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Apple Wins Like a Champ - Psystar is Toast -- What? You're Surprised?
Saturday, November 14 2009 @ 10:45 AM EST

Psystar just got what's coming to them in the California case. Here's the order [PDF]. It's a total massacre. Psystar's first-sale defense went down in flames. Apple's motion for summary judgment on copyright infringement and DMCA violation is granted. Apple prevailed also on its motion to seal.

Psystar's motion for summary judgment on trademark infringement and trade dress is denied. So is its illusory motion for copyright misuse.

There are still issues remaining for trial, despite Psystar's attempt to present everything now as being moot. Here's what's left to be decided at trial: Apple's allegations of breach of contract; induced breach of contract, trademark infringement; trademark dilution; trade dress infringement; and state unfair competition under California Business and Professions Code § 17200; and common law unfair competition. See anything on that list that will be helpful to Psystar?

So that means damages ahead for Psystar on the copyright issues just decided on summary judgment, at a minimum. The court asked for briefs on that subject. In short, Psystar is toast. Psystar's only hope now is Florida, and frankly I wouldn't bet the house on that one. Judges notice if you were just found guilty of a similar cause of action in another state.

You're surprised? I told you, I told you, I told you. So, to those who feel crushed at the moment, there could be an appeal, I suppose. And if you want freedom for your code, you certainly can find it on Planet Earth. Look in the right direction. You'll be happy you did, because you can hack away to your heart's content, and it's perfectly legal. The court's message is clear: EULAs mean what they say; if you don't want to abide by its license, leave Apple's stuff alone.

We have the order for you as text.

On the first sale defense, you'll find it in the section on distribution right and Section 109:

Apple contends that Psystar has violated its distribution right by offering and selling Mac OS X on Psystar computers to the public. Psystar admits that it has distributed Mac OS X (Chung Exh. 17 at 4).

But Psystar responds that its conduct is protected by the Section 109 first-sale doctrine. Section 109 provides that "the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord." 17 U.S.C. 109. This provision is a limitation on the distribution right. It applies only to an owner of a copy.

The parties spill much ink on whether Psystar was the owner or a licensee of the copy (i.e., the tangible copy) of Mac OS X that it purchased. Even assuming arguendo that Psystar was the owner of a copy, the first-sale defense fails here. Section 109 provides immunity only when copies are "lawfully made." The copies at issue here were not lawfully manufactured with the authorization of the copyright owner. As stated, Psystar made an unauthorized copy of Mac OS X from a Mac mini that was placed onto an "imaging station" and then used a "master copy" to make many more unauthorized copies that were installed on individual Psystar computers. The first-sale defense does not apply to those unauthorized copies. See Microsoft Corp. v. Software Wholesale Club, Inc., 129 F. Supp. 2d 995, 1006 (S.D. Tex. 2000) ("the first-sale doctrine does not apply to an admittedly counterfeit unit"); see also 2-8 NIMMER ON COPYRIGHT § 8.12 ("if the manufacture of a copy or phonorecord constitutes an infringement of the reproduction or adaptation right, its distribution will infringe the distribution right, even if this is done by the owner of such copy or phonorecord").

Catch that? Even if Psystar were the lawful owner of the copy, it still can't do what it did. The court quotes from Microsoft Corp. v. Software Wholesale Club, Inc.: "the first-sale doctrine does not apply to an admittedly counterfeit unit". So, no, you can't buy a copy and use it to go into a counterfeiting business, in effect. Terekhov's theory has bitten the dust and then had to eat some. Just like Daniel Wallace's anti-GPL theory did. Whoever is relying on their legal theories might want to buy a vowel and try to figure this puzzle out.

I know. They'll say, but, but, but ... what if they hadn't used the master and just used each copy, then would it work? Sons, why do you think Psystar used the master copy? Because it's a business, and in a business, efficiency is money. That's why businesses set themselves up, to make money. The whole world is not with you on a holy war to destroy EULAs and the GPL. Even this rinkydink business wanted to make money. Theoreticals belong on message boards, not in business and definitely not in courtrooms, and even on message boards, everyone told you for years that this wouldn't work out if someone tried it. It's been tried. It didn't work out.

And to those who argue that all that matters is that open source is a better way to develop code, let this case be a warning message. Apple makes fabulous code. Of course, the BSD community did a lot of it for them, but Apple makes it all just work for end users, and they do that beautifully. So no one can argue that for end users it is not fabulous code. It is.

So here is my question: is that enough?

Or isn't the message of this case that what you really want with your fabulous code is freedom for the code? If you answer yes, I want freedom to do what I want with code on my home computer, then why use proprietary code? Proprietary vendors are happy to sell you the best code in the world, if they have it. But they won't sell you freedom to use it any way you want. That's not the business they are in.

So, if freedom matters to you, don't sell out the goal of a completely free operating system, without any proprietary blobs at all. There is a purpose to that goal, because proprietary blobs mean restrictions on use. That is a given. There are other negatives, but that one is the one this case highlights. So work for drivers that are not proprietary. Stay away from code that you believe has potential patent infringement claims. Why? Because a short-term seeming advantage can block the end result you want. It will provide a Brand X solution that takes you on a detour away from your goal.

So when folks tell you that all that matters is that the code be open source or that end users should have the right to put proprietary code together with free and open source code if they want to, or that partnering with Microsoft will work out well, or that what matters is that end users use more free software by using proprietary-free mixtures, ask yourself, is that really true? No matter who says it, is it true? Look at the Apple v. Psystar case. Freedom matters. Some things are just obvious.

Use what you want, but think it through more deeply than just thinking about what you want this minute or what's more convenient. Why do you think Stallman started trying to create Free Software? Because he knew how to fix a printer but the license wouldn't let him. He already saw what you are seeing with this Psystar case. Proprietary means restrictions on use. It does.

Here's the docket; the order is the final one on the list:

11/13/2009 - 207 - ORDER GRANTING REQUEST TO SEAL PORTIONS OF APPLE'S MOTION FOR SUMMARY JUDGMENT by Judge Alsup (re 178 Motion to Seal). (whalc1, COURT STAFF) (Filed on 11/13/2009) (Entered: 11/13/2009)

11/13/2009 - 208 - ORDER GRANTING REQUEST TO SEAL PSYSTAR'S OPPOSITION TO APPLE'S MOTION TO SEAL by Judge Alsup (re 186 Motion to Seal). (whalc1, COURT STAFF) (Filed on 11/13/2009) (Entered: 11/13/2009)

11/13/2009 - 209 - ORDER GRANTING REQUEST TO SEAL PORTIONS OF APPLE'S OPPOSITION TO PSYSTAR'S MOTION FOR SUMMARY JUDGMENT by Judge Alsup (re 190 Motion to Seal Document). (whalc1, COURT STAFF) (Filed on 11/13/2009) (Entered: 11/13/2009)

11/13/2009 - 210 - ORDER GRANTING REQUEST TO FILE UNDER SEAL PSYSTAR'S RESPONSE TO APPLE'S MOTION FOR SUMMARY JUDGMENT by Judge Alsup (re 193 Motion to Seal). (whalc1, COURT STAFF) (Filed on 11/13/2009) (Entered: 11/13/2009)

11/13/2009 - 211 - ORDER GRANTING REQUEST TO FILE UNDER SEAL PORTIONS OF APPLE'S REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT by Judge Alsup (re 199 Motion to Seal). (whalc1, COURT STAFF) (Filed on 11/13/2009) (Entered: 11/13/2009)

11/13/2009 - 212 - ORDER GRANTING REQUEST TO SEAL PSYSTAR'S MOTION FOR ADMINISTRATIVE ACTION by Judge Alsup (re 203 Motion to Seal). (whalc1, COURT STAFF) (Filed on 11/13/2009) (Entered: 11/13/2009)

11/13/2009 - 213 - ORDER GRANTING REQUEST TO FILE UNDER SEAL PORTIONS OF PSYSTAR'S REPLY BRIEF by Judge Alsup (re 201 Motion to Seal). (whalc1, COURT STAFF) (Filed on 11/13/2009) (Entered: 11/13/2009)

11/13/2009 - 214 - ORDER RE CROSS MOTIONS FOR SUMMARY JUDGMENT by Judge Alsup (re 181 Motion for Summary Judgment and 182 Motion for Summary Judgment). (whalc1, COURT STAFF) (Filed on 11/13/2009) (Entered: 11/13/2009)

Update: When Psystar began talking to the media by means of its first law firm, Carr & Ferrell, this is what then lead counsel for Psystar, Colby Springer, said at a press conference announcing that Psystar would defend itself with antitrust counterclaims:
Springer took time to address both claims directly. He noted that Psystar does not make copies of the Mac OS to install on its machines. In fact, every copy installed is an individually purchased copy of the operating system from Apple or one of its authorized resellers. "There's no pirating going on," he responded.

