Apple to Mac clone maker: Recall your hardware

Lawsuit involves multiple charges; Psystar site dark again

Apple Inc. has asked a federal court to require Psystar Corp., the small computer maker marketing Intel-based systems with Mac OS X preinstalled, to recall all the systems it has sold, according to a lawsuit filed earlier this month.

In the 16-page lawsuit, Apple charged Doral, Fla.-based Psystar with multiple copyright, trademark, breach-of-contract and unfair competition violations and argued that they all stem from Psystar's practice of preinstalling Mac OS X 10.5, a.k.a. Leopard, on desktop and server systems it sells under the OpenComputer and OpenServ nameplates.

Apple wants all of the profits made by Psystar from selling computers with Leopard, and the company asked that the court put a stop to future sales. Machines already sold, however, should be recalled, Apple said.

"Plaintiff prays for judgment as follows ... awarding Apple a permanent injunction against sales of the Psystar Open Computer and OpenServ server with Apple software and requiring Psystar to recall all such products sold to the public as a result of Psystar's infringement of Apple's copyrights," the complaint filed on July 3 read.

Psystar violated the Mac OS X end-user licensing agreement (EULA) by installing Leopard when it sold systems with a modified version of the operating system, Apple argued. "Apple has never authorized Psystar to install, use or sell the Mac OS software on any non-Apple-labeled hardware," the filing said.

Apple also accused Psystar of providing its users with copies of Mac OS X updates or with modified versions of those updates. In May, when Psystar began offering users Mac software updates, several seemed to be identical to those released in the two months prior to that by Apple.

The Mac OS X EULA forbids others from copying or modifying Apple's software. "Except as and only to the extent permitted by applicable licensing terms governing use of the open-sourced components, or by applicable law, you may not copy, decompile, reverse-engineer, disassemble, modify or create derivative works of the Apple Software or any part thereof," the EULA states .

Psystar's sales inflicted "economic injury" on Apple, the lawsuit continued, in part due to damage to the Apple brand. "Apple will suffer and is suffering irreparable harm from Psystar's infringement of the Apple trademarks insofar as Apple's invaluable good will is being eroded by [the] defendant's continuing infringement," the company said.

Apple also accused Psystar of copying and installing a single copy of Mac OS X on more than one computer at time. The lawsuit did not indicate how Apple knew that for a fact, however.

A Psystar spokesman yesterday declined to comment. Apple, meanwhile, has made no public statement about the lawsuit other than to confirm the filing.

The next step in the case is uncertain. Although a case management meeting had originally been scheduled for Oct. 22, the meeting was canceled after Apple's attorneys asked that the case be reassigned from a U.S. magistrate judge to a U.S. District Court judge.

In other news, Psystar's Web site, which was intermittently offline much of Monday, was completely dark Tuesday. A woman who answered the sales line at Psystar's Florida office, however, said it would be back online "shortly" and blamed the outage on a spike in traffic. "It's down because it took too many hits from people trying to reach it," said the woman.

The company's Web site also went under in April after it launched the OpenMac, now OpenComputer, line of Mac clones. Over the next several days, the site was available at times, offline at others. Then, Psystar claimed that a surge in traffic and problems with its credit card processor were responsible. "We're sorry, but the store is temporarily down due to the fact that we are currently unable to process any credit card transactions," a notice on the Web site read at one point that month.

Days later, the credit card processor, PowerPay Inc. in Portland, Maine, said it had terminated Psystar's account because the computer maker misrepresented what it would sell and failed to properly verify credit cards.


Copyright © 2008 IDG Communications, Inc.

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