Apple Wins Permanent Injunction Against Psystar

[matthewscott661]

Except that isn't MS' business model. They want you to install Windows on anything and everything.

Which is exactly what Apple is trying to prevent.
Windows works less efficiently because it is designed for generic hardware, while Mac OS X is designed for extremely specific hardware.
Apple wants to control how their product is being used, so that it always works as well as they planned it to.

 

[3lutz3toe]

What? Are you serious? Its so called business model is to monopolize! What's that German co. in Europe that is also selling Mac clones, yet you don't hear Apple suing them. Oh yeah, Europe has different laws that ususally side w/ the consumers and they don't take this BS business model claim.
—I for one much prefer Mac OS but have had to use Windows due to certain Apps not avail. on Macs!

No, apple is not a hypocrite. Apple, like MS, insists that its EULA is obeyed. The fact that Apple has a different EULA than MS because its business model is different doesn't make it a hypocrite.

 

[BaldiMac]

What? Are you serious? Its so called business model is to monopolize!

Under what definition of the word "monopoly"?

What's that German co. in Europe that is also selling Mac clones,

PearC

yet you don't hear Apple suing them.

Yet.

Oh yeah, Europe has different laws that ususally side w/ the consumers

PearC is not a consumer.

and they don't take this BS business model claim.

Members of the EU have similar copyright laws as the US. And their version of the DMCA has fewer exemptions.

 

[charlituna]

Good enough, for now, but it just prolongs this fiasco. it seems the Revel EFI issue isn't quite decided yet because Psystar evidently withheld information about it.

actually it doesn't. the court doesn't need to know HOW the software works, just what the end result is. and the end result is a violation of the DMCA. and now this injunction.

and it won't be a shock when Apple moves on to other US based cloners, plus sites and boards that distribute this kind of access control removal software and instructions.

it won't kill all hackintoshes cause some folks are smart enough to figure out the code to do it. but those folks can't be found so they will get away with it. nothing to be done there. but Apple will likely go after those that publicly admit and assist

Overseas cloners will take a bit longer because Apple has to establish if they have any rights under the Berne Convention or other treaties, what the local laws are etc.

No idea 'ay? They had millions though

No they didn't. they haven't paid a dime to their lawyers. either set of them.

they convinced some lawyer/firm that they had a case and this could make someone's career and got the folks to work on contingency, believing that Apple could be in the wrong and made to pay all the costs. if they lost then they would have to find the money (of course they didn't expect to lose)
when they filed bankruptcy part of it was to avoid paying the lawyers from the first batch of lost cases.

and they didn't need millions to build the HackMacs cause
A. the parts aren't that expensive
B. no one was ordering them anyway.

Isn't it obvious who the backer was? It was Steve Jobs.

He needed to created a fake company and use that company to create new law that favors him, in the unlikely case that someone started to sell Mac clones.

the laws existed well before Psystar started their clones

All this does is prevent Psystar from copying OSX or modifying OSX (i.e. copyright, not anti-trust).

not exactly. they can't install or facilitate by any means (including their EFI software) the installation of any version of OSX current or future on unapproved software.

so as a Mac Cloner, they are dead. However they can do all the Windows etc machines they want. and probably will have to so they can pay the bills this whole thing created.

Think of it this way. If I legally purchased a copy of OS X and installed it on my own Hackintosh system, Apple is not going to enforce the EULA in regards to your own personal use.

incorrect. Apple might.

the catch is if you did it for yourself and didn't go around bragging about it, Apple couldn't find you to do anything. Much as you say in your movie example, until you actually upload, sell etc your movie the record label wouldn't know you used the song in order to do anything about it.

but you still had to circumvent Apple's access control to make that HackMac so you violated DMCA etc.

Isn't Apple getting in trouble for being able to run Windows on a Mac? I mean Psystar's software is sort of like Boot Camp, isn't it?

Apple is allowed to tie software and hardware due to a lack of market power. Microsoft doesn't enjoy that right because they do have THE market power (being something like 88% of the market)
Boot Camp doesn't violate any kind of access control. It is just a program that lets you reformat without erasing. If you wanted you could still erase the whole drive, repartition it and reformat a single volume for whatever OS you wanted.

 

[cmaier]

What? Are you serious? Its so called business model is to monopolize! What's that German co. in Europe that is also selling Mac clones, yet you don't hear Apple suing them. Oh yeah, Europe has different laws that ususally side w/ the consumers and they don't take this BS business model claim.
—I for one much prefer Mac OS but have had to use Windows due to certain Apps not avail. on Macs!