On claims of code modification, Springer said that the company had not made any modifications to the operating system. Any techniques applied to make Mac OS run on Psystar, he said, can be found in already available, open source software.

Was that true? Compare his words with what the judge wrote, that Psystar made modifications and that it certainly did not buy a copy of MacOSX for each machine. In fact, it was using a master.

Next question: Would the law firm know it was not true, as discovery eventually demonstrated to the judge? I don't know. But Psystar knew. They were the ones doing both things that Springer claimed they were not.

********************************

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA

APPLE, INC., a California corporation,
Plaintiff,
v.
PSYSTAR CORPORATION, a Florida corporation,
Defendant.

No. C 08-03251 WHA

ORDER RE CROSS MOTIONS
FOR SUMMARY JUDGMENT
AND RELATED COUNTERCLAIMS.

INTRODUCTION

In this copyright-infringement action, plaintiff Apple, Inc. and defendant Psystar Corporation have filed cross motions for summary judgment. For the following reasons, Apple's motion is GRANTED and Psystar's motion is DENIED.

STATEMENT

Plaintiff Apple Inc. launched its Macintosh computer in 1984 and its Mac OS X operating system in 2001. Apple has manufactured an exclusive line of personal computers, including the Mac Pro, iMac, Mac mini, MacBook, MacBook Air, and MacBook Pro. Mac computers have been sold with Mac OS X preinstalled. Mac OS X has also been sold as a DVD so customers can upgrade their Mac computers to another version of the operating system.

1

Mac OS X on both Mac computers and the DVD are covered by software license agreements that provided that the software is "licensed, not sold to [the user] by Apple Inc. ("Apple") for use only under the terms of this License" (Chung Exh. 26 at ¶ 1). Apple's license agreements restricted the use of Mac OS X to Apple computers, and specifically prohibited customers from installing the operating system on non-Apple computers. The license agreement stated (id. at ¶ 2):

2. Permitted License Uses and Restrictions.

A. Single Use. This license allows you to install, use and run (1) copy of the Apple Software on a single Apple-labeled computer at a time. You agree not to install, use or run the Apple Software on any non-Apple-Labeled computer or enable another to do so.

* * *

C. You may make one copy of the Apple Software (excluding the Boot ROM code and other Apple firmware that is embedded or otherwise contained in Apple-labeled hardware) in machine-readable form for backup purposes only . . . . Apple Boot ROM code and firmware is provided only for use on Apple-labeled hardware and you many not copy, modify or redistribute the Apple Boot ROM code or firmware, or any portions thereof.

* * *

F. Except as and only to the extent permitted by applicable licensing terms governing use of the Open Sourced Components, or by applicable law, you may not copy, decompile, reverse engineer, disassemble, modify or create derivative works of the Apple Software or any part thereof.

It also restricted redistribution and modifications to the software (id. at ¶ 3):

3. Transfer. You may not rent, lease, lend, redistribute, or sublicense the Apple Software. Subject to the restrictions set forth below, you may, however make a one-time permanent transfer of all of your license rights to the Apple Software (in its original form as provided by Apple) to another party, provided that: (a) the transfer must include all of the Apple Software, including all its component parts (excluding Apple Boot ROM code and firmware), original media, printed materials and this License; (b) you do not retain any copies of the Apple Software, full or partial, including copies stored on a computer or other storage device; and (c) the party receiving the Apple Software reads and agrees to accept the terms and conditions of this License. You may not rent, lease, redistribute, sublicense or transfer any Apple Software that has been modified or replaced under Section 2D above.

2

In brief, customers were contractually precluded from utilizing Mac OS X on any computer hardware system that was not an Apple computer system.

Besides the license agreement, Apple has obtained three copyright registrations for Mac OS X. It has used lock-and-key technological measures to prevent Mac OS X from operating on non-Apple computers. This involved the use of a "kernel" extension, which is software that is executed and becomes part of the operating system on an Apple computer. The kernel extension would communicate with other kernel extensions to locate the decryption keys in the hardware, which then would unlock the encrypted files.

Defendant Psystar Corporation has made a line of computers called Open Computers (formally known as Open Mac and OpenPro). Psystar has modified Mac OS X to run on its computers and has sold them to the public. The following briefly describes the conduct at issue. Psystar first bought a copy of Mac OS X and then installed it on an Apple Mac mini. Next, Psystar copied Mac OS X from the Mac mini onto a non-Apple computer. This non-Apple computer was used as an "imaging station." Once on the imaging station, Mac OS X was modified. Psystar then replaced the Mac OS X "bootloader." The bootloader runs when a computer first comes on and locates and loads portions of the operating system into random access memory. Without a bootloader, Mac OS X would not operate. Psystar also disabled and/or removed Mac OS X kernel extension files and replaced them with other kernel extension files. Psystar's modifications enabled Mac OS X to run on non-Apple computers. The modified copy became the "master copy" that was used for mass reproduction and installation onto other Psystar computers. Apple also alleges that every time Psystar turned on Psystar computers running Mac OS X then another copy was made in random access memory.

Apple contends that Psystar's reproduction, modification, and distribution of Mac OS X on non-Apple computers constituted copyright infringement under the Copyright Act and a violation of the Digital Millennium Copyright Act. Psystar asserts a number of defenses. Both parties now move for summary judgment.

3

ANALYSIS

1. LEGAL STANDARD.

Summary judgment must be granted under FRCP 56 when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." A district court must determine, viewing the evidence in the light most favorable to the nonmoving party, whether there is any genuine issue of material fact. Giles v. General Motors Acceptance Corp., 494 F.3d 865, 872 (9th Cir. 2007). A genuine issue of fact is one that could reasonably be resolved, based on the factual record, in favor of either party. A dispute is "material" only if it could affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248—49 (1986).

2. COPYRIGHT INFRINGEMENT.

Apple contends that Psystar is liable for copyright infringement. "Plaintiffs must satisfy two requirements to present a prima facie case of direct [copyright] infringement: (1) they must show ownership of the allegedly infringed material and (2) they must demonstrate that the alleged infringers violate at least one exclusive right granted to copyright holders under 17 U.S.C. § 106." A&M Records v. Napster, Inc., 239 F.3d 1004, 1013 (9th Cir. 2001).

Apple has two federally registered copyrights in Mac OS X. The validity of these registered copyrights is not contested. Thus, Apple has established ownership of Mac OS X.1

Apple asserts that Psystar has violated three of its exclusive rights in Mac OS X: (1) its reproduction right; (2) its distribution right; and (3) its right to create derivative works. This order next addresses each of these.

A. Reproduction Right and Section 117.

According to Apple, Psystar has violated its exclusive right to copy Mac OS X. Psystar admits that it has made copies of Mac OS X and installed those copies on non-Apple computers

4

(Def. Opp. 10). In addition, when Psystar turns on its computers running Mac OS X, another copy of the software is made to the random access memory. Psystar has thus infringed Apple's reproduction right.

Section 117(a) permits the owner of a copy of a computer program to copy or modify the program for limited purposes without incurring liability for copyright infringement. See Krause v. Titleserv, Inc., 402 F.3d 119, 121 (2nd Cir. 2005). But the question is whether Psystar can rely on Section 117 to escape liability. It cannot.

