I do not like playing ‘Net Nanny’ continually correcting inaccurate reporting in this case; however, I find it necessary. My goal is to encourage more thorough fact-checking (which can only benefit everyone) not to bring anyone down. I make enough of my own mistakes to suffer the delusion that I am some paragon of factual perfection. If I ever report facts incorrectly, please correct me. I will genuinely appreciate it.

Reference Links for this Case (for future reference)

Definition of Declaratory Relief

28 U.S.C. § 2201. Creation of remedy

Digital Millennium Copyright Act

§ 1201. Circumvention of copyright protection systems (part of the DMCA)

Copyright Act 1976, as Amended

Federal Rules of Civil Procedure

Online docket for Apple v. Psystar

Apple’s Amended Complaint

Psystar’s Answer to Apple’s Amended Complaint

Psystar’s Proposed First Amended Counterclaim

Reference Links and Material for this Article

InformationWeek: Apple Failed To Copyright Mac OS X, Psystar Claims

Mac clone manufacturer Psystar said that Apple’s copyright suit against it should be dismissed because Apple has never filed for copyright protection for its Mac OS X operating system with the U.S. Copyright Office, according to court papers.

ars technica: New Psystar filing full of sound and fury, signifying nothing

Psystar’s recent filing has, among its innumerable denials and 42 affirmative defenses, logical fallacies and denials of facts which can be readily proven with the most basic research. For example, Psystar outright says that Apple lacks copyrights for Mac OS X 10.5 and failed to register the OS with the US Copyright Office. A quick search of the Copyright Office’s website actually shows that Apple’s application for copyright was granted January 24, 2008 for “new and revised text, illustrations and compilation; new and revised computer program.”

ZDNet: Latest Psystar wacky claim: OS X never copyrighted (!???)

So, what is this nonsense about Apple failing to copyright OS X? That’s what Psystar – the fly-by-night illegal Mac clone maker that Apple has sued for copyright infringement for rebundling OS X software with its computers – is claiming in the latest gambit to avoid getting shot out of the water in U.S. District Court.

Are any of those statements an accurate representation of what Psystar actually claimed? No. In reviewing these stories and many more which are not listed, it appears that the wellspring of this claim in this instance is InformationWeek.

Additional Reference Links and Material for this Article

AppleInsider: Psystar claims Apple has invalid Mac OS X copyright

In an aggressive response, unofficial Mac clone builder Psystar has made a controversial claim that Apple doesn’t legally own the US rights to protect Mac OS X, invalidating a major component of its lawsuit.

The Industry Standard: Psystar v. Apple drags on, company claims Apple doesn’t own Mac OS X copyright

Psystar, the company that attempted to sell generic computer hardware with Apple’s Mac OS X operating system on it before being slapped down by an Apple lawsuit, now says that Apple doesn’t own the copyright for Mac OS X.

These two articles are closer to the facts but still lack needed precision.

Brief Background

On August 28, 2008, Psystar filed a Counterclaim which was dismissed without prejudice by the Court on November 18, 2008. Subsequently, on December 2, 2008, Apple’s Amended Complaint was deemed filed giving Psystar another bite at the apple (pun intended) in its second Answer. Further, on December 8, 2008, Psystar moved for leave to file its First Amended Counterclaim. Due to the holidays, the hearing on this motion has been moved from January 15, 2009 to January 22, 2009. Further, the deadlines for Apple to file its Opposition to Psystar’s Motion has been moved to December 31, 2009, and Psystar’s Reply to Apple’s Opposition has been moved to January 7, 2009. The case is currently scheduled for a November 2009, trial date.

Of note, Psystar’s pending Amended Counterclaim differs substantially in nature from its prior—now dismissed—Counterclaim in that it is a request for declaratory relief. Generally speaking (a qualified and licensed attorney would have to give authoritative specifics), in a declaratory action, the facts are not in dispute; but rather the claim is made that at least one of the parties is in doubt as to its rights and duties and is requesting guidance from the Court. In my lay opinion it seems that this lowers the bar considerably for another successful motion to dismiss from Apple as the issues are primarily of a legal, rather than a factual, nature. However, I remind the reader, dismissals are rare, and I was quite surprised and pleased that Apple prevailed earlier. That might not happen again, and if not, it should be taken as anything more than Apple failing to meet the incredibly high burden required to remove a case from the hands of a jury. It does not mean that the Judge believes that the claims have actual merit, only that they have a minimal basis in law.

Here is the definition for a declaratory action:

Declaratory relief refers to a judgment of a court which determines the rights of parties without ordering anything be done or awarding damages. By seeking a declaratory judgment, the party making the request is seeking for an official declaration of the status of a matter in controversy. Optimally, the resolution of the rights of the parties involved will prevent further litigation. For example, a party to a contract may seek the legal interpretation of a contract to determine the parties’ rights, or an insured may seek a determination of insurance coverage under a policy.

How Did so Many Sites Get the Idea that Psystar Alleged that Apple did not Copyright OS X?

Repeat After Me

As before, I believe this is due to three reasons: one, writers are not reading the filings carefully and holistically if they are reading them at all; two, technology writers do not have the requisite basic background to write competently on legal filings; and three, too many writers simply parrot what has been said by others.

The allegation of Psystar that has been lifted out of its Answer to Apple’s Amended Complaint and used to support this erroneous claim is quoted below. I note that there are similar statements in Psystar’s Proposed First Amended Counterclaim, but since that is not yet “official,” I am going to reference the Answer.


Fourteenth Affirmative Defense
(Failure to Register Copyright)

PLAINTIFF is prohibited from bringing action against PSYSTAR for the alleged infringement of
one or more of PLAINTIFF’s copyrights for failure to register said copyrights with the Copyright
Office as required by 17 U.S.C. § 411.

At first the reader might be thinking that those articles above were right, and I am out of my gourd. However, I ask the skeptic to re-read that allegation carefully. Does it say that Apple did not copyright OS X? No, it doesn’t. It doesn’t specify which copyrights, out of the many explicitly and/or implicitly claimed by Apple, are allegedly not registered. Further, elsewhere in this filing, Psystar admits that Apple HAS registered copyrights on OS X. First, let’s look at Apple’s Amended Complaint where they claim to have such copyrights (click images for enlargements):

Paragraph 26 of Apple's Amended Complaint

Now let’s look at Psystar’s corresponding response to this paragraph:

Psystar's Response to Paragraph 26 of Apple's Amended Complaint

Additionally, from page 29, lines 18 through 19 of Psystar’s Answer:

As evidenced by the foregoing, APPLE misuses its copyrights in the Mac OS to force purchases of Apple-Labeled computer hardware systems for use in conjunction with the Mac OS.

Similar statements appear on page 28, lines 18 through 20 and page 29, lines 13 through 14. Now, I ask you gentle reader, is it a reasonable interpretation of Psystar’s Fourteenth Affirmative Defense that Psystar is so benighted as to claim that Apple did not copyright OS X? Does anyone believe that Psystar’s attorneys could not do the simple records searches waved about by so many technology writers? If so, do you also think that they walk into walls face first? I am no fan of Psystar, and their attorneys have abysmal writing/proofreading skills, but they are not stupid. Fair is fair.

So what is Psystar referring to in its Fourteenth Affirmative Defense? Here is my theory, but once again, I remind the reader that I am not an attorney, and this is simply my lay reading. My theory has two possible prongs: Psystar denies that the registered copyrights are valid; and Apple has not copyrighted the tied-in combination of Apple-labeled hardware and the Mac OS (if that is even possible). This becomes a bit more obvious when the Proposed Counterclaim is brought into the picture which is beyond the scope of this article.