What does "installing" have to do with a "copyright" ? Yes, a copy of sorts is being made onto the hard drive, but that is how it's designed to function and it is not identical to the install disc even on a 'proper' Macintosh. The install discs are designed to be installed, not to run directly and thus installing is NOT a copyright violation of any kind. Sorry, but your argument is just plain wrong.
Apple is the copyright holder. And as such, Apple -- and Apple alone -- gets to determine how its copyrighted material is distributed. Period. Black-letter law. This is why the
principle of EULAs, though not necessarily given specifics of the aforementioned, are legally binding. This is all fairly straight-forward, basic copyright law.
If you're so positive I'm wrong, buy a DVD copy of
Star Wars, edit in your own footage, and try to sell the resulting film online. Record a rendition of you and your best friends singing "Happy Birthday" and sell it to others through a brick and mortar store (without paying royalties to the copyright holder). Patch together parts of three different copyrighted books and sell them as an omnibus edition. In each case, you'll soon find yourself being served with papers by the copyright holders. I remind you that six publishers successfully sued Kinko's for selling photocopied coursepacks that included as little as 14 pages of copyrighted material. And you think the federal courts will rule in PsyStar's favor?
The EULA sets forth the restrictions by which Apple, owner of the copyright, permits use of its copyrighted material. Microsoft does the same thing with their OEM licenses. Problem is, Apple doesn't offer any OEM licenses. Thus, what PsyStar does violates Title 17 of the US Code. PsyStar might stand on slightly better legal ground were it simply to include an Apple-manufactured DVD copy of Leopard with each machine rather than installing it on the machine for the end-user. Unfortunately, as PsyStar's computer is presently structured, the end-user can't install OS X by him/herself. PsyStar themselves admits this. And thus, by installing the OS on a machine they manufacture, PsyStar is illegally distributing Apple's copyrighted OS (and before aoresteen jumps in here with his grey market example, may I point out that just because others are breaking the law with seeming impunity does not mean that you aren't in violation -- it just means that for whatever reason the law/trademark holder/etc. is not pursuing the others).
Apple has no monopoly -- not with less than 10% of the OS market. And even if it did, it still could define who gets to sell its OS without running afoul of US anti-trust legislation. Where Microsoft erred was in abusing its monopoly position by bundling applications with its OS and then stating the offending application (Explorer) couldn't be unbundled from the system. MS is perfectly within its bounds right now to deny Dell access to its OEM licenses for Windows. They'd be crazy to do so, however, b/c Dell pays MS royalties for each copy of Windows it sells (as well as paying for the bulk license). Note that PsyStar isn't paying Apple any royalties -- it's just tossing in a copy of OS X that they bought from somebody -- a copy that Apple, as evidenced by its EULA, clearly intended to be something other than an OEM license.
Do I wish Apple's hardware was a little less expensive? Sure. Do I wish that Apple offered a headless iMac other other minitower? Yes. But as somebody who works with and profits from IP, I also see the bigger picture: copyright holders get to determine who profits from their intellectual property. Heck, this is so fundamentally American, it's even written into the Constitution (Art. I, Sec. 8).
That is the principle I'm defending. And that is what PsyStar would have to overcome in any legal case.
ETA:
Your statement "PsyStar cannot legally install the software on a machine since they don't hold the copyright." is flawed. By this logic only Apple can install the software. All those persons who buy OSX for their Apple hardware are 'illegally' installing it as they don't own the copyright - Apple does. Apple doesn't sell you the copyright when you buy your copy of OSX - they grant you a license to use the software.
Exactly -- Apple offers you a license, a license which is governed by the EULA. The courts have yet to rule EULAs are, in and of themselves, illegal. However, the courts have repeatedly ruled that copyright holders can attach all sorts of qualifications to the licenses they grant.
PsyStar's problem is that it is operating as an OEM here -- installing an OS
for profit (that last part is the key). Apple doesn't offer an OEM license; the OS X EULA as written specifically states it's a consumer license.
Basic Books, Inc. v. Kinko's will certainly apply here -- and PsyStar will lose. You can't
sell somebody else's copyrighted material
for profit without the express permission of the copyright holder. Period. This is a fundamental principle of copyright law. It's so fundamental that lawyers don't even debate it -- instead, they debate what constitutes "fair use." Were PsyStar to sell a generic PC that just happened to be able to run OS X and also sell boxed retail copies of OS X, they might be able to get away with selling their Open machines. But because they actually have to install OS X for the end user, they run afoul of Title 17.
And so far, Apple hasen't sued anyone for loading OSX on a non-Apple-labled computer. We will have to wait and see what Apple chooses to do.
Because, until PsyStar came along, nobody has tried to
sell an unauthorized copy of OS X on a hackintosh. It's the sale of an unauthorized machine containing OS X that's the key issue here. And if Apple wants to continue to hold its copyright to OS X, they are required by law to contest infringement lest the IP pass into the public domain. Trust me, Apple will sue. They have no choice.
