Posted on 12/15/2009 11:16:26 PM PST by Swordmaker
After months of contentious litigation, Judge Alsup today granted Apples request for a permanent injunction and ruled that the injunction encompasses not only includes Snow Leopard, but Psystars Rebel EFI software as well. As a quick reminder, Rebel EFI is a piece of downloadable software available on Psystars 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, Psystars 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 Apples 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 plaintiffs 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 plaintiffs copyrighted Mac OS X software;
- 3. Circumventing any technological measure that effectively controls access to plaintiffs 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 plaintiffs 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, Apples motion for Summary Judgement was granted when the Court found that Psystars 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 Apples 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 Courts ruling, but argued at the same time that any permanent injunction handed down shouldnt include Snow Leopard or its Rebel EFI software. In a motion filed last week, Psystar argued that because Rebel EFI didnt 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 wasnt part of the original litigation and raises new factual and legal considerations that shouldnt be subject to a broad sweeping injunction.
But in a 17-page ruling handed down today, Judge Alsup tosses Psystars 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 Apples copyrights in numerous releases of Mac OS X, but contributory infringement and multiple violations of the DMCA related to Apples protected works. Additionally, a continuing threat to Apples 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 Psystars train of thought, theyd 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 werent 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 shouldnt 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 Psystars Rebel EFI software, things are a bit trickier since the software consists solely of Psystars 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 Psystars 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, Psystars 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 addresss Psystars argument that the Court in California shouldnt 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 Psystars bluff in noting that there are no established rulings regarding the legality of Rebel EFI in Florida, and as such, Psystars argument lacks merit.
Again, Psystar has until December 31, 2009 to comply with the ruling.
Nope. And if they had been caught, they should have felt the long arm of the law. I don't think they got caught within the statute of limitations though. Too bad, I wonder if they ever paid any voluntary restitution to Pacific Bell? Maybe they should. Could be a couple thousand dollars with interest added on.
I once wrote a machine language roulette wheel application for a Vic 20... used it once for a Casino Night at our lodge.
I used all but ONE BYTE of the memory including the 5K expansion cartridge... I could not add even one more thing to it or it wouldn't run.
It worked great. It made the sound of the wheel turning, the ball bouncing and clicking, slowing down, and the colors flashing numbers and random black or red with a proper red or black or green 0 or 00 (well the house had to win sometime) and settling down to the winning pocket with the image of a ball on the screen.
It was a hit.
But I never distributed it because I could not guaranty that the random number generator was truly random... I was using a large seed but the Vic 20 really had no way to manipulate it and make it random. I kept seeing patterns start to duplicate after about 20 spins. And with only 1 byte left, I didn't have enough space left to experiment with trying other approaches to randomizations of the seed... and everything else I tried left me with less space and I would have to give up some of the neat things I had done. So, its probably somewhere in my desk on a casette... dried and cracked...
But the developers don't have a natural right to the software, unlike the natural right your neighbor has to his property. The software belongs to everyone by default, but the Constitution allows for a limited monopoly of rights solely for the purpose of advancing the arts and sciences.
My problem with copyrights has to do with the sudden increase in longevity of the copyrights. I had no problem with copyright for the life of the author... but now they've allowed them to be extended to the life plus, I think, it's 50 years... and if the author is a corporation... who knows. I would like to see it a more reasonable term. In music, there are only so many ways that 15 notes can be arranged before you start duplicating something that has already been done before... and there are only 31 basic story lines in literature. How many basic applications are there possible in software? How many basic inventions are there? Idea inventions instead of implementation inventions are becoming a real problem... when we started allowing the patents for a mere idea, without requiring the technology for implementing that idea, we opened pandora's box of infringement lawsuits.
I have no problem with the OS X lawsuit against Psystar. What they were doing is clearly wrong. But Apple should not have a 100 year control over OS X. 15 or 20 years for each upgrade is enough and then that version should move to the public domain. ON the other hand, Disney's control over its characters of Mickey and Donald are creative Icons equivalent to Trademarks and should be protected so long as Disney exists, Similarly an author of a book should be able to reap the rewards of royalties throughout his lifetime, and perhaps his children as well... but should his grandchildren? I would draw the line a few years after his death. Let the kids build their own legacies. Patents should require implementation in technology to be granted... not just mere ideas. If the inventor cannot demonstrate how his idea can be accomplished practically, he has not invented anything. Its the person who accomplishes it that is the true inventor and should be given the monopoly to enjoy the fruits of his invention.
