Apple vs.
If you want on or off the Mac Ping List, Freepmail me.
Posted on 12/15/2009 11:16:26 PM PST by Swordmaker
After months of contentious litigation, Judge Alsup today granted Apple’s request for a permanent injunction and ruled that the injunction encompasses not only includes Snow Leopard, but Psystar’s Rebel EFI software as well. As a quick reminder, Rebel EFI is a piece of downloadable software available on Psystar’s website that allows users to install OS X onto non-Apple hardware. The order notes that Psystar has until December 31, 2009 to cease all infringing activities, with the Court specifically stating that Psystar “must immediately begin this process, and take the quickest path to compliance; thus, if compliance can be achieved within one hour after this order is filed, defendant shall reasonably see it done.”
Put simply, Psystar’s entire OS X “business” is completely shut down.
For all you legal hounds, the scope of the injunction reads as follows:
IT IS HEREBY ORDERED that Apple’s motion for a permanent injunction is GRANTED, and defendant is permanently and immediately enjoined from:
- 1. Copying, selling, offering to sell, distributing, or creating derivative works of plaintiff’s copyrighted Mac OS X software without authorization from the copyright holder;
- 2. Intentionally inducing, aiding, assisting, abetting, or encouraging any other person or entity to infringe plaintiff’s copyrighted Mac OS X software;
- 3. Circumventing any technological measure that effectively controls access to plaintiff’s copyrighted Mac OS X software, including, but not limited to, the technological measure used by Apple to prevent unauthorized copying of Mac OS X on non-Apple computers;
- 4. Manufacturing, importing, offering to the public, providing, or otherwise trafficking in any technology, product, service, device, component, or part thereof that is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to plaintiff’s copyrighted Mac OS X software, including, but not limited to, the technological measure used by Apple to prevent unauthorized copying of Mac OS X on non-Apple computers;
- 5. Manufacturing, importing, offering to the public, providing, or otherwise trafficking in any technology, product, service, device, component, or part thereof that is primarily designed or produced for the purpose of circumventing a technological measure that effectively protects the rights held by plaintiff under the Copyright Act with respect to its copyrighted Mac OS X software.
Over the past few weeks, Psystar has suffered a series of legal blows in California. In mid-November, Apple’s motion for Summary Judgement was granted when the Court found that Psystar’s business model of selling their own hardware with pre-installed copies of OS X constituted copyright infringement. Two weeks later, things got worse for Psystar when Judge Alsup ruled that Psystar owes Apple $2.66 million in damages for infringing upon Apple’s OS X copyrights and violating provisions in the DMCA. Apple and Psystar, however, stipulated that Apple would not exercise its right to collect damages until Psystar has exhausted all appeals on the matter.
Psystar, always looking for a way to skirt around the law, had no choice but to accept the Court’s ruling, but argued at the same time that any permanent injunction handed down shouldn’t include Snow Leopard or its Rebel EFI software. In a motion filed last week, Psystar argued that because Rebel EFI didn’t even exist during the course of the original discovery process, it should therefore fall outside the scope of the permanent injunction. And in a separate motion filed in Florida yesterday, Psystar argued, yet again, that Snow Leopard should fall outside the scope of the permanent injunction because it wasn’t part of the original litigation and raises new factual and legal considerations that shouldn’t be subject to a broad sweeping injunction.
But in a 17-page ruling handed down today, Judge Alsup tosses Psystar’s arguments out the window, essentially stopping Psystar dead in their tracks.
When it comes to a permanent injunction, the law holds that the scope must be “reasonable to prevent or restrain” further infringement of a copyright or violation of the DMCA:
In situations where there is a clear pattern of copyright infringement by the defendant, and there is a threat that other copyrights of the plaintiff may be infringed by the defendant, an injunction may be issued as to future works of the plaintiff as well as existing works. This principle undoubtedly applies here, as Psystar has been found liable of not only direct infringement of Apple’s copyrights in numerous releases of Mac OS X, but contributory infringement and multiple violations of the DMCA related to Apple’s protected works. Additionally, a continuing threat to Apple’s future works — specifically, future versions of Mac OS X — is clearly evidenced by the very existence.