Apple is not a monopoly. It has 10% of the world market, because its stuff is more expensive than other companies. This is exactly what you expect when a company does NOT have a monopoly. Is Sony a monopoly because it won't let me install the PS3 firmware on my xbox? Is NBC a monopoly because it won't let me watch The Office on a channel of my choosing?

Apple will sue PearPC when it chooses to. And the German laws don't help Pear.

As for "I for one..." so what? What does the unavailability of certain apps on Mac have to do with anything? Are those app vendors "a monopoly" for refusing to allow you to run their apps on Mac?

 

[Goona]

What? Are you serious? Its so called business model is to monopolize! What's that German co. in Europe that is also selling Mac clones, yet you don't hear Apple suing them. Oh yeah, Europe has different laws that ususally side w/ the consumers and they don't take this BS business model claim.
—I for one much prefer Mac OS but have had to use Windows due to certain Apps not avail. on Macs!

Hey genius it takes time to compile a lawsuit.

 

[jimglidewell]

So here is the problem with your argument. You buy the physical media with the bits, which you own. But in order for those bits to be useful as a computer program you have to copy them onto your computer. You are distributing those bits when you create a copy of them on your computer. And it is that copying that creates the control that the copyright holder has over the program that you're running.
.

In the USA, your interpretation is simply wrong. Section 117a1 states that it is not an infringement provided "that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner".

So, by buying retail software, you have the right to use it without needing a license. This is, of course, only common sense. The copyright code does not view installing or copying a program into memory as infringement, and does not allow the seller of commercial software to use copyright to prevent the use of software that you have legitimately bought.

The shrink-wrap license is not granting you a right to use, only placing restrictions on your usage.

See for yourself:

http://www.copyright.gov/title17/92chap1.html#117

 

[BaldiMac]

In the USA, your interpretation is simply wrong. Section 117a1 states that it is not an infringement provided "that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner".

So, by buying retail software, you have the right to use it without needing a license. This is, of course, only common sense. The copyright code does not view installing or copying a program into memory as infringement, and does not allow the seller of commercial software to use copyright to prevent the use of software that you have legitimately bought.

The shrink-wrap license is not granting you a right to use, only placing restrictions on your usage.

See for yourself:

http://www.copyright.gov/title17/92chap1.html#117

Section 117 does create gray areas with respect to a personal hackintosh. The main question is whether or not the copy of OS X on the DVD is owned. Most court cases, with the notable exception of Verner/Autodesk, have maintained the software companies' claim that the copy is licensed. Thus negating any section 117 claim.

The other issue is that section 117 does not create a limitation for derivative works. The Psystar judgment affirmed that installation of OS X on a non-Mac requires modification of the software that results in a derivative work.

Likely, section 117 would only be applicable if the software is installable on a machine without modification.

 

[pdjudd]

In the USA, your interpretation is simply wrong. Section 117a1 states that it is not an infringement provided "that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner".

So, by buying retail software, you have the right to use it without needing a license. This is, of course, only common sense. The copyright code does not view installing or copying a program into memory as infringement, and does not allow the seller of commercial software to use copyright to prevent the use of software that you have legitimately bought.

The shrink-wrap license is not granting you a right to use, only placing restrictions on your usage.

See for yourself:

http://www.copyright.gov/title17/92chap1.html#117

I would read the summary judgment before making blanket claims. Psystar treid to make that argument (it is a defensive one has to assert). Here is the conclusion:

Psystar briefly mentions a Section 107 fair use defense but does not even attempt to
address the four factors used to determine fair use. See 17 U.S.C. 107. Psystar nonetheless
contends that its production process and hard drive imaging are fair use. As stated, rather than
loading Mac OS X separately onto individual computers, Psystar uses a mass production
process. Arguing this is for efficiency, Psystar contends that “uch incidental infringement is
protected by the fair use doctrine to the extent that the infringement is not part of a greater
scheme of infringement” (Def. Reply 6). To support this argument, Psystar cites the following
passage in Wall Data Inc. v. L.A. County Sheriff’s Dep’t, 447 F.3d 769, 779 (9th Cir. 2006):
To be clear, we do not hold that a fair use defense is not available
simply because the infringer uses technology to make efficient
use of its licenses. The problematic aspect of the Sheriff’s
Department’s use is that it took in excess of what it bargained for,
not that it was technologically efficient. Thus, for example, if the
Sheriff’s Department had saved time and money by hard drive
imaging RUMBA software onto the number of computers for
which it had licenses, its “efficiency” would not create a problem.
Psystar’s reliance on this quote is misplaced. In Wall Data, the Sheriff Department purchased
3,663 licenses to plaintiff’s software, but installed the software onto 6,007 computers. To do
this, the Department used hard drive imaging — a single master hard drive containing the
software was used to copy the contents onto many other computers. The Ninth Circuit held that
this was not fair use and was in excess of the licensed use of the copyright software bargained
for. While the process used for “efficiency” was not the problem, the Sheriff Department’s
unauthorized copying of the software beyond the number of licensed copies was problematic.
Similarly, Psystar’s use of Mac OS X has been in excess and has violated Apple’s copyrights.

