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What's the Latest in the Psystar Appeal?
Wednesday, July 28 2010 @ 02:16 AM EDT

Let's catch up quickly in the Psystar/Apple situation, so we don't miss any of the action. When I read the new DMCA exemptions EFF won, I immediately started to think about Psystar, so I wanted to see what's new. Maybe you did too. So here's the latest I could find. The appeal is going forward. Presumably the next step in the appeal will be oral argument, although I can't swear to it, since Psystar filed its brief under seal with the Ninth Circuit Court of Appeals back in May, so we can't read it, and that's when they would have made the request or not. I can't believe the entire document needed to be sealed, but that is what happened. Perhaps they'd prefer we not get a chance to analyze it? Apple has now filed its answering brief [PDF], along with a request [PDF] that the court take judicial notice of the Florida litigation, and Psystar has just filed its reply brief [PDF], and these documents are not sealed, so we finally get to find out what it's all about.

What Psystar wants is nothing less than to overturn copyright law as we know it and create a new doctrine of per se copyright misuse any time a copyright owner restricts use of its software to particular hardware.

Wait. Isn't that kind of what TurboHercules is whining about too? Here's what TurboHercules told us it wants: "We simply want IBM to agree to allow legitimate paying customers of its z/OS mainframe operating system to deploy that software on the hardware platforms of their choice – including, should they so choose, on low-cost servers using Intel or AMD microprocessors and Hercules." Psystar and TurboHercules are going after different software, but they want exactly the same thing, to force the software creator to let them use it on hardware the owner doesn't want it used on. And of course, they are two noble hearts with no interest in the buckets of money they'd thereby gain, without having to do the hard work of actually creating their own software. Let Apple and IBM pay for all that, and then they swoop in and make sure the creators don't benefit from their labor, so that Psystar and TurboHercules can.

You know what I find so striking? This is just one of four cases trying to grab some measure of control or use of other people's software against the owners' will, starting with the SCO v. IBM case.

All four cases wish to make it impossible for software creators to control their work, so that others can financially benefit from it. Let's itemize:

  • First there was the SCO v. IBM case, wanting Linux users to have to pay SCO a toll, in violation of the terms of the GPL, the license Linux comes with. SCO tried to argue that the GPL was unConstitutional, so as to deep six it, until we all laughed so hard they withdrew that claim. But they tried.

  • Then IBM v. Platform Solutions, Inc. and T3 Technologies came along, which involved complaints by T3 about IBM's refusal to deal, an antitrust case IBM won, with T3's complaint dismissed on summary judgment.

  • Then Apple v. Psystar, with Psystar arguing that writing an operating system was too hard, so Apple should be forced to let Psystar use Apple's software on Psystar hardware, in violation of the EULA.

  • And recently TurboHercules stirring things up against IBM again with antitrust complaints about tying software and hardware with respect to services, with IBM saying "there is no merit to the claims being made by Microsoft and its satellite proxies.”
    And these are very strange cases. SCO and Psystar... well, their legal positions are ... um... other-worldly, as in alternate universe-y odd. Yet they persist, through rainstorm, wind, hail and snow. Here's what I notice. Three of the cases are targeting IBM, which endorses Linux, and Microsoft's shadow is in those three pictures for sure, via support to a proxy. The fourth targets another major competitor of Microsoft's. I mean, what are the odds? Slim? Or none?

    If any of these four cases were successful, a Microsoft competitor's business would be significantly altered, from their standpoint harmed, and it would be easier for Microsoft to compete. They aren't in the integrated hardware/software products business, other than the X-box, which hasn't been a money-maker for them. That's what I notice. But if you wanted to persuade me that some foreign hostile government was trying to destroy the US economy, I'd actually listen. It's just that destructive. And the simple truth is, while none of these cases seem likely to be successful, just having to deal with the litigation is hurtful, even if in the end, IBM and Apple continue to win.

    Here's the per se thing Psystar is shooting for, as Apple explains it in its brief:

    Because Psystar has no proof that Apple has inhibited competition or suppressed creativity, Psystar urges this Court to abandon long-standing precedent and create a new doctrine of per se copyright misuse. Under this doctrine, any license agreement—such as Apple’s SLA—that restricts the use of copyrighted software to particular hardware is per se copyright misuse. Alternatively, Psystar insists that Apple’s successful copyright infringement claims were a baseless sham constituting copyright misuse. Neither argument has any merit.

    Psystar’s grossly overbroad per se theory of copyright misuse would eliminate fundamental rights guaranteed by the Copyright Act—the rights to control the reproduction, modification, and distribution of copyrighted works. The protection of such rights has fostered pro-competitive activities, such as the massive investments required to create high-quality products that tightly integrate software and hardware. If Psystar’s position were adopted, copiers would be free to ignore license terms, circumvent TPMs, extract software from a variety of products—from cell phones to computer systems—and modify it for use in other products.

    Here's another major point from Apple:
    Apple’s success results in large measure from its unique ability to design and develop fully integrated products combining Apple’s Mac OS X operating system, hardware, application software, and services.
    So that is where Apple is planting its flag. And having used their products myself, I can say this isn't just an empty legal argument. It's true.

    Here's a good explanation of Apple's brief from another paralegal who is following the litigation also, dizzle on World of Apple:

    Unlike the other early filings in the Appeal, this item was not filed under seal. It is broken into three primary categories which I will follow in digesting the Brief. I remind the readers that Appeals are limited to mistakes of law or fact and thus are usually much more narrow than the issues in the underlying suit. For example, Psystar did not appeal the dismissal of its antitrust counterclaims that were originally alleged in the California case. Nor did it ever supply the California Court with the requested information for a determination to be made on the Rebel EFI product which was enjoined until Psystar could prove that its operation was substantially different from the issues ruled upon. Based upon this latter fact, Apple argues that Psystar has waived its right to ask the Appellate Court to remove Rebel EFI from the Injunction.

    We do learn some details about Psystar’s sealed Opening Brief. Apple alleges:

    Nonetheless, on the pretext of educating the Court regarding the technology at issue in this case, Psystar supplies a “Technical Addendum” with its opening brief. This document appears to be a veiled attempt to revive factual claims the district court has rejected and Psystar has abandoned on appeal. (Page 11 of Answering Brief)
    Psystar has more veils than a harem girl.
    Psystar now asserts that installation of Psystar’s bootloader and numerous kernel extensions is unnecessary to run Mac OS X on Psystar computers absent the existence of Apple’s TPM [technological protection measure]. Opening Br. At 27. But this claim is contrary to the unchallenged factual record. For example, even if Apple did not implement its TPM, Psystar would still be required to modify Mac OS X by replacing the bootloder and modifying certain Mac OS X kernel extension files to force the operating system to run on non-Apple hardware. (Page 15 of Answering Brief)
    Next Psystar will build a phone, and tell the Florida court the Copyright Office told them jailbreaking is legal, harmless and possibly useful. You think I jest.

    But ah! The EULA! Don't forget the EULA. Here's Jennifer Granick of EFF on the impact of the new rules, interviewed for an article by Erica Ogg and Declan McCullagh, which explains what the changes mean:

    We asked Jennifer Granick, an attorney with the Electronic Frontier Foundation, the San Francisco-based civil liberties group that successfully petitioned the Copyright Office for the exception. "Apple's never sued jailbreakers, but they claim it violates the DMCA, and thus there's a legal cloud. If they were right, they could stop people from jailbreaking the phones, i.e. get an injunction. Now, they can't. Even if it violates contract law, they'd have to sue, and all they could get would be a tiny bit of money. It greatly decreases any incentive they might have or develop to sue. And it takes injunction off the table. Which means that the law will not, in the next three years, prevent people from jailbreaking their phones."

    In addition, the possibility of punitive damages has been eliminated.

    So, what she is saying is that Apple can still sue you over the EULA, but it's not cost effective to do so, and that probably means they won't. But she also admits Apple has never sued someone for jailbreaking a phone. So. What. Does. That. Tell. You? Here's what EFF is interested in, by the way, trimming back some of the harm the DMCA has done. I don't believe Psystar's goals are so elevated.

    Granick is also saying that if you are sued, your damages will be less. But they can still sue you, as the article goes on to explain, under contract law, meaning the EULA:

    What that means is that Apple can still legally -- if it chooses -- protect its phones from jailbreaking. The contract formed between the user and Apple (and the user and the wireless carrier) when the iPhone owner agrees to the user licensing agreement is binding, says Tom Sydnor, a senior fellow with the Progress and Freedom Foundation who takes an expansive view of copyright law.

    Just because the DMCA allows individuals an exemption to jailbreak their own phones, "it doesn't mean Apple or a carrier can't protect contractual restrictions to deal with it," Sydnor said. "Essentially the exemption says this is the sort of thing that falls in bounds of contracts."

