Apple and Psystar have been embroiled in litigation for quite a while now. At the core of the dispute: Psystar modifies Apple's operating system software so that it can run on its clone machines. It then sells its computers with Mac OS installed to, well, anybody who wants one. As you can imagine, this does not make Apple happy.

Anybody familiar with The Great Clone Crackdown of 1997 will tell you that Apple likes to keep a very tight grip on any device that presumes to run its software. Apple points out that Windows machines are a mishmash of often conflicting hardware and suffer from quirks and errors and incompatibilities that such a set up can bring.

So Apple's cadre of lawyers descended quickly on Psystar. In July of last year, the company sued Psystar for copyright and software licensing violations, quickly amending its lawsuit to additionally charge Psystar with violations of the Digital Millennium Copyright Act (DMCA).

And there was much lawyering.

More than a year later, now that discovery has been completed, the two parties have each filed for summary judgment, which, in effect, asks the judge to rule in favor of the filing party because enough evidence has been shown that either makes or breaks the lawsuit.

Psystar's argument, and the one covered in its motion, somewhat relies on the "first sale doctrine" which says that any purchaser of a copyrighted product can then take that lawfully-made copy and sell it, so long as no additional copies can be made. For its part, Apple says that when one "purchases" its OS, you are only purchasing a license to use the product. Its Software Licensing Agreement (SLA) quite clearly states [PDF link to Snow Leopard SLA] that the user cannot modify the software to run on a non-Apple system.

The idea that what you are purchasing is a license to use the product is pretty commonplace among software manufacturers, because, the argument runs, you can cut any software company's profits off at the knees if every purchaser became an owner with free rein to redistribute the software. Apple states that no software company in its right mind would put the money into research and development of any software product at all if that were the end result of bringing its product to market. Groklaw suggests this could have ramifications for FOSS and and the GPL.

Over the weekend, The Mac Observer posted a detailed analysis of the latest chapter in the Psystar saga. It's taken me a few days to come down from vacation and try to wrap my brain around the legalese, but here's the condensed version of what happened.

Psystar was granted its motion to dismiss its Chapter 11 bankruptcy filing in the State of Florida. The judge in the case must feel that Psystar will either try to file for Chapter 7 (liquidation) bankruptcy or try to delay Apple's case in California against the clone maker (now scheduled to start on January 11, 2010) with another Chapter 11 filing. Why? The judge has stipulated that Psystar will not be granted an automatic stay in the case if they file for Chapter 7 bankruptcy, and has blocked Psystar against filing Chapter 11 again for another six months.

Translation: "Hey, Psystar! You can't use bankruptcy to weasel out of Apple's case against you."

We don't know if Psystar has been selling a lot of Mac clones or if there is a secret admirer with deep pockets lurking in the wings, but by removing Chapter 11 protection, creditors who are owed money can now file suit for financial relief. Those creditors include Psystar's previous law firm, Carr & Farrell, which is owed about $88,000. One of the other companies that may line up for compensation could be Apple, which may very well be owed payment for shrink-wrapped copies of Mac OS X that were purchased by Psystar.

More legal moves will undoubtedly unfold in the months leading up to the January court date, so keep your browser pointed to Court TV TUAW for updates about this seemingly never-ending battle.

The Electronic Frontier Foundation has posted the news that Apple has filed comments with the US Copyright Office stating that the act of jailbreaking your iPhone is a copyright infringement and a DMCA violation, and therefore illegal. The EFF says that Apple is claiming that jailbreak apps still require modified versions of Apple's software, and Apple apparently believes that those versions are infringing on their copyrights.

The EFF responds, in turn, that "reverse engineering is a fair use when done for purposes of fostering interoperability with independently created software," saying that yes, even though jailbreakers are using Apple's copyrighted code, they are doing so in a way that allows them functionality that Apple doesn't provide access to on their own.

At this point, of course, this is just a complaint in the copyright office, and Apple hasn't made any legal moves yet against anyone responsible for jailbreaking. As the EFF states, it would be extremely hard for them to go after individual jailbreakers -- if you buy an iPhone, it should be your right to "get under the hood," as they say, and do what you want.

But (and keep in mind that this is TUAW, not The Unofficial Legal Weblog, and we are not lawyers) it seems Apple may be able to try and make a case against anyone offering software that does modify or otherwise "misuse" their copyrighted code. We'll have to see if they explore that position more in the future. You can read Apple's full response here (27 pages). You can see the EFF's initial filings here.

