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

[BaldiMac]

Great, take iOS out of your iPhone and see how useful it is as a phone.

What would stop you from installing Android? Or an OS of your own development?

 

[Trudy]

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.

Yes, it does. If you bought a copy of software, such things could be subject to Fair Use and First Sale.

But let's say you're right. Then as I noted before PsyStar simply did it wrong. I'll make it easier this time. Include a copy of FreeDOS (or other free OS) and hackintosh software. The computer ships with boxed OS X (legally purchased at retail), although the DVD is already in the drive. Upon first boot into the free OS, it installs OS X onto the hard drive using the hackintosh software, ("Please wait, configuring the system for first use...").

The company did not create a derivative work. It simply resold a retail boxed copy of OS X that had at the time never been installed on a computer. Of course it's sad to have to go through all of that to achieve the same end result -- user bought a hackintosh.

 

[KnightWRX]

Yes, it does. If you bought a copy of software, such things could be subject to Fair Use and First Sale.

Only for your bought copy of the software. A moot point, Psystar was not reselling the same copy they bought (in fact, they couldn't even prove having bought the copies in the first place and admitted to creating a derivative work and distributing said unauthorised derivative).

You're wrong. Deal.

 

[BaldiMac]

Yes, it does. If you bought a copy of software, such things could be subject to Fair Use and First Sale.

As I said, it is specifically prohibited. No limitations.

(b) Lease, Sale, or Other Transfer of Additional Copy or Adaptation.— Any exact copies prepared in accordance with the provisions of this section may be leased, sold, or otherwise transferred, along with the copy from which such copies were prepared, only as part of the lease, sale, or other transfer of all rights in the program. Adaptations so prepared may be transferred only with the authorization of the copyright owner.

But let's say you're right. Then as I noted before PsyStar simply did it wrong.

So, the whole premise of your argument is wrong, but you are still going to keep going.
https://forums.macrumors.com/posts/13428032/

I'll make it easier this time. Include a copy of FreeDOS (or other free OS) and hackintosh software. The computer ships with boxed OS X (legally purchased at retail), although the DVD is already in the drive. Upon first boot into the free OS, it installs OS X onto the hard drive using the hackintosh software, ("Please wait, configuring the system for first use...").

The company did not create a derivative work. It simply resold a retail boxed copy of OS X that had at the time never been installed on a computer. Of course it's sad to have to go through all of that to achieve the same end result -- user bought a hackintosh.

Contributory infringement isn't any more legal.

 

[gnasher729]

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...

That eight character string is Apple's protection to keep you from running MacOS X on a non-Apple computer. Exactly what the DMCA law requires Apple to do. And it works fine, since Psystar was ordered to pay $2500 per Psystar computer sold because of DMCA infringement. Of course the important thing is not what Psystar was ordered to pay (I seriously doubt that Apple will ever see one cent of that), but it means that HP, Dell, Asus and so on would have to pay $2500 per machine sold if they tried something similar, so they aren't going to try.

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.

Obviously Psystar had the right to buy as many boxes with MacOS X as they wanted, and then they had the right to sell these boxes with MacOS X to anyone willing to buy them. That's what "First Sale" allowed them to do.

The problem is the tiny bit in between where they installed MacOS X on their computers without a license, which was both copyright infringement and a DMCA violation. The legal situation would have been exactly the same if they had bought a box with Windows for every computer they sold and shipped each computer with a box with Windows, or if they had bought a box of cornflakes for every computer they sold and shipped each computer with a box of cornflakes.

They were perfectly fine shipping these boxes with their computers, and the buyer is perfectly allowed to use the contents according to the license (by installing it on an Apple-branded computer). The problem is what they installed on their computers.

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

It's not. Apple doesn't prevent you from doing anything at all as long as no copying is involved.

The express purpose of copyright is not to protect the author's exclusive rights. The express purpose of copyright is, and I quote, "To promote the Progress of Science and useful Arts." Let's not forget that.

