Psystar would still be guilty of contributory infringement. Not much difference.
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Psystar Announces Program for Third-Party PC Manufacturers to Enable Snow Leopard Installation
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Psystar would still be guilty of contributory infringement. Not much difference.
A key that apparently requires no decrypting to get access to. In other words, OSX requires a key, to be sure, but the key isn't encrypted and you don't need to decrypt anything to get at it. It's just a key. An analogy to the way that key can be intercepted would be like me shouting a secret password to a friend across a room wherein there are other people milling about. They didn't need to do any tinkering or dodgy investigation to get to the key; they just had to understand English and have ears.
First of all it's important to make clear again that I don't know how Psystar does things so talking about this as if it's what Psystar is doing may mislead people. For that reason, I'm going to stipulate a hypothetical company doing what I described earlier–Systar.
Moving on...I don't think contributory infringement is quite so clear. Contributory infringement requires two things (so I've learned): (1) knowledge of the infringing activity, and (2) a material contribution to infringement.
Systar may reasonably believe some people that buy their computers, in the method I described above, might commit copyright infringement; but, that's not the same as knowing that copyright infringement has occurred in specific instances respecting computers they sold, or even generally.
Condition (2) apparently involves a stronger connection to the activity–standing in the relationship of causing or inducing the infringement. This is where things get hanky, but I think there's still a way to navigate Systar's liability here.
(1) Systar makes no no claims about whether OSX is installed (in the usable sense and not the backup sense) on the computers they sell. They merely assert that their computers are compatible with OSX. They simply don't sell computers with OSX already installed.
(2) When customers buy a computer from Systar they can also choose to buy a retail copy of Snow Leopard (which Systar legally obtains).
(3) Customers are presented with the option to have Systar make a backup copy of the retail copy of Snow Leopard they want included with their computer purchase, compliant with copyright law. The backup is stored, in machine readable form of course, on the hard drive accompanying the computer the customer intends to purchase.
(4) Customers can also request the pre-installation of an EFI bootloader to a seperate partition.
(5) The options in steps (2), (3), and (4) are all presented to the customer as separate options.
(6) When the customer turns on the computer, they are presented with information that says that if they boot into the Snow Leopard disc backup and install Snow Leopard, they will be violating Apple's SLA and Systar advises them to not breach the terms of SLAs and that the backup copy of Snow Leopard on the hard drive in the computer is for backup purposes only.
If the customer does install Snow Leopard, appearances to the contrary, it seems difficult and much more controversial to assert or show that Systar's actions satisfy conditions (1) and (2) of contributory infringement. In a related way (not perfectly analogous, but analogous enough), this seems to be sort of how ISPs get out of contributory infringement.
But, lets just assume that Systar's actions relative to their customers action of installing Snow Leopard constitutes contributory infringement. No doubt, if that's the case they can be sued and made to pay damages or whatever. However, interestingly, I don't think their actions would constitute criminal behavior (not that that's going to be much consolation if they have to pay loads of money), but interesting nonetheless. I think their actions wouldn't be criminal because the copyright was infringed after the legal sale of the retail Snow Leopard copy and the accompanying backup, and criminal infringement, as far as I can tell, is when the infringement occurs and then the selling occurs so that the financial gain was made off the infringement. In this case, financial gain is made off a regular-old-sale that just happens to later involve somebody using the content of that sale to commit infringement.
So nobody misunderstands what's going on here, this is the game I'm playing. Discover, if possible, how a company might facilitate the use and installation of OSX on it's own computers without breaching any contracts, violating any other laws, or making itself liable for civil action against it. Maybe it's not possible, maybe it is; I'm just noodling it out. What I'm not trying to do is discover a way to install OSX without at least breaching any contracts. I'm granting at the outset of all of this that installing OSX on non-Apple computers just is a breach of contract, end of story. I'm also assuming that the judgment in MDY v Blizzard is correct and that any breach of contract (in terms of a term violation of an SLA or EULA) revokes the license to use the software to which that license applies. Additionally, I'm assuming that the physical copies of computer software that one buys in the store are owned, but that the software on those physical copies is not owned–it's licensed.
I do wish people on the Internet could read. Reading comprehension is one of many things sadly lacking in schools these days ... schools are far too busy with idiotic sports and sticking their noses into kid's lunchboxes.