As Apple pointed out, Psystar waived any Section 117 essential step defense when it failed to plead it. Psystar counters that it has not waived Section 117 because that provision is a limitation on a copyright owner's exclusive rights rather than an affirmative defense. An earlier Ninth Circuit decision stated "Section 117 defines a narrow category of copying that is lawful per se" and "Section 107, by contrast, establishes a defense to an otherwise valid claim of copyright infringement." Sega Enters. v. Accolade, Inc., 977 F.2d 1510, 1521 (9th Cir. 1992). Since then, the Ninth Circuit has expressly referred to Section 117 as a defense. See Wall Data Inc. v. L.A. County Sheriff's Dep't, 447 F.3d 769, 776 (9th Cir. 2006) (referring to Section 117 as an affirmative defense); Asset Mktg. Sys. v. Gagnon, 542 F.3d 748, 754 (9th Cir. 2008) (referring to Section 117 as a defense). As such, this order treats Section 117 as an affirmative defense.

Alternatively, if Section 117 is considered an affirmative defense, then Psystar argues it has pled it in its answer and raised the substance of its Section 117 argument in its interrogatory responses. Neither the answer nor interrogatory responses, however, refer to Section 117. And Psystar has not demonstrated any good cause for its failure to assert the defense after a year of litigation. Also, there has been no showing that its failure to do so will not prejudice Apple. As such, Psystar has waived the defense. At all events, the assertion of Section 117 is so frivolous

5

in the true context of how Psystar has used Mac OS X that a belated attempt to amend the pleadings would not be excused.2

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 "[s]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.

6

B. Distribution Right and Section 109.

Apple contends that Psystar has violated its distribution right by offering and selling Mac OS X on Psystar computers to the public. Psystar admits that it has distributed Mac OS X (Chung Exh. 17 at 4).

But Psystar responds that its conduct is protected by the Section 109 first-sale doctrine. Section 109 provides that "the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord." 17 U.S.C. 109. This provision is a limitation on the distribution right. It applies only to an owner of a copy.

The parties spill much ink on whether Psystar was the owner or a licensee of the copy (i.e., the tangible copy) of Mac OS X that it purchased. Even assuming arguendo that Psystar was the owner of a copy, the first-sale defense fails here. Section 109 provides immunity only when copies are "lawfully made." The copies at issue here were not lawfully manufactured with the authorization of the copyright owner. As stated, Psystar made an unauthorized copy of Mac OS X from a Mac mini that was placed onto an "imaging station" and then used a "master copy" to make many more unauthorized copies that were installed on individual Psystar computers. The first-sale defense does not apply to those unauthorized copies. See Microsoft Corp. v. Software Wholesale Club, Inc., 129 F. Supp. 2d 995, 1006 (S.D. Tex. 2000) ("the first-sale doctrine does not apply to an admittedly counterfeit unit"); see also 2-8 NIMMER ON COPYRIGHT § 8.12 ("if the manufacture of a copy or phonorecord constitutes an infringement of the reproduction or adaptation right, its distribution will infringe the distribution right, even if this is done by the owner of such copy or phonorecord").

Psystar asserts on its motion that it includes a Mac OS X DVD with every Psystar computer it sells. There is no sworn evidentiary support for this assertion in Psystar's motion. This alone is dispositive. It is true, as Psystar points out, that Apple's opening brief on its own separate motion stated "Psystar includes both a Mac OS X DVD . . . and a hard drive copy of Mac OS X on the Psystar computer" (Pl. Br. 7). At oral argument, Psystar asserted that Apple

7

cited to paragraph 20 in the declaration of John Kelly, Apple's expert, to support this proposition. Paragraph 20 merely stated that Kelly observed Psystar's technician who did not use a Mac OS X installation DVD for the hard drive imaging or assembly of Psystar's Open Computer (Kelly Decl. ¶ 20). At oral argument, Apple's counsel referred to paragraph 15 of the Kelly declaration and a table therein. There, Kelly stated that he had examined nine Psystar computers that had Mac OS X installed on the hard drive (id. at ¶ 15). He further stated that the Mac OS X software for five of those computers was not the same as the software found on the Mac OS X DVDs shipped with the computers. Instead, those computers had a different version of Mac OS X actually installed on hard drive than was found on the accompanying Mac OS X DVD. According to Table 2 in Kelly's declaration, three of the other nine computers did not include a Mac OS X DVD at all (ibid.). The Apple footnote invoked by Psystar at the hearing did include citations to deposition testimony, but the cited testimony did not support the proposition either. Finally, for its own motion, Psystar was obligated to provide sworn support. It may not cure evidentiary gaps for its own motion by invoking briefs filed separately and simultaneously by its opponent. It must lay out plainly and clearly the basis for its own summary judgment motion at step one.

Furthermore, it is not the court's task "to scour the record in search of a genuine issue of triable fact." Keenan v. Allan, 91 F.3d 1275, 1278 (9th Cir. 1996). Counsel have an obligation to lay out their support clearly. In Carmen v. San Francisco School District, 237 F.3d 1026, 1031 (9th Cir. 2001), the court expressly held that "[t]he district court need not examine the entire file for evidence establishing a genuine issue of fact, where the evidence is not set forth in the opposition papers with adequate references so that it could conveniently be found."

Even if it were the case that a DVD was included with every computer, that did nothing to cure the infringement as to the unauthorized copies discussed above. Besides Apple does not assert copyright infringement with respect to the sale of the DVD that Psystar allegedly purchased.

C. Right to Create Derivative Works.

Section 101 of the Copyright Act defines a derivative work as:

8

[A] work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a "derivative work."

17 U.S.C. 101.

Psystar infringed Apple's exclusive right to create derivative works of Mac OS X. It did this by replacing original files in Mac OS X with unauthorized software files. Specifically, it made three modifications: (1) replacing the Mac OS X bootloader with a different bootloader to enable an unauthorized copy of Mac OS X to run on Psystar's computers; (2) disabling and removing Apple kernel extension files; and (3) adding non-Apple kernel extensions. These modifications enabled Mac OS X to run on a non-Apple computer. It is undisputed that Psystar made these modifications (Def. Opp. 6—7).3

But Psystar contends that this did not amount to creating a derivative work, because Apple's source code, object code, or kernel extensions were not modified. This argument is unavailing. Psystar admittedly replaced entire files within the software while copying other portions. This resulted in a substantial variation from the underlying copyrighted work. In fact, if the bootloader and kernel extensions added by Psystar were removed, then the operating system would not work on Psystar's computers. The inclusion of the copyrighted Mac OS X with the above-described additions and modifications makes Psystar's product an infringing, derivative work.

Psystar cites no decisions to reasonably support its argument that its modifications do not amount to a derivative work; whereas, Apple points to decisions showing that such deletions, modifications, and additions to software result in an infringing derivative work. See, e.g., Dun & Bradstreet Software Servs. v. Grace Consulting, Inc., 307 F.3d 197, 208 (3rd Cir. 2002) (concluding that defendant's modification of a copy of plaintiff's software, including fixing bugs and adding features, created an infringing derivative work); Midway Mfg. Co. v.

9

Arctic International, Inc., 704 F.2d 1009, 1014 (7th Cir. 1983) (finding defendant's addition of circuit boards created a speeded-up video game that was a substantially different product from the original game and thus a derivative work); SAS Institute, Inc. v. S & H Computer Systems, Inc., 605 F. Supp. 816, 831 (M.D. Tenn. 1985) (finding defendant's duplication and conversion of software that would run on an IBM computer to run on a VAX computer constituted a derivative work).

In sum, Psystar has violated Apple's exclusive reproduction right, distribution right, and right to create derivative works. Accordingly, Apple's motion for summary judgment on copyright infringement must be granted.

2. CONTRIBUTORY INFRINGEMENT.

Apple next asserts that Psystar is liable for contributory infringement. Psystar offers no opposition on this issue. "One infringes contributorily by intentionally inducing or encouraging direct infringement." See MGM Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 930 (2005). Psystar is a contributory infringer through its sale of unauthorized copies of Mac OS X to the public. This is contributory infringement. Accordingly, summary judgment must be granted for Apple on contributory infringement.

