Florida-based Psystar makes its argument in a 17-page response to Apple filed in a San Francisco court last week,Â*again accusingÂ*Apple of violating copyright law by requiring Mac OS X run only on Apple hardware. Â*This is Psystar's second line of defense after its claims regardingÂ*anti-trust violationsÂ*were thrown out of court for reportedly being self-defeating.
Instead, Psystar now claims it buys legitimate copies of the Mac OS from retailers and even directly from Apple itself, and under theÂ*doctrine of first saleÂ*doesn't need Apple's permission to resell them. By taking action against Psystar, Apple is effectively trying to override accepted sales practices.
"Apple attempts to usurp [the Copyright Act] by telling Psystar and its customers that Apple--and Apple alone--will say whether, how or by whom its software is...distributed or used," Psystar's attorneys write. "Once a copyright owner consents to the sale of particular copies of a work, the owner may not thereafter exercise distribution rights with respect to those copies."
Psystar still maintains that Apple's code within Mac OS X to verify the presence of Apple hardware, which forces a kernel panic or infinite loop if the test fails, "does not constitute a technological copyright protection measure" or "effectively control access to a copyrighted work."Â* Apple has accused Psystar of patching a part of the Mac OS X code to enable it to run on third-party hardware.
Apple, for its part, stands by its original claim that the Mac OS X licensing agreement clearly forbids installation on any non-Apple hardware.
Psystar has responded and continues to respond in turn by asserting that Apple is guilty of "unfair conduct" that "threatens or harms competition."Â* It wants Apple's copyrights to be declared unenforceable.
AppleÂ*suedÂ*Psystar in July, and the clone builderÂ*countersuedÂ*a month later.Â* The latest, amended complaint was filed after Judge William Alsup allowed Psystar toÂ*modify its argumentÂ*following its initial anti-trust allegations.
The full case is expected to go to trial in April.