Appeals Court Sides with Apple in Dispute over Psystar's Unauthorized Mac Clones

[Trudy]

No, there aren't hackintosh methods that don't modify OS X. And, yes, the court did find that replacing the appropriate kexts does create a derivative work. No, reselling your Mac after you've installed an app is not infringement because Apple gives you permission to do so.

Open source Boot-132.

Again, Psystar argued copyright misuse. The argument failed. It is not against the constitution to create a contract to tie certain software to certain hardware.

Of course it failed. Courts rarely recognize abuse of copyright even when it's obvious.

What gives you the write to make copies of a book and distribute it? And your analogy to tearing off the cover is hardly comparable to modifying software. It's more comparable to tearing off a side of the box.

I said copying was possible. Also, tearing off the cover is modifying the creative work as a whole -- the book. How about marking up a book? That's changing it. All those college students need to go to jail.

Again you are arguing a slippery slope dependent on nobody looking out for their best interest.

The valid slippery slope (remember, it isn't necessarily a fallacy) only relies on the industry adopting EULAs as standard practice, as the software industry already has. Once that happens, nobody will be able to look out for their own best interest.

When all lawnmowers come with that license, you could be sure that someone would be scrambling to open a lawnmower business hat doesn't come with the license.

The license-free mowers will not be sold through any of the chains, thus have very few sales. The vast majority of consumers will be ignorant as to how their freedom is restricted by the EULAs so won't make the extra effort to seek-out EULA-free mowers (such is currently the case with software).

In any case, you're trying to focus on the example without looking at the larger point. EULAs are damaging, period. They restrict your free use of what you purchased, which is simply wrong. Right now they are mainly popular with software, but their use is expanding.

And if the existing players conspire to prevent that, then you have monopoly issues that would override the license.

OMG somebody finally admits that there is SOMETHING that can override a license. The Constitution wasn't enough, but apparently antitrust laws can.

Carrying the analogy to the situation we are discussing. All OS software doesn't come with a license tying it to specific hardware. You do have choices.

That is only one of many, many, many offensive terms of EULAs. And nobody uses EULAs as a competitive advantage anyway. Microsoft, "Use SQL Server instead of Oracle because we now have a EULA that requires you to give up less of your First Amendment right!" Yeah, right.

But your point is why PsyStar failed in its ridiculous claim of monopolistic practices.

 

[Trudy]

What specific rights were usurped? What specific law grants those rights?

First Sale, Fair Use. Nothing needs to grant those rights to us. They are pre-existing as natural right and in common law. Please remember that distinction.

US copyright is based on legal instrumentalism, basically meddling in society in order to achieve a goal. In this case, the LIMITED (and initially very hesitantly given due to the potential for abuse) grant of monopoly over works in order to provide incentive to create, with the end goal to be a society where the arts and sciences flourish. The concept of a natural or pre-existing absolute monopoly over works is rejected.

We DO NOT have a natural right copyright system, which basically means "you made it, you own it" as property.

 

[KnightWRX]

First Sale, Fair Use.

Again, First Sale doesn't apply since they had never acquired a legal copy, were making a derivative work and trying to profit from unlicensed distribution of said derivative work.

This was explained to you numerous times and is in the rulings. How much clearer does it need to be made ?

And again : Lawnmowers are physical goods, they are not restricted by copyright law.

 

[Trudy]

The analogy holds because Trudy demonstrates the absurdity of licenses intended to limit the use of their covered products. What in unenforceable for physical goods should be unenforceable for digital ones as well.

Thanks for the defense, but you have to make a distinction.

I'm talking about how what is unenforceable for a copyrighted work in physical form should also be unenforceable for a copyrighted work in digital form. They both have to be under copyrigt.

Taking this to purely physical products with no copyrighted works, I note how it would be very easy these days to integrate a trivial copyrighted work into it in order to leverage the modern accepted abuse of copyright into areas where EULA-like restrictions are unheard of.

 

[BaldiMac]

Open source Boot-132.

The boot loader is part of OS X.

Of course it failed. Courts rarely recognize abuse of copyright even when it's obvious.

Again, when legal reality fails, always claim conspiracy.

I said copying was possible. Also, tearing off the cover is modifying the creative work as a whole -- the book. How about marking up a book? That's changing it. All those college students need to go to jail.