Exactly. I hope you won't deny that creating MacOS X did "promote the progress of science and useful arts". The reason why MacOS X was created, at a cost of more than a billion dollars, is that Apple wanted to get a competitive advantage by spending that sum of money on an operating system, and did so in the knowledge that copyright law, as you correctly say intended to "promote the progress of science and useful arts", would allow them to do this and benefit from their investment. If copyright law had been different, so that Psystar, Dell, HP, Samsung and so on could just rip off Apple's investment, then guess what: The billion dollar investment wouldn't have happened. MacOS X wouldn't exist. Windows would have had nothing to compete against, so Windows 3.1 would be still enough for everyone.

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. .

You, like Lexmark, try to throw around words out of context and hope something sticks. Lexmark did _not_ try to control access to any copyrighted software of theirs through any technical methods. The software was very easy to copy. Copying it might have been copyright infringement, but it wasn't a DMCA violation. Just like duplicating a MacOS X DVD would be copyright infringement, but not a DMCA violation, because Apple isn't doing anything that prevents you from duplicating their DVDs. Making the software run on a Psystar computer _is_ a DMCA violation, because Apple does things to prevent this.

Lexmark tried to control access to the use of their printers. That's not protected by copyright, nor by the DMCA. The bit of code that was copied was then deemed so insignificant that copying it didn't mean copyright infringement either.

 

[Trudy]

Only for your bought copy of the software. A moot point, Psystar was not reselling the same copy they bought (in fact, they couldn't even prove having bought the copies in the first place and admitted to creating a derivative work and distributing said unauthorised derivative).

*yawn* Fair Use would include making extremely slight (a tiny fraction of a percent of the whole, like changing one letter in War and Peace) alterations for compatibility.

As I said, I don't defend PsyStar distributing any non-purchased copies of OS X. Accounting error or deliberate, it is only applicable to their specific case, not the general argument over copyright.

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Obviously Psystar had the right to buy as many boxes with MacOS X as they wanted, and then they had the right to sell these boxes with MacOS X to anyone willing to buy them. That's what "First Sale" allowed them to do.

Actually, no. Apple explicitly allows resale in the license. The modern EULA framework destroys the concept of First Sale. What used to be a limit on the right of the author is now a right wholly retained by the author, to be allowed to the user at will.

 

[KnightWRX]

*yawn* Fair Use would include making extremely slight (a tiny fraction of a percent of the whole, like changing one letter in War and Peace) alterations for compatibility.

Fair Use doesn't cover distribution.

And keep trumpeting that Accounting error. 830 or so missing licenses out of 830 required licenses is not an accounting error, no matter how you spin it.

 

[Trudy]

(b) Lease, Sale, or Other Transfer of Additional Copy or Adaptation.— Any exact copies prepared in accordance with the provisions of this section may be leased, sold, or otherwise transferred, along with the copy from which such copies were prepared, only as part of the lease, sale, or other transfer of all rights in the program. Adaptations so prepared may be transferred only with the authorization of the copyright owner.

You call it an adaptation, I call it a necessary working copy in the course of using the program. But I'll grant you could be right, depending on how beholden to the corporations that particular judge tends to be.

Contributory infringement isn't any more legal.

The end user is not distributing any copies, derivative or not. That part of the law says nothing about modifying a version of OS X currently on disk. Althought it is corporate-purchased, the DMCA still has exceptions for interoperability and Fair Use that should apply. At most he is violating terms of a EULA that, in a sane world of copyright, would be rendered unenforceable.

In fact, in other Western countries this is perfectly legal due to better consumer protection laws and copyright that's a bit less corporate-owned. PearC still legally sells hackintoshes in Germany. They're a reputable firm, sell their base hardware equivalent to a Mac Pro for 1,200 Euros less (2,200 vs. 3,400).

 

[KnightWRX]

You call it an adaptation, I call it a necessary working copy in the course of using the program

Psystar was not using the program, they were distributing it.

Again, you come back, again you're shot down. Will you be coming back again and ignore all we've said again ?

Are you that afraid of simply admitting you were wrong and then letting it go ?

 

[Trudy]

Fair Use doesn't cover distribution.

The Fair Use part is alteration for compatibility. Otherwise, you are transferring legally as an authorized copy of the software.