    Apple could pursue breach of contract if someone jailbreaks their phone, or they could sue a person or company that creates jailbreak software for inducing someone to breach their contract with Apple. In other words, Sydnor said, "even if there was no DMCA, you could still be bound not to circumvent that technological protection."

    And Apple can even argue in court that the US Copyright Office is wrong, by the way. Also, keep in mind one of the reasons the Copyright Office thought it would be OK to let people jailbreak phones doesn't apply to folks like Psystar:
    It said, for instance, that "the amount of copyrighted work modified in a typical jailbreaking scenario is fewer than 50 bytes of code out of more than 8 million bytes, or approximately 1/160,000 of the copyrighted work as a whole."
    Obviously, taking the entire Mac OSX operating system as your own is not equivalent to jailbreaking 50 bytes of code. Also, the goal being supported by the change is interoperability. EFF:
    "Copyright law has long held that making programs interoperable is fair use," confirmed Corynne McSherry, EFF's Senior Staff Attorney. "It's gratifying that the Copyright Office acknowledges this right and agrees that the anticircumvention laws should not interfere with interoperability."
    Psystar did kind of try that argument once, IIRC. Perhaps it will recycle in Florida. And we might see this one in Florida too, depending on how the appeal goes. So, while I'm not saying this new jailbreaking issue *should* come into this litigation, it's been so weird so far, I'm just thinking we should be alert for anything.

    Meanwhile, in the appeal they argue copyright misuse. Because the EULA continues to stand in the way of Psystar's dreams of selling their competing hardware with Apple's operating system on it. So like SCO trying to destroy the GPL, Psystar now tries to get Apple's license cast overboard so it can do what it pleases.

    Now to the documents themselves, so you can read for yourself and make up your own minds. The Florida District Court has granted the joint motion to stay the Psystar v. Apple litigation there, pending the appeal of the Apple v Psystar decision in the California litigation. No surprise there. It means maybe Florida will die aborning, depending on what happens in the appeal. Here's the docket:

    07/23/2010 - 14 - ORDER granting 13 Joint Motion to Stay. Counsel shall file a brief status report within (90) days from the date of this order advising whether this matter should remain stayed or resolution of the appeal. (see further details in order). Signed by Senior Judge William M. Hoeveler on 7/23/2010. (ag) (Entered: 07/23/2010)

    And in the Ninth Circuit, here are the filings:

    06/15/2010 - 15 - Filed clerk order (Deputy Clerk:CAG): The appellee's motion for an extension of time in which to file the answering brief is granted. The answering brief is due July 8, 2010. The optional reply brief is due 14 days after service of the answering brief. [7372209] (AF)

    07/08/2010 - 16 - Submitted (ECF) Answering brief for review. Submitted by Appellee Apple Inc.. Date of service: 07/08/2010. [7398321] (JGG)

    07/08/2010 - 17 - Filed (ECF) Appellee Apple Inc. Motion to take judicial notice of Information of Related Cases in Florida. Date of service: 07/08/2010. [7398322] (JGG)

    07/09/2010 - 19 - ENTRY UPDATED. [Edited 07/12/2010 by WP] Filed Appellee Apple Inc. excerpts of record in 2 volumes. Served on 07/08/2010. [7400279] (WP)

    07/12/2010 - 18 - Filed clerk order: The answering brief [16] submitted by Apple Inc. is filed. Within 7 days of the filing of this order, filer is ordered to file 7 copies of the brief in paper format, with a red cover, accompanied by certification, attached to the end of each copy of the brief, that the brief is identical to the version submitted electronically. [7400249] (WP)

    07/13/2010 - 20 - Received 7 paper copies of Answering brief [16] filed by Apple Inc.. One copy to Case Files, the remainder to Records. [7404979] (YA)

    07/26/2010 - 21 - Submitted (ECF) Reply brief for review. Submitted by Appellant Psystar Corporation. Date of service: 07/26/2010. [7418271] (KDC)

    We learn from Apple's answering brief what the main issues are on appeal:

    1. Whether the district court, after finding that Psystar infringed Apple’s copyrights and violated the DMCA, correctly rejected Psystar’s defense of copyright misuse where (a) Apple’s software licensing agreement imposes only reasonable restrictions on licensees, and (b) Psystar made no showing that Apple wielded its copyrights to undermine the public policy of promoting invention and creative expression.

    2. Whether the district court correctly enjoined Psystar from infringing Apple’s copyrights in all versions of Mac OS X—including Snow Leopard, the latest version (and a derivative work) of Mac OS X—when the evidence demonstrated Psystar’s consistent pattern of deliberate infringement and the clear threat of future infringement.

    3. Whether the district court correctly refused to exclude from its injunction Psystar’s allegedly new product, Rebel EFI, when Psystar failed to present evidence regarding Rebel EFI sufficient to enable the court to determine whether Rebel EFI differed from Psystar’s past infringement and declined the district court’s invitation to move to exclude Rebel EFI from the injunction.

    4. Whether the district court properly sealed those portions of the summary judgment record that reveal the trade secret details of Apple’s proprietary lock-and-key encryption technology and Psystar’s method of circumventing that technology, because there is no legitimate public interest in disclosing this type of information.

    Methinks Psystar sealed overmuch, m'lords. They surely could have told us that much. Apple, early in its Introduction says:
    As found by the district court, and not disputed in this appeal, appellant Psystar Corporation (“Psystar”) is a “hardcore” copyright infringer....The trial court’s decision was correct in every respect and should be affirmed.
    Here's the Apple EFI argument from their brief:
    The court stated that the record presented by Psystar was “so sketchy, I can’t tell” (ER 85:1) and that “Psystar’s opposition brief appears to purposefully avoid providing a straightforward description of what Rebel EFI actually does” (SER 69- 70) (italics in original). The court invited Psystar to file
    a new motion before the undersigned that includes real details about Rebel EFI, and [to] open[] itself up to formal discovery thereon. This would serve the purpose — akin to post-injunction motion vetting a ‘design-around’ in a patent action — of potentially vetting (or not vetting) a product like Rebel EFI under this order’s decree. Moreover, Psystar may raise in such a motion any defenses it believes should apply to the factual circumstances of its new product, such as the 17 U.S.C. 117 defense raised in its opposition and at oral argument.
    Apple v. Psystar, 673 F.Supp. 2d at 955 (SER 70).

    Psystar chose not to file such a motion presumably because, as its opening brief concedes, Rebel EFI was a clear continuation of Psystar’s past infringing activity. Psystar thus deprived the district court of the evidence it needed to address this issue and abandoned the request for a carve-out of Rebel EFI. By doing so, Psystar waived its right to appeal this issue. See Foti v. City of Menlo Park, 146 F.3d 629, 638 (9th Cir. 1998) (appellant picketers waived their right to a preliminary injunction since they failed to provide additional briefing the district court requested because it needed a fuller explanation of the issues).

    So that's Apple's position. What about Psystar? Its Reply Brief isn't sealed, so we get to know.

    The Psystar table of contents in its reply has only three items, 1) copyright misuse, 2) scope of the injunction, and 3) sealing orders.

    In contrast, here's Apple's table of contents:


    STATEMENT OF ISSUES ......................................................................................1

    I. INTRODUCTION................................................................................2

    II. STATEMENT OF THE CASE ............................................................3

    III. STATEMENT OF FACTS...................................................................7

    A. Apple And Its Integrated Products.............................................7

    B. Apple's Registered Copyrights In Mac OS X .........................10

    C. Psystar's Infringement Of Apple's Copyrights .......................10

    1. Psystar's Unauthorized Reproduction Of Mac OS X ..............................................................................11

    2. Psystar's Unauthorized Distribution Of Mac OS X ......13

    3. Psystar's Unauthorized Modification Of Mac OS X ..............................................................................14

    D. Psystar's Circumvention Of Apple's Technological Protection Measure ..................................................................15

    E. The District Court's Injunction................................................17

    IV. SUMMARY OF THE ARGUMENT.................................................18

    V. STANDARDS OF REVIEW .............................................................21

    ARGUMENT ..........................................................................................................21

    I. THE DISTRICT COURT CORRECTLY REJECTED PSYSTAR'S AFFIRMATIVE DEFENSE OF COPYRIGHT MISUSE .............................................................................................21

    A. Courts Have Rejected Psystar's Per Se Theory.......................23

    B. Copyright Misuse Requires Proof That The Copyright Owner Has Exceeded Its Rights And Injured Competition Or Inhibited Creativity .............................................................27

    1. A Misuse Defense Based On Harm To Competition From A Tying Arrangement Requires At Least A Showing Of Abuse Of Power In The Market For The Copyrighted Work...............................28

    2. Alternatively, The Misuse Defense Requires Proof That The Owner's Actions Have Suppressed Creativity In The Independent Development Of Other Works...................................................................31