3. COPYRIGHT MISUSE.

Copyright misuse is a defense to copyright infringement. The copyright-misuse doctrine "forbids the use of the [copyright] to secure an exclusive right or limited monopoly not granted by the [Copyright] Office and which is contrary to public policy to grant." Altera Corp. v. Clear Logic, Inc., 424 F.3d 1079, 1090 (9th Cir. 2005). "The misuse defense prevents copyright holders from leveraging their limited monopoly to allow them control of areas outside the monopoly." A&M Records v. Napster, Inc., 239 F.3d 1004, 1026 (9th Cir. 2001).

Psystar argues that Apple misused its copyrights by continuing to prosecute allegedly "invalid" copyright infringement and DMCA claims against Psystar. This argument is unavailing. This order finds that Apple's claims are valid and has granted summary judgment in favor of Apple on those claims.

10

Psystar next argues that Apple's attempt to use copyright to tie Mac OS X to Apple hardware constituted copyright misuse. Put differently, Psystar argues that Apple cannot extend its exclusive rights to control the computers on which Apple's customers run Mac OS X. Psystar's antitrust allegations were dismissed in a prior order, and Psystar then chose not to pursue any antitrust counterclaims. The prior order stated, "Apple asks its customers to purchase Mac OS knowing that it is to be used only with Apple computers. It is certainly entitled to do so" (Dkt. No. 33 at 14). That order previously rejected Psystar's theory and this order does the same.

Psystar rightly points out that the Ninth Circuit has stated, "a defendant in a copyright infringement suit need not prove an antitrust violation to prevail on a copyright misuse defense." Practice Management Info Corp. v. American Medical Ass'n, 121 F.3d 516, 521 (9th Cir. 1997). For this principle, the Ninth Circuit relied upon a Fourth Circuit decision, which explained, "[t]he question is not whether the copyright is being used in a manner violative of antitrust law (such as whether the licensing agreement is 'reasonable'), but whether the copyright is being used in a manner violative of the public policy embodied in the grant of a copyright." Lasercomb America, Inc., v. Reynolds, 911 F.2d 970, 978 (4th Cir. 1990). In the present case, Apple has not prohibited others from independently developing and using their own operating systems. Thus, Apple did not violate the public policy underlying copyright law or engage in copyright misuse. In this way, Practice Management Info Corp. is distinguishable. There, the Ninth Circuit invalidated the AMA's copyright on a coding system of medical procedures requiring a contracting party (HCFA) to use only the AMA's coding system and none other, stating:

What offends the copyright misuse doctrine is not HCFA's decision to use the AMA's coding system exclusively, but the limitation imposed by the AMA licensing agreement on HCFA's rights to decide whether or not to use other forms as well. Conditioning the license on HCFA's promise not to use competitors' products constituted a misuse of the copyright by the AMA.

Id. at 521. But Apple has not prohibited purchasers of Mac OS X from using competitor's products. Rather, Apple has simply prohibited purchasers from using Mac OS X on

11

competitor's products. The Ninth Circuit has likewise distinguished Lasercomb America, 911 F.2d at 978—79, on this ground. See Triad Systems Corp. v. Southeastern Express Co., 64 F.3d 1330, 1337 (9th Cir. 1995), overruled on other grounds by Gonzales v. Texaco Inc., No. 07-17123, 2009 U.S. App. LEXIS 18370, at *5 (9th Cir. Aug. 17, 2009) ("[U]nlike the case of Lasercomb America, Inc. v. Reynolds, 911 F.2d 970, 978—79 (4th Cir. 1990), Triad did not attempt to prohibit Southeastern or any other ISO from developing its own service software to compete with Triad").

Psystar cites In re Napster, Inc., Copyright Litigation, 191 F. Supp. 2d 1087, 1105 (N.D. Cal. 2004) (Patel, J.), for the proposition that "unduly restrictive copyright licensing agreements" can constitute misuse. But even Judge Patel acknowledged that "no court has thus far articulated the boundaries of 'unduly restrictive licensing' or when licensing or other conduct would violate the amorphous concept of public policy." Ibid. As explained above, Apple's licensing agreement is not unduly restrictive. Indeed, the egregious examples of copyright misuse in the decisions cited by Psystar provide further support for this order's determination that Apple has not engaged in copyright misuse. For example, in Lasercomb America, 911 F.2d at 978, the Fourth Circuit found copyright misuse in the following circumstance:

The language employed in the Lasercomb agreement is extremely broad. Each time Lasercomb sells its Interact program to a company and obtains that company's agreement to the noncompete language, the company is required to forego utilization of the creative abilities of all its officers, directors and employees in the area of CAD/CAM die-making software. Of yet greater concern, these creative abilities are withdrawn from the public. The period for which this anticompetitive restraint exists is ninety-nine years, which could be longer than the life of the copyright itself.

Lasercomb America likewise stated that an anti-competitive restraint lasting even 20 years would constitute copyright misuse. Id. at 979. Ultimately, the problem in Lasercomb America was that the all-encompassing anticompetitive restraint attempted to "control competition in an area outside the copyright." Ibid. (emphasis added). But Apple's licensing agreement is not nearly as all-encompassing as those addressed in Lasercomb America — Apple's agreement does not seek to control all competition in an area outside the copyright. Rather, Apple's

12

agreement simply attempts to control the use of Apple's own software — an area that is the focus of the copyright.

Therefore, Psystar's motion for summary judgment on copyright misuse must be denied.

4. DMCA.

Apple contends that Psystar has violated the anti-circumvention and anti-trafficking provisions of the DMCA. Apple has used a decryption key as a technological protection measure to prevent access to Apple's Mac OS X and to prevent Mac OS X from running on a non-Apple computer.

Section 1201(a)(1)(A) provides that no person shall circumvent a technological measure that effectively controls access to a work protected under this title. Psystar has used decryption software to obtain access to Mac OS X and to circumvent Apple's technological measure when modifying Mac OS X in its production process. This is a violation of the Section 1201 anti-circumvention provision of the DMCA. 17 U.S.C. 1201(a)(1).

Section 1201(a)(2) prohibits the manufacture, importation, offering to the public, providing, or otherwise trafficking in any technology, product, service, device, component, or part thereof, that meets one of three criteria, including the following:

(A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title;

(B) has only limited commercially significant purpose or use other than to circumvent a technological measure that effectively controls access to a work protected under this title; or

(C) is marketed by that person or another acting in concert with that person with that person's knowledge for use in circumventing a technological measure that effectively controls access to a work protected under this title.

17 U.S.C. 1201(a)(2); see also 17 U.S.C. 1201(b). Section 1201(b) is very similar to Section 1201(a)(2). But (a)(2) focuses on effectively controlling access and (b) focuses on effectively protecting a right of a copyright owner.

Psystar's circumvention technology was installed on Psystar computers and sold with Mac OS X. Psystar also marketed the computers as running Mac OS X. This facilitation of circumvention was a violation under Section 1201(a)(2).

13

Section 1201(b)(1) was likewise violated. When an end user turned on a Psystar computer and ran Mac OS X, there was also an act of circumvention, as Psystar concedes (Def. Reply 2). As stated, running the modified Mac OS X results in an unauthorized copy to RAM. Thus, Psystar's circumvention technology has not only provided access but also resulted in copies in RAM. Although Apple's technological measure may have been primarily aimed at controlling access, it also effectively protected its right to copy, at least for the copy made in RAM. Cf. 321 Studios v. MGM Studios, Inc., 307 F. Supp. 2d 1085, 1097 (N.D. Cal. 2004) (Illston, J.) (finding that Section 1201(b)(1) applied when copying the encrypted DVDs was not particularly useful, as any copy made without circumventing could not be accessed or viewed).

