IP attorney: Apple recall demand would probably kill Psystar

Apple's demand that a Mac clone maker recall computers because the company installed Mac OS X on the machines may be an extreme measure, but it's hardly unprecedented, an intellectual property attorney said Friday.

"It would be extreme because it would likely put Psystar out of business, but it's not a remedy that's coming out of the blue. It's not completely without precedent," said Carole Handler, a partner in the intellectual property (IP) department of Wildman, Harrold, Allen & Dixon. Handler is best known for her work on a case involving Marvel Enterprises that, among other things, established protection for copyrighted characters in online games and returned the movie rights to the Spiderman character to the company.

Earlier this month, Apple charged Psystar with multiple copyright, trademark, breach-of-contract and unfair competition violations for preinstalling Mac OS X 10.5 on Intel-based computers. According to the lawsuit, Psystar violated the Mac OS X end-user licensing agreement (EULA) by installing Leopard on its OpenComputer desktops and OpenServ servers, both which can be ordered from the Doral, Fla. company with Apple's operating system already installed.

The EULA forbids installing the OS on non-Apple hardware.

Among its requests for relief, Apple asked the court to stop Psystar from selling Leopard-equipped computers, turn over the profits it has made since it began the practice in April and recall all systems it has already sold.

That last demand, which was received prominent play in news reports, including by Computerworld, isn't as unusual as it sounds, according to Handler.

Settlement agreements drafted by plaintiffs' attorneys in copyright infringement cases will sometimes include language that spells out a recall, particularly when the continued presence of the product might cause some additional harm to the injured party. Defense attorneys, meanwhile, work to exclude such a recall or draft settlements that preemptively bar them.

In this case, Handler said, she could see Apple making the argument that it might be hit with follow-on lawsuits by customers stranded by Psystar if the Florida company was forced to stop supporting Mac OS X users it already had on its roles.

"It's unusual because the financial impact is so extreme, but there's nothing that keeps Apple from asking for it," Handler said. "And if a court decides Psystar is doing nothing but being in the infringement business, it may also decide that the world would be better off without them."

More important, said Handler, was what legal strategy, if any, Psystar has in mind. "At first blush, it looks like Apple has a very strong copyright case. But my guess is that Psystar [went into this] with a legal theory, and the first thing I would turn to if I were them would be to argue that Apple's conduct is anti-competitive.

"Clearly, if I was them I couldn't say that they didn't copy Mac OS X, so I would have to come up with something else," she said.

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