Apple Wins Permanent Injunction Against Psystar

[Byrnes3969]

Oh for Pete's sake, your links didn't prove anything. For the most part, in the culture of the 70s and 80s, the kind of "borrowing" and initiative shown by Steve and Woz was encouraged in tech companies. Start a project, show it to the higher ups. Tech companies loved this because it was free engineering and could result in products the company could then market and ship for profit.

The links also say that Steve did show the first computer to Atari and that Atari refused it. There was no stealing, no under handed practices. Apple did not steal any Atari technology or even parts to make their first computer.

My links about Steve's underhanded dirty tricks and cheating are from Woz and other historians. No one can refute the facts about the Atari/Apple connection except to say "its not true" or "don't talk about that, it didn't happen". Well, I have links that suggest otherwise. A zealot like you will never see Apple as the ruthless corporation that it is.

Apple sued Psystar to prevent anyone from competing with Apple with a clone. They're as nasty as they are because they have Steve. He's an expert at playing rough and dirty.

 

[BaldiMac]

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.

That's the whole question. Verner v Autodesk established that the copies on the disc were sold. Not licensed. They may not be subject to licensing terms. This claim is only to the single copy on the disc. Not additional copies made from the disc.

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

Because Apple maintains that the copies on the disc are licensed and not sold.

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.

We were discussing a section 117 claim. Section 117 gives owners of a copy of a computer program the right to install that program on a computer regardless of the wishes of the copyright owner. Whether or not the copy of OS X on a retail DVD is owned or licensed is a critical question.

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.

See above.

But that is just one hurdle in applying section 117. The judge in the Autodesk case pointed out that his ruling would have to be resolved with other rulings that have affirmed the licensing of the retail copy.

Personally, I don't think a section 117 claim would succeed with respect to OS X and hackintoshing because section 117 does not allow for modifications that result in the creation of derivative works.

 

[cmaier]

Personally, I don't think a section 117 claim would succeed with respect to OS X and hackintoshing because section 117 does not allow for modifications that result in the creation of derivative works.

Well, perhaps not, but the image in memory is never the same as the bits on the disk, so arguably the process of copying into memory is always the creation of a derivative work.

 

[pdjudd]

Well, perhaps not, but the image in memory is never the same as the bits on the disk, so arguably the process of copying into memory is always the creation of a derivative work.

I would argue that is where the license kicks in - if you properly license the product, you an install and use the product and it would allow the copies necessary (say for installing and running) for normal use. Disobeying the license does not give you those rights at all. Hence my comment about the license being the crux of the matter. The license is just an extension of normal copyrights.

Section 17 only covers very limited exception measures, but my interpretation is that they only apply to licensed products - if you don't have the proper license - you get nothing (since you have to accept a license to use the product). Second, they are a defense - you have to assert them and be able to provide some backing for it. So far the only conclusion we have is that hackintoshing creates a derivative and that is not allowed.

 

[BaldiMac]

Well, perhaps not, but the image in memory is never the same as the bits on the disk, so arguably the process of copying into memory is always the creation of a derivative work.

I agree that there is much room for interpretation. I was just giving my opinion. I have maintained that personal hackintoshes are a legal gray area. Anyone that claims that it is clearly legal or clearly illegal is confusing opinion with fact.

 

[gnasher729]

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.

Selling your Mac with an update version of MacOS X installed (not the Mac with original software) is actually not allowed by the first sale doctrine. It is allowed, however, because Apple explicitly allows you to do just that in the MacOS X SLA.

 

[gnasher729]

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.[/URL]

The problem in your argument is that the sales contract between Apple and you is conditional upon your acceptance of the license. The contract that Apple proposes to you is: Apple gives you a box with a DVD and the right to install the contents of that DVD on a single Apple computer. In return, you give Apple some money and accept its license terms. Since Apple won't accept any other contract, without your acceptance of the license there is no contract, therefore no right to do anything.

And Apple doesn't prevent any buyer from using the software. They can install it on any Macintosh computer.