Actually, you have a point there... but that is in violation of the DMCA... which Congress DOES have the right to make illegal all on its own... and did. They made it illegal to sell a device that allows one to avoid the technological steps that have been made to prevent copyright infringement. It might be argued successfully that the Rebel EFI is a legitimate product that does not infringe copyrights because it only furthers the illegal breaking of a contractual relationship... which Psystar has been ordered not to do, which would probably bring them to the courts attention in a contempt proceeding, But that's their problem. Not ours.
But the doctrine of First Sale says that once Apple sells me a copy, Apple loses control of that copy. They have no power to tell me what I can and cannot do with that copy, as a publisher can't tell me what to do with the book. The expanse and limits of their powers are already defined -- in copyright law.
Anti, You are misapprehending something... APPLE NEVER SELLS you a copy! They are quite upfront and explicit about it. They spell it out in plain English in the SLA. You have NOT bought the software on the disk.
This is the crux of the matter! Yes! There is a DVD disk in the box with a copy of OS X in the box... but what is on it is NOT SOLD TO YOU! Apple retains title to the content on that disk. YOU do not own it. LEGALLY, under the law, you do not have ANY RIGHTS AT ALL TO WHAT IS ON THAT DISK EXCEPT WHAT PRIVILEGES APPLE SAYS YOU HAVE ON THE AGREEMENT IN THE BOX WITH IT! Apple is merely providing that disk as a convenient way for you to gain access to their property to further THEIR ends, not yours, which is to allow you to have access to their property under limited circumstances which you will agree to before you install the software on your computers as a necessary step in that installation. Once you have made that agreement, you are bound by it... and the courts will, as they have done before, side with the publisher.
For the sake of discussion, let us say that instead of buying OS X in a box with a disk, you go to the store and you buy an OS X license on a piece of paper. All you get is the SLA. You pay your $129 and you must go home and sit down at your Mac computer and connect to Apple over the Internet and enter a code you find on your SLA which allows you to download your new OS X. Bang. Your computer now works 10 times better than it did 10 minutes ago. How can you implement your "Doctrine of First Sale" now? You have not bought a physical copy of the software. All you bought was a license.
The courts have ruled numerous times on this. So long as the license is properly written, software is more akin to a long-term, never-ending lease, than it is to a sale. This is especially true where the software requires support of some kind such as in a vertical solution office environment where the software will be improved and modified over the life of the "term." There is also usually a requirement that when the "term" of the software license agreement ends, there must be some means of "returning" control of the "product" to the owner. Usually, this handled by requiring the destruction of all copies in the control of the licensee.
A good example (or perhaps a poor example of this) is quickbooks, where you both "buy" and "lease" the software. Quickbooks, and in fact most accounting software, has created a hybrid business model that requires that the customer both continually repurchase the software on a repeating schedule and relicense it every year. Quickbooks, if you do your own payroll requires that you subscribe to a tax-table service or that you contract with them to do your payroll, each of which requires a subscription fee. One of the dirty secrets of accounting software is that little changes in accounting over centuries... and ergo, there can be little reason to change your accounting software. So why buy a new accounting software package if little has changed? That is not a formula for repeat sales for Quickbooks or any accounting software company. However, if they sell you tax tables, they've got you. All they have to do is change the tax table format every couple of years and Voilá... you have to buy the latest version to be compliant with the latest tax tables... or you can't pay your employee's any more. What do you know! Instant cash flow into Intuit! So, you both buy and lease your software! Neat trick, huh?
Developers are free to give away their own rights, such as open source freely allows copying. That is the true license, as a license is an allowance to do something you would otherwise not be allowed to do under law (in this case under copyright law, copy and redistribute).
Actually a license is a permit to break the law. And a license is the way a copyright holder can distribute a easily copied intellectual property while still retaining ownership... but it requires trust. Trust that the licensed person will not ignore the license. Trust that the laws will be obeyed. Trust that others will not be tempted to accept obviously infringed copies. Trust that you will use it as it is intended to be used. Trust in the honesty of other people.