    C. Apple's Software License Does Not Constitute Copyright Misuse Because It Does Not Restrain Competition Or Inhibit Creativity ......................................................................32

    D. Psystar's Authorities Do Not Support A Finding Of Misuse ......................................................................................34

    E. There Was No Copyright Misuse Based On "Sham" Litigation ..................................................................................37

    2. It Is Not An Abuse Of Process To Assert Valid Copyrights......................................................................39
    II. THE DISTRICT COURT CORRECTLY ENJOINED PSYSTAR'S CONTINUING INFRINGEMENT AND DMCA VIOLATIONS....................................................................................43
    A. The District Court Did Not Abuse Its Discretion By Enjoining Psystar's Unlawful Acts..........................................45
    1. AMC Entertainment Does Not Preclude A Nationwide Injunction To Prohibit Psystar's Pattern Of Unlawful Conduct ........................................46

    2. The District Court Did Not Abuse Its Discretion By Refusing A Carve-Out For Mac OS X Snow Leopard And Rebel EFI.................................................48

    a. Mac OS X Version 10.6 Snow Leopard..............50

    b. Rebel EFI.............................................................51

    B. Psystar Forfeited Its Opportunity To Limit The Scope Of The Injunction ..........................................................................52
    A. Apple Has A Compelling Interest In Keeping Its Technological Protection Measure Confidential .....................55

    B. The District Court's Sealing Orders Were Based on Adequate Proof of Trade Secret Content.................................57


    STATEMENT OF RELATED CASES ..................................................................61

    See how you can tell what Psystar's arguments were by reading Apple's response? Psystar wants to be able to reveal how Apple protects its copyrighted works, so you and I can do what they did, I suppose. From Apple's brief, page 4:
    The order dismissing Psystar’s antitrust counterclaims permitted Psystar to move for leave to amend, but the order required Psystar to explain how it would remedy the deficiencies in its original pleading through amendment. Apple Inc. v. Psystar Corp., 586 F. Supp. 2d 1190, 1204 (N.D. Cal. 2008) (SER 16). Psystar sought leave to amend but did not attempt to reassert the antitrust counterclaims. Instead, Psystar alleged counterclaims for declaratory relief of copyright misuse and for unfair competition. The district court allowed the copyright misuse claim, reasoning that it already existed as an affirmative defense in the case. But the court dismissed Psystar’s unfair competition claims because those allegations (a) conflicted with Psystar’s already-rejected single-product market theory, and (b) failed to identify any actual or incipient violation of antitrust laws. SER 24. Psystar also does not appeal from this order.
    But let's let Psystar speak for itself. First on copyright misuse, its main defense:
    This case is about Apple’s attempt to control, through copyright, how purchasers of copies of OS X use their copies of OS X. Apple is free to — and does — do this by contract. The question is whether Apple’s attempt to do this by copyright too, and thereby gain access to the threat of statutory damages, constitutes copyright misuse...

    Apple must admit that the Fifth Circuit held that it was misuse to use a copyright to prevent a competitor from offering compatible, cheaper hardware for use with a copyrighted operating system. Alcatel, 166 F.3d at 792–93....

    If the right to make use of a copyrighted work exclusive is not granted by the Copyright Act then, a fortiori, the right to make use of an adjunct to the copyrighted work — here, the physical computer hardware — exclusive is not granted by the Copyright Act.

    Apple says that its restriction fosters competition and does not limit creativity. R. at 33–34. Not so. If Psystar is allowed to sell its competing hardware for use with OS X, then customers can choose between Apple’s integrated product, OS X on a Macintosh, and Psystar’s cheaper, unintegrated product, OS X on an Open Computer. And further creativity and competition can be expected as other companies, like Dell and Lenovo, compete to offer the best hardware platform for different users.

    So are Dell and Lenovo behind this? I can't help but wonder. Someone bigger than Psystar seems to want to use Apple software on their own hardware and make buckets of money from software they didn't write.

    I have a question for Psystar, something I don't yet fully understand. How is it using copyright when it's the EULA doing the restriction, and the restriction is on how you can use the software, not the hardware? I mean, I can put Linux on an iMac if I want to, or Microsoft Windows. And EULAs are used precisely to take away rights that otherwise copyright gives you. It's not copyright law blocking Psystar, as far as I can understand; it's the EULA. Psystar acknowledges that a copyright owner has the right to refuse to sell you its copyrighted work. It has the right to restrict you by contract, it even says. The part it can't seem to figure out is that the copyright owner can also say you can buy it but only on certain terms. Then you get to decide if you like the terms or not. I gather Psystar still wants this to be about the EULA.

    Finally, here's Apple's answer to the Alcatel reference:

    In Triad Systems Corp. v. Southeastern Express Co., 64 F.3d at 1337 (9th Cir. 1995), the Ninth Circuit squarely rejected this per se theory. There, this Court held that the copyright owner’s requirement that its software be used exclusively with its hardware and services was not copyright misuse. Psystar ignored this key authority in briefing below, and it does so again on appeal.

    Triad licensed its copyrighted operating and diagnostic software for use by its licensees in the operation of computers sold and maintained by Triad. Id. at 1333. Triad’s software licenses strictly prohibited any other use. Id. Triad alleged that Southeastern, an independent service organization, infringed Triad’s copyrights when Southeastern technicians serviced a licensee’s computer because copies of Triad’s operating and service software were loaded into memory when the computer was being serviced. Id. Southeastern asserted a copyright misuse defense, claiming “that Triad ha[d] used its intellectual property monopoly over Triad software to leverage its position in the Triad computer maintenance market.” Triad Sys. Corp. v. Southeastern. Exp. Co., 1994 WL 446049, at *13-14 (N.D. Cal. Mar. 18, 1994). The district court rejected this argument because “Southeastern failed to demonstrate that Triad’s practices are anticompetitive” and “cannot dispute that copyright owners like Triad are within their rights in using and enforcing restrictive license agreements.” Id.

    On appeal, the Ninth Circuit affirmed. This Court held that Southeastern could not prove copyright misuse because “Triad did not attempt to prohibit Southeastern or any other ISO [independent service operator] from developing its own service software to compete with Triad.” Triad, 64 F.3d at 1337. This Court also explained that Triad’s copyright fairly extended into the service market: “Triad invented, developed, and marketed its software to enable its customers and its own technicians to service Triad computers. Southeastern is getting a free ride when it uses that software to perform precisely the same service.” Id.

    Other courts also have rejected copyright misuse claims based on licenses restricting use of copyrighted software to particular hardware. In Service & Training, Inc. v. Data General Corp., 963 F.2d 680 (4th Cir. 1992), the Fourth Circuit upheld the copyright owner’s right to specify the computer hardware on which its proprietary software could be run. The court found that there could be no copyright misuse where “appellants [] offered no evidence that Data General did anything beyond limiting the use of the software to repair and maintenance of specific computer hardware, activity that is protected as an exclusive right of a copyright owner.”Id. at 690.

    Numerous district courts also have adopted similar reasoning to reject misuse defenses based on “leveraging” or “tying” the use of copyrighted software to specified services or hardware. See Atari Games v. Nintendo of Am., Inc., Nos. 88-4805, 89-0027, slip op. at 5-6 (N.D. Cal. Mar. 5, 1991) (no misuse where no proof that license “restrictions restrain[ed] the creativity of Nintendo licensees and thereby thwart[ed] the intent of the patent and copyright laws”), aff’d on other grounds, Atari Games Corp. v. Nintendo of Am., Inc., 975 F.2d 832, 846 (Fed. Cir. 1992); In re Indep. Serv. Orgs. Antitrust Litig., 910 F. Supp. 1537, 1542 (D. Kan. 1995) (no misuse where there was “no evidence that Xerox’s licensing agreement prohibit[ed] CSU from developing its own diagnostic software for Xerox copiers”); Advanced Computer Servs. of Mich., Inc. v. MAI Sys. Corp., 845 F. Supp. 356 (E.D. Va. 1994) (no copyright misuse where MAI’s license restrictions were not designed to prevent infringer from developing competing software); Microsoft Corp. v. BEC Computer Co., 818 F. Supp. 1313, 1316-17 (C.D. Cal. 1992) (rejecting copyright misuse defense where “Microsoft’s License Agreements do not prohibit defendants from independently implementing programs similar to MS-DOS and WINDOWS” or “selling their computers without accompanying software operating system”).

