Apple gets victory in Psystar case

November 14, 2009 11:33 PM EST

A judge ruled today agreed with Apple's in its copyright-infringement case against Psystar, the unauthorized seller of Mac clones running Mac OS X.

According to Groklaw, there are still issues remaining for trial, despite Psystar's attempt to present everything now as being moot. Here's what's left to be decided at trial: Apple's allegations of breach of contract; induced breach of contract, trademark infringement; trademark dilution; trade dress infringement; and state unfair competition under California Business and Professions Code § 17200; and common law unfair competition. See anything on that list that will be helpful to Psystar?

Section 117(a) permits the owner of a copy of a computer program to copy or modify the program for limited purposes without incurring liability for copyright infringement. See Krause v. Titleserv, Inc., 402 F.3d 119, 121 (2nd Cir. 2005). But the question is whether Psystar can rely on Section 117 to escape liability. It cannot. As Apple pointed out, Psystar waived any Section 117 essential step defense when it failed to plead it. Psystar counters that it has not waived Section 117 because that provision is a limitation on a copyright owner’s exclusive rights rather than an affirmative defense. An earlier Ninth Circuit decision stated “Section 117 defines a narrow category of copying that is lawful per se” and “Section 107, by contrast, establishes a defense to an otherwise valid claim of copyright infringement.”

The short of it?

EULAs mean what they say; if you don't want to abide by its license, leave Apple's stuff alone. There are thousands of different varieties of Linux built for that very reason.

Gregg Keizer has more on the case and the judge's decision.