The 9th Circuit noted held that Apple validly structured the transaction as a license and not a simple sale. Invoking its recent discussion of the sale/license issue in Vernor v. Autodesk, Inc., 621 F.3d 1102, 1111 (9th Cir. 2010), the court noted that the document accompanying the purchase contained the three earmarks of a license: (1) it stated that it was a license and not a sale; (2) it contained significant transfer restrictions; and (3) it contained significant use restrictions. First sale doctrine therefore did not immunize Psystar’s activities.
Nor did the restrictions in the license amount to copyright misuse, because they reasonably restricted use of the software but did not prevent the development of competing products. The court distinguished decisions in cases where similar types of restrictions on the types of products with which software could be used effectively made it impossible for users to develop competing software.