Oh, bull. You are just pulling things out of your rear at this point. You know perfectly well that we were talking about legal rights and not possibility. And, once again, copyright laws don't protect the physical product, they protect the IP.

The valid slippery slope (remember, it isn't necessarily a fallacy) only relies on the industry adopting EULAs as standard practice, as the software industry already has. Once that happens, nobody will be able to look out for their own best interest.

The license-free mowers will not be sold through any of the chains, thus have very few sales. The vast majority of consumers will be ignorant as to how their freedom is restricted by the EULAs so won't make the extra effort to seek-out EULA-free mowers (such is currently the case with software).

In any case, you're trying to focus on the example without looking at the larger point. EULAs are damaging, period. They restrict your free use of what you purchased, which is simply wrong. Right now they are mainly popular with software, but their use is expanding.

You really can't see the forest for the trees. EULA are simply contracts. The are not "damaging, period." That's ridiculous.

OMG somebody finally admits that there is SOMETHING that can override a license. The Constitution wasn't enough, but apparently antitrust laws can.

Again, there is nothing in the constitution to prevent tying software to specific hardware, despite your repeated claims.

That is only one of many, many, many offensive terms of EULAs. And nobody uses EULAs as a competitive advantage anyway. Microsoft, "Use SQL Server instead of Oracle because we now have a EULA that requires you to give up less of your First Amendment right!" Yeah, right.

But your point is why PsyStar failed in its ridiculous claim of monopolistic practices.

You can't seem to decide what you are arguing. The conversation started about the legality of Psystar's actions. License agreements are not good or bad. They are neutral. Specific terms of the agreement may be unlawful or unreasonable. If you want to argue that specific terms should not be allowed, than do so. Stop with the holier than thou "I'll cite the Constitution without actually citing an relevant part of the Constitution" crap.

 

[Trudy]

Again, First Sale doesn't apply since they had never acquired a legal copy, were making a derivative work and trying to profit from unlicensed distribution of said derivative work.

First Sale. Accounting errors aside, they buy a retail copy and resell a retail copy. Fair Use: It doesn't constitute a creative work significantly different from the original in the way a person would use it. It shouldn't be considered derivative, and if it is, still Fair Use.

This was explained to you numerous times and is in the rulings. How much clearer does it need to be made ?

And it has been explained to you numerous times how I believe modern corporate-purchased copyright law is unconstitutional. None of this would be thought possible only 40 years ago. Copyright hadn't been yet rewritten by Congress and courts to allow these abuses.

And again : Lawnmowers are physical goods, they are not restricted by copyright law.

And again, very easy to hitch copyright onto them.

 

[BaldiMac]

First Sale, Fair Use. Nothing needs to grant those rights to us. They are pre-existing as natural right and in common law. Please remember that distinction.

Apple's SLA does not take away First Sale or Fair Use rights.

 

[cmaier]

And it has been explained to you numerous times how I believe modern corporate-purchased copyright law is unconstitutional.

Yawn.

Precisely which portion of the constitution is violated when a court allows a copyright holder to condition permission for another party to exercise rights reserved by law to the copyright holder on use of the copy with a particular machine?

I'm pretty familiar with the Constitution, and it seems to me this falls pretty squarely within Art. I, Sect. 8. And the law (Title 17) clearly permits it, so quit it with your "the judges are bought and paid for by the big corporations" nonsense - the courts are acting within their Article III powers to interpret the laws enacted by Congress.

(You seem to have given up on your earlier incorrect interpretation of Title 17 - if so, at least we're making progress).

 

[Trudy]

Copyright doesn't apply to lawnmowers. This is the part you're missing. All the rest of your argument falls down from there.

Serious DUH moment here. If a lawnmower contains a copyrighted work, then copyright absolutely applies to that lawnmower. Same for any physical device where software could be designed into the system in order to invoke copyright.

 

[cmaier]

Serious DUH moment here. If a lawnmower contains a copyrighted work, then copyright absolutely applies to that lawnmower. Same for any physical device where software could be designed into the system in order to invoke copyright.

But what's your point? The same law would apply. You could sell the lawnmower to whomever you want (first sale), but you couldn't modify the software (unlicensed derivative work), copy it (unlicensed copy - backup copy maybe permitted by fair use, but more facts must be known), etc. If you had a license agreement with the lawnmower manufacturer, he could prevent you from extracting the software and using it with a different brand of lawnmower.