Psystar asserts, nonetheless, that it has not violated the DMCA and provides two reasons: (1) Psystar did not facilitate infringement; and (2) Apple's technological protection measure was not effective. Because unauthorized copying and access have been proven, Psystar's first argument is rejected. See Chamberlain Group, Inc. v. Skylink Techs., Inc., 381 F.3d 1178, 1193 (Fed. Cir. 2004). As to the second argument, Psystar contends that Apple's anticircumvention technology was ineffective because the decryption key for circumvention is publicly available on the internet. This argument fails. "The fact that circumvention devices may be widely available does not mean that a technological measure is not, as the DMCA provides, effectively protecting the rights of copyright owners in the ordinary course of its operation." Sony Computer Entm't Am., Inc. v. Divineo, Inc., 457 F. Supp. 2d 957, 965 (N.D. Cal. 2006). Generally, measures based on encryption "effectively control" access to copyrighted works. Here, when the decryption key was not employed, the encryption effectively worked to prevent access to Mac OS X. And that is all that is required. See Universal City Studios v. Reimerdes, 111 F. Supp. 2d 294, 318 (S.D.N.Y. 2000) (noting that when a decryption program was not employed, the encryption worked to control access to the protected work). Accordingly, Psystar has violated the DMCA by circumventing Apple's

14

protection barrier and trafficking devices designed for circumvention. Apple's motion for summary judgment on its DMCA claim must be granted.4

5. TRADEMARK INFRINGEMENT AND TRADE-DRESS INFRINGEMENT.

The summary of argument section of Psystar's motion introduces an argument that its use of Apple's trademarks and trade dress is a nominative fair use. But the motion never fully addresses this issue. For example, no evidentiary cites or legal cites are provided. Psystar failed to even mention nominative fair use in its reply. While nominative fair use may be asserted as a defense, the defendant has the burden of proof. See Mattel Inc. v. Walking Mt. Prods., 353 F.3d 792, 810 (9th Cir. 2003) (stating a defendant must prove three elements to show nominative fair use). The burden was not met here. Accordingly, Psystar's motion for summary judgment on nominative fair use must be denied.

6. RELIEF.

Psystar contends that Apple has waived damages on its non-copyright claims, such as its breach-of-contract claim. Psystar further argues that if an injunction is granted, then it should be limited to Mac OS X Leopard (and not include Mac OS X Snow Leopard, for example). Apple neither filed a motion on its non-copyright claims nor for a permanent injunction. Rather, Psystar has prematurely raised these points merely in anticipation of Apple doing so. As such, this order will not address the relief, if any, that Apple may be entitled to at this juncture.

CONCLUSION

For the foregoing reasons, Apple's motion is GRANTED and Psystar's motion is DENIED.

Apple has also asserted the following claims, which remain for trial: (1) breach of contract; (2) induced breach of contract, (3) trademark infringement; (4) trademark dilution; (5) trade dress infringement; and (6) state unfair competition under California Business and Professions Code § 17200; and (7) common law unfair competition.

15

With respect to relief, formal briefing is appropriate, so:

Apple's opening November 23, 2009;
Psystar's opposition November 30, 2009; and
Apple's reply December 7, 2009.

A hearing will be held on December 14, 2009, at 8 a.m.

IT IS SO ORDERED.

Dated: November 13, 2009.

(signature)
WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

16

1 Psystar also asserts that Apple claims copyright infringement as to its decryption key. In response, Apple clarifies that it "has never alleged that Psystar's copyright infringement is limited to Psystar's unauthorized use of the" decryption key (Pl. Opp. 15). Rather Apple's allegations are focused on copying of Mac OS X, not just a decryption key. In any event, Psystar has provided little support for this argument and its position is rejected.
2 Trying to have it both ways, Psystar successfully opposed Apple's earlier attempt to reopen discovery and extend deadlines to add an additional product — Snow Leopard — to this action. Psystar now seeks to add a very late affirmative defense. This would not be fair.
3 Psystar also asserts Section 117 as a defense to avoid liability for infringement of Apple's right to create derivative works. But as stated above, Psystar has waived this defense.
4 Psystar does not rely on a reverse-engineering defense under the DMCA, and thus this order does not address Apple's argument on this point.

  


Apple Wins Like a Champ - Psystar is Toast -- What? You're Surprised? | 508 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections here.
Authored by: Erwan on Saturday, November 14 2009 @ 10:48 AM EST

If any.

Please, always check the original PDF before highlighting transcript errors.

---
Erwan

[ Reply to This | # ]

News picks discussions here.
Authored by: Erwan on Saturday, November 14 2009 @ 10:49 AM EST
Please, quote the article's title.

---
Erwan

[ Reply to This | # ]

OT, the Off Topic thread
Authored by: Erwan on Saturday, November 14 2009 @ 10:49 AM EST
As usual.

---
Erwan

[ Reply to This | # ]

And now we see the corruption inherent in the system!
Authored by: GuyllFyre on Saturday, November 14 2009 @ 11:03 AM EST
Help help!

I'm being repressed!

As we have seen in the XBox case and now with Apple, don't buy anything
connected with an onerous EULA. No matter how fanciful they are, it looks like
the government will automatically side with big business to ensure it's coffers
are always full.

You want freedom, use the GPL...and oh, yea, buy your own country, I hear
they're available offshore for a mere $50,000 now. Cheaper than fighting a
court case.

[ Reply to This | # ]

Freedom of code
Authored by: Anonymous on Saturday, November 14 2009 @ 12:05 PM EST
PJ, your freedom of code link is a little biased, since it doesn't cover any of the mthings like FreeBSD, OpenBSD, NetBSD, or any of the various distros of them. Can't get much free-er than that.

Or, you could point to something like the FreeOS resource page, which covers a lot more of them(such as FreeDOS).

z!

[ Reply to This | # ]

Open sources?
Authored by: Anonymous on Saturday, November 14 2009 @ 12:43 PM EST
People, keep in mind that open source software doesn't work with short lived
software. For example computer games. And like military stuff making its way
into our every day life, say like microwaves oven, even games can contribute to
other applications.

Both closed and open software are needed for us to progress. The rules might be
annoying but not following them is worse.

I do have a question: Can software be refunded? I mean: If I buy a software and
reject the EULA, can I return it?

[ Reply to This | # ]

Speed difference, due to lawyers or case?
Authored by: IMANAL_TOO on Saturday, November 14 2009 @ 01:01 PM EST
Is the speed difference between the SCO and Psystar cases due to the lawyers
involved or the nature of the cases?

---
______
IMANAL


.

[ Reply to This | # ]

Psystar's Next Move -- File For Chapter 11!
Authored by: OmniGeek on Saturday, November 14 2009 @ 01:09 PM EST
This one is just too obvious. Even if PsyStar isn't a sock-puppet for the same
hidden hand that gave SCO a few helpful nudges, they're certain to have read
SCO's playbook (maybe even on GrokLaw), and I bet they'll file for Chapter 11
bankruptcy before the trial. In Delaware. Look what that move did for SCO --
kept them circling the drain for months on end instead of immediately going
"Glug!" down the pipe.

Yup, depend on it, PsyStar will file for Chapter 11 as soon as they can.

---
My strength is as the strength of ten men, for I am wired to the eyeballs on
espresso.

[ Reply to This | # ]

Beautifully explained
Authored by: Anonymous on Saturday, November 14 2009 @ 01:09 PM EST
As an Apple fan and a FOSS fan (esp. stuff like Drupal), I say, very well
explained.
I like Apple in any way possible for what they do, but have the same issues most

Groklaw visitors have with proprietary and DRM - eg. when trying to play one of

our legit US or Peru DVD's in Europe...
Bottomline - at least, how I read it: as a user, it makes sense to pay for
quality,
if you need, want and like it. But it has consequences you might not like. For
that, support FOSS and think very deep about what you want, even as a
consumer, but doubly so as a developer.

[ Reply to This | # ]

Only surprising because...
Authored by: Crocodile_Dundee on Saturday, November 14 2009 @ 01:11 PM EST
This decision can only be considered surprising in one context, that of the
fiaSCO in Utah.

Quite frankly, the dispute between Psystar and Apple is something I would
previously have been EXPECTED to end like this, and end quickly.