Emphasis mine. Psysatr did the same thing and they couldn't make a decent case in over a year of litigation.

Oh and by the way, according to your link says:

Notwithstanding the provisions of section 106,

Where section 106

Rights of Attribution and Integrity. — Subject to section 107 and independent of the exclusive rights provided in section 106, the author of a work of visual art — (1) shall have the right —
(A) to claim authorship of that work, and
(B) to prevent the use of his or her name as the author of any work of visual art which he or she did not create;
(2) shall have the right to prevent the use of his or her name as the author of the work of visual art in the event of a distortion, mutilation, or other modification of the work which would be prejudicial to his or her honor or reputation; and
(3) subject to the limitations set forth in section 113(d), shall have the right —
(A) to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation, and any intentional distortion, mutilation, or modification of that work is a violation of that right, and
(B) to prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of that right.

In other words, these exceptions require proper licensing to apply. If you have no license, you have no rights to the program whatsoever. You cannot have it both ways.

 

[pdjudd]

Most court cases, with the notable exception of Verner/Autodesk, have maintained the software companies' claim that the copy is licensed. Thus negating any section 117 claim.

Actually Verner V Autodesk still maintained that Software is licensed and not owned. The case was about Autodesk trying to prevent first sale of original, unmodified discs that were never installed on a computer. It doesn't apply to this case because derivatives were not at issue.

 

[jimglidewell]

Section 117 does create gray areas with respect to a personal hackintosh. The main question is whether or not the copy of OS X on the DVD is owned. Most court cases, with the notable exception of Verner/Autodesk, have maintained the software companies' claim that the copy is licensed. Thus negating any section 117 claim.

The other issue is that section 117 does not create a limitation for derivative works. The Psystar judgment affirmed that installation of OS X on a non-Mac requires modification of the software that results in a derivative work.

Likely, section 117 would only be applicable if the software is installable on a machine without modification.

My response was in direct response to the claim that the act of simply running a program that was purchased at retail was an infringement or "distribution" and would be somehow illegal in the absence of a EULA. This is explicitly not so.

The statement I was responding to (and fully quoted) was in direct contradiction to US Copyright Law.

What Psystar and Hackintoshers can and can't do is of minor interest to me. When someone claims that it is illegal for me to run a program I have purchased at a retail store unless the vendor grants me the privilege of doing so, based on some imaginary concept of "bit ownership" that exists no place in the Copyright Code, I reserve the right to correct them.

 

[BaldiMac]

Actually Verner V Autodesk still maintained that Software is licensed and not owned. The case was about Autodesk trying to prevent first sale of original, unmodified discs that were never installed on a computer. It doesn't apply to this case because derivatives were not at issue.

That's not what I said. At issue in the Autodesk case, and a section 117 claim, was whether the COPY on the disc was licensed or owned. Not whether the copyrighted material was licensed or owned.

 

[thevamuzcman]

Becuase users don't see it that way. If Apple doesn't have drivers for certain hardware, users will run to Apple when there are issues, or blame Apple for it not working.



Yes, let's think of all the people that can't afford things they want. I want a Maserati, but I can't afford it - why won't someone just come up with a way for me to get one at the price of a Kia.

While having followed the Hackintosh, OSX86, and Pystar trends for sometime now, one of the basic things that this really boils down to is; apart from the legalities; the ability of the average Joe to enter an exclusive group of users. Apple's own advertisement is geared at downing PCs and glorifying themselves. This is even true on college campuses where unless you own some variation of a Mac, you are to be excluded from the tech community.

Having said that, OS X is an extremely realiable operating system; while most of that realiability has to do with the hardware. However, when you sit down and look a barebones hardware from a Mac and a PC; its hard to understand why Apple charges $3000 for a system that can be bought under the Intel/AMD label at less than half that amount. The remarks that "if you can afford a Mac, buy a PC" is a slap in the face to those who want to experience the use of the Mac OS; but, can't rightfully fork out the money to buy a new Mac system. True, there are places were you can buy a used Mac at a reasonible price; but, even then, you will never be able to experience the new Mac OS as it will not run on older Macs (even a dual processor G5 can't run it because its processors are not Intel based).