As I said, the company usually turns a blind eye to individuals and single offences because it's simply not worth the time and money, but if you're making money / running a business they will come down hard on you and quickly.
The fact that they are willing to turn a blind eye does NOT actually mean doing it is actually legal, moral, sensible, etc. and it does NOT mean the company is actually saying it's OK for you to do it. You are still misusing their legally owned logo.
I'm not sure why that is relevant. I was simply pointing out that the bootloader would have to emulate the SMC in order to present the decryption key.
What would be the point in distributing the bootloader except to allow the installation of OS X? A product has to have significant non-infringing use in order for the seller to not be responsible for the infringement of the purchaser.
Ahh, so that's what that fakeSMC.kext is doing. No seriously, my sincere attempt to understand how Hackintosh systems work is sort of recent and I honestly hadn't connected our discussion here to that particular kext. Truly, this discussion has been extremely enlightening in itself but also due to the material its led me to.
The bootloader, taking the Chameleon bootloader as an example, can be used as an effective way to multiboot a computer with any OS. In that sense, the bootloader has a significant non-infringing use–allowing users to multiboot lots of OSs including Microsoft's OSs and all the flavors of Linux. It just so happens that OSX can be booted with the bootloader, but that's not it's primary purpose (so one would want to assert).
But what about the code that is specifically there to allow the installation of OS X, such as your fakeSMC.kext? You can't just take an infringing program and add a bunch of extra non-infringing functions and call it legal.
Secondarily, using the Kazaa case as an example, it's not just about having non-infringing functions, actual usage matters. P2P software has legitimate uses other than distributing copyrighted music. It can also be used to distribute public domain and other freely distributed material. It's just that 99.99% of people used it for the copyrighted stuff.
The point is unlikely that it's meant to be unreadable or secret; the fact that the information is read from the device is likely a proprietary step, which makes it patentable or copyright protected. To emulate the behaviour would be a breach of those.
This SMC key business is, I think, the one problem in this whole scenario. I simply don't know enough about it right now to say whether fakeSMC or some other key retriever and injector is infringing. For now, I'm going to have to shelf that issue until I know more about it.
It wasn't the fact that 99.99% of people use certain P2P services that got them in trouble. There are lots of popular services currently oporating with no trouble at all for which I'm sure it's true that 99.99% of users use for copyrighted stuff. In the relevant Supreme Court case that preceded Kazaa's settlement, Souter wrote:
The problem, as I understand it, was not (and still isn't) what the majority of users do with the thing. Legal problems, in the respect we're discussing, result from whether or not some bit of software or service is promoted to the end of copyright infringement. This is exactly the same trouble that usenet.com got into. Other services that are in fact more popular than usenet.com and no doubt enable more copyright infringement escaped trouble from the RIAA precisely because they don't promote their services to the end of copyright infringement.
Back to bootloaders, you just need a bootloader that facilitates multibooting and could boot Snow Leopard. It seems to me that you'd be fine assuming you don't advertise the bootloader in the way that'll make you liable for infringement. You might say, for example, "this bootloader won't prevent OSX from booting, but you should not breach contracts or infringe copyrights...".
Of course, the not-preventing bit is a bit that takes us back to the whole SMC thing and, as I said, I just don't know enough about that to sort that issue out. I think the SMC thing is really the only obstacle to what I'm suggesting, and based on the paper about it that I linked to earlier, I'm not sure it's all that much of an obstacle.
Yeah, that's actually the interesting question. I'm not sure it's the reading step that's the problem. It's the stuff being read. This is how I'm imagining it, if somebody knows better than me, please help me out here.
To simplify things, imagine that the SMC keys are little triangles and that OSX and the OSX installer have triangle shaped slots (I'm imagining these things as real physical objects). So OSX boots or the installer boots when the triangle shaped slot is filled with a triangle, which is produced by the SMC circuitry on the logic board. The SMC circuitry, by the way, is not for the purpose of DRM. It's used to manage power and maybe some other things.
On an ordinary PC, the SMC equivalent would be a PMU I guess. Let's imagine that PMUs send out little squares. So, when you put an OSX disc in a PC the installer doesn't start because it's being sent little squares and it needs a little triangle, but the PC's PMU doesn't make triangles.