I guess that there have been other legal disputes that to the common man would
appear to have an obvious answer that have gone on and on, but SCO V the world
is the first I've taken a long term interest in.

---
---
That's not a law suit. *THIS* is a law suit!

[ Reply to This | # ]

The GPL *IS* an EULA
Authored by: Anonymous on Saturday, November 14 2009 @ 03:06 PM EST
I am disgruntled, in general, that I cannot do what I want/need with software
that I buy. I CAN do many things I find enjoyable with a book that I buy. I am
not talking about stealing. I have significantly more rights with the book that
I bought vs. the software that I didn't really buy.

The GPL is the solution to the problem that software is not sold, but licensed.
I respect that. I still dislike the restrictions that are placed upon me for
software, as a category distinct from any other copyrighted work.

[ Reply to This | # ]

Apple Wins Like a Champ - Psystar is Toast -- What? You're Surprised?
Authored by: Anonymous on Saturday, November 14 2009 @ 03:15 PM EST
"Even if Psystar were the lawful owner of the copy, it still can't do what
it did."

That's not what the judgement says. It says the lawful copy (the DVD) was
immaterial, because the copy on the hard-drive was an illegitimate copy.

[ Reply to This | # ]

Your triumphalism stinks, frankly
Authored by: Anonymous on Saturday, November 14 2009 @ 03:48 PM EST

We don't need Psystar, and the law has probably been correctly applied.

But we could do without the crowing over Apple's victory as though it were a triumph of some virtuous knight in shining armor over the forces of evil. Apple is just as evil a company as Microsoft, or more so; the only real difference is that it's less successful. This case is a victory of one evil company over another evil company. Frankly, I don't care which of them wins eventually; I'd like to see them both go away.

[ Reply to This | # ]

With an abundance of caution
Authored by: Anonymous on Saturday, November 14 2009 @ 06:55 PM EST
> Besides Apple does not assert copyright infringement with respect
> to the sale of the DVD that Psystar allegedly purchased.

Now if there was a significant market in stolen MacOS dvds we
should have heard by now. Perhaps a press somewhere in Asia...

[ Reply to This | # ]

DMCA violation
Authored by: Anonymous on Saturday, November 14 2009 @ 07:20 PM EST
"The fact that circumvention devices may be widely available does not mean that a technological measure is not, as the DMCA provides, effectively protecting the rights of copyright owners in the ordinary course of its operation."
Sony Computer Entm't Am., Inc. v. Divineo, Inc., 457 F. Supp. 2d 957, 965 (N.D. Cal. 2006).
Could somebody familiar with that case please explain what happened? My small mind sees this as yet another nail in the (USA) coffin of libdecss

[ Reply to This | # ]

I hope this was a victory, not a threat
Authored by: xtifr on Saturday, November 14 2009 @ 08:00 PM EST
On the one hand, this was so clearly the right decision by the courts that I'm
not a bit surprised that it resolved so quickly. On the other hand, I'm still
worried that this was not a subtle (so subtle I can still barely see it) attack
on the GPL, but rather yet another step in the decades-long war that the media
cartels have been waging against fair use and first sale. While the attempt to
claim that first sale applied in this case was pretty clearly laughable, I worry
that the judgment is going to be taken out of context to attack perfectly valid
cases of first sale.

Living near a University campus, where starving students happily take advantage
of first sale on a regular basis, I know that every few years, some of the book,
music or, more recently, game publishers suddenly realize that they could be
making oh-so-much more money if only they could get rid of that pesky market in
used books, music and/or games, "Every copy that's sold in a used
book/music/game store is a lost sale for us!" These jokers frequently
manage to stir up trouble even with absolutely no law on their side.

What I really fear is that they make it so you can't sell something you own
because you _might_ have copied it. It's already pretty much that way with PC
software, and I would hate to see this notion spread any farther.

---
Do not meddle in the affairs of Wizards, for it makes them soggy and hard to
light.

[ Reply to This | # ]

MS does the right thing after GPL violation
Authored by: gormanly on Saturday, November 14 2009 @ 08:23 PM EST

Update on the the GPL violating "Windows 7 USB/DVD Tool" by Peter Galli, the Open Source Community Manager for Microsoft's Platform Strategy Group:

As you've likely read and as was originally reported here, we've been investigating a report that the Windows 7 USB/DVD Download Tool, might contain GPLv2 code. The WUDT is a free tool that was offered by the Microsoft Store and which enabled customers to create bootable USB drives or DVD backup media from the electronic software (ESD) edition of Windows 7 that comes in an ISO format.

After looking at the code in question, we are now able to confirm this was indeed the case, although it was not intentional on our part. While we had contracted with a third party to create the tool, we share responsibility as we did not catch it as part of our code review process. We have furthermore conducted a review of other code provided through the Microsoft Store and this was the only incident of this sort we could find.

When it comes to our attention that a Microsoft component contains third party code, our aim is to be respectful of the terms under which that code is being shared. As a result, we will be making the source code as well as binaries for this tool available next week under the terms of the General Public License v2 as described here, and are also taking measures to apply what we have learned from this experience for future code reviews we perform.

We apologize to our customers for any inconvenience this has caused.

Wow. They're keeping their tool available and changing the licence to GPL. Sweet, though a public apology to the author of ImageMaster would be nice, especially as s/he has felt it necessary to pull the project from CodePlex (status has gone from Released and Stable to "not yet published" this week).

[ Reply to This | # ]

If you want to make money on Hackintoshes...
Authored by: Anonymous on Saturday, November 14 2009 @ 09:04 PM EST
Pay attention to what the hackintosh community is doing and make a line of
computers that "works very well" as a hackingtosh. Be a good and
cost-effective all-around computer and company and wait for the whisper campaign
to start.

DO NOT:
*market the model as "Apple compatible."
*make any statements, on or off the record, indicating you support hacking
*in internal company communications, do nothing more than make a note of any
3rd-party mention that your computer can be turned into an Apple clone. When
asked if you are trying to cater to the Hackintosh market, go so far as to
specifically state that you do not support violating software license
agreements.
*Especially do not even suggest to anyone that you have a secret agenda. If any
scrap of paper or any former employee or officer ever testifies that the primary
goal is to support the hackintosh crowd, it can at the very least make you an
attractive target for a lawsuit. Even if you win, you don't want the legal
fees.

DO:
*When asked, say you do not support it.
*Make sure open-source device drivers are available for all devices on your
system. By catering to the Linux/BSD crowd, you'll avoid the problem of
proprietary drivers that can limit Mac compatibility.
*Once Apple's lawyers contact you, start making trivial, easy-to-defeat changes
before releasing new motherboard designs new models are not 100% "out of
the box" compatible with existing Hackintosh software. This can be as
trivial as replacing a minor device with a newer one that has open-source
drivers but isn't supported yet by the hackintosh community. This will show
"good faith." It may not protect you from lawsuits but as long as
your changes are "merely annoying" and easily defeated you won't lose
many customers.


DO NOT:
*Cave into any of Apple's legal demands, unless your lawyers tell you to.

[ Reply to This | # ]

Yea! Freedom loses! But it doesn't matter anymore
Authored by: tz on Saturday, November 14 2009 @ 11:10 PM EST
If the issue was over a software patent instead of an EULA, would PJ and
everyone here be crowing?

In various libertarian fora where they talk about abolishing IP I do note they
tend to take contracts more seriously than even the courts do (things like
unconscionability). Then I point out that contracts often have worse terms and
restrictions.

Don't like slavery, then don't buy a slave?

The reason the GPL exists is not just to be a better or more principled EULA, it
is because the four freedoms themselves are protected by the GPL.

So in what way does this decision advance EVEN ONE of the four freedoms?

Or doesn't freedom (as in "Free / Libre ...") matter anymore?

Compare the list of the four against the Apple victory v.s. the Pystar
victory.

