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Apple's Reply in Support of its Motion to Dismiss or Enjoin, as text, and a Leopard/Snow Leopard EULA Chart - Updated
Thursday, September 24 2009 @ 03:31 AM EDT

Here's Apple's Reply Brief in Support of Apple, Inc.'s Motion to Dismiss or Enjoin Prosecution of the Recently-Filed Florida Action and to Re-Open Discovery for Limited Purposes [PDF], as text. About the first sale doctrine, Apple quotes from a case, Wall Data v. Los Angeles County Sheriff's Dept. , which states, "(T)he first sale doctrine rarely applies in the software world because software is rarely 'sold.'"

We also have a handy chart a volunteer did for us, showing the differences between the EULA for Leopard and the EULA for Snow Leopard, one of the issues Psystar raised being that the differences warrant a different litigation in Florida. As you will see, Apple points out that the parts that are the same are greater than the changes made.

Update: The judge has denied Apple's motion to include Snow Leopard, but saying Apple can file a motion in Florida asking to consolidate, which he would consider, according to MacNN:

Judge Alsup denied Apple's motion without prejudice, which leaves the decision open to be reinterpreted by the Florida court. If Judge Hoeveler feels that the Snow Leopard proceedings should be transferred back to Alsup's court, the original case will be modified to accommodate another discovery period.
Here's the order [PDF], which was sent to me unsolicited by Psystar's law firm. [We have it now from Pacer as well, as PDF.] Apple can either file in Florida, the most likely next step, or it can ask to appeal this decision or ask for reconsideration.

Also, Psystar has added another lawyer to the team, Eugene Action, another Harvard man, like K.A.D. Camara, but he does criminal law, among other things. He began to practice in California in 2004, according to this bio, and his website says he likes to help people. Camara graduated from Harvard in 2004, so perhaps they are buddies from law school. Here's the court filing:

09/23/2009 - 151 - NOTICE of Appearance by Kiwi Alejandro Danao Camara Adding Eugene Action (Camara, Kiwi) (Filed on 9/23/2009) (Entered: 09/23/2009)

So, Camara and Action. Attorneys at Law.

: D

Here, then, is Apple's Reply Brief, as text, followed by the chart:

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

TOWNSEND AND TOWNSEND AND CREW LLP
JAMES G. GILLILAND, JR. (State Bar No. 107988)
MEHRNAZ BOROUMAND SMITH (State BarNo. 197271)
MEGAN M. CHUNG (State Bar No. 232044)
J. JEB B. OBLAK (State BarNo. 241384)
[address, phone, fax, emails]

Attorneys for Plaintiff and Counterdefendant
APPLE INC.

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

APPLE INC.,

Plaintiff,

v.

PSYSTAR CORPORATION, a Florida
corporation, and DOES 1-10, inclusive,

Defendants.
___________________
AND RELATED COUNTERCLAIMS.

____________________________

Case No. 08-3251 WHA

REPLY BRIEF IN SUPPORT OF APPLE
INC.'S MOTION TO DISMISS OR
ENJOIN PROSECUTION OF THE
RECENTLY-FILED FLORIDA ACTION
AND TO RE-OPEN DISCOVERY FOR
LIMITED PURPOSES

Date: September 24, 2009
Time: 8:00am
Courtroom: 9
Trial Date: January 11, 2010

REDACTED PUBLIC VERSION

TABLE OF CONTENTS

Page

I. INTRODUCTION........................................................ 1

II. ARGUMENTS AND AUTHORITIES ...........................................................................1

A. The Pending Action Includes All Psystar Computers Running
All Versions of Mac OS X.................................... ..... ...1

B. Apple Responded to Discovery Regarding Mac OS X ver.
10.6, While Psystar Did Not ..............................................................4

C. Even If Psystar Has Devised Another Way to Crack the
Encryption of Mac OS X That Does Not Warrant Filing A
Different Lawsuit .....................................................................6

D. The Key Legal Issues Regarding the Terms of the Mac OS X
License Are Identical in the Two Lawsuits.........................................................8

E. Psystar's Unabashed Attempt to Avoid this Court's Prior
Ruling Dismissing Its Antitrust Claims Should Be Halted.............................. 10

III. CONCLUSION .......................................................11

i

TABLE OF AUTHORITIES

Page

CASES

Apple Inc. v. Psystar Corp.,
586 F. Supp. 2d 1190 (N.D. Cal. 2008) .................................................................... 10, 11

Decker Coal Co. v. Commonwealth Edison Co.,
805 F. 2d 834 (9th Cir. 1986).....................................................................2

IMS. Inquiry Mgmt. Sys. Ltd. v. Berkshire Information Sys., Inc.,
307 F. Supp. 2d 521 (S.D.N.Y. 2004)................................................................... 4

In re Crown Vantage, Inc.,
421 F.3d 963 (9th Cir. 2005)................................................................. 11

Med. Broad. Co. v. Flaiz,
2003 WL 22838094 (RD. Pa. 2003)............................................................... 4

Montgomery v. Noga,
168 F.3d 1282 (lIth Cir. 1999).....................................................................3, 4

Olan Mills, Inc. v. Linn Photo Co.,
23 F.3d 1345 (8th Cir. 1994).................................................................. 3

Pac. & S. Co., Inc. v. Duncan,
744 F.2d 1490 (11th Cir. 1984)............................................................... 3

Pacesetter Sys., Inc. v. Medtronic, Inc.,
678 F. 2d 93 (9th Cir. 1982)................................................................. 2

Perfect 10, Inc. v. Amazon.com, Inc.,
508 F.3d 1146 (9th Cir. 2007)...............................................................3

Wall Data Inc. v. Los Angeles County Sheriff's Dept.,
447 F. 3d 769, 786 ..........................................................................8

STATUTES

17 U.S.C.:
106.......................................................................8
117(a)....................................................................3
411.......................................................................3
1201......................................................................7
1201(a)(2).................................................................7

ii

TABLE OF AUTHORITIES
(continued)

Page

5 William F. Patry, Patry on Copyrights, 17:78 (2009) ...................................................4

Nimmer on Copyrights, 12A.18(B).................................................................4

iii

I. INTRODUCTION

Since the filing of this lawsuit by Apple in July, 2008, Psystar has released seven different models of its computers, running eight different versions of Mac OS X, using three different mechanisms to cause Apple's software to run on Psystar's computers. Psystar does not, and cannot, contest that everyone of these computer systems are at issue in this case. Nor does it argue that Apple was required to file another Amended Complaint every time Psystar introduced a new computer. Yet now Psystar senselessly contends that its newest computer system, which uses a fourth method to run the latest version of Apple's Mac OS X, is excluded from this action and, instead, should be the subject of a brand new Declaratory Relief action that Psystar just filed in Florida.

Every argument made by Psystar to try to justify its forum-shopping -- filing a new lawsuit 3,000 miles away -- is wrong or irrelevant or both. Specifically, Apple's Amended Complaint encompasses Psystar's violations of Apple's intellectual property rights in Mac OS X version 10.6 (Snow Leopard) because it was broadly drafted to include each version of Mac OS X. Apple never interfered with Psystar's opportunity to take discovery regarding Mac OS X version 10.6 (Snow Leopard); Apple and its witnesses answered all the questions on this subject that were put to them. The specific method Psystar employs [redacted] is immaterial since Psystar's circumvention is unlawful however it occurs. Recent changes in the Mac OS X Software License Agreement render Psystar's conduct even less defensible, not more so. Finally, the antitrust allegations already dismissed once by this Court gain no additional credibility by being filed again in a different federal court. For all of these reasons, Apple's Motion to Dismiss or Enjoin should be granted.

II. ARGUMENTS AND AUTHORITIES

A. The Pending Action Includes All Psystar Computers Running All Versions of Mac OS X

Apple's Complaint and its Amended Complaint were carefully written: neither pleading limits Apple's allegations of copyright infringement and violation of the Digital Millennium Copyright Act ("DMCA") to version 10.5 (Leopard) of Mac OS X. Psystar's repeated assertions

1

to the contrary are simply wrong.

Snow Leopard is the trade name for the latest version of Mac OS X -- version 10.6 -- which was released to the public three weeks ago, on August 28, 2009. Because it is simply the latest version of Mac OS X, Snow Leopard is included in at least the following core allegations in Apple's Amended Complaint (Docket No. 38) (emphasis added):

21. Apple licenses the use of its Macintosh operating system ("Mac OS") software for use only on Apple-labeled hardware.... Upgrades to the Mac OS may be licensed separately, but the terms of the license prohibit use of the Mac OS or its upgrades on non-Apple hardware.

26. Mac OS, Mac OS X, Mac OS X version 10.5, and Mac OS X Server, individual fies constituting components of Mac OS, Mac OS X, Mac OS X version 10.5, and Mac OS X Server,... are each original works of authorship created by Apple constituting copyrightable subject matter (hereafter, "the Copyrighted Works.")

27. Defendant has created derivative works from, reproduced, distributed and/or displayed the Copyrighted Works in violation of Apple's exclusive right under the Copyright Act.

45. Defendant has illegally circumvented Apple's technological protection measures that control access to Apple's Copyrighted Works.

48. ... Defendant has manufactured, imported, offered to the public, provided or otherwise trafficked a product, device, component, technology, software, or "code" ("the Circumvention Devices") that are primarily designed or produced for the purpose of either circumventing Apple's technological protection measures that effective control access to Copyrighted Works, or allowing third parties to access Apple's Copyrighted Works without authorization.

Prayer for Relief, 2: Awarding Apple a preliminary and/or permanent injunction against the sale or distribution of any software or device... that allows for the running of Apple software on non-Apple computers. ...

