14 DAY TRIAL // Psystar’s attorney has confirmed that the Florida-based Mac clone vendor would stop selling computers pre-loaded with Apple's operating system. The Mac cloner’s website currently shows that all systems previously shipping with OS X preinstalled are now "out of stock." However, going by recent reports, Psystar would be allowed to continue selling its Intel-based machines with other operating systems, while its controversial Rebel EFI utility, which allows users to install Mac OS X themselves, is still available for download.
As reported earlier today, Psystar has agreed to pay Apple a total of $2.68 million in damages, attorneys fees and other costs, yet the agreement stipulates that Apple cannot collect until "any and all appeals in this matter are concluded or the time for filing any such appeal has lapsed," according to statements coming from Psystar’s legal. "We've agreed that Apple will not collect these damages until all appeals have been heard," Psystar's chief attorney K.A.D. Camera, of the Houston firm Camera & Sibley LLP, noted. "Until then, we have no liability."
"We may sell machines," Camera said, just like your regular PC vendor. "Customers can buy Rebel EFI, a machine from us or from Dell, and with Rebel EFI, install OS X on whatever computer they please," he explained.
Softpedia note
Is it just us or perhaps Camera shouldn’t have made this last statement? As we recall, Apple not only forbids the act of installing Mac OS X on non-Apple-branded computers, but also the act of "enabling" others to do so. If that is the case, the Rebel EFI is exactly what Apple is referring to. The least Psystar could do right now is pretend it is not encouraging anyone to install OS X on generic PCs.
A banner on Psystar’s website advertising the Rebel EFI utility that facilitates the installation of multiple operating systems on a regular PC Credits: Psystar
Other voices on the Internet seem to suggest Psystar won’t prevail using such a visible trick. A post over at the Groklaw legal blog on Tuesday said, "I seriously doubt the court will see any difference between what Psystar has just agreed it did and what it proposes to do in the future with Rebel EFI." "[...] This case is not over by a mile. Now Psystar is trying to argue that you and I have the right to use Rebel EFI because we are not commercial users. As you can see, Psystar is still angling to stay in business some way, somehow," Groklaw added, offering up a relevant piece of the Mac cloner’s argument. Here it is below, according to the blog focusing on reporting important legal events.
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. Apple correctly explains that this Court has power "to restrain acts which are the same type or class as unlawful acts which the court has found to have been committed." M. at 9. But Rebel EFI is a different kind of act altogether.
As if this wasn’t complicated enough, Psystar will continue its own lawsuit against Apple in which the company accuses the Mac maker of breaking several antitrust laws by tying its operating system to Mac hardware.
We’ll continue to provide updates as the events unfold. In the meanwhile, let your legal knowledge / intuition sound off in the comments. We’re dying to hear what you think, now that the first settlement has been reached in the famous Apple vs Psystar fiasco. Surely you have your bets on one or the other. Who do you think will win?