[ Reply to This | # ]

Send in the Trolls
Authored by: jbb on Sunday, November 15 2009 @ 12:56 AM EST
Isn't this rich?
Are we being unfair?
Me here taking the bait
Is it a snare?
Send in the trolls

What's their new pitch?
Does it ring a bell?
One who keeps getting it wrong
Another can't spell
Where are the trolls?
Send in the trolls

Just when I stopped feeding the trolls
Finally knowing the thread would be nuked for sure
Defending FOSS again with my usual flair
I call out a troll
no one is there

Do you love flames?
I don't my dear
I hoped they would stop when we stopped but
No dice I fear
Where are the trolls?
Quick, send for the trolls
There ought to be trolls
Don't bother ... they're here


---
You just can't win with DRM.

[ Reply to This | # ]

Why did Kiwi Camara lose so badly?
Authored by: bugstomper on Sunday, November 15 2009 @ 01:25 AM EST
The Courts decision seems very simple and clear to this layman, which brings up
a question for those of you more versed in legal things -- Kiwi Camara is
supposed to be really smart and really well trained (youngest person admitted to
Harvard Law School, graduated with top honors), and he took the case on the
basis of getting paid only if he won. So how did he miss all of the points
mentioned in the Court's decision regarding things like not being able to claim
some defense because he never raised it, or the really simple points like first
sale not applying because Psystar was selling multiple copies made from a master
image that was made by modifying a single purchased copy?

Can anyone make sense to me as to what Kiwi Camara was doing taking this case
and handling it the way he did?

[ Reply to This | # ]

On Software Patents...
Authored by: sproggit on Sunday, November 15 2009 @ 01:55 AM EST
Not sure if you noticed this in the ruling, but it contains something which I believe fully explains why the large software companies are so active in promoting the idea of software patents:

3. COPYRIGHT MISUSE.

Copyright misuse is a defense to copyright infringement. The copyright-misuse doctrine "forbids the use of the [copyright] to secure an exclusive right or limited monopoly not granted by the [Copyright] Office and which is contrary to public policy to grant." Altera Corp. v. Clear Logic, Inc., 424 F.3d 1079, 1090 (9th Cir. 2005). "The misuse defense prevents copyright holders from leveraging their limited monopoly to allow them control of areas outside the monopoly." A&M Records v. Napster, Inc., 239 F.3d 1004, 1026 (9th Cir. 2001).

Psystar argues that Apple misused its copyrights by continuing to prosecute allegedly "invalid" copyright infringement and DMCA claims against Psystar. This argument is unavailing. This order finds that Apple's claims are valid and has granted summary judgment in favor of Apple on those claims.


I may be mistaken, but I am fairly certain that we've not seen anyone able to claim "patent misuse" in any one of the disputes involving said governance model. More than that, the whole raison d'etre of filing for a software patent in the first place seems to be in order to block others from writing similar code.

[ Reply to This | # ]

PJ's Hyperbole City?
Authored by: Anonymous on Sunday, November 15 2009 @ 02:54 AM EST
The cases aren't over yet -- how many times has SCO been declared
"toast" here, only to see that the zombie rises yet again?

I kind of like these Pedraza brothers and it doesn't look like they're going to
just roll and over and die.

http://www.osnews.com/story/22479/Psystar_Owners_Speak_Out_Deny_License_Violatio
n

"The article details the stakes of the legal case between Psystar and
Apple, something we have already debated at great lengths here at OSNews. Robert
Pedraza contends that the company's actions are fully legal (obviously) and
likens software to books - much like Borland used to do back in the '80s.

"It's like buying a book," Robert says, "Once I own it, I can
tear pages out, underline sentences, even rewrite a whole section. And if I can
find a buyer, I can resell that one copy however I please."

"I especially like the one-sentence summary of the case in the article:
"So the California case, in essence, comes down to whether Apple's
licensing agreement trumps the Pedrazas' rights as consumers." That about
sums this entire thing up in my book."

I find this bit interesting also...

"The article also has quite a few details about the financial aspect of it
all. Several people claim that Microsoft or Dell are behind Psystar, funding
them with money to fight Apple. In fact, PJ from Groklaw takes it all a step
further by claiming Psystar is another attempt by Microsoft to bring down the
GPL, and that it's related to the SCO case.

"However, when looking at the financial statements of Psystar, it becomes
clear that Rudy Pedraza is facing quite some financial hardships. The bankruptcy
papers from earlier this year showed a 120000 USD personal loan from Rudy, and
he states this is only a fraction of the debts incurred by the legal case. The
company also once owed 88464 USD to its previous legal firm, 12793 USD to DHL
for shipping costs, and 25000 to its credit card processor.

"There's no question I'm investing a lot of money," Rudy says, but he
denies all claims that bigger companies are funding Psystar to continue its
legal struggle with Apple. "I'm the secret funder. It's just me," he
adds."

The full newspaper article about the two brothers who *are* Psystar can be found
below:

http://www.miaminewtimes.com/2009-11-12/news/miami-boyz-versus-apple-computer

[ Reply to This | # ]

"Massacred" yet I can still buy their computers?
Authored by: Anonymous on Sunday, November 15 2009 @ 03:02 AM EST
As, I say, Hyperbole City. And even if it were true, it kind of like rooting for
Goldman Sachs in their "epic" battle against "Joe and Ed's
Bank" in Bubba, MS (population 3,000).

[ Reply to This | # ]

Ooops! Maybe it's not "over" yet
Authored by: Anonymous on Sunday, November 15 2009 @ 03:10 AM EST
"Alsup's ruling did not cover several other claims filed by Apple involving
breach of contract, trademark infringement, and other issues. The judge's ruling
also did not address any relief Apple may be entitled, too. Previously, the
computer maker had asked for a permanent injunction that would bar Psystar from
selling any more hardware with Apple software and force the clone-maker to
recall every OS X machine that it's sold.

"While Friday's ruling was a definitive victory for Apple, it may not be
the end of the company's legal contretemps with the Miami-based clone maker. In
August, Psystar filed suit against Apple in Florida, claiming that Apple
illegally ties Snow Leopard to its hardware. Psystar has been selling Mac clones
with OS X 10.6 installed."

http://www.pcworld.com/article/182216/judge_rules_in_apples_favor_in_psystar_cas
e.html

Like I said, I can still go to Pystar's website and buy one of their Mac clones
(if I had any interest in OS X) -- so what kind of "final" victory is
this really?

Probably should lighten up on the hyperbole, there.

[ Reply to This | # ]

No everyone agrees with PJ on this
Authored by: complex_number on Sunday, November 15 2009 @ 03:14 AM EST
Some commentators over at OSNews totally disagree with PJ. One even called her a
'rabid cultist'.
I'm not going to link to their rantings for obvious reasons but that is a bit
rich. From my own readings I think PJ has offered a well balanced argument on
this throughout. But hey some people only read the headlines and not the
substance.
finally for Groklaw to be mentioned in the same sentence to the "News of
the World" ( A Murdoch paper) is very sad. I would'nt wipe my .... with it.

---

Ubuntu & 'apt-get' are not the answer to Life, The Universe & Everything which
is of course, "42"

[ Reply to This | # ]

Apple Wins Like a Champ - Psystar is Toast -- What? You're Surprised?
Authored by: Anonymous on Sunday, November 15 2009 @ 04:20 AM EST
I am not surprised to see Apple win here.

What surprises me is reading how PJ is happy about it. Enforcing EULAs and this
kind of maximalist power to copyright holders to control things even after they
have been paid for each copy is contrary to freedom.

The GPL is a wonderful tool for freedom but we should not abandon others. First
Sale is another tool for freedom even if limited. Just because the GPL can
sometimes turn copyright on its head doesn't change the fact that excessive
copyright power and excessive weight given to adhesion contracts are both bad
for all our freedom.

We would all be better off if our govenment didn't buy any of this license
business and regarded a sale as a sale is a sale end of story. The fact it does
not comes from the golden rule, whoever has the gold makes the rules.

[ Reply to This | # ]

Apple Wins Like a Champ - Psystar is Toast -- What? You're Surprised?
Authored by: luvr on Sunday, November 15 2009 @ 07:53 AM EST
Yes, I'm surprised!

