copyright owners in the ordinary course of its operations.”^927 Accordingly, the court granted
Apple’s motion for summary judgment.^928
The court also rejected Psystar’s argument that Apple’s alleged attempt to use copyright
to tie Mac OS X to Apple hardware constituted copyright misuse. Because Apple had not
prohibited others from independently developing and using their own operating system, it had
not violated the public policy underlying copyright law or engaged in copyright misuse. The
court noted that Apple had not prohibited purchasers of Mac OS X from using competitor’s
products. Rather, it had simply prohibited purchasers from using OS X on competitor’s
products. Thus, Apple’s license agreement was simply an attempt to control the use of its own
software.^929
On appeal, the defendant did not challenge the district court’s rulings of infringement, but
rather challenged the district court’s rejection of Psystar’s misuse defense. The Ninth Circuit
affirmed the district court’s copyright misuse rulings.^930 After a review of relevant misuse
decisions by courts in the Ninth Circuit, the court concluded, “A software licensing agreement
may reasonably restrict use of the software as long as it does not prevent the development of
competing products.”^931 The court found that Apple’s license agreement did not impermissibly
do so: “Apple’s [license agreement] 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 [license agreement] merely restricts the use of Apple’s own
software to its own hardware. ... Psystar produces its own computer hardware and it is free to
develop its own computer software.”^932 The court also rejected Psystar’s reliance on the first
sale doctrine, arguing that Apple was attempting to control the use of the Mac OS X software
after it had been sold, because Psystar purchased retail-packaged copies of the OS. The court
found that the argument falsely assumed that Apple transferred ownership of the Mac OS X
when it sold a retail-packaged DVD containing software designed to enable Apple’s existing
customers to upgrade to the latest version of the OS. The court found that, although buyers of
the DVD purchased the disc, they knew they were not buying the software, as Apple’s license
agreement clearly explained as much. Accordingly, the DVD purchasers were licensees, not
owners, of the copies of the software.^933 The Ninth Circuit therefore affirmed the district court’s
grant of summary judgment in favor of Apple and its entry of a permanent injunction against
Psystar’s infringement of the Mac OS X.^934
(^927) Id. at 942 (quoting Sony Computer Entm’t Am., Inc. v. Divineo, Inc., 457 F. Supp. 2d 957, 965 (N.D. Cal.
2006)).
(^928) Psystar, 673 F. Supp. 2d at 942.
(^929) Id. at 939-40.
(^930) Apple, Inc. v. Psystar Corp., 658 F.3d 1150, 1152 (9th Cir. 2011), cert. denied, 132 S. Ct. 2374 (2012).
(^931) Id. at 1159.
(^932) Id. at 1160.
(^933) Id. at 1159-60.
(^934) Id. at 1162.