 

[BaldiMac]

I would argue that is where the license kicks in - if you properly license the product, you an install and use the product and it would allow the copies necessary (say for installing and running) for normal use. Disobeying the license does not give you those rights at all. Hence my comment about the license being the crux of the matter. The license is just an extension of normal copyrights.

Apple cannot take away your rights through licensing. If (and that's a big if) section 117 is ruled to be an applicable limitation to Apple's exclusive copyrights in respect to the installation of OS X on a non-Mac, any copies created in order to utilize OS X on a machine are legal. Apple cannot license them away.

Of course any additional rights that Apple grants you as part of the license would not apply without acceptance of the license.

Section 17 only covers very limited exception measures, but my interpretation is that they only apply to licensed products - if you don't have the proper license - you get nothing (since you have to accept a license to use the product).

Section 117 does not reference licensing at all. All it requires is ownership of a copy.

Second, they are a defense - you have to assert them and be able to provide some backing for it. So far the only conclusion we have is that hackintoshing creates a derivative and that is not allowed.

No. Section 117 is a limitation to the copyright owner's exclusive rights.

 

[gnasher729]

The bottom line is Apple is a hypocrite in this instance! Can you imagine if MS forbid Apple users from installing Windows OS on their computers? VMFusion, Parrallel and Bootcamp are all programs that allow Apple machines to run Windows!
—US laws usually side w/ the corp. instead w/ the consumers!

If we ignore the little detail that Microsoft has a monopoly in the operating system market and isn't allowed to do certain things that others could legally do, then yes, they could add something into their license that forbids you to install Windows on any Apple computer. If BeOS had say 5% market share, then it would be completely legal to do that. Whether it would make financial sense for them is something else.

But then, I have this Humax box to record TV. And from time to time I get upgrades to the software. I am quite sure it is totally legal for Humax to not allow users of their competitors' hardware to use these upgrades.

 

[cmaier]

Apple cannot take away your rights through licensing. If (and that's a big if) section 117 is ruled to be an applicable limitation to Apple's exclusive copyrights in respect to the installation of OS X on a non-Mac, any copies created in order to utilize OS X on a machine are legal. Apple cannot license them away.

Of course any additional rights that Apple grants you as part of the license would not apply without acceptance of the license.



Section 117 does not reference licensing at all. All it requires is ownership of a copy.



No. Section 117 is a limitation to the copyright owner's exclusive rights.

Of course Apple can restrict your rights by license. The license is a contract. If Apple says that they won't sell you the disk unless you agree to relinquish your 117 rights, then that contract is binding.

 

[greenmeanie]

Did it really matter?
I know not one person who bought Psystar crap.

The Hackingtosh community is more of a problem than psystar ever was.

 

[gnasher729]

Does this mean that I'm not breaking the EULA with my Hackintosh as I have a few Apple stickers on there, you know the ones included with their software and hardware from way back

"Labeled" has a legal meaning. Putting an Apple sticker on your computer doesn't make it Apple labeled. Now there is more than one company with "Apple" in their name, like Apple Corps, and such a company could obviously build its own computers and put their own "Apple" stickers on them and claim they are Apple-labeled. Of course they couldn't sell them under the Apple name (trademark infringement) but for internal use they might be fine. Might. And with 10.6 Apple changed the requirement to "Apple-branded" and I don't think any but Apple Inc. can legally create an "Apple-branded" computer.

Did it really matter?
I know not one person who bought Psystar crap.

The Hackingtosh community is more of a problem than psystar ever was.

I am sure there have been people posting here who claimed they bought a Psystar computer. Ignoring legal issues, I always said it was a bad idea (if you want to run MacOS X without buying a Mac, then buy a Dell or build it yourself, but don't buy from a company that is going out of business soon). But I wouldn't agree with "the Hackintosh community is more of a problem than Psystar ever was".

The money that Apple lost in lost sales is nothing. It is much less than Apple's lawyers cost (Psystar agreed to pay that, but I can't see it happening). But that never was Apple's real problem. The problem was the claim that what Psystar did was legal (and if that was the case, then Dell could do the same thing and that _would_ be a big, big problem for Apple), and it was the cost to Apple's reputation. Like people actually calling Apple support because they had problems with their Psystar computers. Like Psystar's open claims that Apple's license terms where illegal.