 

[Trudy]

Copyright law is about copying.

Supposedly, but Apple and others want to control a lot more than just copying, which is my main complaint here.

DMCA is about copying when technical measures were taken to prevent it.

Wrong. The anti-circumvention portion of the DMCA (it's a lot bigger than just that) regards access to a copyrighted work, not copying. Look it up.

Lexmark didn't use technical measures to prevent copying, they used technical measures to prevent you from using ink in a Lexmark printer that wasn't made by Lexmark.

They attempted to control access, but the court didn't buy it. The big part, and non-DMCA issue, is that Lexmark made the act of copying their code required in order to use a toner cartridge in the printer. If the printer detected any other program, it would refuse to work.

And neither copyright law nor the DMCA supported them because no copying happened. So some cartridge maker tricked Lexmark's software into using printer cartridges that were not made by Lexmark. But no Lexmark software was _copied_.

SCC, the third-party toner maker, included a bit-for-bit copy of Lexmark's Toner Loading Program in their cartridges. You really don't know the case.

And the systems running the software were not owned or controlled by Lexmark, but by the person who bought the printer and agreed that the software should be tricked.

The people who bought PsyStar systems had systems that were not owned or controlled by Apple, and the people who bought them obviously agreed that OS X should be tricked, or they wouldn't be buying a hackintosh.

Abuse of copyright" can only be things where the copyright holder tries to stop you from doing things that don't involve copying the copyrighted software.

Very little in the average EULA is about actual copying.

 

[cmaier]

The big part, and non-DMCA issue, is that Lexmark made the act of copying their code required in order to use a toner cartridge in the printer. If the printer detected any other program, it would refuse to work.

That is absolutely incorrect. Lexmark required the cartridge to produce the correct response to a challenge; any software code (including a non-copy of Lexmark code) that produced the right result to the cryptographic challenge would work. The issue in Lexmark was circumventing technological measures, not copying or inability to copy code.

 

[KnightWRX]

First Sale. Accounting errors aside

you keep saying that. This more than anything betrays your obvious pro Psystar bias and agenda. It wasn't an accounting error. They weren't missing a few licenses here or there. They couldn't provide any at all.

 

[pdjudd]

you keep saying that. This more than anything betrays your obvious pro Psystar bias and agenda. It wasn't an accounting error. They weren't missing a few licenses here or there. They couldn't provide any at all.

I think that Psystar actually did buy a couple of copies (I think it was like 20 or so). That doesn’t change squat though - they still violated copyright many ways and the amount they were missing can, in no way, be seen as anything near as an “accounting error”. Accounting errors do not cover differences of several orders of magnitude.

And I too recall discussing this issue at length. People were hashing this issue out at length and the group of us continued to debunk them pretty consistently. Cmaier impressed me the most since he spoke from relevant authority. First it was first sale, then it was other fair use, then it was the idea that EULAs were invalid, then it was that Apple’s EULA was invalid (for various reasons. In the end all people could cite were opinions about personal hackintoshing (which was irrelevant to the discussion) or it amounted to conspiracy which BaldiMac alluded to. Oh and let’s not forget the old canard of Apple being a big bully going after a small company that really wasn’t hurting them.... I’m sure I am missing something but I’m sure it will come up.

 

[Clive At Five]

The boot loader is part of OS X.

Tthe boot-loader is part of Darwin, which is open-source...

 

[cmaier]

To be a technical [redacted], the boot-loader is part of Darwin, which is open-source...

Open source means you should feel free to download the source and modify it to your heart's content, and then feel free to go and write all the other components of an operating system on top of it.

It does not mean you get to infringe Apple's copyrights.

 

[KnightWRX]

To be a technical @ssh0le, the boot-loader is part of Darwin, which is open-source...

So Psystar should've used Darwin and built their own graphical sub-system and UI on top of it. The kernel being open source does not mean the entire OS is nor does it mean you can infringe the copyright on those open source components or the closed source components.

Look guys, the court ruled anyone here defending Psystar is dead wrong. You were all wrong when this story didn't have a verdict yet, you're even more wrong now.

And again : Physical goods are not covered by copyright, can we drop the engine/lawnmower analogies ? They don't work. Never will. Copyright covers works, not physical goods. Paintings are covered for the actual painting, not the canvas and the paint. Books are covered for the actual text, not the paper and cardboard. Music CDs are covered because of the Music, not the plastic disc itself.