Stay tuned for more news and analysis on the issue.

In yet another new facet to this already-draining legal battle surrounding Psystar's sales of non-Apple hardware that runs Mac OS X, Apple has amended its original suit after it discovered "additional information," according to Computerworld.

Apple now claims Psystar circumvented Apple's copyright protection code, in violation of the Digital Millennium Copyright Act. Apple said in its original filing that Psystar was in violation of the Mac OS X End-User License Agreement, but tacked on this additional charge last week.

The amendment also names 10 "John Does" -- persons who were not part of the Psystar company, but broke the copyright protection scheme. Apple doesn't know who they are yet, but plans to name names when its lawyers find out who they are.

In other Apple legal news, Apple won a trademark infringement case in China against New Apple Concept Digital Technology Co., Ltd., based in Shenzen. Judges decided that the Chinese company had a logo too similar to Apple's. New Ap -- aw, eff it -- NACDTCL was ordered to pay 400,000 yuan (≈ US$58,000) to Apple, Inc.

[Via Cult of Mac.]

Just in case you missed it, Engadget did a nice little analysis of whether it's legal to unlock your iPhone or not-- a more and more pertinent question as we get closer and closer to having unlocking solutions become available. In short, it is legal... mostly.

The main questions of legality lie around an exception to the DMCA, which allows you to unlock your cell phone "for the sole purpose of lawfully connecting to a wireless telephone communication network." Under that law and that exception, it's perfectly legal to use an iPhone on T-mobile, Verizon, or any other provider that you can get it to work with. Things really only get prickly when you start selling those unlocked phones, or somehow profit off of selling unlocked phones. Then, Apple and AT&T start to have a case against you for honing in on their business.

Oh, and the other fun part is that the DMCA exemption that gives you an out on this one actually expires in November of 2009. So if nothing is done on that front, unlocking phones will be illegal within a few years. Still, Engadget makes the same conclusion that I would-- unlocking your iPhone for personal use on another network very likely won't bring AT&T's legal goons to your doors. It likely will void your warranty, and while some unlocks brag that they'll stay after updates, a future update may undo the unlock.

For those people attempting to get Mac OS X 10.4.x for Intel installed on machines other than Macs, the best place to get that information was the forums at the OSX86 Project. The forums are now closed indefinitely because the project was served with a DMCA violation notice and the project manager(s) are working on culling the questionable content.

The front page of the forums has been replaced with this notice:

Welcome! We're sorry to report that despite our best efforts, the OSx86 Project has been served with a DMCA violation notice. The forum will be unavailable while we evaluate its contents to remove any violations present. We thank you for your patience in this matter.

CNET News has a really interesting perspective piece highlighting the video iPod's potential for being a catalyst for DMCA reform, specifically: the (outlandish) portion that makes it illegal to sell or distribute DVD-ripping software.

The idea behind the article is that, until now, these measures of the DMCA haven't really hit the radar of an audience outside the comparatively small segment of digital-rights advocates. Declan McCullagh, the articles author, believes that the video iPod could finally be the spark large enough to get a much greater portion of consumers interested in (and angry about) the non-DVD-ripping limits on today's software. While McCullagh mentions a few DMCA-reform bills that are already floating around, he's also quick to point out that none of them, at present, have a very bright future.

The video iPod, according to McCullagh's logic, might be able to help all of this. With its wide popularity, he thinks more and more users are going to start questioning why it's so easy for iTunes to rip a CD to their library (and iPod), and yet the software balks at a DVD movie. Yes - before you start firing up the comment form, there are still ways of getting a DVD off a plastic disc and onto your favorite media player, iPod or otherwise. But for the greater community of users out there, DVD ripping is still a thing of mystery and magic.

I recommend you check out the full article as I think it's a really interesting read, but there's one thing I want to add to the discussion; a factor that neither the industry nor these politicians seem to examine: price. I wholeheartedly believe that if these companies cleaned all of their "market research" and "value perception" statistics out of their ears, they would realize that people are stealing content because they know the providers are taking them for a ride - and they won't put up with it anymore. Everyone knows CDs cost pennies on the dollar, and DVDs cost even less than VHS tapes to produce, yet they retail for a far higher price. The rampant (and as-yet unstoppable) success off the iTMS is real world proof that people will pay for the content, maybe even more content, as long as it has a fair price.

But alas, as with all other political affairs, our ability to copy DVDs that we own will only change at the speed of bureaucracy.