Mac OS X version 10.6 (Snow Leopard) is the newest iteration of Mac OS X. It is encompassed within the Amended Complaint's definitions of Mac OS and Mac OS X as well as the definition of Copyrighted Works. Therefore, this Court is the first one to have jurisdiction over disputes regarding Psystar's infringement of Apple's rights in Snow Leopard and should decide how and where to resolve that dispute. Decker Coal Co. v. Commonwealth Edison Co., 805 F. 2d 834,843 (9th Cir. 1986); Pacesetter Sys., Inc. v. Medtronic, Inc., 678 F. 2d 93,95 (9th

2

Cir. 1982). Psystar admits that the lawsuits in California and Florida both "involve claims for copyright infringement and circumvention of the technological protection mechanisms (and) both involve first sale and 117 arguments by Psystar" (Opp. Br. at 8),1 but characterizes these as only "superficial" similarities. In fact, however, as shown by the allegations from Apple's Amended Complaint cited above, these issues are the hear of the matter and should be resolved in one place for all purposes.

Psystar contends, incorrectly, that even if the words of Apple's Amended Complaint include Mac OS X version 10.6, the Amended Complaint should not be construed to cover that product because Apple has not yet registered its copyright in Snow Leopard. In fact, however, Apple has filed with the United States Copyright Office a request to register the Snow Leopard copyright expeditiously in accordance with the law. 17 U.S.C. 411. (Reply Declaration of Sue Carroll, 2-3; Exs. 1-3.) The Snow Leopard copyright is now registered as U.S. Copyright Reg. No. TX 6-973-319. (Id. 4; Ex. 4.) Moreover, since this Court undeniably has jurisdiction over Apple's claims that Psystar has infringed other registered copyrights, it was not even necessary that the copyright in Mac OS X version 10.6 also be registered. In Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1154-5d n.1 (9th Cir. 2007), the Ninth Circuit Court of Appeals resolved this exact issue:

Once a court has jurisdiction over an action for copyright infringement under( 17 U.S.C.) section 411, the court may grant injunctive relief to restrain infringement of any copyright, whether registered or unregistered. See, e.g., Olan Mills, Inc. v. Linn Photo Co., 23 F .3d 1345, 1349 (8th Cir. 1994); Pac. & S. Co., Inc. v. Duncan, 744 F.2d 1490, 1499 n. 17 (11th Cir. 1984).
In addition, once a court has jurisdiction over a registered work, it also has jurisdiction over unregistered works that are derivative of the registered work. Montgomery v. Noga, 168 F.3d 1282 (11th Cir. 1999). In Montgomery, the copyright holder brought an action alleging infringement of his copyright in a computer program and a later upgrade of that computer program. Id. at 1287. The copyright in the original program was registered, but the copyright in

3

the upgrade was not registered. Defendants argued that the derivative work could not be the subject of an infringement action because it was a "separate work" that required its own registration, and was not in existence at the time of the registration of the underlying work. Id. at 1292. However, the district court found, and the Eleventh Circuit agreed, that defendant's copying of the later work infringed the copyright in plaintiff s earlier computer program. Id. (collecting cases). Likewise here: since Snow Leopard evolved from Leopard, Psystar's copying infringes Apple's copyrights in both works. Accordingly, this Court has jurisdiction over all of Apple's copyright claims against Psystar.

Finally, this Court also has jurisdiction over Apple's claim that Psystar has violated the DMCA by circumventing the technological protection mechanism in Mac OS X version 10.6. IMS. Inquiry Mgmt. Sys. Ltd. v. Berkshire Information Sys., Inc., 307 F. Supp. 2d 521, 531 n.9 (S.D.N.Y. 2004); Med. Broad. Co. v. Flaiz, 2003 WL 22838094, at 3 (E.D. Pa. 2003) (citing Nimmer on Copyrights, 12A. 18(B)); 5 William F. Patry, Patry on Copyrights, 17:78 (2009). Thus, there is no jurisdictional impediment that prevents this Court from resolving all of the disputes between Apple and Psystar.

B. Apple Responded to Discovery Regarding Mac OS X ver. 10.6, While Psystar
Did Not

assertion that Apple stonewalled and did not provide discovery regarding any version of Mac OS X other than Leopard is simply incorrect. At least six Apple witnesses -- Simon Patience, Phil Schiller, Kevin Van Vechten, Michael Culbert, Bob Mansfield and Greg Christie -- provided deposition testimony relating to Snow Leopard. (See Boroumand Smith Declaration in Support of Apple's Motion, Exs. 6-11 (citing some of that deposition testimony)). Apple witnesses were never instructed to not answer questions regarding Snow Leopard. On occasion, Apple's counsel objected to the relevance of such questions since, at that time, the Mac OS X Snow Leopard upgrade had not yet been released and Psystar had provided no indication (either through its counselor in its discovery responses) that it intended to run Snow Leopard on its computers. Nonetheless, Apple's witnesses were permitted to answer all the questions posed by Psystar.

4

Furthermore, Psystar's explanation of the discovery responses is also inaccurate. [redacted]

Moreover, Apple produced documents beyond those relating only to Mac OS X Leopard. [redacted] As Snow Leopard was not released until after the close of discovery and Psystar did not provide any discovery indicating its plans to run Snow Leopard on its machines,3 Apple did not produce any Snow Leopard specific documents. Had

5

Psystar not hidden its intent to run Snow Leopard on its computers, Apple would have provided this information to Psystar as well. Additionally, as Apple has stated in its Motion to Dismiss or Enjoin, it supports re-opening discovery for limited purposes so that Psystar (and Apple) can have access to relevant Snow Leopard related documents from one another.

C. Even If Psystar Has Devised Another Way to Crack the Encryption of Mac OS
X That Does Not Warrant Filing A Different Lawsuit

Psystar has sold seven different computers shipped with eight different versions of Mac OS X. (Reply Declaration of Dr. John Kelly (hereafter, "Kelly Decl.") 2 and Ex. 1, (Excerpt from Kelly Report).) When Apple filed its Amended Complaint, Psystar was shipping two products with Mac OS X installed: the Open Computer and the OpenPro. Since then Psystar has added five products to its line: the Rack-Mount OpenPro, the Open(3), the Open(Q), the Open(7), and the Rack-Mount Open(7). (Kelly Decl., 2.) While Psystar now claims the computers running Snow Leopard are "entirely different," in truth its product line has not changed. Indeed, the Open(7) being offered with Snow Leopard has the same base specifications as the Open(7) that Psystar has been selling for months. Only the version of Mac OS X has changed. (Kelly Decl. 2.)

[redacted]

[redacted]

6

[redacted]

Psystar also says it is going to start selling a "dongle" sometime in the future that will allow users to load Mac OS X onto any computer, even if the computer does not come from Psystar.5 Again, the physical form in which Psystar sells its circumvention device is irrelevant to its legal liability. The DMCA prohibits the manufacturing and sale of any "technology, product, service, device, component, or part thereof" primarily designed to circumvent a technological measure -- [redacted]. Either way Psystar violates the law and infringes Apple's rights. That is the precise issue presented by this lawsuit; it should be resolved for all purposes in this trial, rather than forcing two judges and two juries to consider exactly the same legal claim.

7

D. The Key Legal Issues Regarding the Terms of the Mac OS X License Are
Identical in the Two Lawsuits

Each time Psystar loads any version of Mac OS X onto a Psystar computer it breaches Apple's Software License Agreement ("SLA") because that SLA (whether for Leopard or Snow Leopard) explicitly states that the licensee may only install Apple's softare on a single Apple-labeled computer at a time.6 See, Opp. Br., Exs. D and E, sec. 2.A. Moreover, since Psystar's copying and use of any version of Mac OS X on a non-Apple computer exceeds the scope of the Apple SLA, that copying and use constitutes copyright infringement. 17 U.S.C. 106. This fundamental issue permeates every aspect of this lawsuit as well as the newly-filed Florida action.

Psystar cannot in good faith contest that it makes multiple, unauthorized, copies of Mac OS X, both version 10.5 and version 10.6. Rather, it apparently intends to argue either that Apple's Software License Agreement is not enforceable or that it is not applicable. Psystar notes minor differences between the wording of earlier and later versions of Apple's Software License Agreement. Opp. Br. at 9-10. But the similarities between the SLAs dwarf their differences, and the differences do not matter. In all events, the minor word changes do not warrant a whole new lawsuit in Florida.

Psystar apparently intends to argue that it is not bound by the SLA because Apple "sells" Mac OS X rather than licensing it. This is known as the "first sale" defense under copyright law.7 Both the older and newer version of the Mac OS X SLA explicitly state that Apple's software, "whether preinstalled on Apple-labeled hardware, on disk, in read only memory, on any other media or in any other form (collectively the 'Apple Software') are licensed, not sold, to you by this license." Opp. Br. Ex. D, sec. 1 (emphasis added). The older version of the SLA (dated August 14, 2007) states that "You own the media on which the Apple Software is recorded but Apple and/or Apple's licensor(s)

8

retain ownership of the Apple Software." Opp. Br., Ex. E, sec. 1. The more recent version of the SLA (dated July 15, 2009) says "Apple and/or Apple's licensor(s) retain ownership of the Apple Software itself and reserve all rights not expressly granted to you." Opp. Br. Ex. D, sec. 1.