Your lawnmower cannot be copyrighted. It's a physical good. You're buying it and after you bought it, the manufacturer cannot force extra requirements unto you for anything other than warranties. They cannot "license" a lawnmower to you. They could rent it to you with conditions attached as part of the rental contract, but then you don't own the lawnmower. If you buy it, you own it. Just like you own the plastic CD OS X comes on. However, you don't own OS X because you bought a 30$ plastic disc.

 

[Clive At Five]

Open source means you should feel free to download the source and modify it to your heart's content, and then feel free to go and write all the other components of an operating system on top of it.

It does not mean you get to infringe Apple's copyrights.

So Psystar should've used Darwin and built their own graphical sub-system and UI on top of it. The kernel being open source does not mean the entire OS is nor does it mean you can infringe the copyright on those open source components or the closed source components.

Look guys, the court ruled anyone here defending Psystar is dead wrong. You were all wrong when this story didn't have a verdict yet, you're even more wrong now.

Let's be clear, I do not support copyright infringement, nor do I defend Psystar... but it's not illegal to modify open source code and redistribute that modified code...

If memory serves, there were some core components that were altered, specifically, some kexts that needed hardware IDs in order to recognize the clone's guts.

It is rather silly, however, that it's merely the lack of an 8-characters string that prevents OS X from running flawlessly on some 3rd party hardware...

 

[Tiggs]

Had forgotten about Psystar. Shows how long it takes the courts to end these legal squabbles.

 

[BaldiMac]

Let's be clear, I do not support copyright infringement, nor do I defend Psystar... but it's not illegal to modify open source code and redistribute that modified code...

If memory serves, there were some core components that were altered, specifically, some kexts that needed hardware IDs in order to recognize the clone's guts.

It is rather silly, however, that it's merely the lack of an 8-characters string that prevents OS X from running flawlessly on some 3rd party hardware...

Just because the code is open source, does not mean it is not part of OS X. It is part of the larger work. On their own, you can modify the open source components of OS X per the license they are distributed under. However, you cannot replace those components in OS X without creating a derivative work.

If I write a book and pull one chapter from another book that is in the public domain, that chapter is still part of my book. The work as whole is protected by copyright. You can't just replace the public domain chapter in my book without creating a derivative work.

 

[Trudy]

So Psystar should've used Darwin and built their own graphical sub-system and UI on top of it. The kernel being open source does not mean the entire OS is nor does it mean you can infringe the copyright on those open source components or the closed source components.

As long as the copyright notice of the original author is kept intact, there can be no infringement on the copyright of the BSD-licensed open source components. Modification and redistribution of BSD code cannot create an unauthorized derivative work if that attribution is retained.

Can I go on an "Apple is freeloading off of the work of others" rant too?

And again : Physical goods are not covered by copyright, can we drop the engine/lawnmower analogies ?

You refuse to see the point. Add a software component to a lawnmower, and the whole system becomes subject to a EULA. A printer is hardware just like a lawnmower, yet Lexmark used a EULA for the embedded software to control the user's use of the physical printer.

They don't work. Never will. Copyright covers works, not physical goods. Paintings are covered for the actual painting, not the canvas and the paint. Books are covered for the actual text, not the paper and cardboard. Music CDs are covered because of the Music, not the plastic disc itself.

The major difference here is that when you buy a book, painting, or CD, you are considered to have BOUGHT A COPY. You have various rights concerning YOUR COPY, the copyright holder has exhausted various rights related to YOUR COPY. The typical software EULA denies the fact that you've bought or even own a copy of the software, instead saying you have bought a license to use the software. With this established, they procede to destroy your rights normally associated with having bought YOUR COPY of the software.

 

[BaldiMac]

As long as the copyright notice of the original author is kept intact, there can be no infringement on the copyright of the BSD-licensed open source components. Modification and redistribution of BSD code cannot create an unauthorized derivative work if that attribution is retained.

Can I go on an "Apple is freeloading off of the work of others" rant too?



You refuse to see the point. Add a software component to a lawnmower, and the whole system becomes subject to a EULA. A printer is hardware just like a lawnmower, yet Lexmark used a EULA for the embedded software to control the user's use of the physical printer.