    Psystar’s per se theory of copyright misuse is a far more radical and sweeping attack on the rights guaranteed by copyright than the misuse defenses soundly rejected by other courts. By urging this theory, Psystar asks this Court to compel Apple to license its proprietary software to competitors for use on their own computer hardware. Such a compulsory license is contrary to the constitutional and statutory framework for copyrights, which explicitly grants copyright owners the right to exclude others as an incentive to create new works. 17 U.S.C. § 106; Stewart v. Abend, 495 U.S. 207, 228-29 (1990) (“[N]othing in the copyright statutes would prevent an author from hoarding all of his works during the term of the copyright.”); Fox Film Corp. v. Doyal, 286 U.S. 123, 127 (1932) (“The owner of the copyright, if he pleases, may refrain from vending or licensing and content himself with simply exercising the right to exclude others from using his property.”). Like the defendant in Triad, Psystar is seeking a “free ride” on the extraordinary investments Apple has made in the development of Mac OS X, investments encouraged and protected by copyright. This Court should affirm the rule in Triad and reject Psystar’s per se theory....

    Nor does Alcatel establish the per se rule—“using a copyright in operating-system software to mandate the use of particular hardware is copyright misuse” (Opening Br. at 22)—that Psystar advocates. There, the plaintiff (formerly known as “DSC”) manufactured telephone switching systems comprising numerous components, including so-called “microprocessor cards”—physical cards containing microprocessors and other electronics. If an owner of an Alcatel switching system sought to expand the system’s capacity, the owner had to obtain additional microprocessor cards for insertion into the system. Alcatel, 166 F.3d at 777-78.

    The Alcatel switching systems ran Alcatel’s copyrighted operating system software. Based on the particular operational characteristics of Alcatel’s switching systems, the court found that any microprocessor card added to a switching system would necessarily infringe Alcatel’s copyright in its operating system software. This was true even for third party cards created without the slightest infringement of Alcatel’s rights. As a result, Alcatel’s copyright was expanded beyond controlling the use of its software on systems manufactured and sold by Alcatel and impeded independent creativity in a secondary market for expansion microprocessor cards.

    By contrast, Apple’s license agreement does not directly or indirectly preclude the owner of an Apple computer from purchasing and using non-Apple components with that Apple computer—e.g., additional memory, a different hard disk drive, or a replacement microprocessor. Aftermarket components used to expand an Apple computer are the proper analog to the microprocessor cards in Alcatel—i.e., these are components used to expand the system rather than replacements for the entire system. Alcatel never holds, or even implies, that Alcatel could not limit the use of its operating system to Alcatel’s switching system. Nor does Alcatel suggest that Alcatel’s competitors could copy Alcatel’s operating system to create competing switching systems.

    Even assuming that Apple computers were, as Psystar would have it, analogous to the microprocessor cards in Alcatel, Apple’s license restrictions have not provided any “patent-like” control or monopoly over the manufacture of competing computers. Apple’s SLA does not have the effect of precluding others from making competing computer hardware or operating system software. ER 669-670. Indeed, Psystar competed with Apple by selling Psystar computers that ran Linux and Windows operating systems.10 ER 894; Apple v. Psystar, 586 F. Supp. 2d at 1193 (SER 4-5).

    Finally, to the extent that Alcatel suggests that limiting the use of a copyrighted work to the copyright owner’s product is per se copyright misuse, the case must be considered wrongly decided and contrary to this Circuit’s decision in Triad. Alcatel was decided prior to the abrogation of Morton Salt by Illinois Tool Works, moreover, so the Fifth Circuit did not have the benefit of the Supreme Court’s extensive discussion, described supra, of the contemporary approach to tying arrangements in the patent misuse and antitrust contexts.

    Are you thinking about TurboHercules? Well, I am too. And why do I care about Psystar, when I prefer to use Linux now? Because the GPL is a copyright license. It is enforced by copyright law. And because although I prefer not to use proprietary software, given a choice, I still believe in simple fairness.


    What's the Latest in the Psystar Appeal? | 880 comments | Create New Account
    Comments belong to whoever posts them. Please notify us of inappropriate comments.
    Corrections here
    Authored by: jbb on Wednesday, July 28 2010 @ 02:23 AM EDT
    I'll start.
    force the software creator to let them use it on software the owner doesn't want it used on.
    2nd "software" => "hardware"

    You just can't win with DRM.

    [ Reply to This | # ]

    What's the Latest in the Psystar Appeal?
    Authored by: IMANAL_TOO on Wednesday, July 28 2010 @ 02:42 AM EDT
    PJ: "If any of these four cases were successful, a Microsoft competitor's business would be significantly altered, from their standpoint harmed, and it would be easier for Microsoft to compete. They aren't in the integrated hardware/software products business, other than the X-box, which hasn't been a money-maker for them."

    Are you sure that MS didn't make money out of the Xbox?

    First, it has made some money:
    Five years after its foundation and a little bit over three years after the introduction of the Xbox console, Microsoft Home and Entertainment division announced operating profits, confirming that the console business model can work at Microsoft. The results of the group are explained by great sales of the Halo 2 game as well as rising interest towards Xbox in the USA and Europe.

    According to Microsoft, Xbox business revenues were up 20% and profits up 11% in the last quarter of 2004, which was due to introduction of the Halo 2 game – the successor of the most-popular Xbox title. The Home and Entertainment unit posted sales of $1.41 billion and profit of $84 million, both were record for Microsoft. Still, the software giant will need to sustain operating profitability in the coming years, as the company needs to cover its $2 billion Xbox marketing efforts as well as the costs of hardware the company needed to compensate earlier.
    Recently, it was reported:

    This time last year, almost to the day, Microsoft saw its first annual sales decline in history. Things are looking much better now, with the company reporting a record $16.04 billion in revenue, a 22 percent year-over-year increase for its Q4 revenue ending June 30th. In fact, revenue is up across all divisions, with Windows and Windows Live seeing the biggest uptick (43.5 percent to $4.55 billion) followed by Entertainment and Devices (27.3 percent to $1.6 billion). Operating income, on the other hand, paints a different picture of E&D, showing a $172 million loss for this quarter (compared to $141 loss in Q4 last year), but looking over the entire fiscal year, the home of Xbox and Zune this year did $679 million in operating income -- a sizable jump to the $108 million from 2009.
    Far more important than the Xbox itself is, I think, is the Xbox as a gaming platform, with a high developmental similarity to Windows. That has retained many developers in the DirectX trap, as opposed to OpenGL world. The Playstation 3 still remains different to what most Windows developers are used to, and takes some learning.

    Without the gaming, what else would have stopped Linux by now? I am sure the Xbox was the key to stop Linux on the home user desktop. Look at Mac, they never had any sizeable chunk of the home desktop, due to the lack of games. Poll a number of families with children aged 5-20, and I'm sure you'll see that games still are an important aspect of their buying decision when it comes to a new desktop computer. The rise of the consoles have changed that, a bit, but not by enough to unsettle the DirectX hegemony.

    Inertia is a heavy burden.



    [ Reply to This | # ]

    The News Picks Thread
    Authored by: Anonymous on Wednesday, July 28 2010 @ 02:58 AM EDT
    Discussing the links in the right main page sidebar.

    [ Reply to This | # ]

    Defending Apple
    Authored by: schestowitz on Wednesday, July 28 2010 @ 03:03 AM EDT
    I am often a tad disappointed when I see the amount of Apple apologism/defense in News Picks and also in posts. It is very likely that Microsoft 'pulls a SCO' against Apple, but we would be wasting valuable time and effort defending a company as unethical as Apple (I won't go into the reasons here). They already have many lawyers.

    It it worth thinking whether we promote mega-brands or software freedom because our efforts/endeavours are limited.

    Just my 50 cents.

    Roy S. Schestowitz, Ph.D. Medical Biophysics | GNU/Linux | PGP-Key: 0x74572E8E

    [ Reply to This | # ]

    What's the Latest in the Psystar Appeal?
    Authored by: Anonymous on Wednesday, July 28 2010 @ 03:09 AM EDT
    How will this decision by the Fifth Circuit influence this argument? MGE vs GE (PDF)

    [ Reply to This | # ]

    What's the Latest in the Psystar Appeal?
    Authored by: Anonymous on Wednesday, July 28 2010 @ 03:28 AM EDT
    ... and create a new doctrine of per se copyright misuse any time a copyright owner restricts use of its software to particular hardware.

    When you put it that way... they're absolutely right.

    Copyright protection should cover only the copyrighted work, not a manufacturer's sales of hardware or services.

    [ Reply to This | # ]

    Authored by: Anonymous on Wednesday, July 28 2010 @ 04:05 AM EDT
    Psystar was cloning the images, that's probably going to
    make it very hard for them down the road.

    I immediately thought that -- the changes that need to be
    made to OS X are similarly very, very minor if you have the
    right hardware. AMDs require a kernel recompile, but most
    Intel chips use the stock kernel.

    With a retail install, one might not even need to argue fair
    use, because drivers are being added -- just like when you
    buy a printer or something -- GRUB 2 boots OSX86 just fine,
    actually. How is booting Windows with GRUB a copyright
    violation? How is installing drivers for your new video card
    a copyright violation?

    The one clause -- Apple hardware only. Apple is using
    copyright to enforce that clause. I really don't think that
    has anything to do with copyright.

