Psystar: We bought Mac OS fair and square

Psystar is still tilting at legal windmills in its battle against Apple, this time asserting its right to do whatever it wants with products obtained legally from Apple.

After a judge rejected Psystar's antitrust argument--considered its best chance of continuing to sell its Open Computers with Mac OS X preinstalled--the Florida clone maker was allowed to amend its claims against Apple to include other arguments. It has already suggested that Apple is abusing its copyright on the operating system, and now it plans to argue that since Psystar legally purchased its copies of Mac OS X from Apple and resellers, it has the right to do basically whatever it wants with that software under the first-sale doctrine.

Computerworld spotted court filings to that effect submitted by Psystar last week. Here's a key passage:

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. See, e.g., Bobbs-Merrill Co. v. Straus, 210 U.S. 339, 350-51 (1908) (recognizing more than 100 years ago the concept of first sale and the limitations imposed upon a copyright owner in light thereof). Psystar acquired lawful copies of the Mac OS from Apple; those copies were lawfully acquired from authorized distributors including some directly from Apple; Psystar paid good and valuable consideration for those copies; Psystar disposed of those lawfully acquired copies to third-parties.

The problem with this argument is that courts have rarely agreed that the first-sale doctrine applies to software, considering software a product that is licensed, not sold, and can therefore have restrictions attached. There was a case involving Adobe that concluded otherwise, but for the most part courts have tended to side with the software developer.

Apple and Psystar are scheduled to meet next week to discuss the case and the latest arguments.