So it looks like wannabe cloner Psystar's supposedly hotshot law firm
of Carr and Ferrell regrouped for a deep think after pumping out
some fairly weak arguments
in its case against Apple -- according to a new draft of Psystar's countersuit, the Florida-based computer reseller should be allowed to sell whitebox Mac OS X machines because it legally purchased copies of Leopard at retail. That's the first sale doctrine, if you're into copyright law -- it states that the purchaser of copyrighted materials (like a book) can sell or dispose of them however they want. Here's the thing though: a big part of Apple's case (but not all of it
) is based around the fact that consumers license
OS X under the terms of the EULA -- and courts are basically up in the air over whether the first sale doctrine should apply to software transactions. It's an interesting tactic with a ton of repercussions beyond Apple if it's successful, but we honestly can't see it working -- in the cases where first sale has been used to overcome a EULA, it's generally been for used software, not companies like Psystar, who are modifying and installing new copyrighted software sold by a first party. We'll see how Apple responds -- things just got interesting again.Update: World Of Apple
notes that this argument has been present from the outset, but it sounds like Psystar's really pushing it now. We'd say so -- we think it's the only plausible one we've heard so far.
[Thanks, iB3nji]Disclaimer: Nilay's a lawyer and about to fall over from CES, but he's not
your lawyer, and this isn't legal advice or analysis.