Apple is SELLING you the right to use THEIR software under certain restrictions... one of which is that you may not give it away or sell it to another party and still retain a copy, or to install it on a non-Apple computer. It is that permission to use the software that they are selling to you. There is no difference here. You have NO RIGHT TO COPY THEIR SOFTWARE until they have provided you access to it either by licensing you to have access by gift or by sale of the license. It matters not how you got that license. Apple NEVER relinquishes control of their rights. YOU may choose to ignore those rights but the COURT will side with Apple legally. Apple may magnanimously allow you to use their property but you have no right to force them to let you use it as you see fit.
“In their marketing materials, they define their product as something other than a PC.
Oh bull. “
I’ve got to agree with the first sentence here. “I’m a Mac, and I’m a PC.” It’s pretty clear that Apple is trying to say that a Mac is not a PC.
While I’m pretty sure a Mac is, in fact, a PC, I suppose it didn’t make a hoot of difference to the judge.
“With that lie, I know you ARE a TROLL... and are working hard to prove you are not pretending to be an idiot. Quit lying.”
Stop being a damnable fanboy. You actually believe press releases? Particularly when you touch on fields you don’t work in.
“That Mac based Beowulf Cluster was the 3rd fastest supercomputer in the world, hitting a sustained 11 TFlops and peaking to 15 when it was built for 1/5th the cost of the next least expensive of the top ten fastest machines at the time it was built in 2003, with 1100 dual processor G5 PowerMacs (2200 processors). The next fastest was only slightly faster (15 TFlops) and cost over ten times more and the fastest (33.5 Tflops), the Japanese Earth Simulator, was 30 times more expensive at $150 million.”
No ECC memory and no stable operation. They built one here locally using G5s similar to VT’s. The damn thing never was stable.
“Last year, November, they Virginia Tech built System G with 325 Xeon based MacPros (2600 processor, 2600 gigaBytes RAM) and produced a sustained 22.5 Tflops (trillion ops per second) of throughput with peaks of up to 29.5 TFlops.”
Using Intel chips. The G5 was a flash in the pan.
“Too bad, I wonder if they ever paid any voluntary restitution to Pacific Bell”
Jobs wasn’t even a decent enough human being to acknowledge his own daughter for years.
LOL... “Voluntary restitution”.... That’s a laugh.
“The Mach5 was reportedly going to be used in designing hypersonic helicopter blades... but nothing was heard much about it after it went into service, being classified.”
“Hypersonic helicopter blades”.... ROTFLMAO!
“They are stating that they are offering an alternative to PCs in their marketing... better than a PC. An alternative. Why use “A” when you could be using “B”?”
So, are they saying they are in the personal computer market, or the “cool experience” market?
“Mac is what they want. It does just work... unlike the things they have been fighting with... Windows PCs.”
Others, of course, find both wanting or find Apple’s limited hardware list just that. If your needs extend only to people who think “hypersonic rotor blades” as a statement makes any sense, then enjoy your iLife.
“The undocumented/secret APIs has been proven in court during the antitrust trial.”
They weren’t secret. They weren’t documented. The information was still there.
“Microsoft hasnt changed from that; in fact, theyre still using them instead of their own .NET products for Office.”
Do you have any idea how much effort would be required to rewrite Office?
“You really DON’T KNOW what you are talking about, do you?”
What I SAID was, they’ve offered +$100 for quite some time. OS X was offered for older G3s and G4s, after all.
Of course, “Swordmaker”, I can read.
You know, I think I’m done with you. You actually think “hypersonic helicopter rotor blades” is a phrase that makes sense and you believe press releases..... WOW.
Go on supporting a company with Gore on the board. Enjoy you iLife.
What brand name is a PC? What are they competing with?
And then you said...
Don't you know? Apple is competing with every computer out there that is running an operating system that is not running Apple Mac OS X... generically called a PC.
[...]
Everybody, except apparently you, knows what is being talked about... a PC is a reference to a personal computer that runs Windows.
At first I couldn't figure out what the heck he was talking about. And then I saw it. Favor Center couldn't figure out what those "I'm-a-Mac/I'm-a-PC" commercials were all about... LOL...
He never figured out that they were talking about the Mac hardware/OS X system -- vs. -- the Generic desktop manufacturer/Windows system.
He has no idea what they've been talking about. I feel sorry for him because it's like missing a joke and never knowing what everyone was laughing about... that must bug him... :-)
” Favor Center couldn’t figure out what those “I’m-a-Mac/I’m-a-PC” commercials were all about... LOL...”