The major difference here is that when you buy a book, painting, or CD, you are considered to have BOUGHT A COPY. You have various rights concerning YOUR COPY, the copyright holder has exhausted various rights related to YOUR COPY. The typical software EULA denies the fact that you've bought or even own a copy of the software, instead saying you have bought a license to use the software. With this established, they procede to destroy your rights normally associated with having bought YOUR COPY of the software.

Except none of that has anything to do with Psystar. Even if you consider Psystar's installation of OS X to be legal under 17 USC 117 (a), then 17 USC 117 (b) specifically prohibits the installed copy to be transferred without the permission of the copyright holder. And, once again, 17 USC 117 does not allow for creating a derivative work.

 

[Trudy]

That is absolutely incorrect. Lexmark required the cartridge to produce the correct response to a challenge; any software code (including a non-copy of Lexmark code) that produced the right result to the cryptographic challenge would work. The issue in Lexmark was circumventing technological measures, not copying or inability to copy code.

I was absolutely correct. I refer you to the Lexmark Int'l v. Static Control Components court opinion. End of page 3, beginning of page 4:

Each of SCC’s SMARTEK chips also contains a copy of Lexmark’s Toner Loading Program, which SCC claims is necessary to make its product compatible with Lexmark’s printers.The SMARTEK chips thus contain an identical copy of the Toner Loading Program that is appropriate for each Lexmark printer, and SCC acknowledges that it "slavishly copied" the Toner Loading Program "in the exact format and order" found on Lexmark’s cartridge chip. ...

The parties agree that Lexmark’s printers perform a second calculation independent of the authentication sequence. After the authentication sequence concludes, the Printer Engine Program downloads a copy of the Toner Loading Program from the toner cartridge chip onto the printer in order to measure toner levels. Before the printer runs the Toner Loading Program, it performs a "checksum operation," a "commonly used technique" to ensure the "integrity" of the data downloaded from the toner cartridge microchip. ... Under this operation, the printer compares the result of a calculation performed on the data bytes of the transferred copy of the Toner Loading Program with the "checksum value" located elsewhere on the toner cartridge microchip. If the two values do not match, the printer assumes that the data was corrupted in the program download, displays an error message and ceases functioning.

A good portion of the opinion deals with whether the Toner Loading Program (size 37-55 bytes depending on cartridge) is subject to copyright, given that it acts as a "lock-out code," effectively a password to allow the printer to function.

 

[KnightWRX]

You refuse to see the point. Add a software component to a lawnmower, and the whole system becomes subject to a EULA. A printer is hardware just like a lawnmower, yet Lexmark used a EULA for the embedded software to control the user's use of the physical printer.

That's where you're wrong. Lexmark couldn't dictate what you can or not print on the printer, what you can or not do with the printer. If you want to use it as a book-end or as a target for your shooting range, Lexmark cannot dictate that.

Same for a lawnmower with a software component. It's a lawnmower.

Copyright does not apply to physical goods, only to works. You can't extract/modify/distribute/sell the software part. You can resell or sell the lawnmower itself. You can modify the lawnmower engine and modify granted you don't touch the software part. You can rip out the software completely and use your own.

Copyright. Does. Not. Cover. Lawnmowers.

 

[Trudy]

That's where you're wrong. Lexmark couldn't dictate what you can or not print on the printer, what you can or not do with the printer.

That's only because Lexmark did it wrong. Their first authentication sucked, their second one relied on copyright. It can be done right.

If you want to use it as a book-end or as a target for your shooting range, Lexmark cannot dictate that.

But you can't use it as a printer. If you want to do that -- which presumably you'd do or you wouldn't have bought it -- then you have to abide by their terms.

You can resell or sell the lawnmower itself. You can modify the lawnmower engine and modify granted you don't touch the software part. You can rip out the software completely and use your own.

As I said, make the software an integral part of the lawnmower -- it can't run without it. Mechanical/software interlocks are common in industry. You can't resell the lawnmower system, because your LICENSE to the software says you can't. You could rip out the software part of the system, but you'd render the lawnmower useless for resale. You can't modify the engine because that would be detected by the software, which would refuse to allow the lawnmower to function.

You refuse to see not only existing EULA abuse, but the potential for serious abuse of expanded EULAs as software creeps into every system we use.

I'll go back 50 years and make this same argument. One of these days they'll add software into your phone so your phone will be covered by a EULA. Naw, that'll never happen you would say. A phone is a physical object, not covered by copyright. Great, take iOS out of your iPhone and see how useful it is as a phone.