Psystar argues this language change may be significant to its first sale defense and says the new license is not at issue in this lawsuit.8 However, Psystar ignores two crucial facts which demonstrate that it makes no sense to have two different lawsuits pending regarding the same legal dispute. First, if either version of the SLA helps Psystar's argument (and Apple believes that neither does) it is the 2007 version (which is clearly at issue in this case), not the 2009 version which eliminates the words "you own the media on which the Apple software is recorded...." Second, both versions of the SLA explicitly state that Apple's software is licensed, not sold. While the question whether the first sale defense applies must be resolved it need not be -- and should not be -- presented simultaneously to two different courts that could, conceivably, reach two different results. Rather, this Court, which has invested substantial time and resources into this dispute already, is the appropriate forum to address and resolve this legal issue.

Psystar claims the 2009 SLA allows consumers who are not willing to be bound by Apple's license to return opened software to Apple while the 2007 SLA is less clear. Psystar then hypothesizes that a consumer who purchased Leopard under the 2007 license from a retailer (not Apple) that does not accept returns of opened software might not be able to get a refund if that consumer chooses to not accept the license. Psystar next suggests that this hypothetical "lack of an opportunity to return the software may affect the enforceability of the license agreement." 21 Opp. Br. at 10. Again it is premature for Apple to address the merits (if any) of this contention, except to note that Psystar submits no evidence whatsoever that any consumer has ever tried, unsuccessfully, to return Mac OS X because that person did not agree with its license terms. For the present purpose of deciding what court should address this claim, it is crucial to reiterate that the alleged failing in the SLA exists in the 2007 version, which is clearly at issue in this case, not the later version. Again, then, there is no reason for a completely new lawsuit; this Court will

9

address and resolve the issue.

Psystar next argues that the 2009 license contains an express prohibition on decompiling, decrypting, reverse engineering, disassembling or attempting to derive the source code of Mac OS X while the 2007 license does not. Opp. Br. at 10. That is incorrect: both licenses contain these prohibitions (see, Opp. Br. Ex. D, sec. 2.1.; Ex. E, sec. 2.F.), although the 2009 license specifically adds the word "decrypt." Yet again, Psystar's argument (if any) that it is allowed to decrypt under the DMCA is made worse by the 2009 SLA. Moreover, both licenses explicitly state that their restrictions on reverse engineering, etc., are subject to applicable law, including the DMCA. This is no basis for an entirely separate lawsuit.

Finally, Psystar notes that the 2009 SLA explicitly has a California choice of law provision. That is true but irrelevant; Apple already has asserted claims against Psystar under California law. Amended Compl., (Dkt. No. 38) 107-109.

E. Psystar's Unabashed Attempt to Avoid this Court's Prior Ruling Dismissing
Its Antitrust Claims Should Be Halted

Despite the fact that this Court already has considered and rejected the same antitrust claim that Psystar has re-filed in Florida, Psystar argues that this Court should not "intrude on and, indeed, preempt the judgment of Judge Hoeveler of the United States District Court for the Southern District of Florida" (Opp. Br. at 3) or "intervene in matters that should be decided by Judge Hoeveler. ..." (Id. at 12). But it is Psystar that is attempting to have Judge Hoeveler "intrude on" and "intervene in" the antitrust and unfair competition claims already decided by this Court. Indeed, Psystar's act of filing in Florida deliberately disregards this Court's prior Order giving Psystar the opportunity to "plead its best case" and warning that otherwise its prior antitrust counterclaims would be dismissed with prejudice. Apple Inc. v. Psystar Corp., 586 F. Supp. 2d 24 1190, 1204 (N.D. Cal. 2008). In response Psystar specifically told the Court that it had chosen to "not re-plead its Sherman and Clayton Act antitrust claims (and related state claims).. .." (Psystar's Motion For Leave to Amend Counterclaim, Dkt. No. 40, at p. 9, n.1.)

Psystar disingenuously argues that it could not have filed the current antitrust claims before, when directed to do so by this Court, because they involve a new product, Snow Leopard,

10

and new definitions of the relevant market. But nothing claimed is truly new. Apple's allegedly anti-competitive conduct is its decision to license its Mac OS X software exclusively for use on Apple computers. This Court has already ruled that Apple does not violate the antitrust laws by licensing in this manner:

Apple asks its customers to purchase Mac OS knowing that it is to be used only with Apple computers. (Compl. 28) It is certainly entitled to do so.
586 F. Supp. 2d at 1201 (emphasis added). Despite this unequivocal ruling, Psystar again challenges the exact same licensing practice, on the exact same legal theory, in Florida. See, Psystar's Florida Complaint, 21-25. The challenged restriction, found in section 2A of the SLA, has not changed since this Court's ruling in November, 2008. Psystar attempts to justify its forum-shopping by alleging a different relevant market, a purported market for "premium personal computers." It also says it may amend in Florida to try a third bite at Apple, alleging a market for "personal computers ruing UNIX-based operating systems." Opp. Br. at 13. But if there are any such plausible relevant markets (which Apple disputes), those alleged markets existed in November, 2008, when Psystar was given the chance by this Court to try to plead its "best case." Since it did not do so then, Psystar canot do so now in a different court across the continent. Psystar's "new" antitrust claim arises from the same operative facts -- the same license restriction -- as its dismissed one. Consequently, those claims are barred by Psystar's failure to assert them in this action. In re Crown Vantage, Inc., 421 F.3d 963, 973 n.7 (9th Cir. 2005).

III. CONCLUSION

Psystar agrees it is within this Court's authority to enjoin prosecution of the Florida action. Opp. Br. at 14. Apple believes the Court should go further and order Psystar to dismiss the action entirely. There is absolutely no reason for two courts simultaneously to be considering the same legal issues between the same parties involving the same products. The best outcome of such a highly inefficient use of judicial resources is that both courts, after expending significant time and resources, reach the same result. The worst outcome, of course, is the opposite.

Psystar states it is eager for a trial in order to test the legality of its entire business. That is

11

a reasonable concern, but it leads to the conclusion that Apple's motion should be granted. It is much more efficient for the judicial system and the parties to briefly reopen discovery in this case, postpone the trial for a short time, and have all disputes resolved in this case than to have the substantial majority of them resolved in this action but then to conduct an entirely separate lawsuit over the remaining loose ends. Apple's Motion to Dismiss or Enjoin should be granted.

DATED: September 21, 2009

Respectfully submitted,

TOWNSEND AND TOWNSEND AND CREW LLP

By: /s/James G. Gillland, Jr.
JAMES G. GILLILAND, JR.

Attorneys for Plaintiff and Counterdefendant
APPLE INC.

12

CERTIFICATE OF SERVICE

1 Section 117 of the Copyright Act allows the "owner of a copy of a computer program" to make, under very limited circumstances not applicable here, a "new copy or adaptation" if that is done "as an essential step in the utilization of the computer program in conjunction with a machine...." 17 U.S.C. 117(a).

2[redacted]

3[redacted]

4The DMCA, 17 U.S.C. 1201 states that "No person shall circumvent a technological measure that effectively controls access to a (copyrighted) work...."

528 Apparently a "dongle" is nothing more than a USB drive -- like a thumb drive -- that can be plugged into a computer's USB port. [redacted]

6The later version of the Mac OS X SLA uses the wording "Apple-branded" rather than "Apple-labeled."

7 See, Wall Data Inc. v. Los Angeles County Sheriff's Dept., 447 F. 3d 769,786 fn. 9 (9th Cir. 2006), "(T)he first sale doctrine rarely applies in the software world because software is rarely 'sold.'"

8 Apple is confident the language change has no bearing whatsoever on the validity of Psystar's first sale defense. For present purposes, however, that issue need not be resolved.

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

Here is our handy EULA chart. Both EULAs were filed by Psystar as exhibits to its Memorandum in Opposition to Apple's motion to dismiss or enjoin prosecution of Psystar's Florida litigation.

In the Apple User License for MacOS 10.5 [PDF], for Leopard, the column on the left, text not appearing in the 10.6 Snow Leopard License, the column on the right, is highlighted in blue.

In the Apple User Licence for MacOS 10.6 [PDF], the one for Snow Leopard, text not appearing in the 10.5 License, Leopard, is highlighted in red.

In order to be able to compare the two EULAs topically, subject by subject, required moving things around a bit, so you'll find, for example, in Clause 2 about permitted uses, that after the paragraphs that match topically are finished, there are some paragraphs in Snow Leopard that have no equivalence, so they are grouped at the end of that section.

LEOPARD SNOW LEOPARD

ENGLISH
APPLE INC.
SOFTWARE LICENSE AGREEMENT FOR MAC OS X
Single Use and Family Pack License for use on Apple-labeled Systems
PLEASE READ THIS SOFTWARE LICENSE AGREEMENT ("LICENSE") CAREFULLY BEFORE USING THE APPLE SOFTWARE. BY USING THE APPLE SOFTWARE, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS LICENSE. IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE, DO NOT USE THE SOFTWARE. IF YOU DO NOT AGREE TO THE TERMS OF THE LICENSE, YOU MAY RETURN THE APPLE SOFTWARE TO THE PLACE WHERE YOU OBTAINED IT FOR A REFUND. IF THE APPLE SOFTWARE WAS ACCESSED ELECTRONICALLY, CLICK "DISAGREE/DECLINE". FOR APPLE SOFTWARE INCLUDED WITH YOUR PURCHASE OF HARDWARE, YOU MUST RETURN THE ENTIRE HARDWARE/SOFTWARE PACKAGE IN ORDER TO OBTAIN A REFUND.

