Psystar attorney clarifies company’s argument

Dan Moren
15 October, 2009
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Earlier this week, we ran a story on Apple and Psystar filing motions for summary judgment in the copyright infringement case between the two, which is scheduled to go to trial in January 2010. The motions each asked Judge William Alsup to find in favour of their respective side, obviating the need for a potentially lengthy (and costly) trial. In that story, we described Psystar’s legal position as contending that “users own both the disc and the operating system.”

Timothy Nyberg of Camara & Sibley LLP, Psystar’s law firm, dropped Macworld a line in response to the story, in which he clarified the company’s position:

Psystar contends that users own the DVD for OS X Leopard, but they do not contend that users own the operating system.  Under the Copyright Act (section 117), the owner of a DVD containing software can make copies of the software in order to use the software on a machine (any machine), without infringing the copyrights of the copyright holder (for example, making a copy of the software into a computer’s RAM).

Nyberg went on to spell out what this means for the Apple v. Psystar case, which is largely based on allegations that Psystar infringes Apple’s copyright for Mac OS X:

The significance of this point is that a copyright holder cannot “license” something (copying software to only specific types of machines) for which it has no property rights.  If the city owns a sidewalk next to my property, and you and I agree that you will not walk on the sidewalk, and you do walk on the sidewalk, I may be able to sue you for breach of contract, but I have no trespass (infringement) claim since I have no property rights affected by your acts.  The nature of a claim matters in copyright since statutory damages for infringement can dwarf damages for breach of contract.

Nyberg also added in a subsequent e-mail that Psystar has filed a motion to unseal the summary judgments of both parties, in accordance with an earlier order by Judge Alsup.

Apple launched its suit against Psystar in July 2008, three months after the company first began selling Mac clones. Since then, the dispute has had pelnty of ups and downs, including Psystar counter-suing Apple and accusing them of antitrust violations. Psystar filed for Chapter 11 bankruptcy protection last May, after a payment dispute with its first attorneys, Carr & Farrell. The company has since hired Nyberg’s firm, the Houston-based Camara & Sibley LLP, to represent them in the case.

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