One of things that Pystar, althoug violating the EULA, did was allowed an ordinary, run of the mill PC to run OS X. True, Apple has spent millions in time and dollars with its OS and hardware; but, when you think about it, Apple is setting itself up for a monopoly within itself. I can remember the days of Apple and Power Computing Corp or UMAX in which there was no legal issues at PC Corp obtained the license agreement and ROMs to install the Mac OS on a non Apple system; by paying a royalty to Apple for every "clone" sold. This generated quick revenues for Apple during a time of financial crisis from early 1995 through mid-1997. Had Apple pursued a clone program in the 80s, in this view, Apple might have ended up in the position currently occupied by Microsoft-an extremely powerful company with high profit margins and a wide base of consumers perpetually dependent on its system software products. Steve Jobs claims that Apple made money primarily by selling computer hardware; it ought not engage in a licensing program that would reduce its hardware sales.

With this in mind, true Pystar was in the wrong in the wrong for violating the Apple EULA; but, it also sent a message to Apple stating that their hardward was not the "end all" for OS X. I dare say that it would be interesting to see what would happen if Apple allowed non Apple hardware manufacturers to write the necessary drivers for non Apple systems to run under OS X. I mean, even Dell now markets Linux as an alternate OS for its systems. Why can't Apple join that wagon trail and offer other PC manufactures to run OS X on their systems. While their hardware profits may drop; their software profits would have the potential to soar considering there are more PCs purchased by the public on any given day than those purchasing a Apple system.

 

[BaldiMac]

Oh and by the way, according to your link says:



Where section 106



In other words, these exceptions require proper licensing to apply. If you have no license, you have no rights to the program whatsoever. You cannot have it both ways.

"Notwithstanding" doesn't mean what you think it means.

 

[BaldiMac]

However, when you sit down and look a barebones hardware from a Mac and a PC; its hard to understand why Apple charges $3000 for a system that can be bought under the Intel/AMD label at less than half that amount.

FUD.

True, Apple has spent millions in time and dollars with its OS and hardware; but, when you think about it, Apple is setting itself up for a monopoly within itself.

Every company is a "monopoly within itself." What's your point?

Why can't Apple join that wagon trail and offer other PC manufactures to run OS X on their systems.

They could. They choose not to. Why does everyone have to be the same?

Maybe they simply like building the complete product. They enjoy it. Maybe it's just about building a product that they want and are proud of, and then trying to maximize their profits from those product to fulfill their responsibility to their stockholders.

While their hardware profits may drop; their software profits would have the potential to soar considering there are more PCs purchased by the public on any given day than those purchasing a Apple system.

Ahhh. The wonders of potential. Is there anything it can't do?

 

[cmaier]

I can remember the days of Apple and Power Computing Corp or UMAX in which there was no legal issues at PC Corp obtained the license agreement and ROMs to install the Mac OS on a non Apple system; by paying a royalty to Apple for every "clone" sold. This generated quick revenues for Apple during a time of financial crisis from early 1995 through mid-1997.

...

Why can't Apple join that wagon trail and offer other PC manufactures to run OS X on their systems. While their hardware profits may drop; their software profits would have the potential to soar considering there are more PCs purchased by the public on any given day than those purchasing a Apple system.

Umax, Power Computing, Motorola clones almost bankrupted Apple (it did not "generate quick revenues" for them). Steve Jobs came back and killed it for that reason (and put my company, Exponential Technology, out of business since our customers were those very clonemakers). That's why Apple "can't join that wagon trail..." They don't want to be bankrupt.

 

[pdjudd]

That's not what I said. At issue in the Autodesk case, and a section 117 claim, was whether the COPY on the disc was licensed or owned. Not whether the copyrighted material was licensed or owned.

And last I checked from reading the court case was that the disc was owned (allowing the first sale) and the content on the disc was licensed. The court ruled that the license no longer applied to Verner since the content had not been installed on his computer any longer and was selling it.

None of this of course Applies to Apple since the only way to sell OSX would be:

1) selling the original retail discs
2) selling your mac
3) selling your restore discs.

Neither would involve any modification or software violations. Making a hackintosh isn't applicable to Verner - he was first selling unmodified discs. Psystar nor the hackintoshing community at large does this - they all modify copy-written code.

I think we are actually agreeing with each other here - I am just arguing that Verner v Autodesk doesn't apply - I think Psystar tried to argue that and were shot down.

 

[Yamcha]

I don't understand why Apple doesn't make Snow Leopard available and support all PC's.. I think many people would make the switch.. from Windows to Mac Os

 

[myca]

He wouldn't be worse off unless he sold it. It's not trademark infringement unless someone (a potential purchaser) is likely to confuse his computer for an Apple.