How could this have happened so fast? I would have expected it to take anywhere from five to ten years—or even longer.

Or did the SCO case distort my view of the judicial system that much? ;-)

[ Reply to This | # ]

  • Fast - Authored by: billyskank on Sunday, November 15 2009 @ 10:12 AM EST
Why the latest precedent?
Authored by: Anonymous on Sunday, November 15 2009 @ 09:06 AM EST
From the order:
As Apple pointed out, Psystar waived any Section 117 essential step defense when it failed to plead it. Psystar counters that it has not waived Section 117 because that provision is a limitation on a copyright owner's exclusive rights rather than an affirmative defense. An earlier Ninth Circuit decision stated "Section 117 defines a narrow category of copying that is lawful per se" and "Section 107, by contrast, establishes a defense to an otherwise valid claim of copyright infringement." Sega Enters. v. Accolade, Inc., 977 F.2d 1510, 1521 (9th Cir. 1992). Since then, the Ninth Circuit has expressly referred to Section 117 as a defense. See Wall Data Inc. v. L.A. County Sheriff's Dep't, 447 F.3d 769, 776 (9th Cir. 2006) (referring to Section 117 as an affirmative defense); Asset Mktg. Sys. v. Gagnon, 542 F.3d 748, 754 (9th Cir. 2008) (referring to Section 117 as a defense). As such, this order treats Section 117 as an affirmative defense.

Here it seems that the court is allowing the rulings from more recent decisions to take precedence over an earlier one; yet in the recent Vernor v Autodesk ruling, a 9th District court stated that older precedents should prevail:
With two sets of conflicting precedent before the court, the question becomes which to follow. That question, at least, has a simple answer. The court must follow the oldest precedent among conflicting opinions from three-judge Ninth Circuit panels.
Why the difference?

[ Reply to This | # ]

Apple Wins Like a Champ - Psystar is Toast -- What? You're Surprised?
Authored by: billyskank on Sunday, November 15 2009 @ 10:10 AM EST
but, but, but ... what if they hadn't used the master and just used each copy, then would it work?

I think that still would have been illegal, although it would have been a less egregious offence.

---
It's not the software that's free; it's you.

[ Reply to This | # ]

Apple Wins Like a Champ - Psystar is Toast -- What? You're Surprised?
Authored by: Anonymous on Sunday, November 15 2009 @ 12:37 PM EST
"Use what you want, but think it through more deeply than just thinking
about what you want this minute or what's more convenient. Why do you think
Stallman started trying to create Free Software? Because he knew how to fix a
printer but the license wouldn't let him. He already saw what you are seeing
with this Psystar case. Proprietary means restrictions on use. It does."


I find this paragraph to be utterly perplexing.

Apple clearly demands restrictions on use of its O/S product, which seems to
separate it from Free Software principles rather completely.

I don't get how Apple is among the good guys here (not that Psystar is either)
with regard to Free Software ...

[ Reply to This | # ]

so if the imaging server used a DVD changer it would be OK??
Authored by: Anonymous on Sunday, November 15 2009 @ 08:01 PM EST
so if pystar opened the boxes and installed OSX from the stack of identical DVDs
instead of copying one DVD to the image server and installing from that they
would be OK?

this also means that everyone who sets up media servers at home and copies their
CDs and DVDs to the media server instead of using the DVDs and CDs manually is
violating copyright law

I see this as a significant blow against us as consumers, not a victory

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Using a master copy is illegal!?
Authored by: Anonymous on Monday, November 16 2009 @ 08:42 AM EST
Catch that? Even if Psystar were the lawful owner of the copy, it still can't do what it did. The court quotes from Microsoft Corp. v. Software Wholesale Club, Inc.: "the first-sale doctrine does not apply to an admittedly counterfeit unit". So, no, you can't buy a copy and use it to go into a counterfeiting business, in effect. Terekhov's theory has bitten the dust and then had to eat some. Just like Daniel Wallace's anti-GPL theory did. Whoever is relying on their legal theories might want to buy a vowel and try to figure this puzzle out.

So, what the judge is saying here is that HP,DELL, and every other distributor of Windows are also making illegal copies, and every mom and pop store that sells PCs are also? Also, every efficient IT department is also making illegal copies (maybe, the judge appears to be supporting the techs as the company's they work for are potentially the owners of the DVDs, just maybe). I don't know of any competent IT tech that uses the original DVDs/CDs of software. Every good IT technician uses a ghost copy of the company standard install. It makes the work of replacing a dektop a half hour process instead of days.

Now, I don't know all the details of Psystar, and don't like some of the claims they've made. I don't know if, as PJ thinks, they are another SCOTroll or not. However, Psystar shouldn't lose this point merely for making a master copy to burn with. It's an industry stanard method and should be protected. If I was making and selling Linux PCs, I would do no this.

However, if Psystar, bought sufficient licenses for the PCs they bought, and shipped only as many Macs as they had licenses, minus any licenses they use, they should have won this point. So the real question is did they make more copies than they had licenses for? If they didn't, then they were in the right on this point and should have won it. How it related to their EULA is another matter, and I won't develop that RANT here. It has been sufficiently noted by many common sense people before.

[ Reply to This | # ]

The prosecuter to judge
Authored by: Anonymous on Monday, November 16 2009 @ 10:43 AM EST
This does no good!

> ... ignore trolls ...

How? If I had to read something like:

> And to those who argue that all that matters
> is that open source is a better way to develop code,
> let this case be a warning message.
> Apple makes fabulous code. Of course, the BSD community
> did a lot of it for them, but Apple makes it
> all just work for end users, and they do that
> beautifully. So no one can argue that for end users
> it is not fabulous code. It is.

I haven't had to read something less biased for a long time. Let's look for some
supporting facts:
i.e. http://blogs.zdnet.com/security/?p=2748

What a sensation. Instead of fueling millions into OS development and research,
just take a full grown OS and spent the millions in eye candies. And you get
fabulous code. If you don't be stupid and make some nasty and dumb
modifications. Modifications that unlock doors. If the doors are kept at all.

And by the way. Every attempt from Apple (and Steve P. Jobs) to make an own OS
was disastrous. Only when they took FreeBSD with their own kernel and bought
every piece of software that was needed for a full blown OS (i.e. cups) there
was something usable. Microsoft and Windows isn't the state of the art. Neither
is Mac OS X. I remember Star Trek and Pink and even more.

Apple is good in offering the options the end-user needs in first place. Nothing
more. Not even that. It makes people think Apple offers it.

Now back to the topic: This is the very start for the hackintosh business. As
they now know what to avoid. It's the first step for Apple to loose credit. And
they have done a remarkable good job at it.

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Apple Wins Like a Champ - Psystar is Toast -- What? You're Surprised?
Authored by: AMackenzie on Monday, November 16 2009 @ 10:46 AM EST
"Terekhov's theory has bitten the dust and then had to eat some."

PJ, why are you feeding Alexander Terekhov? He's a software engineer who lives
in Germany and only speaks English as a second language, though he does that
well. I don't see how he's qualified to make pronouncements about arcane areas
of alien copyright law.

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Apple Wins Like a Champ - Psystar is Toast -- What? You're Surprised? Enough?
Authored by: Anonymous on Monday, November 16 2009 @ 11:17 AM EST
"So here is my question: is that enough?"

For now, yes, but as they keep telling us, it's not over until the fat lady
sings. So, let us know what the outcome of the California trial is available
and the outcome of the Florida trial.

But as far as on-going blow by blow is concerned, unless something exciting
happens or you get bored with nothing else to do, you have done an outstanding
job in educating us. Thank you for all your hard work. We do appreciate it.

[ Reply to This | # ]

Can you be "guilty" in a civil action?
Authored by: Anonymous on Monday, November 16 2009 @ 11:49 AM EST
"Judges notice if you were just found guilty of a similar cause of action
in another state."

Isn't this is civil action? Doesn't it have to be a criminal trial for you to
be "guilty"? Seems like only the govt. can charge a crime.

[ Reply to This | # ]

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