    Just take the copyright out of the picture. It really ISN'T
    copyright at all, if you asked me.

    But that's just my opinion.

    Compatible hardware, GRUB2, and some drivers, and you're
    good to go. Arguing copyright violation there -- I don't
    know -- maybe the best solution is to take copyright out of
    the picture, that way the GPL doesn't have to be at risk.

    Apple just chooses copyright and DMCA to enforce the clause,
    and that clause, from the second largest company on Wall
    Street behind Exxon Mobil, needs to go take a hike.

    [ Reply to This | # ]

    No, PJ, you overstate this
    Authored by: Anonymous on Wednesday, July 28 2010 @ 04:35 AM EDT

    Let Apple ... pay for all that, and then they swoop in and make sure the creators don't benefit from their labor

    No, Psystar bought one copy of Apple's OS for every copy they passed along to their customers. Apple was benefiting from every Psystar sale. Just not as much as they would like to.

    Please note, I am not disagreeing in any way with your opinion about the legal situation. You say Psystar should lose, OK, I respect your insight into the law.

    [ Reply to This | # ]

    What's the Latest in the Psystar Appeal?
    Authored by: Anonymous on Wednesday, July 28 2010 @ 04:43 AM EDT
    Even if Psystar tries to clone a Mac, Apple can simply limit sales of Mac OS

    For example, retail upgrade sales can be limited to two per person, just like
    iPads were limited to two per person to prevent grey sales in other countries
    where the iPad has not yet been released or approved by those countries
    governments for sale.

    Apple could also limit sales of Mac OS X upgrades by requiring the serial
    number of a compatible Mac to upgrade. Thus there has to be a preexisting
    unduplicated, and hardware compatible Mac to upgrade before a sale can be
    done. Thus G4 Mac serial numbers would not be eligible since Mac OS X 10.6
    does not support G4 processors.

    Apple could also install multiple checks for Apple hardware - such as custom
    ASIC chips in order to run Mac OS X, and internet connections to verify the
    installation for it to run.

    These and other measures would seriously crimp attempts to sell large
    numbers of clones.

    [ Reply to This | # ]

    Five cases, actually.
    Authored by: Anonymous on Wednesday, July 28 2010 @ 04:56 AM EDT
    > You know what I find so striking? This is just one of four cases trying to
    grab some measure of control or use of other people's software against the
    owners' will, starting with the SCO v. IBM case.

    Five major cases, if you don't limit it to software, but broaden it to all
    copyrighted works.

    I refer, of course, to the Google Book Search case. I'm on Google's side there.

    [ Reply to This | # ]

    How does it transpose to film makers?
    Authored by: Baud on Wednesday, July 28 2010 @ 05:57 AM EDT
    Psystar and TurboHercules [...] want exactly the same thing, to force the software creator to let them use it on hardware the owner doesn't want it used on. And of course, they are two noble hearts with no interest in the buckets of money they'd thereby gain, without having to do the hard work of actually creating their own software.
    The problem is that this could dangerously be transposed to DVD and film makers. What if Disney says: this film is our copyrighted hard work and can only be view on a certain type of DVD player (those with a valid paid licence of DeCSS); if you disagree with this then do and watch your own work or buy someone else's film.

    Just wondering...

    [ Reply to This | # ]

    Alcatel ruling
    Authored by: Steve Martin on Wednesday, July 28 2010 @ 06:24 AM EDT

    Apple must admit that the Fifth Circuit held that it was misuse to use a copyright to prevent a competitor from offering compatible, cheaper hardware for use with a copyrighted operating system. Alcatel, 166 F.3d at 792–93

    For those who are interested, the Alcatel ruling cited by Psystar can be read her e.

    "When I say something, I put my name next to it." -- Isaac Jaffe, "Sports Night"

    [ Reply to This | # ]

    It is too copyright law blocking Psystar!
    Authored by: Anonymous on Wednesday, July 28 2010 @ 07:11 AM EDT
    It's not copyright law blocking Psystar, as far as I can understand; it's the EULA. Psystar acknowledges that a copyright owner has the right to refuse to sell you its copyrighted work.
    Apple did not sue Psystar over contract violations. It sued them over copyright violations.

    I think that this does bear directly on the recent decision from the Librarian of Congress.

    Should Apple be able to restrict what you can do once you have purchased their copyrighted software via a EULA, and then be able to sue you over copyright infringement after you have done something that would not be illegal under pure copyright law due to the fair use doctrine? Or should they only be allowed to sue you over contract violations?

    In other words, do EULA restrictions that take away your fair use rights give the copyright owner the right to sue you for copyright violations?

    Here's an example:

    I sell you a copy of my copyrighted book that is inside a package that has a EULA on the outside that clearly states: By opening this package you agree to only read this book on the beach on the second Tuesday of any month. I later catch you reading my book in a restaurant on a Saturday. Should I be allowed to sue you for copyright violation, or only for contract violation? Copyright violation would allow me to sue you for thousands of times the value of the book. Contract violation would allow me to recover something much more closely related to the actual price that you paid for the book.

    [ Reply to This | # ]

    Off Topic
    Authored by: Steve Allen on Wednesday, July 28 2010 @ 09:23 AM EDT
    I can't believe it's been seven hours since the article and no one has done an
    off-topic thread...

    Music is Life
    Life is Love
    Love is Music
    Music is Life

    [ Reply to This | # ]

    What's the Latest in the Psystar Appeal?
    Authored by: Anonymous on Wednesday, July 28 2010 @ 10:14 AM EDT

    Maybe I'm missing something, but PJ's argument kind of scares me. Here's another example based on the same logic.

    "We simply want record labels to agree to allow legitimate paying customers of its CDs to store that music in the formats of their choice – including, should they so choose, on low- cost mp3 players." Apple and Creative are going after different labels, but they want exactly the same thing, to force the record labels to let them use music on hardware the copyright owner doesn't want it used on. And of course, they are two noble hearts with no interest in the buckets of money they'd thereby gain, without having to do the hard work of actually creating their own music or signing bands. Let the labels pay for all that, and then they swoop in and make sure the creators don't benefit from their labor, so that Apple and Creative can.

    [ Reply to This | # ]

    Follow the money
    Authored by: fxbushman on Wednesday, July 28 2010 @ 10:48 AM EDT
    Who is paying Psystar's lawyers? Is it likely that this tiny company has that
    kind of money? Is there any way they can be forced to disclose the source of
    their funding?

    [ Reply to This | # ]

    What's the Latest in the Psystar Appeal?
    Authored by: hymie on Wednesday, July 28 2010 @ 12:53 PM EDT
    Sigh. I'm now annoyed with myself for once having contributed money to help
    support Groklaw. The notion of supporting restrictions on what one may do with
    legally purchased copies of software, EULAs notwithstanding, is about as far
    from the idea of software freedom as I can imagine. Making money is irrelevant.
    As had been endlessly explained, the GPL allows you to make money too. And first
    sale means that if you buy software, including GPLed software, you can resell it
    without being bound by its license. First sale is far too valuable a freedom to
    sacrifice, and that's what's being advocated here.

    [ Reply to This | # ]

    What Psystar wants is nothing less than to overturn copyright law as we know it
    Authored by: mcinsand on Wednesday, July 28 2010 @ 12:54 PM EDT
    When it comes to Psystar creating a derivative work against the copyright
    owner's will, I agree with Apple. It took 20 years, but I finally agree with
    Apple on something ;>) (Well, I always did see the Motorola 68000's as head
    and shoulders above the 80x86's, too.) When the copyright holder wants the
    article to remain unmodified, then I firmly belive that those wishes should
    remain legally enforcable. For that reason, I do think Psystar should be
    smacked hard for monkeying with OSX' content.

    However, I do also believe that companies have rewritten copyright laws and
    prepared EULA's in ways that are not legally enforcable. PJ and I disagree (I
    think), but I still see the Digidyne vs. DG case as establishing that tying OS
    to hardware is not up to the producer of the hardware and OS, not automatically,
    anyway. For the sake of competition, I would like to see, and I think our legal
    system supports, separating hardware markets, OS markets, and software markets.
    In other areas of commerce, the sort of tying that we are discussing with OS and
    hardare would be laughable. Even though Mazda might know their engines best,
    they cannot legally tell you to only use their bays and their oil (I checked in
    the 1980's when the dealer told me that not going to a Mazda dealership for
    maintenance would void my warranty.) IBM might have known what paper ran best
    on their mainframes, but they were not able to legally prevent customers from
    using non-IBM punchcards. What if MS sold PC's and tried to declare OO as a
    forbidden install in the EULA? I would eagerly await the lawsuit because I have
    no doubt that they would be smacked down no matter how many officials they

    I wish this were a clean case to test EULA boundaries, because there are limits
    to what a supplier can claim as a legitimate restriction in a license.
    DG/Digidyne already gave some good steps forward in loosening OS/hardware ties,
    but customers and competition would benefit from a clear protocol on what
    companies can and cannot claim in a legally-valid EULA.


