (IP) attorneys have said that Psystar would be smart to play the antitrust card. In an interview three weeks ago, Carole Handler, a partner in the IP department of Wildman, Harrold, Allen & Dixon LLP, speculated that Apple might face antitrust arguments if the case goes to trial.

"What Psystar might say is, 'What we would like to do is use the Mac operating system's unique features more broadly on a variety of hardware,'" said Handler then. "I think it's a very, very hard argument to make, but I wouldn't be surprised if they tried.

"My guess is that they will mount some kind of direct attack on [Apple's exclusive] licensing," she added.

The last filing in the Apple lawsuit was an extension to the July 28 deadline Psystar faced in responding to the complaint. Attorneys for Apple and Psystar agreed last week to move the deadline to Aug. 18.

Springer warned not to read anything into that delay. "It's very common," he said.

Copyright © 2008 IDG Communications, Inc.

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