Of COURSE I knew what they were talking about. Don’t be an idiot.
Check the born on date.
And then you said ...
Your point?
To which I replied ...
Are we a bit sensitive here... :-)
That was essentially what was said in that little thread, to which you go off on a tangent saying who knows what... LOL...
Ya coulda fooled me... :-)
You know, I think Im done with you. You actually think hypersonic helicopter rotor blades is a phrase that makes sense and you believe press releases..... WOW.
LOL..., you're pretty funny, of course, I've always thought Windows users were funny and weird...
But, please do go back to the Windows world..., it would save us a lot of trouble trying to educate the deliberately ignorant... :-)
Go on supporting a company with Gore on the board. Enjoy you iLife.
Ummmm..., you've gotten politics mixed up with your computers... but typical for a liberal, I would say...
But, really, don't you think that Rush and Rove would take offense at you because of their choice of products from Apple... :-)
At least there are relevant conservatives who choose the best products based on the products at hand, and choose Apple products -- instead of trying to impose some kind of "political line" on the computers and phones... LOL...
Rush talking about his Macs... :-)
You know, I'm a big Mac guy. I love Macs, and I've got four Mac Pros. They're the top-of-the-line Mac Pros, maxed out. And they just had a new system upgrade, went to 10.5 Leopard, and they've had two upgrades since October. Yesterday brought 10.5.2, which was loaded.
NB: All right, I've got just one more quick question for you. Last time I saw you, you'd just gotten an iPhone. How's that working out for you?
ROVE: I love it. My life has changed. I have a shred of coolness. I've got my 3,500 people in my addressbook on the phone, I can sync my calendar. I keep track of my modest little stock investments. I can check the weather of my house in Washington, my house in Florida, my boy at school, my hunt-lease in south Texas. I can surf the web, I'm justI get part of my email there.
I mean it is just shocking how much better, how much more productive I am. I no longer carry around a giant address book, if I don't have my calendar close at hand, I can quickly check it out of my I don't have to carry, I used to carry several notecards, now it's just as easy to scribble on my little notepad, I can take photographs and forward them on immediately, it's just remarkable.
“But, please do go back to the Windows world..., it would save us a lot of trouble trying to educate the deliberately ignorant... :-)”
“hypersonic rotor blades”..... BWAHAHAHAH! That’s mind numbing ignorance if anything is....
“At least there are relevant conservatives who choose the best products based on the products at hand, and choose Apple products — instead of trying to impose some kind of “political line” on the computers and phones... LOL...”
I don’t buy Ruger for the same reason and neither Bush or Rove are “relevant conservatives”. Bush was a liberal President, Rush is an entertainer, and Rove is in the same line of work as James Carville and none use their systems for anything more complicated than word processing or email.
I dont buy Ruger for the same reason and neither Bush or Rove are relevant conservatives.
We can already see that you operate on a level that can be described as a "total disconnect from reality"...
Usually that is a phenomenon of a liberal (but unfortunately some conservatives have it, too, as I've seen). You sould more like a liberal to me, though...
BUT, to help you with some "reality" here (and to ameliorate your disconnect from "reality") -- it might help you to know that Bush was the conservative candidate choice for election... LOL...
Oh... and he won, too.... :-) [ummm..., and that was for "conservatives" too... LOL...]
But, I can see the problem that you're having with "life"... and I do sympathize...
“We can already see that you operate on a level that can be described as a “total disconnect from reality”...”
Bill Ruger, Sr, supported gun control. I vote with my wallet.
“BUT, to help you with some “reality” here (and to ameliorate your disconnect from “reality”) — it might help you to know that Bush was the conservative candidate choice for election... LOL...”
We had no conservative choice from the two main parties in either election. That is the reality. The same thing was true in 2008.
“Oh... and he won, too.... :-) [ummm..., and that was for “conservatives” too... LOL...]”
You think Bush was a conservative? That’s hilarious.
Unenforceable terms.
Any part of a contract can be null and void if it's in contradiction to the law. Specifying what may or may not be done with something AFTER it has been sold seems to fall into that cateogry.
You think Bush was a conservative? Thats hilarious.
And did conservatives vote for him?
In light of your statement "that fact is hilarious!".... LOL...
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.