Apple wins Psystar Case Ping!
If you want on or off the Mac Ping List, Freepmail me.
Posted on 11/14/2009 5:25:22 PM PST by Swordmaker
Psystar just got what's coming to them in the California case. Here's the order [PDF]. It's a total massacre. Psystar's first-sale defense went down in flames. Apple's motion for summary judgment on copyright infringement and DMCA violation is granted. Apple prevailed also on its motion to seal.
Psystar's motion for summary judgment on trademark infringement and trade dress is denied. So is its illusory motion for copyright misuse.
There are still issues remaining for trial, despite Psystar's attempt to present everything now as being moot. Here's what's left to be decided at trial: Apple's allegations of breach of contract; induced breach of contract, trademark infringement; trademark dilution; trade dress infringement; and state unfair competition under California Business and Professions Code § 17200; and common law unfair competition. See anything on that list that will be helpful to Psystar?
So that means damages ahead for Psystar on the copyright issues just decided on summary judgment, at a minimum. The court asked for briefs on that subject. In short, Psystar is toast. Psystar's only hope now is Florida, and frankly I wouldn't bet the house on that one. Judges notice if you were just found guilty of a similar cause of action in another state.
You're surprised? I told you, I told you, I told you. So, to those who feel crushed at the moment, there could be an appeal, I suppose. And if you want freedom for your code, you certainly can find it on Planet Earth. Look in the right direction. You'll be happy you did, because you can hack away to your heart's content, and it's perfectly legal. The court's message is clear: EULAs mean what they say; if you don't want to abide by its license, leave Apple's stuff alone.
We have the order for you as text.
On the first sale defense, you'll find it in the section on distribution right and Section 109:
Catch that? Even if Psystar were the lawful owner of the copy, it still can't do what it did. The court quotes from Microsoft Corp. v. Software Wholesale Club, Inc.: "the first-sale doctrine does not apply to an admittedly counterfeit unit". So, no, you can't buy a copy and use it to go into a counterfeiting business, in effect. Terekhov's theory has bitten the dust and then had to eat some. Just like Daniel Wallace's anti-GPL theory did. Whoever is relying on their legal theories might want to buy a vowel and try to figure this puzzle out.Apple contends that Psystar has violated its distribution right by offering and selling Mac OS X on Psystar computers to the public. Psystar admits that it has distributed Mac OS X (Chung Exh. 17 at 4).
But Psystar responds that its conduct is protected by the Section 109 first-sale doctrine. Section 109 provides that "the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord." 17 U.S.C. 109. This provision is a limitation on the distribution right. It applies only to an owner of a copy.
The parties spill much ink on whether Psystar was the owner or a licensee of the copy (i.e., the tangible copy) of Mac OS X that it purchased. Even assuming arguendo that Psystar was the owner of a copy, the first-sale defense fails here. Section 109 provides immunity only when copies are "lawfully made." The copies at issue here were not lawfully manufactured with the authorization of the copyright owner. As stated, Psystar made an unauthorized copy of Mac OS X from a Mac mini that was placed onto an "imaging station" and then used a "master copy" to make many more unauthorized copies that were installed on individual Psystar computers. The first-sale defense does not apply to those unauthorized copies. See Microsoft Corp. v. Software Wholesale Club, Inc., 129 F. Supp. 2d 995, 1006 (S.D. Tex. 2000) ("the first-sale doctrine does not apply to an admittedly counterfeit unit"); see also 2-8 NIMMER ON COPYRIGHT § 8.12 ("if the manufacture of a copy or phonorecord constitutes an infringement of the reproduction or adaptation right, its distribution will infringe the distribution right, even if this is done by the owner of such copy or phonorecord").
I know. They'll say, but, but, but ... what if they hadn't used the master and just used each copy, then would it work? Sons, why do you think Psystar used the master copy? Because it's a business, and in a business, efficiency is money. That's why businesses set themselves up, to make money. The whole world is not with you on a holy war to destroy EULAs and the GPL. Even this rinkydink business wanted to make money. Theoreticals belong on message boards, not in business and definitely not in courtrooms, and even on message boards, everyone told you for years that this wouldn't work out if someone tried it. It's been tried. It didn't work out.
And to those who argue that all that matters is that open source is a better way to develop code, let this case be a warning message. Apple makes fabulous code. Of course, the BSD community did a lot of it for them, but Apple makes it all just work for end users, and they do that beautifully. So no one can argue that for end users it is not fabulous code. It is.
So here is my question: is that enough?
Or isn't the message of this case that what you really want with your fabulous code is freedom for the code? If you answer yes, I want freedom to do what I want with code on my home computer, then why use proprietary code? Proprietary vendors are happy to sell you the best code in the world, if they have it. But they won't sell you freedom to use it any way you want. That's not the business they are in.
So, if freedom matters to you, don't sell out the goal of a completely free operating system, without any proprietary blobs at all. There is a purpose to that goal, because proprietary blobs mean restrictions on use. That is a given. There are other negatives, but that one is the one this case highlights. So work for drivers that are not proprietary. Stay away from code that you believe has potential patent infringement claims. Why? Because a short-term seeming advantage can block the end result you want. It will provide a Brand X solution that takes you on a detour away from your goal.
