from the copyright-misuse dept
Psystar appealed, focusing on the copyright misuse argument and, while it took some time, the always slightly wacky 9th Circuit has upheld the ruling. The court, tragically in my opinion, buys Apple's argument that its EULA does not unfairly restrict competition, because Psystar could go find a different operating system, rather than Apple's. Here, the court relies on the awful Vernor v. Autodesk ruling that basically said, "as long as a software company claims it's leasing the software to you, rather than selling it to you, your first sale rights disappear." This is true even if the "sale" really is a sale rather than a lease. It all depends on what you call it.
So, in this case, the court ruled that the copyright misuse claim must fail, because it's really an attempt to create a "right of first sale" for software -- and because Apple pretends its software sales are licenses, there is no right of first sale. So, without that... no copyright misuse. If you think this logic is circular, you should see if you can become a judge on the 9th Circuit, since they appear to need help. Furthermore, it argues that since Psystar could just go write its own operating system there is no copyright misuse:
Apple’s SLA does not restrict competitor’s ability to develop their own software, nor does it preclude customers from using non-Apple components with Apple computers. Instead, Apple's SLA merely restricts the use of Apple’s own software to its own hardware. As the district court properly concluded, Apple's SLA has "not prohibited others from independently developing and using their own operating systems." Apple I, 673 F. Supp. 2d at 939. Psystar produces its own computer hardware and it is free to develop its own computer software.As with the Vernor case, the reasoning here is convoluted. It's really just another court decision that chips away at first sale rights, which are (were?) an important part of copyright law.