ENGLISH
APPLE INC.
SOFTWARE LICENSE AGREEMENT FOR MAC OS X
Single Use, Family Pack and Leopard Upgrade Licenses for use on Apple-branded Systems
PLEASE READ THIS SOFTWARE LICENSE AGREEMENT ("LICENSE") CAREFULLY BEFORE USING THE APPLE SOFTWARE. BY USING THE APPLE SOFTWARE, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS LICENSE, UNLESS YOU RETURN THE APPLE SOFTWARE IN ACCORDANCE WITH APPLE'S RETURN POLICY. IF YOU ARE ACCESSING THE APPLE SOFTWARE ELECTRONICALLY, SIGNIFY YOUR AGREEMENT TO BE BOUND BY THE TERMS OF THIS LICENSE BY CLICKING THE "AGREE " BUTTON. IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE, DO NOT USE THE APPLE SOFTWARE AND CLICK "DISAGREE". IF YOU DO NOT AGREE TO THE TERMS OF THE LICENSE, YOU MAY RETURN THE APPLE SOFTWARE WITHIN THE RETURN PERIOD TO THE APPLE STORE OR AUTHORIZED DISTRIBUTOR WHERE YOU OBTAINED IT FOR A REFUND, SUBJECT TO APPLE'S RETURN POLICY FOUND AT http://www.apple.com/legal/ sales_policies/. FOR APPLE SOFTWARE INCLUDED WITH YOUR PURCHASE OF HARDWARE, YOU MUST RETURN THE ENTIRE HARDWARE/SOFTWARE PACKAGE IN ORDER TO OBTAIN A REFUND.

IMPORTANT NOTE: This software may be used to reproduce, modify, publish and distribute materials. It is licensed to you only for reproduction, modification, publication and distribution of non-copyrighted materials, materials in which you own the copyright, or materials you are authorized or legally permitted to reproduce, modify, publish or distribute. If you are uncertain about your right to copy, modify, publish or distribute any material, you should contact your legal advisor. IMPORTANT NOTE: This software may be used to reproduce, modify, publish and distribute materials. It is licensed to you only for reproduction, modification, publication and distribution of non-copyrighted materials, materials in which you own the copyright, or materials you are authorized or legally permitted to reproduce, modify, publish or distribute. If you are uncertain about your right to copy, modify, publish or distribute any material, you should contact your legal advisor.
1. General. The software (including Boot ROM code), documentation and any fonts accompanying this License whether preinstalled on Apple-labeled hardware, on disk, in read only memory, on any other media or in any other form (collectively the "Apple Software") are licensed, not sold, to you by Apple Inc. ("Apple") for use only under the terms of this License, and Apple reserves all rights not expressly granted to you. The rights granted herein are limited to Apple's and its licensors' intellectual property rights in the Apple Software as licensed hereunder and do not include any other patents or intellectual property rights. You own the media on which the Apple Software is recorded but Apple and/or Apple's licensor(s) retain ownership of the Apple Software itself. The terms of this License will govern any software upgrades provided by Apple that replace and/or supplement the original Apple Software product, unless such upgrade is accompanied by a separate license in which case the terms of that license will govern.

Title and intellectual property rights in and to any content displayed by or accessed through the Apple Software belongs to the respective content owner. Such content may be protected by copyright or other intellectual property laws and treaties, and may be subject to terms of use of the third does not grant you any rights to use such content nor does it guarantee that such content will continue to be available to you.

1. General. The Apple software (including Boot ROM code), any third party software, documentation, interfaces, content, fonts and any data accompanying this License whether preinstalled on Apple-branded hardware, on disk, in read only memory, on any other media or in any other form (collectively the "Apple Software") are licensed, not sold, to you by Apple Inc. ("Apple") for use only under the terms of this License. Apple and/or Apple's licensors retain ownership of the Apple Software itself and reserve all rights not expressly granted to you. The terms of this License will govern any software upgrades provided by Apple that replace and/or supplement the original Apple Software product, unless such upgrade is accompanied by a separate license in which case the terms of that license will govern.

Title and intellectual property rights in and to any content displayed by or accessed through the Apple Software belongs to the respective content owner. Such content may be protected by copyright or other intellectual property laws and treaties, and may be subject to terms of use of the third party providing such content. This License does not grant you any rights to use such content nor does it guarantee that such content will continue to be available to you.