In order to get a PC to deliver a triangle you've got to emulate the circuitry of an SMC so that little triangles are being created. The step of OSX reading a triangle (SMC output) isn't the step that would get you in trouble. That's just what OSX does, it wants triangles. The step that seems to be the problem is creating triangles (SMC output) on a system that doesn't have SMC circuitry.
So, I think it boils down to this. Is it copyright infringement to reproduce SMC output? I don't know. Of course, I guess you've first gotta figure out whether it's infringement to just emulate SMCs. If it's infringement to just emulate SMCs then whether or not SMC output is problematic just doesn't really matter. If it's ok to emulate SMCs then you've got to figure out if SMC output is somehow copyright protected. If it is, problem; if it isn't, well...
I do wish people on the Internet could read. Reading comprehension is one of many things sadly lacking in schools these days ... schools are far too busy with idiotic sports and sticking their noses into kid's lunchboxes.
As I said, the company usually turns a blind eye to individuals and single offences because it's simply not worth the time and money, but if you're making money / running a business they will come down hard on you and quickly.
The fact that they are willing to turn a blind eye does NOT actually mean doing it is actually legal, moral, sensible, etc. and it does NOT mean the company is actually saying it's OK for you to do it. You are still misusing their legally owned logo.
I await with excitement any documentation you can provide me that shows an individual putting a BMW badge on a non BMW vehicle is illegal.
I think there is more here than just a legal definition of a specific infringement. The court will look at the whole picture and purpose of this company and it's product, and clearly the whole purpose is to make Hackintoshes for sale with Apple's OS software without a license or royalty to Apple for each Hackintosh they sell. Now that is obviously an attempt to defaud Apple by using Apple's own creation to sell non-apple hardware. After all, would ANY computers be sold if the catch it can run OS/X were NOT involved? NO! So that proves it is a scam.
Psystar, as things stand right now, does not have the right to resell the OS. This is part of what they are trying to fight (the notion that Apple has a right to sell only to 'end users').
but there is also the matter of the DMCA violation of circumventing the access controls placed within the OS by Apple. And the use of the OS, along with Apple trademarks, to encourage the sales of their hardware
that is the fallacy of your argument. DMCA prohibits the very thing the bootloader would achieve. making that installation, not who actually installs the OS, the issue. Psystar still loses
I can see the disclaimer now...
Disclaimer **The Windows PC will crash becuase the Mac OS is too powerfull for the available device. Please stop installing, and buy a real machine. Get a Mac! The "gotta Dell" is an ol' bag of tricks!!!
Poof!!! ...your new PC just blew to bits!
Thanks you for the post.
Maybe that'll be the case for Psystar, we just don't know. One can imagine a company that does virtually the same thing but doesn't advertise in the way that Psystar does; think of the Usenet.com vs Giganews thing. The both do the same thing, the one that didn't get sued actually traffics more illegal downloads, but they don't get sued because they're advertising doesn't make them liable.
It's interesting that you take this holistic view of applying the law. In other words, don't just look at the specific legal words use, look at the whole picture and if the picture looks a certain way, then, even if by technical definition things are a little off, apply the law a certain way. That's all fine and good, and I'm all for applying the law in that way. However, in terms of SLAs and EULAs, companies like Apple have argued that the law ought not be applied in that way. The reason is that software companies use the word "license" in the SLAs and EULAs in order to make the transfer of software not fall under copyright code as a sell. But, some courts have held that because software transfers look exactly like regular old sales, the software is considered sold and not licensed, and therefore any restrictions in the SLA or EULA that limit copyright fair use rights are void. In other words, in order to determine whether a transaction is a sale or a lease, you've got to look at the circumstances of the transaction and not just at the language that the seller uses. In Apples case, for example, it would mean that despite what the SLA says, you do have the right to install the software on whatever hardware you want.
The question is, why should one take the holistic approach in one sort of copyright case and not in the other? I'm not suggesting there's not reason to act one way in one case and another way in another. I'm merely suggesting that you'd better have some justifiable reason to apply the law that way.
I'm pretty sure Psystar, and anyone else, has the right to resell the OSX discs. What's illegal is selling non-Apple computers with OSX installed on them.
I was going to respond to this with a longer post, but then I realized that in the scenario I described, Systar (the mythical company) doesn't use the bootloader at all. They simply install it to a partition. It's the customer that boots it up. The bootloader, unless prompted by a user, does not run the OSX SMC emulation and send out SMC keys. The bootloader could very well exist for eternity and never run that SMC emulation as somebody could just use it to multiboot Windows and Linux. This means that the customer that buys the sort of computer I've described is the one committing copyright infringement and/or DMCA violations–not Systar.
