For a DMCA violation, it doesn't matter _how_ you get around the copy protection, as long as the material was protected by an _effective_ mechanism that is supposed to prevent you from accessing it. It seems quite clear that Apple's copy protection is _effective_, because in their bankruptcy filings Psystar valued their know-how to get around it at $3 million.
This is
not a copy protection mechanism!!! It is a tying mechanism. You would have a point if Apple was actually trying to stop people from illegally copying Mac OS X. That is
not what this mechanism does.
Two quick cases to illustrate the point.
1. You buy some songs on iTunes. Your friends like several of your songs. You burn a copy of the songs onto a DVD and they pass around the DVD and install those files onto their Mac. When they go to play those sounds the DRM kicks in and says those machines are not licensed.
[ the DVD isn't necessary... however just so using same physical digital medium as next example. ]
2. You buy a retail copy of Mac OS X. Your friends like this new version. You give them the DVD and they install that onto their Macs. It works. Not legal, but it works. Those folks are violating basic copyright law. The mechanism does nothing to stop that. Everyone who wants to run a copy of Mac OS X should buy their own copy (hackintosh or not.); if you are running it you should pay for it.
The copy protection mechanism doesn't have to be "uncrackable" , but it has to even try. There is no even trying here. The only trying here by Apple is to recast tying as copyrights.
In the first half of this case, Apple pragmatically admitted that they are tying the software to the hardware. That is
not an issue of copying. The aspects of the EULA that deal with copyrights is
not what Apple putting a protection mechanism on. It is the tying aspects that they are protecting.
The DMCA allows for mechanism that provide interoperability so long as they do
not subvert copyright management control. There are no basic copyright control being done here. The only thing here is the tying aspect that Apple has thrown on top and using the DMCA (whose principle purposes is copyright management) as a hammer to enforce their tying activities.
I'm not a lawyer but this has some similarities with Lexmark vs. SCC
http://en.wikipedia.org/wiki/Lexmark_Int'l_v._Static_Control_Components
http://www.eff.org/cases/lexmark-v-static-control-case-archive
Apple's argument might be that the DMCA is a control mechanism for basic copyrights plus whatever other terms they choose to pile on top. That may work on some lower court judges. IMHO, letting business throw whatever truckload of conditions on top of copyright issues and applying DMCA to those too is a loophole that can drive a 18 wheel truck through. The interoperability escape clause is indicative DMCA isn't suppose to squash all interoperability. Nor is it intended to be the universal enforcer for companies for anything they want.
As I said, for a DMCA violation the method doesn't matter. Obviously modifying copyrighted software makes some things worse; it means Psystar created derived works without permission, Psystar distributed derived works without permission, it would kill any argument relating to first sale doctrine etc.
Modifying is a whole another matter. Once start screwing with the copies (even adding different ktext to the DVD image. You can't change two lines of 'War and Peace' and then ship it as your own derived work. ) then have brought aspects of the copyrighted work back into the issue. At that point the DMCA will certainly kick in because aspects of basic copyright law (not tangential issues that Apple wants to loop in) kicks in.
Apple hasn't been stripped bare here. They still have the EULA terms. They can make the case how folks have to agree to tie the software to the hardware. As said before, if Psystar shipped separately (copy of Mac OS X and the box), they'd be in better shape. By installing themselves they are hard pressed to make the argument they are not buying into the EULA terms.
tv's.