2. Permitted License Uses and Restrictions.
A. Single Use. This License allows you to install, use and run one (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 to enable others to do so. This License does not allow the Apple Software to exist on more than one computer at a time, and you may not make the Apple Software available over a network where it could be used by multiple computers at the same time.
2. Permitted License Uses and Restrictions.
A. Single Use License. Subject to the terms and conditions of this License, unless you have purchased a Family Pack or Upgrade license for the Apple Software, you are granted a limited non-exclusive license to install, use and run one (1) copy of the Apple Software on a single Apple-branded computer at a time. You agree not to install, use or run the Apple Software on any non-Apple-branded computer, or to enable others to do so. This License does not allow the Apple Software to exist on more than one computer at a time, and you may not make the Apple Software available over a network where it could be used by multiple computers at the same time.
B. Family Pack. If you have purchased a Mac OS X Family Pack, this License allows you to install and use one (1) copy of the Apple Software on up to a maximum of five (5) Apple-labeled computers at a time as long as those computers are located in the same household and used by persons who occupy that same household. By "household" we mean a person or persons who share the same housing unit such as a home, apartment, mobile home or condominium, but shall also extend to student members who are primary residents of that household but residing at a separate on-campus location. The Family Pack License does not extend to business or commercial users. B. Family Pack License. If you have purchased a Family Pack license, then subject to the terms and conditions of this License, you are granted a limited non- exclusive license to install, use and run one (1) copy of the Apple Software on up to a maximum of five (5) Apple-branded computers at a time as long as those computers are located in the same household and used by persons who occupy that same household. By "household" we mean a person or persons who share the same housing unit such as a home, apartment, mobile home or condominium, but shall also extend to student members who are primary residents of that household but residing at a separate on-campus location. The Family Pack License does not extend to business or commercial users.
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; provided that the backup copy must include all copyright or other proprietary notices contained on the original. Apple Boot ROM code and firmware is provided only for use on Apple-labeled hardware and you may not copy, modify or redistribute the Apple Boot ROM code or firmware, or any portions thereof. F. 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- branded hardware) in machine-readable form for backup purposes only; provided that the backup copy must include all copyright or other proprietary notices contained on the original. Apple Boot ROM code and firmware is provided only for use on Apple-branded hardware and you may not copy, modify or redistribute the Apple Boot ROM code or firmware, or any portions thereof.
D. Certain components of the Apple Software, and third party open source programs included with the Apple Software, have been or may be made available by Apple on its Open Source web site (http://www.opensource.apple.com/) (collectively the "Open-Sourced Components"). You may modify or replace only these Open-Sourced Components; provided that: (i) the resultant modified Apple Software is used, in place of the unmodified Apple Software, on a single Apple-labeled computer; and (ii) you otherwise comply with the terms of this License and any applicable licensing terms governing use of the Open-Sourced Components. Apple is not obligated to provide any updates, maintenance, warranty, technical or other support, or services for the resultant modified Apple Software. You expressly acknowledge that if failure or damage to Apple hardware results from modification of the Open-Sourced Components of the Apple Software, such failure or damage is excluded from the terms of the Apple hardware warranty. H. Certain components of the Apple Software, and third party open source programs included with the Apple Software, have been or may be made available by Apple on its Open Source web site (http://www.opensource.apple.com/) (collectively the "Open-Sourced Components"). You may modify or replace only these Open-Sourced Components; provided that: (i) the resultant modified Apple Software is used, in place of the unmodified Apple Software, on a single Apple- branded computer; and (ii) you otherwise comply with the terms of this License and any applicable licensing terms governing use of the Open-Sourced Components. Apple is not obligated to provide any updates, maintenance, warranty, technical or other support, or services for the resultant modified Apple Software. You expressly acknowledge that if failure or damage to Apple hardware results from modification of the Open-Sourced Components of the Apple Software, such failure or damage is excluded from the terms of the Apple hardware warranty.
E. Apple has provided, as part of the Apple Software package, access to certain third party software as a convenience. To the extent that the Apple Software contains third party software, Apple has no express or implied obligation to provide any technical or other support for such software. Please contact the appropriate software vendor or manufacturer directly for technical support and customer service related to its software and products. J. Apple has provided as part of the Apple Software package, and may provide as an upgrade, update or supplement to the Apple Software, access to certain third party software or services as a convenience. To the extent that the Apple Software contains or provides access to any third party software or services, Apple has no express or implied obligation to provide any technical or other support for such software or services. Please contact the appropriate software vendor, manufacturer or service provider directly for technical support and customer service related to its software, service and/or products.
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.
THE APPLE SOFTWARE IS NOT INTENDED FOR USE IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL SYSTEMS, LIFE SUPPORT MACHINES OR OTHER EQUIPMENT IN WHICH THE FAILURE OF THE APPLE SOFTWARE COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE. [[q.v. 10.6 Cl.8]]
I. You may not and you agree not to, or to enable others to, copy (except as expressly permitted by this License), decompile, reverse engineer, disassemble, attempt to derive the source code of, decrypt, modify, or create derivative works of the Apple Software or any services provided by the Apple Software, or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by licensing terms governing use of Open-Sourced Components). You agree to use the Apple Software and the Services (as defined in Section 5 below) in compliance with all applicable laws, including local laws of the country or region in which you reside or in which you download or use the Apple Software and Services.
G. If you use Setup/Migration Assistant to transfer software from one Apple-labeled computer to another Apple-labeled computer, please remember that continued use of the original copy of the software may be prohibited once a copy has been transferred to another computer, unless you already have a licensed copy of such software on both computers. You should check the relevant software license agreements for applicable terms and conditions. G. If you use Setup/Migration Assistant to transfer software from one Apple-branded computer to another Apple-branded computer, please remember that continued use of the original copy of the software may be prohibited once a copy has been transferred to another computer, unless you already have a licensed copy of such software on both computers. You should check the relevant software license agreements for applicable terms and conditions. Third party software and services may not be compatible with this Apple Software and installation of this Apple Software may affect the availability and usability of such third party software or services.
- C. Leopard Upgrade Licenses. If you have purchased an Upgrade for Mac OS X Leopard license, then subject to the terms and conditions of this License, you are granted a limited non-exclusive license to install, use and run one (1) copy of the Apple Software on a single Apple-branded computer as long as that computer has a properly licensed copy of Mac OS X Leopard already installed on it. If you have purchased a Family Pack Upgrade for Mac OS X Leopard license, then subject to the terms and conditions of this License, you are granted a limited non-exclusive license to install, use and run one (1) copy of the Apple Software on up to a maximum of five (5) Apple-branded computers at a time as long as those computers are located in the same household (as defined above), are used by persons who occupy that same household, and each such computer has a properly licensed copy of Mac OS X Leopard already installed on it. The Family Pack Upgrade for Mac OS X Leopard License does not extend to business or commercial users.
- D. Fonts. Subject to the terms and conditions of this License, you may use the fonts included with the Apple Software to display and print content while running the Apple Software; however, you may only embed fonts in content if that is permitted by the embedding restrictions accompanying the font in question. These embedding restrictions can be found in the Font Book/Preview/Show Font Info panel.
- E. Voices. Subject to the terms and conditions of this License, you may use the system voices included in the Apple Software ("System Voices") (i) while running the Apple Software and (ii) to create your own original content and projects for your personal, non-commercial use. No other use of the System Voices is permitted by this License, including but not limited to the use, reproduction, display, performance, recording, publishing or redistribution of any of the System Voices in a profit, non-profit, public sharing or commercial context.
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, lend, redistribute, sublicense or transfer any Apple Software that has been modified or replaced under Section 2D above. All components of the Apple Software are provided as part of a bundle and may not be separated from the bundle and distributed as standalone applications. Apple Software provided with a particular Apple-labeled hardware product may not run on other models of Apple-labeled hardware. 3. Transfer. You may not rent, lease, lend, sell, 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, lend, redistribute, sublicense or transfer any Apple Software that has been modified or replaced under Section 2H above. All components of the Apple Software are provided as part of a bundle and may not be separated from the bundle and distributed as standalone applications. Apple Software provided with a particular Apple-branded hardware product may not run on other models of Apple-branded hardware.
Updates: If an Apple Software update completely replaces (full install) a previously licensed version of the Apple Software, you may not use both versions of the Apple Software at the same time nor may you transfer them separately. Updates: If an Apple Software update completely replaces (full install) a previously licensed version of the Apple Software, you may not use both versions of the Apple Software at the same time nor may you transfer them separately.
NFR (Not for Resale) and Evaluation Copies: Notwithstanding other sections of this License, Apple Software labeled or otherwise provided to you on a promotional or not-for-resale basis may only be used for demonstration, testing and evaluation purposes and may not be resold or transferred. NFR (Not for Resale) and Evaluation Copies: Notwithstanding other sections of this License, Apple Software labeled or otherwise provided to you on a promotional or not-for-resale basis may only be used for demonstration, testing and evaluation purposes and may not be resold or transferred.
Apple System Restore Copies: Restore CDs or DVDs that may accompany an Apple hardware bundle, or are otherwise provided by Apple in connection with an Apple hardware bundle, contain a copy of the Apple Software that is to be used for diagnostic and restorative purposes only. These CDs and DVDs may be resold or transferred only as part of the Apple hardware bundle. Apple System Restore Copies: Restore CDs or DVDs that may accompany an Apple hardware bundle, or are otherwise provided by Apple in connection with an Apple hardware bundle, contain a copy of the Apple Software that is to be used for diagnostic and restorative purposes only. These CDs and DVDs may be resold or transferred only as part of the Apple hardware bundle.
Academic Copies: If the Apple Software package has an academic label or if you acquired the Apple Software at an academic discount, you must be an Eligible Educational End User to use the Apple Software. "Eligible Educational End Users" means students, faculty, staff and administration attending and/or working at an educational institutional facility (i.e., college campus, public or private K-12 schools). Academic Copies: If the Apple Software package has an academic label or if you acquired the Apple Software at an academic discount, you must be an Eligible Educational End User to use the Apple Software. "Eligible Educational End Users" means students, faculty, staff and administration attending and/or working at an educational institutional facility (i.e., college campus, public or private K-12 schools).
4. Consent to Use of Data.
You agree that Apple and its subsidiaries may collect and use technical and related information, including but not limited to technical information about your computer, system and application software, and peripherals, that is gathered periodically to facilitate the provision of software updates, product support and other services to you (if any) related to the Apple Software, and to verify compliance with the terms of this License. Apple may use this information, as long as it is in a form that does not personally identify you, to improve our products or to provide services or technologies to you.
4. Consent to Use of Data.
A. Diagnostic Data. You agree that Apple and its subsidiaries and agents may collect, maintain, process and use diagnostic, technical and related information, including but not limited to information about your computer, system and application software, and peripherals, that is gathered periodically to facilitate the provision of software updates, product support and other services to you (if any) related to the Apple Software, and to verify compliance with the terms of this License. Apple may use this information, as long as it is in a form that does not personally identify you, to improve our products or to provide services or technologies to you.
B. Location Data. Apple and its partners and licensees may provide certain services through the Apple Software that rely upon location information. To provide these services, where available, Apple and its partners, licensees and third party developers may transmit, collect, maintain, process and use your location data, including the real-time geographic location of your computer. The location data collected by Apple is collected in a form that does not personally identify you and may be used by Apple and its partners, licensees and third party developers to provide location-based products and services. By using any location-based services provided by or through the Apple Software, you agree and consent to Apple's and its partners', licensees' and third party developers' transmission, collection, maintenance, processing and use of your location data to provide such products and services. You may withdraw this consent at any time by not using the location-based features or by disabling the Location Services setting in the Apple Software. The Location Services setting is found in Security preferences within System Preferences. Not using these features will not impact the non location-based functionality of the Apple Software. When using third party applications or services on your computer that use or provide location data, you are subject to and should review such third party's terms and privacy policy on use of location data by such third party applications or services. At all times your information will be treated in accordance with Apple's Customer Privacy Policy which can be viewed at: www.apple.com/legal/privacy/.
- 5. Services and Third Party Materials.
A. The Apple Software may enable access to Apple's iTunes Store and other Apple and third party services and web sites (collectively and individually, "Services"). Use of these Services requires Internet access and use of certain Services requires you to accept additional terms and may be subject to additional fees. By using this software in connection with an iTunes Store account, you agree to the latest iTunes Store Terms and Conditions, which you may access and review at http:// www.apple.com/legal/itunes/ww/.

B. You understand that by using any of the Services, you may encounter content that may be deemed offensive, indecent, or objectionable, which content may or may not be identified as having explicit language, and that the results of any search or entering of a particular URL may automatically and unintentionally generate links or references to objectionable material. Nevertheless, you agree to use the Services at your sole risk and that Apple shall have no liability to you for content that may be found to be offensive, indecent, or objectionable.

C. Certain Services may display, include or make available content, data, information, applications or materials from third parties ("Third Party Materials") or provide links to certain third party web sites. By using the Services, you acknowledge and agree that Apple is not responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such Third Party Materials or web sites. Apple, its officers, affiliates and subsidiaries do not warrant or endorse and do not assume and will not have any liability or responsibility to you or any other person for any third-party Services, Third Party Materials or web sites, or for any other materials, products, or services of third parties. Third Party Materials and links to other web sites are provided solely as a convenience to you.

D. Financial information displayed by any Services is for general informational purposes only and should not be relied upon as investment advice. Before executing any securities transaction based upon information obtained through the Services, you should consult with a financial or securities professional who is legally qualified to give financial or securities advice in your country or region. Location data provided by any Services is for basic navigational purposes only and is not intended to be relied upon in situations where precise location information is needed or where erroneous, inaccurate, time-delayed or incomplete location data may lead to death, personal injury, property or environmental damage. Neither Apple nor any of its content providers guarantees the availability, accuracy, completeness, reliability, or timeliness of stock information, location data or any other data displayed by any Services.

E. You agree that the Services contain proprietary content, information and material that is owned by Apple and/or its licensors, and is protected by applicable intellectual property and other laws, including but not limited to copyright, and that you will not use such proprietary content, information or materials in any way whatsoever except for permitted use of the Services or in any manner that is inconsistent with the terms of this License or that infringes any intellectual property rights of a third party or Apple. No portion of the Services may be reproduced in any form or by any means. You agree not to modify, rent, lease, loan, sell, distribute, or create derivative works based on the Services, in any manner, and you shall not exploit the Services in any unauthorized way whatsoever, including but not limited to, using the Services to transmit any computer viruses, worms, trojan horses or other malware, or by trespass or burdening network capacity. You further agree not to use the Services in any manner to harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other party, and that Apple is not in any way responsible for any such use by you, nor for any harassing, threatening, defamatory, offensive, infringing or illegal messages or transmissions that you may receive as a result of using any of the Services.

F. In addition, Services and Third Party Materials that may be accessed, linked to or displayed through the Apple Software are not available in all languages or in all countries. Apple makes no representation that such Services and Materials are appropriate or available for use in any particular location. To the extent you choose to access such Services or Materials, you do so at your own initiative and are responsible for compliance with any applicable laws, including but not limited to applicable local laws. Apple and its licensors reserve the right to change, suspend, remove, or disable access to any Services at any time without notice. In no event will Apple be liable for the removal of or disabling of access to any such Services. Apple may also impose limits on the use of or access to certain Services, in any case and without notice or liability.