Who installs the OS is relevant. The fact that my neighbor installs OSX on his PC is relevant to me not being liable for infringement if I don't do it. That installation is installed by the customer, not Systar. Systar need not ever run the SMC emulation. And, per my previous explanations, I don't see how they can be contributorily liable for infringement.
No. Not unless they're using Apple's code to produce that output without permission (as opposed to, say, reverse engineering it). Copyright applies to the code, not whatever it is the code is outputting.
It *might* be a DMCA violation, however, if the "you can only run OS X on Apple hardware" stipulation in the EULA is upheld. That's because then the reverse-engineering/workaround is being done for the "wrong reasons" (ie: circumvention rather than interoperability). This would provide Yet Another Example of why The DMCA Is Bad.
Lexmark tried to use the DMCA to lockout 3rd party ink and the courts said that they can't do that.
also there are other cases of trying to use the DMCA to lock out 3rd party stuff.
Open up "About My Mac" and have a look. Every Mac out there has a serial number embedded in its firmware, and Apple knows what they are, and what they will be. There are also other known and static "magic numbers" in the system that could be combined with this serial number to create a unique identifier (eg: onboard NIC MAC address, motherboard UUID).
Such a system would be simple to implement, if they wanted to, and the probability of a false negative is basically zero. These sorts of registration schemes are stupidly trivial, when there's a known piece of hardware the software user will have. That's why so many vendors use dongles.
But they are. They're giving Apple the $129 they ask for a copy of OS X at retail.
I don't think "defraud" means what you think it means.
I would be astounded if any court of law would uphold such a meaningless and arbitrary requirement.
From the articles I've read about how SMC emulation came about, it looks like a case of simply writing perfectly ordinary code, I don't know if you can even call that reverse engineering. At least it seems clear that they're not using Apple's code to produce the output, they're just using code that anyone can use. Apple doesn't use software to output the SMC keys, they use a chip on the logic board.
Again, I don't claim to have an extremely deep understanding of how this all works, but from what I've read in the past few days, it looks like this boils down to the SMC emulation/keys and it also looks like emulating the SMC isn't copyright infringement (there's some dispute apparently about whether "emulating" is even the right term to describe what's going on as it appears even less technical than true emulation). So, it seems to me that in the scenario I've described, this boils down to the DMCA–yay!
Getting things to come down to the DMCA isn't good news at all. Under the DMCA it's been held that it's a violation to even link to information or software that facilitates circumvention/interoperability–something which occurs on this very forum.
That's not the point. I never said such a system couldn't exist - I contend that the ammount of overhead isn't worth the effort - the hackintosh market as it stands right now is almost insignificant to Apple. As long as companies don't get into that market - it's almost guaranteed to involve extra overhead that customers who have never had to undergo it before are going to hate. Apple customers can be quite vocal and temperamental. At the least it would be a PR nightmare.
That's not what I was arguing. I never said that it would be technically infeasible - its just not worth it. Not to mention that all it's going to do is just be beaten anyway like Windows is. Hackers can do lots of things when they have direct access to the system. The low market of Apple just makes such a system pointless.
And for the record, nobody that I know buys a product that uses a dongle unless it is for software that is really expensive and really niche (like pro tools) Dongles don't really fly for consumers.
Plus we have to inquire how it works, over the internet? What about people who have no internet? All of these verification schemes are a pain to users and they are only necessary for companies that deal purely in software. There are only two commercial products that Apple sells that do not use a serial number and they have one thing in common. Those two items are the OS and iLife. And they come on a Mac. In Apple's mind, the licensing of these products is sufficient to protect them.
THe hobbyist hackintoshers are a minor annoyance to Apple. The last thing they want is to deal with a system that annoys users and just adds overhead.
Apple is going after Psystar hard to establish precedence so that anybody who gets any funny ideas about a second round will have a much harder chance.
That's not why it would be dismissed though - the reason would be that such actions are unenforceable in a practical manner. The courts can simply establish that those two clauses, while not illegal, have no bearing on violation. In other words, they can be there, but they can't be used for grounds because it cannot be practically enforced.
But of course no company would even bother since they know that it's silly and has no place in a legal document.