Mac clone maker wins legal round against Apple

Psystar can argue Apple abused copyright laws, judge rules

Gregg Keizer

February 8, 2009 (Computerworld) A federal judge last week ruled that Psystar Corp. can continue its countersuit against Apple Inc., giving the Mac clone maker a rare win in its seven-month-old battle with Apple.

He also hinted that if Psystar proves its allegations, others may then be free to sell computers with Mac OS X already installed.

In an order signed on Friday, U.S. District Court Judge William Alsup gave Psystar the go-ahead to amend its lawsuit against Apple. According to Alsup, Psystar may change that countersuit, which originally accused Apple of breaking antitrust laws, to instead ague that Apple has stretched copyright laws by tying the Mac operating system to its hardware.

Alsup had tossed Psystar's antitrust charges in November 2008 but left the door open to a modified complaint. Psystar took advantage of the opportunity and filed a revised lawsuit in mid-December. Apple, however, had hoped to quash Psystar's revision, saying that the Miami-based company "attempts to repackage its dismissed antitrust allegations under the guise of copyright misuse."

On Friday, Alsup said that Psystar could continue to press its once-dismissed case. "Psystar may well have a legitimate interest in establishing misuse [of copyright] independent of Apple's claims against it -- for example, to clarify the risks it confronts by marketing the products at issue in this case or others it may wish to develop," Alsup said in his ruling.

Apple started the legal wrangling in July when it said Psystar broke copyright and software-licensing laws by selling Intel-based computers with Mac OS X 10.5 preinstalled. Psystar has been selling machines equipped with Apple's operating system since April 2008.

Alsup also said that if Psystar proves that Apple abused copyright laws, some of Apple's charges against the company would be moot. He also seemed to say that that others would then be free to follow in Psystar's footsteps. "Moreover, if established, misuse would bar enforcement (for the period of misuse) not only as to defendants who are actually party to the challenged license but also as to potential defendants not themselves injured by the misuse who may have similar interests," said Alsup in his ruling.

The judge did not name the "potential defendants," but in previous filings, Apple has claimed that Psystar was not acting alone. "Persons other than Psystar are involved in Psystar's unlawful and improper activities described in this amended complaint," said Apple in a November filing. At the time, Apple only referred to those individuals or corporations as John Does 1 through 10.

Apple said it would reveal the names when it uncovered them.

Alsup also acknowledged Apple's argument that it had the right to decide how its software was licensed and used, but said that that would have to be decided as the case plays out. He did reject Psystar's attempt to include state unfair-competition charges in its countersuit, however.

Psystar has a week to submit its altered counterclaims, after which Apple must answer within 20 days. Alsup also told the two parties to get to work. "Both sides should be taking discovery and preparing themselves for trial and/or summary judgment," the judge concluded.

The case is currently scheduled to begin trial on Nov. 9.