5. Termination. This License is effective until terminated. Your rights under this License will terminate automatically without notice from Apple if you fail to comply with any term(s) of this License. Upon the termination of this License, you shall cease all use of the Apple Software and destroy all copies, full or partial, of the Apple Software. 6. Termination. This License is effective until terminated. Your rights under this License will terminate automatically or otherwise cease to be effective without notice from Apple if you fail to comply with any term(s) of this License. Upon the termination of this License, you shall cease all use of the Apple Software and destroy all copies, full or partial, of the Apple Software. Sections 7, 8, 9, 10, 13 and 14 of this License shall survive any such termination.
6. Limited Warranty on Media. Apple warrants the media on which the Apple Software is recorded and delivered by Apple to be free from defects in materials and workmanship under normal use for a period of ninety (90) days from the date of original retail purchase. Your exclusive remedy under this Section shall be, at Apple's option, a refund of the purchase price of the product containing the Apple Software or replacement of the Apple Software which is returned to Apple or an Apple authorized representative with a copy of the receipt. THIS LIMITED WARRANTY AND ANY IMPLIED WARRANTIES ON THE MEDIA INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, OF SATISFACTORY QUALITY, AND OF FITNESS FOR A PARTICULAR PURPOSE, ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF ORIGINAL RETAIL PURCHASE. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. THE LIMITED WARRANTY SET FORTH HEREIN IS THE ONLY WARRANTY MADE TO YOU AND IS PROVIDED IN LIEU OF ANY OTHER WARRANTIES (IF ANY) CREATED BY ANY DOCUMENTATION, PACKAGING OR OTHERWISE. THIS LIMITED WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY BY JURISDICTION. 7. Limited Warranty on Media. Apple warrants the media on which the Apple Software is recorded and delivered by Apple to be free from defects in materials and workmanship under normal use for a period of ninety (90) days from the date of original retail purchase. Your exclusive remedy under this Section shall be, at Apple's option, a refund of the purchase price of the product containing the Apple Software or replacement of the Apple Software which is returned to Apple or an Apple authorized representative with a copy of the receipt. THIS LIMITED WARRANTY AND ANY IMPLIED WARRANTIES ON THE MEDIA INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, OF SATISFACTORY QUALITY, AND OF FITNESS FOR A PARTICULAR PURPOSE, ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF ORIGINAL RETAIL PURCHASE. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. THE LIMITED WARRANTY SET FORTH HEREIN IS THE ONLY WARRANTY MADE TO YOU AND IS PROVIDED IN LIEU OF ANY OTHER WARRANTIES (IF ANY) CREATED BY ANY DOCUMENTATION, PACKAGING OR OTHERWISE. THIS LIMITED WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY BY JURISDICTION.
7. Disclaimer of Warranties. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE APPLE SOFTWARE IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. EXCEPT FOR THE LIMITED WARRANTY ON MEDIA SET FORTH ABOVE AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE APPLE SOFTWARE AND ANY SERVICES PERFORMED OR PROVIDED BY THE APPLE SOFTWARE ("SERVICES") ARE PROVIDED "AS IS", WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND APPLE AND APPLE'S LICENSORS (COLLECTIVELY REFERRED TO AS "APPLE" FOR THE PURPOSES OF SECTIONS 7 and 8) HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE APPLE SOFTWARE AND ANY SERVICES, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. APPLE DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE APPLE SOFTWARE, THAT THE FUNCTIONS CONTAINED IN, OR SERVICES PERFORMED OR PROVIDED BY, THE APPLE SOFTWARE WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE APPLE SOFTWARE OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT THE APPLE SOFTWARE OR SERVICES WILL BE COMPATIBLE WITH THIRD PARTY SOFTWARE, OR THAT DEFECTS IN THE APPLE SOFTWARE OR SERVICES WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY APPLE OR AN APPLE AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE APPLE SOFTWARE OR SERVICES PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU.
The Apple Software automatically references, displays, links to, and provides web services related to, sites and information located worldwide throughout the Internet. Because Apple has no control over such sites and information, Apple makes no guarantees as to such sites and information, including but not limited to: (a) the accuracy, availability, sequence, completeness, currency, content, validity or quality of any such sites and information, or (b) whether an Apple search completed through the Apple Software may locate unintended or objectionable content. Because some of the content on the Internet consists of material that is adult-oriented or otherwise objectionable to some people or viewers under the age of 18, the results of any search or entering of a particular URL using the Apple Software may automatically and unintentionally generate links or references to objectionable material. By using the Apple Software, you acknowledge that Apple makes no representations or warranties with regard to any sites or information displayed by or accessed through the Apple Software, or any web services performed by the Apple Software in relation to such sites or information. Apple, its officers, affiliates and subsidiaries shall not, directly or indirectly, be liable, in any way, to you or any other person for the content you receive using the Apple Software or for any inaccuracies, errors in or omissions from the content. Financial information displayed by the Apple Software is for general informational purposes only and is not intended to be relied upon as investment advice. Before executing any securities transaction based upon information obtained through the Apple Software, you should consult with a financial professional. Neither Apple nor any of its content providers guarantees the accuracy, completeness, or timeliness of stock information appearing within the Apple Software. The Apple Software may be used to conduct automated translations. As automated translations are performed by software tools and do not involve any human intervention or verification, it is not advisable to rely upon such translations where absolute accuracy is required. Backup functions performed by the Apple Software are only carried out at certain times and are subject to hardware limitations such as drive storage capacity. Apple and its licensors reserve the right to change, suspend, remove, or disable access to any Services at any time without notice. In no event will Apple be liable for the removal of or disabling of access to any such Services. Apple may also impose limits on the use of or access to certain Services, in any case and without notice or liability.

