Apple and Mac cloner Psystar have agreed to settle a 17-month lawsuit, which will prevent Psystar from selling PCs preinstalled with the Mac operating system. However, Psystar isn’t completely surrendering.

As part of the settlement, the Mac cloner said it will pay Apple an amount of damages that has yet to be specified. In the Monday filing, Psystar argued to exclude Rebel EFI, a $50 piece of software that the company started selling in October, from any potential injunction. Rebel EFI is a program that enables owners of some Intel PCs to install Mac OS X onto their systems.

An excerpt from the court document [pdf] filed Monday by Psystar follows:

Psystar and Apple today entered into a partial settlement that is embodied in a stipulation that will be filed with the Court tomorrow. Psystar has agreed on certain amounts to be awarded as statutory damages on Apple’s copyright claims in exchange for Apple’s agreement not to execute on these awards until all appeals in this matter have been concluded. Moreover, Apple has agreed to voluntarily dismiss all its trademark, trade-dress, and state-law claims. This partial settlement eliminates the need for a trial and reduces the issues before this Court to the scope of any permanent injunction on Apple’s copyright claims.

….

The summary judgment in this case turned on the manner in which Psystar assembled its Open Computers.  It turned on such things as the use of the Psystar imaging station and what this Court found to be the creation of multiple copies and derivative works of Mac OS X along the way….  None of these same facts is involved in Rebel EFI.  Rebel EFI is entirely a software product.  It does not involve the assembly by Psystar of any computers…. Nor does Rebel EFI contain or include Mac OS X.  A Mac OS X DVD does not even accompany sales of Rebel EFI.  Rebel EFI consists solely of Psystar software available for sale and download through Psystar’s website.  In particular, whether sales of Rebel EFI are lawful or not depends on whether Psystar’s end users have a defense under 17 U.S.C. § 117.  This issue has not been litigated in this case at all.  Psystar’s end users do not engage in commercial use of Mac OS X and their use would qualify as use for “internal purposes” even under the standards articulated by Apple in its summary-judgment briefing.  If Psystar’s end users are protected by § 117, then Psystar cannot be violating the DMCA by selling Rebel EFI because Rebel EFI, as used by the end users, does not facilitate infringement.

In short, Psystar wishes to continue providing a DIY solution for owners to make their own Mac clones, thereby shifting the responsibility (i.e., breaking Apple’s End User License Agreement) onto the consumer.

However, it’s unlikely this workaround will pan out for Psytar. In 2008, Wired.com reported on a company called Open Tech, which said it would sell PCs bundled with instruction kits for consumers to install Mac OS X themselves. However, Carole Handler, an intellectual property lawyer with Wildman Harrold, told Wired.com that Open Tech would be subjecting itself to contributory infringement of Apple’s end-user agreement.

“Making the user instead of the company the perpetrator of any violation will not avoid the issue of a new company’s contributory infringement and/or vicarious liability for what it facilitates and enables the user to undertake,” Handler said in an e-mail interview. “This kind of workaround is not a bar to Apple bringing contributory infringement or vicarious liability claims.”

Though slightly different, Psystar’s solution could also be considering aiding the consumer to break Apple’s EULA, which reads, “You agree not to install, use or run the Apple Software on any non-Apple-labeled computer, or to enable others to do so.”

Psystar, a company based in Florida, opened its Mac clone business in April 2008. Three months later, Apple filed a lawsuit alleging Psystar was committing copyright, trademark and shrink-wrap license infringement. Judge William Alsup in November ruled that by selling PCs hacked to run Mac OS X, Psystar had violated Apple’s copyrights.

See Also:

• Mac Cloner Psystar Sold Fewer Than 1000 Hackintoshes
• Psystar ‘Rebel EFI’ Patch Installs Snow Leopard on Any PC
• Mac Cloner Psystar Guilty of Violating Apple’s Copyright
• Judge Dismisses Mac Cloner Psystar’s Bankruptcy

Photo: Psystar

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