And keep trumpeting that Accounting error. 830 or so missing licenses out of 830 required licenses is not an accounting error, no matter how you spin it.

I already said I don't defend PsyStar in this case. You keep harping on this to avoid the larger issue.

 

[KnightWRX]

The Fair Use part is alteration for compatibility.

That's not use. That's modification with the intent of distribution.

I already said I don't defend PsyStar in this case. You keep harping on this to avoid the larger issue.

Yes, because you keep defending Psystar even though all your points are blatantly wrong. There is no larger issue since we're talking in the context of what Psystar did. That's all this judgment covers.

 

[Trudy]

What would stop you from installing Android? Or an OS of your own development?

Then it is no longer the original product, does not have the same resale value. Because software is attached, you have fewer rights in relation to your device (which is the whole system, not hardware and software separately)

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There is no larger issue since we're talking in the context of what Psystar did. That's all this judgment covers.

The larger issue is legal Mac clones, the even larger issue is abuse of copyright and the erosion of our rights due to EULAs and corporate-purchased copyright law that becomes ever more restrictive.

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Exactly. I hope you won't deny that creating MacOS X did "promote the progress of science and useful arts".

BTW, I wrote that in rebuttal to BaldiMac, who wrote "The expressed purpose of copyright law in to allow you to control how your work is used." That is factually and historically incorrect, and I simply backed my rebuttal up with the purpose from the original text.

Lexmark tried to control access to the use of their printers. That's not protected by copyright, nor by the DMCA. The bit of code that was copied was then deemed so insignificant that copying it didn't mean copyright infringement either.

Again, in rebuttal to cmaier, who wrote "The issue in Lexmark was circumventing technological measures, not copying or inability to copy code." That was also factually incorrect, as I showed with the actual circuit court opinion.

 

[BaldiMac]

You call it an adaptation, I call it a necessary working copy in the course of using the program. But I'll grant you could be right, depending on how beholden to the corporations that particular judge tends to be.

I didn't call it an "adaptation". The specific section of copyright code that you referred to as a justification for installing software without a license calls in an "adaptation". Specifically differentiated from an "exact copy".

The end user is not distributing any copies, derivative or not. That part of the law says nothing about modifying a version of OS X currently on disk. Althought it is corporate-purchased, the DMCA still has exceptions for interoperability and Fair Use that should apply. At most he is violating terms of a EULA that, in a sane world of copyright, would be rendered unenforceable.

Again. Three different things. Distribution. Reproduction. Creation of derivative works. You still haven't explained how the commercial distribution of a tool that creates an unauthorized derivative work is justified by fair use. You just keep repeating the words "fair use" and "interoperability".

As you have repeatedly said, there isn't much difference in practice between what Psystar did and what you propose. And what Psystar did is specifically prohibited by the section of the copyright law that you use to justify it.

In fact, in other Western countries this is perfectly legal due to better consumer protection laws and copyright that's a bit less corporate-owned. PearC still legally sells hackintoshes in Germany. They're a reputable firm, sell their base hardware equivalent to a Mac Pro for 1,200 Euros less (2,200 vs. 3,400).

Yeah. That's often brought up in these discussions without any legal justification.

The Fair Use part is alteration for compatibility. Otherwise, you are transferring legally as an authorized copy of the software.

The fact that a copy is authorized does not allow you to transfer it! What part of "exclusive rights" and "distribution" is confusing.

And "compatibility" is not a get out of jail fair use exemption. What is fair use for one person for personal use is not necessarily fair use for commercialization.

Then it is no longer the original product, does not have the same resale value. Because software is attached, you have fewer rights in relation to your device (which is the whole system, not hardware and software separately)

That may be true, but it has nothing to do with the comment that I responded to. What rights have you given up on an iPhone that you had on a dumb phone?

 

[KnightWRX]

The larger issue is legal Mac clones

Such a thing has not existed for over a decade. Why would it be an issue now ?

the even larger issue is abuse of copyright and the erosion of our rights due to EULAs and corporate-purchased copyright law that becomes ever more restrictive.

None of which have taken place here. Hence, irrelevant ranting.