The ruling goes on to state that the scope of a permanent injunction should include all works where the underlying infringement is the same, even if the actual copyrighted work has changed. After all, under Psystar’s train of thought, they’d be able to sidestep any court order every time Apple released a new version of OS X. Clearly, such a scenario would run contrary to the entire purpose of the injunction in the first place.
In reaching that conclusion, the Court cited a case from 1984 which involved an individual who illegally sold t-shirts featuring copyrighted images of Mickey and Minnie Mouse. The court in that case enjoined the defendant from selling t-shirts that featured images of other Disney characters that weren’t at issue in the case, such as Donald Duck and Goofy. Though the defendant reasoned that the injunction was overly broad to the extent that it covered images not at issue in the actual case, the court ruled that when “liability has been determined adversely to the infringer” and there is a significant possibility of future infringement, “it is appropriate to permanently enjoin the future infringement of works owned by the plaintiff but not in suit.”
So within that legal framework, the Court found that even though Snow Leopard may not have been part of the original litigation, the underlying principles are exactly the same.
And for anyone who has followed the legal saga between Apple and Psystar, it shouldn’t come as too much of a surprise that Judge Alsup chastised Psystar, yet again, for questionable legal tactics. ”Finally, it must be noted that Psystar continues to grossly mischaracterize prior rulings in this case to justify their position on this issue.”
Ouch.
As to the Snow Leopard issue, Judge Alsup concludes that
. . . because a copyrighted work need not be included within the scope of discovery to fall within the scope of a permanent injunction, Snow Leopard will not be excluded from the scope of the injunction. Rather, it will be included to the extent that it — and any other non-litigated Apple software programs of similar character to Mac OS X — qualifies as a protected work under the Copyright Act.
Now as for Psystar’s Rebel EFI software, things are a bit trickier since the software consists solely of Psystar’s own code. As mentioned above, Psystar argued that its Rebel EFI software raises new factual and legal issues that should preclude it from falling under the umbrella of an injunction. But Judge Alsup points out that Psystar cited absolutely no decisions to back up its claim. And proceeding to call Psystar out, Judge Alsup notes that Psystar’s interpretation of the Disney precedent cited by Apple gives off the impression that Psystar never even gave it more than a casual once over.
Judge Alsup also disuades Psystar from even thinking about continuing to sell its Rebel EFI software, writing that “Psystar - if it continues to do so - sells Rebel EFI at its own peril.” The problem is that Psystar attempted to argue that its Rebel EFI software was different, but never even explained to the Court how it exactly worked.
Moreover, Psystar’s opposition brief appears to purposefully avoid providing 19 a straightforward description of what Rebel EFI actually does. Thus, it is not only inappropriate, but impossible to determine on this record whether Rebel EFI falls within “the same type or class of unlawful acts” found at summary judgment. This order declines to “bless” a product about which it knows little of substance.
Judge Alsup, though, does note that if Psystar so chooses, it can file a new motion that “includes real details about Rebel EFI” if it later wants to open up formal discovery on the matter. But as mentioned above, continuing to sell the software in the interim would be a dangerous move for Psystar.
Next, the ruling address’s Psystar’s argument that the Court in California shouldn’t address its Rebel EFI software because its ruling may subsequently interfere with and contradict established rulings on the very same topic in Florida. Remember that Psytar, in the midst of the California litigation, filed a similar lawsuit in the state of Florida.
Judge Alsup, however, astutely calls Psystar’s bluff in noting that there are no established rulings regarding the legality of Rebel EFI in Florida, and as such, “Psystar’s argument lacks merit.”
Again, Psystar has until December 31, 2009 to comply with the ruling.
If you want on or off the Mac Ping List, Freepmail me.
