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While Apple is the famously fruity iPod and Mac company, a small upstart named Psystar has sought to steal a small amount of Apple’s thunder by producing clones of the famous Apple computers. Psystar took advantage of Apple’s recent conversion of all of its personal computers to use Intel microprocessors, the same microprocessors at the heart of ordinary PC’s, to make clones that (mostly) run Apple’s OS X software operating system. Of course, Psystar is not doing this out of benevolence, as its website proclaims:
Why spend $1999 to get the least expensive Apple computer with a decent video card when you can pay less than a fourth of that for an equivalent sleek and small form-factor desktop with the same hardware[?]
Psystar seeks to charge a markup on generic PC hardware with a specially modified version of Apple’s software that will run on a normal PC (OS X normally refuses to load on anything but Apple hardware). Apple has responded with a law suit alleging, among other things, that Psystar violated the copyrights on OS X.
Apple’s complaint has apparently not been published as of this post, but Psystar is likely not accused of outright piracy, because it does purchase a copy of Apple’s software for each computer it distributes. Rather, Psystar is most likely charged with distributing an unauthorized derivative work. Apple’s OS X (like all software) is protected under copyright, and when Psystar took steps to “hack” (modify) the software to run on generic PC’s, it likely created a new derivative work that it is now re-selling. Without Apple’s permission, this too may violate copyright law.
While Psystar may attempt to argue doctrine of first sale (which generally does not apply to software) it stands little chance of success in court. Aside from the doctrine of first sale, Psystar might attempt to fall back on a “fair use” defense arguing that even though it infringes Apple’s copyright, that the infringement should be allowed. However, Psystar is modifying OS X with practically zero transformative purpose other than to disable Apple’s own software protections, adding nothing of creative value, and it is then reselling the software in an effort to undercut Apple’s own business model (which centers around hardware sales, not software sales). While Psystar may craft press releases full of heady bluster, expect Apple’s legal department to take the wind out of its sails very soon.
- Chuck Fox
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