8. Disclaimer of Warranties. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, USE OF THE APPLE SOFTWARE AND ANY SERVICES PERFORMED BY OR THROUGH THE APPLE SOFTWARE (COLLECTIVELY "SERVICES") IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. EXCEPT FOR THE LIMITED WARRANTY ON MEDIA SET FORTH ABOVE AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE APPLE SOFTWARE AND SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE", WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND APPLE AND APPLE'S LICENSORS (COLLECTIVELY REFERRED TO AS "APPLE" FOR THE PURPOSES OF SECTIONS 8 and 9) HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE APPLE SOFTWARE AND SERVICES, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. APPLE DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE APPLE SOFTWARE AND SERVICES, THAT THE FUNCTIONS CONTAINED IN, OR SERVICES PERFORMED OR PROVIDED BY, THE APPLE SOFTWARE WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE APPLE SOFTWARE OR SERVICES WILL BE UNINTERRUPTED OR ERROR- FREE, THAT ANY SERVICES WILL CONTINUE TO BE MADE AVAILABLE, THAT THE APPLE SOFTWARE OR SERVICES WILL BE COMPATIBLE OR WORK WITH ANY THIRD PARTY SOFTWARE, APPLICATIONS OR THIRD PARTY SERVICES, OR THAT DEFECTS IN THE APPLE SOFTWARE OR SERVICES WILL BE CORRECTED. INSTALLATION OF THIS SOFTWARE MAY AFFECT THE USABILITY OF THIRD PARTY SOFTWARE, APPLICATIONS OR THIRD PARTY SERVICES. YOU FURTHER ACKNOWLEDGE THAT THE APPLE SOFTWARE AND SERVICES ARE NOT INTENDED OR SUITABLE FOR USE IN SITUATIONS OR ENVIRONMENTS WHERE THE FAILURE OR TIME DELAYS OF, OR ERRORS OR INACCURACIES IN THE CONTENT, DATA OR INFORMATION PROVIDED BY, THE APPLE SOFTWARE OR SERVICES COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE, INCLUDING WITHOUT LIMITATION THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, LIFE SUPPORT OR WEAPONS SYSTEMS. [[q.v. 10.5 Cl.2.F]] NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY APPLE OR AN APPLE AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE APPLE SOFTWARE OR SERVICES PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU.
8. Limitation of Liability. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL APPLE BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE APPLE SOFTWARE, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF APPLE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. In no event shall Apple's total liability to you for all damages (other than as may be required by applicable law in cases involving personal injury) exceed the amount of fifty dollars ($50.00). The foregoing limitations will apply even if the above stated remedy fails of its essential purpose. 9. Limitation of Liability. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, IN NO EVENT SHALL APPLE BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE APPLE SOFTWARE AND SERVICES OR ANY THIRD PARTY SOFTWARE OR APPLICATIONS IN CONJUNCTION WITH THE APPLE SOFTWARE, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF APPLE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. In no event shall Apple's total liability to you for all damages (other than as may be required by applicable law in cases involving personal injury) exceed the amount of fifty dollars ($50.00). The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.
9. Digital Certificates.
General. The Apple Software contains functionality that allows it to accept digital certificates either issued from Apple or from third parties. YOU ARE SOLELY RESPONSIBLE FOR DECIDING WHETHER OR NOT TO RELY ON A CERTIFICATE WHETHER ISSUED BY APPLE OR A THIRD PARTY. YOUR USE OF DIGITAL CERTIFICATES IS AT YOUR SOLE RISK. APPLE MAKES NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, AS TO MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, ACCURACY, SECURITY, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS WITH RESPECT TO DIGITAL CERTIFICATES. You agree that (a) you will not falsify or misuse any certificate; (b) you will use Digital Certificates for legal purposes only and in accordance with any applicable Certificate Policy, Certificate Practice Statement or other Certificate Authority business practice disclosures; (c) you are solely responsible for preventing any unauthorized user from making use of your Digital Certificates; and (d) you will revoke any certificate that you have reason to believe has been compromised.
10. Digital Certificates.
A. General. The Apple Software contains functionality that allows it to accept digital certificates either issued from Apple or from third parties. YOU ARE SOLELY RESPONSIBLE FOR DECIDING WHETHER OR NOT TO RELY ON A CERTIFICATE WHETHER ISSUED BY APPLE OR A THIRD PARTY. YOUR USE OF DIGITAL CERTIFICATES IS AT YOUR SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, APPLE MAKES NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, AS TO MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, ACCURACY, SECURITY, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS WITH RESPECT TO DIGITAL CERTIFICATES. You agree that (a) you will not falsify or misuse any certificate; (b) you will use Digital Certificates for legal purposes only and in accordance with any applicable Certificate Policy, Certificate Practice Statement or other Certificate Authority business practice disclosures; (c) you are solely responsible for preventing any unauthorized user from making use of your Digital Certificates; and (d) you will revoke any certificate that you have reason to believe has been compromised.
Use of Digital Certificates in iChat. The Apple Software allows you to encrypt your iChat communications. This feature uses digital certificates to verify that the iChat is coming from the iChat screen name that appears in the iChat window and to encrypt and decrypt the chat. It does not verify the identity of the person using that screen name. Apple does not guarantee that there will be no hacking or intrusions into the chat. YOUR USE OF THIS FEATURE IN CONNECTION WITH ICHAT IS AT YOUR SOLE RISK. APPLE MAKES NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, AS TO MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, ACCURACY, SECURITY, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS WITH RESPECT TO THE USE OF DIGITAL CERTIFICATES AND/OR ENCRYPTION IN ICHAT. By using the Apple Software, you agree that (a) you will take no action that interferes with the normal operation of digital certificates or encryption used in an iChat session or otherwise falsify the digital certificate used to validate a screen name; (b) you will use the encrypted iChat function solely for legal purposes; (c) you are solely responsible for preventing any unauthorized user from having access to any certificate or private key stored on your computer; and (d) you will revoke any certificate that you have reason to believe is compromised. Apple's Certificate Policy and Certificate Practice Statements may be found at: http://www.apple.com/certificateauthority. B. Use of Digital Certificates in iChat. The Apple Software allows you to encrypt your iChat communications. This feature uses digital certificates to verify that the iChat is coming from the iChat screen name that appears in the iChat window and to encrypt and decrypt the chat. It does not verify the identity of the person using that screen name. Apple does not guarantee that there will be no hacking or intrusions into the chat. YOUR USE OF THIS FEATURE IN CONNECTION WITH ICHAT IS AT YOUR SOLE RISK. APPLE MAKES NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, AS TO MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, ACCURACY, SECURITY, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS WITH RESPECT TO THE USE OF DIGITAL CERTIFICATES AND/OR ENCRYPTION IN ICHAT. By using the Apple Software, you agree that (a) you will take no action that interferes with the normal operation of digital certificates or encryption used in an iChat session or otherwise falsify the digital certificate used to validate a screen name; (b) you will use the encrypted iChat function solely for legal purposes; (c) you are solely responsible for preventing any unauthorized user from having access to any certificate or private key stored on your computer; and (d) you will revoke any certificate that you have reason to believe is compromised. Apple's Certificate Policy and Certificate Practice Statements may be found at: http://www.apple.com/certificateauthority.
10. Export Control. You may not use or otherwise export or reexport the Apple Product except as authorized by United States law and the laws of the jurisdiction in which the Apple Product was obtained. In particular, but without limitation, the Apple Product may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person's List or Entity List. By using the Apple Product, you represent and warrant that you are not located in any such country or on any such list. 11. Export Control. You may not use or otherwise export or reexport the Apple Software except as authorized by United States law and the laws of the jurisdiction in which the Apple Software was obtained. In particular, but without limitation, the Apple Software may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person's List or Entity List. By using the Apple Software, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use the Apple Software for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons.
11. Government End Users. The Apple Software and related documentation are "Commercial Items", as that term is defined at 48 C.F.R. 2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation", as such terms are used in 48 C.F.R. 12.212 or 48 C.F.R. 227.7202, as applicable. Consistent with 48 C.F.R. 12.212 or 48 C.F.R. 227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States. 12. Government End Users. The Apple Software and related documentation are "Commercial Items", as that term is defined at 48 C.F.R. 2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation", as such terms are used in 48 C.F.R. 12.212 or 48 C.F.R. 227.7202, as applicable. Consistent with 48 C.F.R. 12.212 or 48 C.F.R. 227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States.
12. Controlling Law and Severability. This License will be governed by and construed in accordance with the laws of the State of California, as applied to agreements entered into and to be performed entirely within California between California residents. This License shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. If for any reason a court of competent jurisdiction finds any provision, or portion thereof, to be unenforceable, the remainder of this License shall continue in full force and effect. 13. Controlling Law and Severability. This License will be governed by and construed in accordance with the laws of the State of California, excluding its conflict of law principles. This License shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. If for any reason a court of competent jurisdiction finds any provision, or portion thereof, to be unenforceable, the remainder of this License shall continue in full force and effect.
13. Complete Agreement; Governing Language. This License constitutes the entire agreement between the parties with respect to the use of the Apple Software licensed hereunder and supersedes all prior or contemporaneous understandings regarding such subject matter. No amendment to or modification of this License will be binding unless in writing and signed by Apple. Any translation of this License is done for local requirements and in the event of a dispute between the English and any non-English versions, the English version of this License shall govern. 14. Complete Agreement; Governing Language. This License constitutes the entire agreement between you and Apple relating to the use of the Apple Software and supersedes all prior or contemporaneous understandings regarding such subject matter. No amendment to or modification of this License will be binding unless in writing and signed by Apple. Any translation of this License is done for local requirements and in the event of a dispute between the English and any non-English versions, the English version of this License shall govern, to the extent not prohibited by local law in your jurisdiction.
14. Third Party Acknowledgements.

A. Portions of the Apple Software utilize or include third party software and other copyrighted material. Acknowledgements, licensing terms and disclaimers for such material are contained in the "online" electronic documentation for the Apple Software, and your use of such material is governed by their respective terms.