Likewise, it's not fraud since no one is relying on his false statement of origin (other than he, himself).

It is, however, a EULA breach.

Huzzah, it seems that I've been found guilty of Fraud in the MacRumours court But thanks to my defense (see above) I may get some leniency.

As for the EULA, in the EU they're on sticky grounds, as they are in parts of the USA, so I won't shed any tears over Steve Jobs losing some money over my decision to build a decent system at a decent price to do what I want to do with it in the privacy of my own home.

Hell if the last refresh of MacPros weren't such an insult to my intelligence (and wallet) I would have picked up one of those, but I didn't want to pay more to get less.

I'll be interested to see how the next refresh of MacPros go, if they actually have more than four slots for Ram in the base model I may get one, and keep my EFI-X machine as a windows gaming rig.

 

[cmaier]

I don't understand why Apple doesn't make Snow Leopard available and support all PC's.. I think many people would make the switch.. from Windows to Mac Os

That would do Apple no good, since the price of Mac OS is subsidized by hardware sales. If Apple had 95% market share in that scenario it would lose money.

 

[cmaier]

As for the EULA, in the EU they're on sticky grounds, as they are in parts of the USA, so I won't shed any tears over Steve Jobs loosing some money over my decision to build a decent system at a decent price to do what I want to do with it in the privacy of my own home.

Copyright law is federal - the EULA is valid everywhere in the USA. It is also probably valid everywhere in Europe, but time will tell.

And it's spelled "losing."

 

[BaldiMac]

And last I checked from reading the court case was that the disc was owned (allowing the first sale) and the content on the disc was licensed.

My understanding is that both the disc and the content together constitute the "copy". To own the disc would be to own a copy.

From http://www.copyright.gov/title17/92chap1.html#101

“Copies” are material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term “copies” includes the material object, other than a phonorecord, in which the work is first fixed.

The court ruled that the license no longer applied to Verner since the content had not been installed on his computer any longer and was selling it.

Verner was reselling unopened boxes.

None of this of course Applies to Apple since the only way to sell OSX would be:

1) selling the original retail discs
2) selling your mac
3) selling your restore discs.

Neither would involve any modification or software violations. Making a hackintosh isn't applicable to Verner - he was first selling unmodified discs. Psystar nor the hackintoshing community at large does this - they all modify copy-written code.

Of course it applies to Apple. It is not significant to the Psystar case. It questionably applies to the legality of a personal hackintosh.

I think we are actually agreeing with each other here - I am just arguing that Verner v Autodesk doesn't apply - I think Psystar tried to argue that and were shot down.

It is very applicable to a section 117 claim.

 

[myca]

Copyright law is federal - the EULA is valid everywhere in the USA. It is also probably valid everywhere in Europe, but time will tell.

And it's spelled "losing."

Ahh well, by the time it's all been sorted I'll be back to using Apple hardware, as I really enjoy my hackintosh, and the process of building a computer was real fun (my first since an AMD K6 build), so much so that I can see why those PC enthusiasts love it so much.

But I got some money saved, work is picking up, and I do miss the brilliant industrial design of the MacPro, heck looking at the inside of my PowerMac in comparison to my hackintosh is like night and day, and thats with a nice sound proof case and a tidy build.

All in all it's been an enjoyable experiment, which if anything has led me back into PC gaming, which is handy as I work in the games industry

Bring on the MacPro refresh around April-May!

 

[pdjudd]

My understanding is that both the disc and the content together constitute the "copy". To own the disc would be to own a copy.

However those copies are subject to copyrights and licensing terms. You certainly cannot copy something and expect to escape from your license obligations to the real owner.

Verner was reselling unopened boxes.

My bad - I thougt it was discs that had been used bat some point but were no longer installed.

Of course it applies to Apple.

How? Apple allows for reselling - they certainly do not allow for copyright infringement. Nothing in Verner v Autodesk applies to reselling OSX

It is not significant to the Psystar case.

That is not up for dispute - I agree.

It questionably applies to the legality of a personal hackintosh.

How? Nothing that Verner was doing applied to installing - it was all about a restrictive terms of first sale. Apple's reselling of OSX are only restricted by copyright - in other words you cannot resell a derivative OSX - The court says you cannot do that.

It is very applicable to a section 117 claim.

How? Verner wasn't copying anything himself - he was reselling genuine Autodesk discs as you said. How does that deal with hackintoshing which has to involve copying of some kind.

 

[Buzz Bumble]

YIPPEE!!!
Finally the "justice" system gets some common sense ... just a pity it took so long, is so rare, and that the morons at Psystar will no doubt try to appeal against this decision.