    [ Reply to This | # ]

    Does Microsoft want onto big iron?
    Authored by: Anonymous on Wednesday, July 28 2010 @ 01:52 PM EDT
    Could this all be an attempt to clear the way to let you run Server 2008 on the
    Z series?

    [ Reply to This | # ]

    Need Help finding old old post
    Authored by: Rasyr on Wednesday, July 28 2010 @ 03:19 PM EDT
    Relatively early on in this fiasco that is SCO, PJ posted about a case where the
    court ruled that copyrights do not transfer without legal instrument of
    copyright transfer.

    Can somebody please help me find that post!!

    Feel free to email me directly at with the Groklaw page link
    if you find it.

    I really appreciate any and all help in finding that page!!

    Thanks in advance!!

    [ Reply to This | # ]

    some foreign hostile government IS trying to destroy the US economy
    Authored by: SpaceLifeForm on Wednesday, July 28 2010 @ 03:21 PM EDT
    That is because this is World War III.
    It is exactly the same players as earlier.

    The darkside does not care if Microsoft dies or not.
    They are totally expendable, a soldier in the battle, just like SCO.

    Fascists use companies and people like a pawn in chess.

    It is no coincidence that 3 major newspapers had prior
    knowledge of the recent Afghanistan dump to Wikileaks.

    Those 3 papers, in US, UK, and Germany are key hotspots
    for the darkside. The dump is a wake up call to the media.

    Defeating the darkside will require the media to pay attention, and the US to
    eliminate software patents and stop vexatious litigation.

    Right now, it is a field day for extortion rackets via the legal system.


    You are being MICROattacked, from various angles, in a SOFT manner.

    [ Reply to This | # ]

    Why do we assume that Microsoft would benefit if TurboHercules won?
    Authored by: PTrenholme on Wednesday, July 28 2010 @ 05:05 PM EDT

    Right now Microsoft, and vendors supplying programs for Microsoft operating systems, sell their software products with a stipulation that they are designed to run on some version(s) of Microsoft's operating system. If Hercules were to win their case, would Microsoft and those vendors be obligated to support their products running on Wine? That seem to be the implication of what PJ said in the introduction to this thread:

    . . . they want exactly the same thing, to force the software creator to let them use it on hardware the owner doesn't want it used on. And of course, they are two noble hearts with no interest in the buckets of money they'd thereby gain, without having to do the hard work of actually creating their own software. Let Apple and IBM pay for all that, and then they swoop in and make sure the creators don't benefit from their labor, so that Psystar and TurboHercules can.

    Perhaps the difference between TurboHercules and Wine is that the underlying hardware is often the same, but wouldn't a "win" by TurboHercules permit the same inference, made above, that the vendors of IBM software (including IBM) being run through the TurboHercules emulator, should support that software in that venue, be made for Microsoft software being run uner the Wine emulator?

    IANAL, just a retired statistician

    [ Reply to This | # ]

    Separating Hardware And Software
    Authored by: sproggit on Wednesday, July 28 2010 @ 05:14 PM EDT
    Apologies if these questions have already been covered.

    What interests me, thinking about this case, is the relative legal positions
    with respect to splitting hardware and software. It seems to me as though
    Psystar have argued that even though Apple have copyrighted their Operating
    System and even though they have a carefully worded EULA in place, Psystar were
    still allowed to split the hardware and software and should be legally entitled
    to deploy the Operating System where they want.

    Part of the argument that Psystar have raised is to suggest that Apple may be
    guilty of "illegal bundling" with their position that OS/X is only
    available for use with Apple hardware.

    I want to think about that in the context of two other applications of combined
    hardware and software. First, let's think about early generations of personal
    computers. Machines like the Commodore Pet, the BBC Micro and Acorn Archimedes
    all functioned by means of an Operating System delivered in a ROM BIOS. It seems
    to me as though Psystar are arguing that machines like an Archimedes would be
    illegal, in the world according to Psystar.

    Where does the law draw the line? If we take Psystar's arguments to their
    logical extent, does that mean that (for example) auto manufacturers should be
    required to offer their motor vehicles with the option for the driver/owners to
    amend their own software? How about the avionics of an aircraft? Anyone want to
    fly in an executive jet with a Microsoft 1.0 Operating System?

    Let's try another example - the appliance. More and more technology companies
    are starting to use Operating Systems such as GNU/Linux to drive their
    technology. Personal Video Recorders, DVD and BluRay Players, Burglar Alarm
    Systems and Home Automation Toolsets - all examples of the way that hardware and
    software are being integrated.

    How should the law try and un-pick this blending of technology? When can a
    company argue that a combination of computer software coupled with materials
    since (a physical and functioning mechanism) constitutes a unique invention.

    I don't see easy answers here - the Court will need to pick there way carefully
    through these arguments because the consequences of a precedent-setting wrong
    move could have long-lasting consequences.

    [ Reply to This | # ]

    I think Stallman would agree w/Paystar...
    Authored by: BitOBear on Wednesday, July 28 2010 @ 05:46 PM EDT
    I may be more of a Stallman supporter than most, but _I_ would tend to agree
    with the position that, having sold me (or indeed licensed me) some software,
    with or without hardware, you don't particularly enjoy the right to dictate or
    limit the hardware I can use that software on.

    And I think this is a new question that _does_ deserve the attention of the

    There isn't a good analogy, but analogy might be requiring the user of a book to
    buy "reading station" if they want to read the book.

    The purchase and patents and licensing of hardware _should_ be separate from the
    licensing of each piece of software.

    This is the whole point of the four freedoms, particularly freedom 0.

    This is also the way every single _other_ industry works. We have had these
    discussions before in other industries, be they the attempt to make movie
    theaters beholding to the movie studios, or the attempts to de-standardize
    automotive components. When push comes to shove "coupling products" so
    that to use Product A, you have to also buy Product B, is _always_ against the
    consumer interest.

    So, in my humble opinion, Paystar is correct and Apple is wrong since apple
    "sells their license to use" and they shouldn't be able to require
    only use with Apple hardware. Ibid for IBM, but perhaps less so by a hair.

    Without this decoupling, you end up right back where "the vendor" is
    requiring you to do all sorts of stuff after-the-fact to ensure your continued
    ability to use your own work product "just because" it was generated
    while using a previous configuration of "their" hardware that you
    _bought_. Who then is to say that Apple cannot require you to buy a $3million
    "dongle" in the form of a 3D workstation mainframe just to let you use
    the "notes" feature in OSXI that is the only thing left that can read
    your notes?

    This is exactly the same as the problems with DRMN'ed music and movies that
    require you to buy a windows box to watch the DVD you just _bought_ (or bought a
    license to).

    So no, the "creators" _should_ be able to dictate terms _copying_ for
    copyrighted works, but they should enjoy no right to dictate terms of _use_ of

    [ Reply to This | # ]

    Why PJ is wrong
    Authored by: Anonymous on Wednesday, July 28 2010 @ 05:54 PM EDT
    I have to disagree with PJ somewhat. I have to disagree with Apple and with IBM
    and with TurboHercules and definitely with Psystar.

    Here's why.

    1) Copyright law (US) gives copyright owners limited protection. So a copyright
    owner can refuse to sell to anyone. A copyright owner can prevent you from
    distributing copies.

    2) Contract law can't be use to expand copyright protections which the
    Constitution specifically grants. Although the courts have ruled contrary to
    this. Hence all this EULA BS. It is still my hope that someday courts fix this.

    3) Once you've purchased a copyrighted work, that copy belongs to you, to do
    whatever you like with it. Again, this is probably contrary to what courts have
    found. Doesn't make it not so, just that one should expect to lose in court.
    Courts don't always get it right.

    4) If you buy a piece of software, you're free to make it work on any kind of
    hardware you want to run.

    5) This doesn't mean you can make copies and sell them. It doesn't mean you can
    force the copyright owner to do anything.

    1) I'm free to buy up all the used Macs I want, pull off the OSes and install
    them on different hardware and install my own piece of code so that the
    "MacPC" runs the Mac OS. I'm free to sell all these used copies of
    Macs. It's the doctrine of first sale. However, The DMCA comes into play and
    EULA comes into play, but since I've never signed or clicked through or read any
    Apple EULAs, I'm not bound by any EULA.