Apple, the dictatorship, strikes again.
From the United States Constitution the right to control ones copyright strikes again... and rightfully so. Or do you think that someone can steal your hard work without your agreement?
And, a copy of Judge Alsup's final Judgement.
PDF viewer required for PC users... Mac users may ignore that requirement.
Death to propritary systems (Apple).
Why don’t you ask Microsoft for documentation of the secret APIs in Windows they use for their Office products - then come back and tell me who’s being proprietary....
You really don't know what you are talking about, do you? Apple is, at core, UNIX™, and much of its code is open source. Almost all of it is standards based. Psystar is perfectly welcome to use the same open source and build its own GUI front end or to build its systems using any one of the many flavors of Linux but no, they chose to go the low road and violate the law. They got what they reaped... a 2.66 million dollar judgement and their heads handed to them by the courts.
Much as I dislike certain aspects of proprietary software, this is legally the correct decision.
And it's pretty clear the guys at Psystar were lying a-holes, not righteous underdogs... not that that should affect the legal decision, but it makes me unsympathetic at the personal level as well.
Again Swordmaker, we’ll have to disagree on this one. I still think that if Pystar (or anyone else for that matter) buys a copy of OSX, they should be able to load it on any hardware they choose. If they could get it to work on a TI-99, more power to them!
Psystar is DEAD! DEAD! DEAD! DECEASED! KAPUT! PING!
Okay..., why don't you tell us what you really think... :-)
Apple, the dictatorship, strikes again.
Are you sure you're on the right board... it's the liberals who think that one can steal a company's patents, copyrights, trademarks, and products -- violate the law -- and get away with it... LOL...
Let me try to find an appropriate liberal board for you... :-)
Death to propritary systems (Apple).
You forgot to add "death to spelling".... but I've never known liberals to be concerned about spelling anyway...
And it's pretty clear the guys at Psystar were lying a-holes, not righteous underdogs... not that that should affect the legal decision, but it makes me unsympathetic at the personal level as well.
I'm still wondering who the big money interests were -- behind Psycho-star...
Again Swordmaker, we’ll have to disagree on this one. I still think that if Pystar (or anyone else for that matter) buys a copy of OSX, they should be able to load it on any hardware they choose. If they could get it to work on a TI-99, more power to them!
Actually Apple doesn't bother individuals who want to piddle around and waste their time that way... LOL... It really is fine by Apple if the do that.
It's just that if a company starts with Apple code and then changes it, and making that derivitive product and sells that derivitive product -- that Apple will have our legal system in the U.S. go after those kinds of criminal companies.
AND... the fact that the judge slammed them down hard, shows that the legal system here in the U.S. doesn't take kindly to that kind of criminal behavior with companies...
For those of you on the list that are not also on Swordmaker's Apple list....
There is still a major unanswered question... who was backing Psystar in the first place? They seemed to have a lot of money for court battles for a company that had sold VERY few things...
Psystar didn’t violate a “copyright” in reality, but provided a tool that could be used to violate a license agreement. You know, the unilateral software license agreement Apple imposes on you without your consent (the “you could take it back after opening the box” argument is nonsense) or approval and can change it at will?
” Are you sure you’re on the right board... it’s the liberals who think that one can steal a company’s patents, copyrights, trademarks, and products — violate the law — and get away with it... LOL...
Let me try to find an appropriate liberal board for you... :-)”
They did no such thing. They provided a means to run purchased copies of Apple’s OS on non-Apple hardware. Perhaps you might be happier on a Jobs worship forum?
“Why don’t you ask Microsoft for documentation of the secret APIs in Windows they use for their Office products - then come back and tell me who’s being proprietary....”
Ah, the “secret APIs” nonsense.
It’s interesting that Microsoft was sued for “bundling” with IE and Windows - requiring IE to be installed, but Apple continues to get away with something similar and continues to be the same bad corporate citizen - just like Jobs.
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.