15. Third Party Acknowledgements.
A. Portions of the Apple Software utilize or include third party software and other copyrighted material. Acknowledgements, licensing terms and disclaimers for such material are contained in the electronic documentation for the Apple Software, and your use of such material is governed by their respective terms. Use of the Google Safe Browsing Service is subject to the Google Terms of Service (http://www.google.com/terms_of_service.html) and to Google's Privacy Policy (http:// www.google.com/privacypolicy.html).
B. Certain software libraries and other third party software included with the Apple Software are free software and licensed under the terms of the GNU General Public License (GPL) or the GNU Library/Lesser General Public License (LGPL), as the case may be. You may obtain a complete machine-readable copy of the source code for such free software under the terms of the GPL or LGPL, as the case may be, without charge except for the cost of media, shipping, and handling, upon written request to Apple. The GPL/LGPL software is distributed in the hope that it will be useful, but WITHOUT ANY WARRANTY, without even the implied warranty of MERCHANTABILITY or FITNESS FOR A PARTICULAR PURPOSE. A copy of the GPL and LGPL is included with the Apple Software. B. Certain software libraries and other third party software included with the Apple Software are free software and licensed under the terms of the GNU General Public License (GPL) or the GNU Library/Lesser General Public License (LGPL), as the case may be. You may obtain a complete machine-readable copy of the source code for such free software under the terms of the GPL or LGPL, as the case may be, without charge except for the cost of media, shipping, and handling, upon written request to Apple. The GPL/LGPL software is distributed in the hope that it will be useful, but WITHOUT ANY WARRANTY, without even the implied warranty of MERCHANTABILITY or FITNESS FOR A PARTICULAR PURPOSE. A copy of the GPL and LGPL is included with the Apple Software.
C. The Apple Software includes certain software licensed under the IBM Public License Version 1.0 (IPL) or the Common Public License Version 1.0 (CPL). A copy of the source code for the IPL and CPL licensed software may be found in Apple's Open Source repository. See Apple's Open Source web site (http:// www.opensource.apple.com/) for information on how to obtain the source code. THE IPL AND CPL SOFTWARE IS PROVIDED ON AN "AS IS" BASIS, WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OR CONDITIONS OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NEITHER APPLE, IBM NOR ANY OTHER CONTRIBUTOR TO THE IPL AND CPL SOFTWARE SHALL HAVE ANY LIABILITY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS), HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OR DISTRIBUTION OF THE IPL AND CPL SOFTWARE OR THE EXERCISE OF ANY RIGHTS GRANTED HEREUNDER, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. C. The Apple Software includes certain software licensed under the IBM Public License Version 1.0 (IPL) or the Common Public License Version 1.0 (CPL). A copy of the source code for the IPL and CPL licensed software may be found in Apple's Open Source repository. See Apple's Open Source web site (http:// www.opensource.apple.com/) for information on how to obtain the source code. THE IPL AND CPL SOFTWARE IS PROVIDED ON AN "AS IS" BASIS, WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OR CONDITIONS OF TITLE, NON- INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NEITHER APPLE, IBM NOR ANY OTHER CONTRIBUTOR TO THE IPL AND CPL SOFTWARE SHALL HAVE ANY LIABILITY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS), HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OR DISTRIBUTION OF THE IPL AND CPL SOFTWARE OR THE EXERCISE OF ANY RIGHTS GRANTED HEREUNDER, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
D. MPEG-2 Notice. To the extent that the Apple Software contains MPEG-2 functionality, the following provision applies: ANY USE OF THIS PRODUCT OTHER THAN CONSUMER PERSONAL USE IN ANY MANNER THAT COMPLIES WITH THE MPEG-2 STANDARD FOR ENCODING VIDEO INFORMATION FOR PACKAGED MEDIA IS EXPRESSLY PROHIBITED WITHOUT A LICENSE UNDER APPLICABLE PATENTS IN THE MPEG-2 PATENT PORTFOLIO, WHICH LICENSE IS AVAILABLE FROM MPEG LA, L.L.C, 250 STEELE STREET, SUITE 300, DENVER, COLORADO 80206. D. MPEG-2 Notice. To the extent that the Apple Software contains MPEG-2 functionality, the following provision applies: ANY USE OF THIS PRODUCT OTHER THAN CONSUMER PERSONAL USE IN ANY MANNER THAT COMPLIES WITH THE MPEG-2 STANDARD FOR ENCODING VIDEO INFORMATION FOR PACKAGED MEDIA IS EXPRESSLY PROHIBITED WITHOUT A LICENSE UNDER APPLICABLE PATENTS IN THE MPEG-2 PATENT PORTFOLIO, WHICH LICENSE IS AVAILABLE FROM MPEG LA, L.L.C, 250 STEELE STREET, SUITE 300, DENVER, COLORADO 80206.
E. Use of MPEG-4. This product is licensed under the MPEG-4 Systems Patent Portfolio License for encoding in compliance with the MPEG-4 Systems Standard, except that an additional license and payment of royalties are necessary for encoding in connection with (i) data stored or replicated in physical media which is paid for on a title by title basis and/or (ii) data which is paid for on a title by title basis and is transmitted to an end user for permanent storage and/or use. Such additional license may be obtained from MPEG LA, LLC. See http://www.mpegla.com for additional details. This product is licensed under the MPEG-4 Visual Patent Portfolio License for the personal and non-commercial use of a consumer for (i) encoding video in compliance with the MPEG-4 Visual Standard ("MPEG-4 Video") and/or (ii) decoding MPEG-4 video that was encoded by a consumer engaged in a personal and non-commercial activity and/or was obtained from a video provider licensed by MPEG LA to provide MPEG-4 video. No license is granted or shall be implied for any other use. Additional information including that relating to promotional, internal and commercial uses and licensing may be obtained from MPEG LA, LLC. See http: // www.mpegla.com. For answers to frequently asked questions regarding use fees under the MPEG LA Visual Patent Portfolio License see www.apple.com/mpeg4 or www.apple.com/quicktime/products/qt/faq.html. E. Use of MPEG-4. This product is licensed under the MPEG-4 Visual Patent Portfolio License for the personal and non-commercial use of a consumer for (i) encoding video in compliance with the MPEG-4 Visual Standard ("MPEG-4 Video") and/or (ii) decoding MPEG-4 video that was encoded by a consumer engaged in a personal and non-commercial activity and/or was obtained from a video provider licensed by MPEG LA to provide MPEG-4 video. No license is granted or shall be implied for any other use. Additional information including that relating to promotional, internal and commercial uses and licensing may be obtained from MPEG LA, LLC. See http://www.mpegla.com.
F. H.264/AVC Notice. To the extent that the Apple Software contains AVC encoding and/or decoding functionality, commercial use of H.264/AVC requires additional licensing and the following provision applies: THE AVC FUNCTIONALITY IN THIS PRODUCT IS LICENSED HEREIN ONLY FOR THE PERSONAL AND NON-COMMERCIAL USE OF A CONSUMER TO (i) ENCODE VIDEO IN COMPLIANCE WITH THE AVC STANDARD ("AVC VIDEO") AND/OR (ii) DECODE AVC VIDEO THAT WAS ENCODED BY A CONSUMER ENGAGED IN A PERSONAL AND NON-COMMERCIAL ACTIVITY AND/OR AVC VIDEO THAT WAS OBTAINED FROM A VIDEO PROVIDER LICENSED TO PROVIDE AVC VIDEO. INFORMATION REGARDING OTHER USES AND LICENSES MAY BE OBTAINED FROM MPEG LA L.L.C. SEE HTTP://WWW.MPEGLA.COM. F. H.264/AVC Notice. To the extent that the Apple Software contains AVC encoding and/or decoding functionality, commercial use of H.264/AVC requires additional licensing and the following provision applies: THE AVC FUNCTIONALITY IN THIS PRODUCT IS LICENSED HEREIN ONLY FOR THE PERSONAL AND NON- COMMERCIAL USE OF A CONSUMER TO (i) ENCODE VIDEO IN COMPLIANCE WITH THE AVC STANDARD ("AVC VIDEO") AND/OR (ii) DECODE AVC VIDEO THAT WAS ENCODED BY A CONSUMER ENGAGED IN A PERSONAL AND NON-COMMERCIAL ACTIVITY AND/OR AVC VIDEO THAT WAS OBTAINED FROM A VIDEO PROVIDER LICENSED TO PROVIDE AVC VIDEO. INFORMATION REGARDING OTHER USES AND LICENSES MAY BE OBTAINED FROM MPEG LA L.L.C. SEE HTTP:// WWW.MPEGLA.COM.
G. AMR Notice. The Adaptive Multi-Rate ("AMR") encoding and decoding functionality in this product is not licensed to perform cellular voice calls, or for use in any telephony products built on the QuickTime architecture for the Windows platform. The AMR encoding and decoding functionality in this product is also not licensed for use in a cellular communications infrastructure including: base stations, base station controllers/radio network controllers, switching centers, and gateways to and from the public switched network. G. AMR Notice. The Adaptive Multi-Rate ("AMR") encoding and decoding functionality in this product is not licensed to perform cellular voice calls, or for use in any telephony products built on the QuickTime architecture for the Windows platform. The AMR encoding and decoding functionality in this product is also not licensed for use in a cellular communications infrastructure including: base stations, base station controllers/radio network controllers, switching centers, and gateways to and from the public switched network.
H. FAA Notice. Aircraft Situation Display and National Airspace System Status Information data (collectively "Flight Data") displayed through the Apple Software is generated by the Federal Aviation Administration. You agree not to redistribute Flight Data without the prior written consent of the FAA. The FAA and Apple disclaim all warranties, expressed or implied (including the implied warranties of merchantability and fitness for a particular purpose), regarding the use and accuracy of the Flight Data. You agree that the FAA and Apple shall not be liable, either collectively or individually, for any loss, damage, claim, liability, expense, or penalty, or for any indirect, special, secondary, incidental, or consequential damages deriving from the use of the Flight Data. The Apple Software is not sponsored or endorsed by the FAA. The FAA is not responsible for technical or system problems, and you should not contact the FAA regarding such problems or regarding operational traffic flow issues. H. FAA Notice. Aircraft Situation Display and National Airspace System Status Information data (collectively "Flight Data") displayed through the Apple Software is generated by the Federal Aviation Administration. You agree not to redistribute Flight Data without the prior written consent of the FAA. The FAA and Apple disclaim all warranties, expressed or implied (including the implied warranties of merchantability and fitness for a particular purpose), regarding the use and accuracy of the Flight Data. You agree that the FAA and Apple shall not be liable, either collectively or individually, for any loss, damage, claim, liability, expense, or penalty, or for any indirect, special, secondary, incidental, or consequential damages deriving from the use of the Flight Data. The Apple Software is not sponsored or endorsed by the FAA. The FAA is not responsible for technical or system problems, and you should not contact the FAA regarding such problems or regarding operational traffic flow issues.
I. Use of Adobe Color Profiles. You may use the Adobe Color Profile software included with the Apple Software pursuant to this License, but Adobe is under no obligation to provide any support for the Color Profiles hereunder, including upgrades or future versions of the Profiles or other items. In addition to the provisions of Sections 7 and 8 above, IN NO EVENT WILL ADOBE BE LIABLE TO YOU FOR ANY DAMAGES, CLAIMS OR COSTS WHATSOEVER. The Adobe Color Profile software distributed with the Apple Software is also available for download from Adobe at www.adobe.com. I. Use of Adobe Color Profiles. You may use the Adobe Color Profile software included with the Apple Software pursuant to this License, but Adobe is under no obligation to provide any support for the Color Profiles hereunder, including upgrades or future versions of the Profiles or other items. In addition to the provisions of Sections 7 and 8 above, IN NO EVENT WILL ADOBE BE LIABLE TO YOU FOR ANY DAMAGES, CLAIMS OR COSTS WHATSOEVER. The Adobe Color Profile software distributed with the Apple Software is also available for download from Adobe at www.adobe.com.
- 16. Yahoo Search Service Restrictions. The Yahoo Search Service available through Safari is licensed for use only in the following countries and regions: Argentina, Aruba, Australia, Austria, Barbados, Belgium, Bermuda, Brazil, Bulgaria, Canada, Cayman Islands, Chile, Colombia, Cyprus, Czech Republic, Denmark, Dominican Republic, Ecuador, El Salvador, Finland, France, Germany, Greece, Grenada, Guatemala, Hong Kong, Hungary, Iceland, India, Indonesia, Ireland, Italy, Jamaica, Latvia, Lithuania, Luxembourg, Malaysia, Malta, Mexico, Netherlands, New Zealand, Nicaragua, Norway, Panama, Peru, Philippines, Poland, Portugal, Puerto Rico, Romania, Singapore, Slovakia, Slovenia, South Korea, Spain, St. Lucia, St. Vincent, Sweden, Switzerland, Taiwan, Thailand, The Bahamas, Trinidad and Tobago, Turkey, UK, Uruguay, US and Venezuela.
EA0390
Rev. 8-14-07
EA0560
Rev. 7-15-09


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