    This isn't what Psystar has done, near as I can tell. IIRC, they tricked Apple
    into selling them OS licenses, to install on their Apple approved hardware. They
    then did what any normal shop would do. They made a master image and used that
    to make more. I see nothing there that should be illegal, except they violated
    some contract. This should never be a copyright issue. What they did is SOP for
    computer builders (except the need to jailbreak the OS). Now, given all that,
    there is nothing that should force Apple to provide any hardware support for
    that, and indeed they would be justified in denying support for the software
    also. How would they know if it was software or hardware issues.

    ex 2) Ditto, for Hercules, if they could obtain original copies of IBM software,
    they should be allowed to install on any hardware they choose and sell those
    machines. Now, as far as I know, IBM doesn't sell licenses to their software,
    it's all tied together, but there should be nothing stopping Hercules from
    buying used IBM mainframes and taking the software and installing it on any new
    hardware they want and selling that as a new mainframe.

    3) I should be able to buy Apple phones in bulk, jailbreak them and install
    rejected Appstore software on them and make my own Anti-Appstore to which these
    "new" phones point to and sell the lot of them.

    4) I should be able to figure out how to do any of those things and write a book
    and or website telling you how to do it. This is a basic basic freedom and
    should never be denied.

    This is at the core of the first sale doctrine an free speech, and no law or
    court should prevent them.

    These are basic rights and should not be denied. People and businesses should be
    free to tinker, to reverse engineer, to buy someone's product, add
    new/better/worse options to it and resell it. If you patent a mouse-trap, I
    should be able to buy your mousetraps, or hire people to do it, when you begin
    refusing to sell to me, modify them and resell them under my name. You've made
    your money in the first sale. If my improvements make it more popular, then my
    creativity in seeing a new market and doing the work of getting it to market
    should belong to me.

    That's why I think PJ, et al have it partially right and partially wrong. Now,
    my views are not supported wholly by the courts, but that doesn't make my
    arguments wrong, just financially dangerous.


    [ Reply to This | # ]

    More interesting: SSDs potential to topple EULAs
    Authored by: Anonymous on Wednesday, July 28 2010 @ 06:38 PM EDT

    EULAs are built entirely on the principle that "copying" a program
    into RAM violates copyright law, and isn't fair use. To me, a sketchy concept
    at best, but it is what it is.

    So pretty much all we have to do to make all existing EULAs unenforceable, and
    probably nix any future EULAs, is to get rid of the "copy into RAM"
    part. Presto, no copyright violation, and they can sod off. Now, technically,
    to make this work with existing software, we'd need a virtual machine that kind
    of rejiggers the idea of virtual memory: something that makes it APPEAR as
    though something resides at a certain place in RAM, even though you're actually
    redirecting behind the scenes to another location. Essentially a symbolic link
    for RAM. Let somebody try to argue that symlinking (or hyperlinking for that
    matter) equates to copying.

    So why do I mention SSDs? Well, because doing this with a normal HDD would
    obviously be unbearably slow. Essentially, we are FORCING the computer to
    "thrash" 100% of the time. RAM exists for a reason :) But an
    appropriately RAIDed SSD setup (and I don't mean something crazy, just 2 or 4
    drives) could probably provide acceptable performance. Don't forget, we only
    have to muck around with the actual executable code. All the user data still
    lives in normal RAM.

    At that point, you're left arguing over whether or not the on-board cache is
    fair use or not. Since it only contains "snippets" and unused parts
    of the program never go there at all--in any given session of using an app, you
    only use a small portion of its features--I think this is an even more
    compelling case than the original "copy to RAM" thing.

    Another possibility, which you could do now, but depends a lot on program
    stability, is to make one copy while your license is still valid, and then never
    copy it again. Basically, run the program once, and then never run it again.
    Never turn the computer off (unless you have battery-backed RAM), never let it
    suspend to disk, use extensive battery backup etc etc. So long as the program
    never crashes, you'll never need to "copy" it again. Since at the
    point in time at which you made the copy, you had a valid license to do so, they
    can then never come after you for anything. So long as they're arguing that the
    EULA is a license and not a contract, they can't come after you for violating a
    contract even.

    Also, another thing that I've picked up from the whole SCO saga, is that it
    seems that you have to prove actual copying. In theory, this is once for every
    time you run the program. How does a plaintiff ever prove this? Maybe they can
    show that you ran it once, but unless you logged into their servers, how are
    they gonna show each and every time you ran the program?

    Again, IANAL, but it seems we have a humongous house of cards built on a very
    shaky foundation that could be ripped out from underneath the EULA perpetrators
    by technical means.

    [ Reply to This | # ]

    Authored by: Anonymous on Wednesday, July 28 2010 @ 07:01 PM EDT
    > taking the entire Mac OSX operating system as your own
    is not equivalent to jailbreaking 50 bytes of code. <

    Ummm, but Psystar weren't "taking" the entire MacOS-X system,
    they claimed to be onselling it like OEMs do with many other OS.
    And yes, they did jailbreak it by altering some 50 bytes of boot code.
    That jailbreak violated Apple's EULA, invoking contract law remedies.
    The copyright violation is an extension of the contract breach.

    What is the offence here? Installing MacOS onto non-Apple hardware
    as a contract breach? Or a copying the entire OS in a cloning
    operation, just like Apple do, as a copyright violation?
    Or probably both, as a legal tautology, hammer in all the nails
    you can find.

    [ Reply to This | # ]

    • Obviously, - Authored by: Anonymous on Thursday, July 29 2010 @ 01:18 PM EDT
    • Well, you miss... - Authored by: Anonymous on Thursday, July 29 2010 @ 02:02 PM EDT
    An attempt at sanity
    Authored by: Anonymous on Wednesday, July 28 2010 @ 07:23 PM EDT
    Two issues keep getting confused in the Psystar case, and that leads to more
    heat and less light in the discussions here. This is my humble attempt to
    disentangle the mess.

    The first sale doctrine means that I can sell to you something that I bought,
    and no restriction between the manufacturer and the retailer can stop me.
    (Example: The publisher has a deal with the book store that they can't sell the
    book for less than $X. I buy the book for $X. The publisher can't stop me from
    selling it for $X-1.)

    But I can't sell more than I bought (as we kept hearing in the SCO case). So,
    if I bought software that was encumbered by a EULA, I can't sell you software
    that is unencumbered.

    So the two issues are:
    - Psystar is trying to use some play on first sale to get around the EULA. You
    legally can't do that. (Psystar may also be installing more copies than it
    bought; that's an issue that I'm not talking about here.)
    - EULAs often place unconscionable restrictions on users. In particular, many
    commenters here see the restriction of "you can only run it on Apple
    hardware" as being an unconscionable restriction.

    Note that the first issue is a legal one, the second is a moral one (though the
    law often eventually strikes unconscionable restrictions).

    When PJ says that Psystar is legally wrong, some people here seem to be
    interpreting that as her saying that the EULA restrictions are perfectly fine,
    morally. She is not necessarily saying that. In fact, it is perfectly
    reasonable to say that EULA restrictions are unconscionable, and yet to say that
    one cannot morally violate the EULA. (As I understand it, this is also
    Stallman's position.)

    Confusing this has led to many instances of people talking past each other

    Psystar is wrong. That doesn't mean that we support unreasonable EULAs.


    [ Reply to This | # ]

    IBM & Apple... any difference?
    Authored by: Anonymous on Thursday, July 29 2010 @ 06:31 AM EDT
    From a news story:

    "One of the probes was spurred by complaints from two small technology
    companies that IBM improperly blocks customers from using the mainframe’s
    operating system without IBM’s own pricey hardware. The other probe is examining
    whether IBM is squelching third-party providers of spare mainframe parts.

    "The two companies that complained to the European authorities, T3T Inc. of
    Tampa, Fla., and TurboHercules SAS of Paris, don’t make any of their own
    equipment. They provide so-called emulator software that allows mainframe
    applications to run on cheap, off-the-shelf computers.

    "Their chief complaint is that IBM won’t allow their customers to buy or
    license the IBM mainframe operating system, called zOS, to use with their

    So is IBM wrong or right when they do nearly exactly what Apple is doing?

    [ Reply to This | # ]

    I basically agree with psystar
    Authored by: Anonymous on Thursday, July 29 2010 @ 08:33 AM EDT
    I don't understand why we disagree with Psystar, to be honest.

    If I buy a book and the author says I can't read it on a train, does he have
    that right?

    If I buy MS Windows, legitimately, why can't I run that in a VM under Linux.
    Microsoft is not hurt in any way.

    I find it difficult to be against Psystar in this argument. I think authors take
    risks by publishing, copyright protects them, but they should not have ultimate
    control over what one does with the copy of the work that an individual
    legitimately purchases.

    [ Reply to This | # ]

    Weather forecast :)
    Authored by: cjk fossman on Thursday, July 29 2010 @ 10:17 AM EDT
    Today's forecast calls for a ninety percent chance of astroturfing over greater
    metropolitan Groklaw with a chance of isolated trolling.

    [ Reply to This | # ]

    This really annoys me!
    Authored by: tiger99 on Thursday, July 29 2010 @ 02:22 PM EDT
    Why? Well, it seems that Psystar is yet another of those topics, along with BSD and the health effects of cellphones, which invariably degenerates into low-quality debate and even flames.

