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Some thoughts on the Psystar/Apple case

Ahh, Psystar. We hardly knew you. And now, finally, Apple wants you dead:

"’Apple licenses the use of its Macintosh operating system software for use only on Apple-labeled hardware,’ the Mac maker says in the suit (click here for PDF) adding that the only way to get a full version of the Mac OS is on a new machine. The boxed software product, it says, is only an upgrade version, valid only for upgrading an existing, Apple-branded Macintosh."

If that was what Apple was saying, I could foresee problems with its suit. The version of (say) Leopard you buy in a box as an "upgrade" really does include the whole shebang – and that’s the kind of technicality that courts get sticky about, and which tends to lose you cases.

Looking through the PDF, though, the only claim that I can see Apple making is that the boxed versions are sold as an upgrade, with different licensing terms – which is a different kind of claim.

Software licensing terms can and have been ruled invalid on the basis that they form "contracts of adhesion". In this case, it’s possible that a court may rule that a full version of an operating system which is sold with a license only to use it as an upgrade on specified hardware may form such a contract. That consumers have other purchasing options (ie they could buy Windows or Linux) is not always a defence, as Linden Lab found to its cost in the Bragg vs Linden Research case.

I don’t think that Apple will lose, particularly given that, judging from the court filings, some of Psystar’s actions don’t inspire much confidence in it as a company. The fact that Psystar allegedly makes copies of Apple’s software rather than supplying original disks only almost certainly means it’s in deep trouble. While reselling the original disks for a copy of Mac OS X that it had bought legitimately would probably be fine, making available anything authored by Apple as a download is a definite no-no.

The danger for Apple is that a court might rule that some of its licenses are invalid, which could open things up to other, more savvy Mac clone makers, even if it wins the case. But given that the core of its allegations is that Psystar is making illegal copies of its code, I don’t think it really had a choice about bringing the case.

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