Awesome. A German company is following in PsyStar’s footsteps and is selling Mac clones. (Link.) According to the Ars Technica article, PearC thinks that Germany’s laws regarding enforceability of EULAs gives them the authority to do it. It’ll be interesting to see how that works out for them. Probably not too well, if the litigation against PsyStar is any indication. But, Germany isn’t the US, and we’ll see.
Too bad the boxes are really, really, really bland. (PearC’s website.)
Update: I guess I spoke too fast about PsyStar’s litigation not going so well. According to this CNET article, PsyStar has been allowed to amend its counterclaim to allege copyright misuse against Apple. That’s pretty amazing.
Copyright misuse is not found in Title 17, and it’s not fully embraced by all federal circuits. The theory behind copyright misuse is this: “courts may appropriately withhold their aid where the plaintiff is using the right asserted contrary to the public interest. Misuse is not cause to invalidate the copyright or patent, but instead precludes its enforcement during the period of misuse.” Video Pipeline v. Buena Vista Home Entertainment, 342 F.3d 191, 204 (3d Cir. 2003). The defense usually arises when the holder of the IP engages in some sort of anti-competitive behavior. Id.
What is somewhat odd about Judge Alsup’s decision to allow the amended complaint is that the primary anti-competitive behavior alleged by everyone that looks at Apple, is that Apple requires the OS to be tied to its hardware. Judge Alsup, however, apparently thinks this is just fine:
PsyStar argues that the alleged misuse is, “at the least, unfair in that Apple has attempted (and continues to attempt) to extend the reach of its copyrights by tying them to computer hardware not otherwise protected by the Copyright Act.” (Reply at 12). It fails to explain, however, how this conduct constitutes harm to competition or a violation of the spirit of the antitrust laws. In the context of single-firm conduct, tying requires monopolization. PsyStar has identified none – other than the limited monopolies inherent in the copyrights themselves.
Well, I guess we’re back to “we’ll see.”
