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.
This judge just blew away the doctrine of first sale. All any copyright holder has to do is say "It's a license" and all your first-sale rights go bye-bye. As you'll see below, master disks are fair use, but ignored by the judge.
In addition, when Psystar turns on its computers running Mac OS X, another copy of the software is made to the random access memory. Psystar has thus infringed Apple's reproduction right.
This is another lock-down bit of logic. If it's thought you make a copy when running the program, rather than it being an understood basic functional necessity, then they have more power over you. Not only did you buy the program, but you need their permission to run it, otherwise you're making an unauthorized copy. This is just dumb.
When I read a book I make a copy in my eyes, did you know that? It's transitive, but then so is a RAM copy of a program.
While the process [hard drive imaging] used for "efficiency" was not the problem, the Sheriff Department's unauthorized copying of the software beyond the number of licensed copies was problematic. Similarly, Psystar's use of Mac OS X has been in excess and has violated Apple's copyrights.
I thought every Psystar system came with an original OS X disk. The judge says it's in excess, but I see no evidence for excess to equal the cited case. Psystar's interpretation should stand, but the judge just completely ignored precedent.
Psystar infringed Apple's exclusive right to create derivative works of Mac OS X. It did this by replacing original files in Mac OS X with unauthorized software files.
Now there I have to agree. What Psystar sold was a modification of OS X, a derivative, and therefore not purely first sale.
But even Judge Patel acknowledged that "no court has thus far articulated the boundaries of 'unduly restrictive licensing' or when licensing or other conduct would violate the amorphous concept of public policy."
Well, judge, here's your chance. Send a signal to the copyright cartel that they can no longer abuse their customers through restrictive licensing, and instead make them rely on plain-old copyright. Guess not though.
Then on to DMCA. Yeah, well, that's true. But then it's kind of circular: the copyright cartel paid for the law, and then of course those who try to exercise their rights will run afoul of it. And why is it that everybody forgets Section (f) of the DMCA, the part about reverse-engineering for interoperability being legal? There are a few good tidbits in the DMCA that you'd think would make it not so bad, but I have NEVER heard of a court basing a decision on these sections.
I hope Psystar appeals, and with a better lawyer next time.
This is not just this judge. Alsup provided several case citations that showed it is settled case law with plenty of precedent, including the cases Psystar cited, that a license is not a sale subject to first-sale rights and never has been. Those where it has been held different was where the SLA was poorly written and did not make the distinction clearly enough. Apple's SLA was explicit. However, the right of first-sale DOES extend to selling the license... and the media... so the purchaser is allowed to transfer the rights to use the software they have purchased to another purchaser down-line so long as the sold versions still in possession of the seller are destroyed.
I thought every Psystar system came with an original OS X disk. The judge says it's in excess, but I see no evidence for excess to equal the cited case. Psystar's interpretation should stand, but the judge just completely ignored precedent.
Nope. Testimony established that of twenty systems examined by an independent expert witness, five had systems on them that did not match the included operating system disk and three did not come with disks at all. Also testimony was presented and not countered by Psystar that their own books showed they sold more Psystar computer systems than they bought OS X upgrade install disks.