    Not only that, but Psystar are indisputably bad, probably even criminal, while Apple are indisputably obnoxious by trying to play at being a monopoly. (Yes I know, they don't fit the legal definition of a monopoly yet, unless computers that run OSX can be shown to be a market, but that does not excuse their obnoxiousness.)

    If either side wins, the world loses. If Psystar had enough money that they sued each other out of existence, the world would win, but that is just not going to happen. SCO vs IBM, Novell, Red Hat, Autozone and DaimlerChrysler serves much a more useful purpose. If one side (SCO) loses, the world wins, while if SCO wins the world loses. It makes it a much more interesting and important battle. And, just about everyone here debates it more constructively.

    [ Reply to This | # ]

    In Apple's Reply Brief
    Authored by: sproggit on Thursday, July 29 2010 @ 04:05 PM EDT
    There's an interesting snippet at the foot of page 40 of Apple's reply (the pdf, counting by the printed numbers on the pages), where Apple quotes from a case that Psystar had cited in support of the argument they were trying to bring. Not only does Apple do a good job of demonstrating that Psystar's attempted citation is misplaced and invalid, they picked out a rather interesting quote from the District Court that presided over the cited case:

    "Qad began to misuse its copyright over [the software] when it attempted to extend its rights over material over which it had no copyright: those portions of its software that it copied from [HP’s software]. Yet it did not reveal that fact to its adversary or to this Court. Using its weapon of falsehood, qad pursued ALN in this court—something that it could not have done without the advantage of its copyright."

    Remind anyone of anything?

    It's probably largely irrelevant now, but it strikes me that Qad seemed to have been found guilty of actions very similar to the activities taken by The SCO Group when they claimed copyright ownership of SVRX despite all the evidence that came out in trial.

    In all likelihood this is largely coincidence rather than some legal conspiracy, but it does go to show that such things have been attempted before and will be attempted again in the future.

    What is worrying is the burden of justice - the incredible lengths that an innocent or wronged party has to go through in order to keep their good name, reputation, and business intact.

    [ Reply to This | # ]

    Why no mention of Amdahl?
    Authored by: Anonymous on Thursday, July 29 2010 @ 10:29 PM EDT
    Is it because what happened with Amdahl in the 1980s does nothing but re-inforce
    the arguments opposing your position?

    That original master of FUD used the same arguments against Amdahl (in and out
    of court) that both IBM and Apple are using today.

    Both would do well to learn from IBM's sullied past and their unfair business
    practices used against Amdahl.

    [ Reply to This | # ]

    What's the Latest in the Psystar Appeal?
    Authored by: Anonymous on Friday, July 30 2010 @ 04:20 PM EDT

    Please explain for me the apparent discrepancy between your insistance that
    software publishers should be able to control how their software is used, but
    you do not extend that same privilege to other forms of copyrighted work, such
    as restricting the ability of playing DVDs on Linux?

    Additionally, you appear to believe that Psystar is somehow "stealing"
    software from Apple, when it is apparent that every copy of OS/X used was bought
    and paid for.

    I'll hang up and listen to your reply. ;)

    [ Reply to This | # ]

    What's the Latest in the Psystar Appeal?
    Authored by: seekamp on Saturday, July 31 2010 @ 04:15 PM EDT
    I have been reading Groklaw for years and have donated to it, but I rarely comment. Like others, I find myself torn by this case.

    I guess it has been mentioned already, but at one time most (somewhat) widely used software ran on IBM mainframes. Originally this software was free and source was made available. In fact contributions from customers and outside parties was welcomed. Then came the Amdahl situation. They basically said buy an Amdahl mainframe and get the software free (i.e. gratis) from IBM. IBM sued but I guess they lost because they were considered a monopoly. A couple results of this was new versions (and new products of course) were no longer free, and source code generally was no longer available (at least for new or changed code). I joined IBM when this transition was in progress (although I did not work on mainframe software). I don't know if proprietary software was prevalent at that time, but it definitely became more prevalent after.

    As someone employed in the proprietary software industry, I cannot completely rue those events. Yet as someone who prefers free (not meaning gratis here) software, I kind of do. At one point most (clearly not all) software was open and shared and the IBM/Amdahl situation was I believe a major factor in changing that.

    Personally, my initial (visceral) reaction is that when I buy software I should be able to run it on whatever I want, because I bought it. So at first, Pystar losing seems wrong. But that visceral reaction appears to be what is really wrong:

    • The Amdahl and Pystar situations seem to be different based on the fact that Apple is not considered to be a monopoly (in the so-called personal computer business).
    • Based on Apple's EULA limiting the use of the software on Apple hardware only, one can infer that the software was priced for that purpose only. If Apple were to sell a version for other hardware they would likely price it differently (i.e. significantly more expensive). It appears they currently price it to get people to buy and stick with Apple hardware, no?
    • Many seem to be suggesting (dare I say accusing) PJ of being an Apple fanboy. From comments she has made it seems her position is that Apple losing this case would undermine software license agreements in general which by extension would undermine the GPL and free software. Backing Apple in this case does not have to imply backing them in everything they do (I have no idea if she does or not).
    • I am not a fan of Apple. I appreciate the innovations they bring to the table (unlike some other large software producers) but I don't like the way they do things with iTunes, their AppStore etc.. Nonetheless, in product areas where they are not considered a monopoly they get to act in ways I might not like. My choices are to buy their products and put up with their rules, or choose alternatives.
    • Irregardless of what we may think is fair or right I believe this site is first and foremost about the law. Copyrights are part of the law. EULAs have not been ruled unenforceable and fortunately the GPL has been contested on multiple occasions and has not been struck down once.

    I guess the bottom line for me is that I wish the GPL and similar licenses were not related (legally) to EULAs like Apple's. But given that they are, I find myself forced to root for Apple on this one because having Pystar win would (potentially) gut the effectiveness of licenses like the GPL.

    OK, time for me to go back to doing what I do best; lurking.

    [ Reply to This | # ]

    What's the Latest in the Psystar Appeal?
    Authored by: Anonymous on Wednesday, August 04 2010 @ 04:09 PM EDT
    PJ, I think the problem here is that there are two different claims being mixed
    up here: first of all, the one about Psystar copying more than one each, and
    second, the one about running the software on hardware it wasn't sold for use
    with. Both you and the lawsuit are emphasizing this second part, but it's the
    part that's questionable and has bad implications for users (for instance,
    barring them from playing music on MP3 players when it was sold for use with a
    CD player, or playing DVDs on Linux when they were sold for use with a licensed
    DVD player).

    In fact, that second part is questionable enough that many posters are posting
    here <i>only to object to that second part</i>, not to claim that
    Psystar is innocent. They don't care if Psystar is guilty for some other reason
    like actually copying the same disk several times; they only care about using
    this particular stick to beat Psystar with. Replying "but Psystar made
    several copies" misses the point--they just want you to give up one
    particular argument.

    [ Reply to This | # ]

    What's the Latest in the Psystar Appeal?
    Authored by: Anonymous on Thursday, August 05 2010 @ 01:12 PM EDT
    I wish people including Apple and the courts would stop Stating "non-apple
    hardware? Apple does not make hardware anymore, they just place a logo on it,
    it's the same hardware in most computers today
    And I don't care what anybody says Apple is monopolizing their OS X from running
    on any other machine but theirs.
    Don't tell me they are not because people don't have to buy their products they
    can go else, that does not hold water!
    It's that simple, and Apple has the arrogance to allow Windows XP, Vista, Win7
    and Linux run on their machines, but not the other way around!
    What is Apple afraid of? They cam merely state that if OS X is running on a
    non-branded Apple machine they simply won't support it, I know why because it
    would hurt their bottom line! but Apple won't tell you that.

    [ Reply to This | # ]

    What's the Latest in the Psystar Appeal?
    Authored by: Anonymous on Thursday, August 05 2010 @ 01:35 PM EDT
    No, that is not the example I gave. My example is based on the legal principle of tying hardware with software - regardless of which "direction" that tying is going. If a software vendor has the right to dictate what hardware can be used, surely the same right applies to hardware vendors; so they can dictate what software can be legally run on their products.

    Question 1: Can you name the law that allows a copyright owner to control whether and under which conditions copies of their copyrighted works can be made?

    Question 2: Can you name the law that allows the manufacturer of an item to control how that item can be used?

    If you know the answer to question 1 and you don't know the answer to question 2, then you should take a hint from that. What you think is "surely" true isn't true at all; nothing gives Dell or Apple or anyone the right to dictate what software you can run on their hardware (if you accept consequences regarding warranty etc. )

    And could you tell us what "legal principle of tying hardware with software" you are talking about?

    [ Reply to This | # ]

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