Apple never had this kind of damage coming from the Hackintosh community. There has been no name calling. Nobody accusing Apple of doing something wrong. And many people in that community would send any friend or family member who has enough money and needs a good computer straight to the nearest Apple store.

Of course a lot of the politeness in the Hackintosh community might come from the fact that these people have a brain and know that seriously upsetting Apple is a bad move, while the guys running Psystar apparently were too stupid.

 

[BaldiMac]

Of course Apple can restrict your rights by license. The license is a contract. If Apple says that they won't sell you the disk unless you agree to relinquish your 117 rights, then that contract is binding.

Sorry, I should have been more specific. They can't sell you the software and than say that you can't install it if you are found to have that right under section 117.

 

[pdjudd]

Apple cannot take away your rights through licensing. If (and that's a big if) section 117 is ruled to be an applicable limitation to Apple's exclusive copyrights in respect to the installation of OS X on a non-Mac, any copies created in order to utilize OS X on a machine are legal. Apple cannot license them away.

I am not trying to argue that though - and we also have to remember that there is copy protection involved here. I am simply contending that section 117 doesn't apply to hackintoshing, not that section 117 doesn't apply to software or anything like that. I argue that the terms in section 117 fall outside of the hackitoshing route because they (in my opinion) wouldn't apply to the type of derivative works that hackintoshing creates.

Of course any additional rights that Apple grants you as part of the license would not apply without acceptance of the license.

Correct.

Section 117 does not reference licensing at all. All it requires is ownership of a copy.

Which, as it has been pointed out, you do not actually own the bits on the disc in the sense of it being IP - those are maintained by Apple. You can only own the physical medium of distribution (ie the disc). No way a judge is going to argue that a person has copying rights to IP in such a way that it would make things like piracy unenforceable. Thats why the bits are not really owned, so that copyright protects them with limited exception.

The court ruled that the hackintoshes that Psystar created were derivatives - due to the fact in part that the copies were made by breaking Apple's copy protection. Creating derivatives is a no-no from what I can tell.

The big question is that what "ownership" means. Everything that I have read seems to agree that intellectual content (bits, creative expressions, art, etc) doesn't get owned. Even the Verner decision said that software is still licensed. The entire software business is run based on the notion that the bits are licensed and that exceptions have to be narrow. Furthermore I find it very hard to believe that the "essential step" clause can be argued to do an end run around creating derivatives that the normal licensing would not allow. That clause would cover products like expostfacto, not hackintoshing. Creating a hackintosh is not a normal application of what OSX is intended for - one buys it knowing that it is for Macintoshes.

No. Section 117 is a limitation to the copyright owner's exclusive rights.

I have not argued the contrary.

 

[pdjudd]

Sorry, I should have been more specific. They can't sell you the software and than say that you can't install it if you are found to have that right under section 117.

Right. I agree with that. But does section 117 cover the right to create hackintoshing? What about the copy protections?

 

[gnasher729]

Right. I agree with that. But does section 117 cover the right to create hackintoshing? What about the copy protections?

Section 117 made it legal for people to install Leopard on a machine not meeting Apple's technical requirements (as long as they installed on an Apple computer). As long as you have the legal right to make a copy, and there are just some technical obstacles in the way, Section 117 allows you to get around the technical obstacles.

But if there was no DRM, and Dell happened to build a computer that happened to be 100% MacOS X compatible, and an attempt to install MacOS X would just work, then Section 117 wouldn't apply because none of the things it allows would be needed. But you still wouldn't have the right to install the software, because the license doesn't allow it. I would say it is absurd to claim that Section 117 would allow you to modify the software and then install it, when you wouldn't have the right to install on a 100% compatible system.

 

[cmaier]

Here's a fun legal hypothetical for you law students out there... The judge said that OS X, in whole, is a "work," and that by changing kexts and such Psystar had created a derivative work without authorization.