So when folks tell you that all that matters is that the code be open source or that end users should have the right to put proprietary code together with free and open source code if they want to, or that partnering with Microsoft will work out well, or that what matters is that end users use more free software by using proprietary-free mixtures, ask yourself, is that really true? No matter who says it, is it true? Look at the Apple v. Psystar case. Freedom matters. Some things are just obvious.
Use what you want, but think it through more deeply than just thinking about what you want this minute or what's more convenient. Why do you think Stallman started trying to create Free Software? Because he knew how to fix a printer but the license wouldn't let him. He already saw what you are seeing with this Psystar case. Proprietary means restrictions on use. It does.
If you want on or off the Mac Ping List, Freepmail me.
You just posted this story.
Congrats! Your favorite corporation won a lawsuit to keep their precious OS off of “clones”. The world’s has been made safe for soft puppies and democracy.
From the gushing reaction I’ve seen on various sites, you would think Apple just killed OBL.
No. I posted a Businessweek story about the same topic. This is analysis from a qualified legal site about the same story with the full decision attached.
*yawn* Pystar? Pycrete? Who?
I have to wonder other than a few freepers, who really thought psystar would win? And how were the two brothers getting such big loans on such a obvious impending loss?
I wonder if we will ever find out who floated psystar their loans?
it is possible. Apple added a dozen or so "John Does" to the list of defendants when it became apparent that Psystar had resources beyond its size for its defense. Now that Apple has a judgement in hand, it can go after those Does to see who has the deep pockets.
This is terrible. Screw you Jobs.
Why is this terrible, and why screw Jobs? Psystar wouldn’t have had a OS to misappropriate if Jobs hadn’t brought back OSX from his “in between” engagement. There wouldn’t have been Apple hardware either, since Apple was on the brink of oblivion until Jobs came back.
Apple is merely protecting their intellectual property.
I think it will be revealed eventually how the Psystar owners got their funding. No sane bank or knowledgeable private investor would have put that kind of money into their lawsuit: it had no way of winning whatsoever.
Either it will turn out to be a corporation seeking to cause trouble, someone who trusted the Psystar brothers to the extent that nothing they could say would be disbelieved (read: family), or they misrepresented how they were going to use money and obtained loans from official banking services.
This isn’t a victory for the “Man”. It’s a victory of free enterprise and judicial protection of Apple’s right to use the property that they and they alone created.
Besides, Apple has NOT attempted to crush the interest groups which will tell you exactly how to build your own Hackintosh. They merely don’t want anyone making money off the operation, it’s pretty clear and pretty obvious to any outside observer.
OS X runs fine on my new 27 inch Quad Core i7 iMac, a machine that is made specifically by Apple to run their OS. Also runs XP Pro 64 bit quite well.
There are still issues remaining for trial, despite Psystar's attempt to present everything now as being moot. Here's what's left to be decided at trial: Apple's allegations of breach of contract; induced breach of contract, trademark infringement; trademark dilution; trade dress infringement; and state unfair competition under California Business and Professions Code § 17200; and common law unfair competition.Sure, but other than that, Psystar's winning big. ;')
Ooooh... ya got one of those, eh? Here’s a silly question — do you like it? I’d get one, because the price for the component quad core will probably be more money, and require the outboard hardware (monitor, maybe other stuff), and be set for another fifteen years, but A) I don’t think it will last like this one has and B) if anything fails on an all-in-one (in five years or whatever) the whole thing has to go in. I was in the Big Box store for a few minutes tonight, and took another look at the regular 27”, $1699, and was again tempted. :’)
Just got in yesterday and spent most of the afternoon transferring files, so haven't had much opportunity to just mess around. Love it, is a little to much, but this thing is really cool, don't skimp and not get the extended warranty.
It probably is not noticeably faster, than the one in the big box store, but it will be as soon as apps are written to take full advantage of the i7 core, along with Snow's use of the video card.
All I know is a few years back I paid a lot more for a monitor, than I paid for this machine. What a bargain.
Must have been a Cinema Display?
A few days back I started playing (the new mouse was there too, forgot to mention) and triggered Time Machine, which I had zero experience with. Dunno how useful that is offhand, it sounds great, but regardless, that was fun. ;’)
I’d read that Snow itself runs faster anyway, true?
AppleCare... how much, and how long does it last?
Apple Care extends the warranty to three years, Price depends on computer, and who you buy it from. Apple will be the most expensive, so shop around.
As for time machine, it is great because it takes snapshot of your computer at regular intervals, it does not however make a bootable copy,so I use Carbon Copy Cloner for that, and it has a feature to just update the changed files at a time you specify.
The mouse and keyboard are of no interest to me, I use an Apple extended Keyboard and an old 5 button Microsoft mouse, so no experience using the new mouse, gave it to my wife. :)
Yeah, I like the mice I use. The one I have at work is a Microsoft blue-light cordless, it’s big to fit my hand. The new Apple mouse will appeal to the texting-smartphone-young-smart-aleck market segment — until they develop carpal tunnel syndrome. ;’)
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.