Mac OS X contains GPL'd components. The GPL says that if you distribute a work comprising GPL'd components, the work must be subject to the GPL.

Discuss.

 

[MorphingDragon]

Here's a fun legal hypothetical for you law students out there... The judge said that OS X, in whole, is a "work," and that by changing kexts and such Psystar had created a derivative work without authorization.

Mac OS X contains GPL'd components. The GPL says that if you distribute a work comprising GPL'd components, the work must be subject to the GPL.

Discuss.

I'm not even a student but wouldn't the GPL licence override Apple Licence?

 

[BaldiMac]

I am not trying to argue that though - and we also have to remember that there is copy protection involved here.

Copy protection is irrelevant in the situation that we are discussing.

I am simply contending that section 117 doesn't apply to hackintoshing, not that section 117 doesn't apply to software or anything like that. I argue that the terms in section 117 fall outside of the hackitoshing route because they (in my opinion) wouldn't apply to the type of derivative works that hackintoshing creates.

You seem to have lost track of the discussion. We were discussing how the Autodesk ruling affects Apple. I was just pointing out that ownership of a copy is an important part section 117. There are other important parts.

Which, as it has been pointed out, you do not actually own the bits on the disc in the sense of it being IP - those are maintained by Apple. You can only own the physical medium of distribution (ie the disc). No way a judge is going to argue that a person has copying rights to IP in such a way that it would make things like piracy unenforceable. Thats why the bits are not really owned, so that copyright protects them with limited exception.

You are confusing ownership of a copy with ownership of the copyrighted work. Apple, Autodesk and most other major software companies claim that the copy (the DVD and the bits on the DVD) that they sell you in a retail box is licensed, not sold. Verner v Autodesk ruled that the copy is actually sold and not licensed.

The big question is that what "ownership" means. Everything that I have read seems to agree that intellectual content (bits, creative expressions, art, etc) doesn't get owned.

It is owned by the copyright owner (in this case, Apple). Additionally, individual copies can also be owned by other entities. This does not involve the transfer of any copyrights.

Even the Verner decision said that software is still licensed.

Did it? The judge seemed to tap dance around that question while establishing that the copy is owned while acknowledging apparently conflicting rulings.

The entire software business is run based on the notion that the bits are licensed and that exceptions have to be narrow. Furthermore I find it very hard to believe that the "essential step" clause can be argued to do an end run around creating derivatives that the normal licensing would not allow. That clause would cover products like expostfacto, not hackintoshing. Creating a hackintosh is not a normal application of what OSX is intended for - one buys it knowing that it is for Macintoshes.

I don't believe it is clear what section 117 covers.

 

[cmaier]

I'm not even a student but wouldn't the GPL licence override Apple Licence?

(Playing law professor) Sure - when A licenses something to B by GPL, B can't then create rights to that thing that it didn't have by licensing it by EULA to C.

But I think that's irrelevant. When the judge says "OS X" is a "work," does that "work" mean the same thing as "work" in the GPL? If I burn a CD-ROM with Firefox and my own code on it as separate programs, and hand it to a third party, have I now licensed my own code under the GPL?

 

[BaldiMac]

Right. I agree with that. But does section 117 cover the right to create hackintoshing? What about the copy protections?

Personally, I don't think so. Legally, I think it is a gray area. But we were discussing the hypothetical situation in which it did apply.

 

[chris200x9]

Hey genius it takes time to compile a lawsuit.

Oh yes two *exact* same cases take so much work, gotta think up a new strategy

 

[BaldiMac]

Here's a fun legal hypothetical for you law students out there... The judge said that OS X, in whole, is a "work," and that by changing kexts and such Psystar had created a derivative work without authorization.

Mac OS X contains GPL'd components. The GPL says that if you distribute a work comprising GPL'd components, the work must be subject to the GPL.

Discuss.

What GPL'd components does Apple use?

 

[chris200x9]

What GPL'd components does Apple use?

gcc for one

 

[chris200x9]

gcc for one

Sorry can't read thats an app not OS component...it wouldnt let me edit