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.
Unenforceable terms.
Another person with a "total disconnect from the reality of life on this planet and in these United States..." LOL...
It's "unenforceable" -- except -- for the fact it was just enforced... :-)
“And did conservatives vote for him?”
Many did. That didn’t make him a conservative.
“It’s “unenforceable” — except — for the fact it was just enforced... :-)”
Gun control laws are almost entirely illegal and unenforceable. You probably champion the anti-Constitutional “enforcement” of those too.
Gun control laws are almost entirely illegal and unenforceable. You probably champion the anti-Constitutional “enforcement” of those too.
Your "aim" is getting pretty wild here... another sign of a liberal...
Do you want to bring in the "kitchen sink" to the Psycho-star slap-down judgment by a judge... :-)
Or perhaps we can bring in the Evolution/Creation debate here, too... or the abortion/choice argument... I'm sure they all relate to Psycho-star and their illegal activities... LOL...
Many did. That didn’t make him a conservative.
Quite a few did...? Ummmm..., in fact just about all the conservatives that anyone could "muster" in the United States did -- which is why it's "absolutely hilarious" in light of your statement... LOL...
“Quite a few did...? Ummmm..., in fact just about all the conservatives that anyone could “muster” in the United States did — which is why it’s “absolutely hilarious” in light of your statement... LOL...”
Just how does that make him a conservative?
“Your “aim” is getting pretty wild here... another sign of a liberal...”
Nonsense.
“I’m sure they all relate to Psycho-star and their illegal activities...”
Was it you or your friend who brought “socialism” into a discussion of and disagreement with the application of copyright law to void fair use and grant all power to the holder?
Title 17, 109 isn't about reproduction right, it's about control of a sold item, specifically resale. It says that something that has been sold may be sold again without the say of the first seller.
The argument that the O/S is illegally copied when the computer loads it into RAM while it boots is outrageous and ludicrous. Such a "copy" is absolutely essential to the very purpose of an O/S and MUST occur during the use of ANY copy of EVERY O/S. Because that act is inherent in the very meaning of the term O/S, it's despicably dishonest of Apple to claim that it's illegal. The very argument is offensive to the meaning of the law.
If you have a license to use ANY software, you have a license to "copy" it into your computer's RAM so it can execute.
You can drop the Title 117 arguments, because they aren't the point. This isn't a "fair use" issue, but a "first sale" one.
The copies of OSX obtained by Psystar were legal copies and were purchased from Apple. Title 17 (not 117) says that the new owner of the licenses may subsequently resell those licenses without infringing on copyright.
INHERENT in the license of an O/S is the right to actually install and use it, otherwise the license is entirely meaningless. For the license seller to attempt to control HOW it is used, WHERE it is used, or on WHAT it is installed AFTER the sale is a direct violation of Title 17, 109 and is therefore null and void.
You CANNOT control how your customer subsequently uses something he legally buys from you or the legal copies he buys from you, nor can you control who he sells them to.
Psystar was a customer, a purchaser of OS X... therefore, they had agreed to the terms of the contract and were in violation of that contract as well in egregious violation of Apple's copyrights.
Wrong.
Here's Title 17, 109 for you again. Read it.
Also, here's the definition of "null and void".
A provision in the license which violates Title 17, 109 is null and void, as it violates that law.
The judge is simply being an Apple puppet and ignoring the law.
Many states, whos judges better understand this law, have struck down software licenses as null and void for that very reason. Microsoft tries to deny you the right to resell your license after you no longer need it, a direct violation of the same law. Some states ignore the law to Microsoft's advantage, while others do not.
Apple is playing the same game, and this judge winked and nodded to allow them to violate the law and destroy Psystar.
Just how does that make him a conservative?
What it makes it is -- absolutely hilarious -- in light of your statement... LOL...
A sample from a conservative: "I'm voting for Bush, who is not a conservative, in order to have a non-conservative as leader for all the conservatives in order for my conservative values to be preserved..."
LOL..., in fact ROTFLMAO... :-)
Do you have any more jokes for us...
...in complete disregard for the law.
Corrupt or ignorant judges do it all the time.
...in complete disregard for the law.
Ummmm..., that sounds like a "line" that you would hear from Saddam Hussein, saying that he violated no laws and whatever "law" was being used against him is illegitimate...
Yes..., that argument is the "refuge" for the criminal element in this world -- we do know that... :-)
We know that Psyco-star is the criminal element here and we do expect them to "take up the line" of a type of person like Saddam Hussein, saying that these laws don't apply to him (or to Psycho-star) and that whatever laws are used are "illegitimate" and they were applied by judges who are "in the pockets" of his enemies...
So typical... LOL...
Have you got any new and "fresh lines" in your pocket, there...? :-)
Was it you or your friend who brought “socialism” into a discussion of and disagreement with the application of copyright law to void fair use and grant all power to the holder?
Well, if I didn't do that, please excuse me... LOL.. I'll correct that now...
You sound like a card-carrying socialist... :-)
“A sample from a conservative: “I’m voting for Bush, who is not a conservative, in order to have a non-conservative as leader for all the conservatives in order for my conservative values to be preserved...””
You don’t participate in the political focus of this website, do you? Conservatives voted for Bush based on wanting to believe he was one of them and later choosing the lesser of the two evils after it was clear he was not.
Yeah, that whole "contractual relationship" thing. I have problems with the validity of unsigned, un-negotiated adhesion contracts, especially ones that exceed the legal basis for them. Remember that without the grant of copyright they couldn't prevent anyone from widely redistributing their works without any restriction.
Another problem here and in other places is that the DMCA isn't being used to prevent actual piracy, which is what it was meant for, but to protect chosen business models. Copyright should not be a club to protect business models. Using the DMCA to protect business models has already been shot down a few times.
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.
That's the same thing that happens with a book. You retain the copy and all of the rights copyright gives you to that copy, and the publisher retains the copyright on the work. Yet books aren't licensed, they're protected by copyright.
YOU do not own it. LEGALLY, under the law, you do not have ANY RIGHTS AT ALL
Copyright gives me rights that Apple does not have the authority to take away under any contract. I can back it up, I can resell it, etc., and Apple has no right to say I can't. Imagine you bought some property that already had an easement for a walking path -- you can't tell people to stop walking on it. The law has defined the limits of your power, and you cannot extend your power beyond those limits through legal artifices. You can't post a "License to enter" to restrict the right the people have to that path.
Apple is merely providing that disk as a convenient way for you to gain access to their property to further THEIR ends, not yours
Their copyrights are allowed to exist in order to "promote the Progress of Science and useful Arts," not their ends. Allowing their financial interests to exist is only a means to an end. Copyright is supposed to be a balance.
Once you have made that agreement, you are bound by it... and the courts will, as they have done before, side with the publisher.
The courts have also not sided with the publishers. Precedent is uneven right now.
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.
I can resell the system with the software on it. I can revert to the older version and sell that file to someone else to install. IMHO, anything I have to do in order to make that happen despite any technological measures taken by Apple should be legal. Even the DMCA says about circumvention, "Nothing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use, under this title." That is the most ignored clause in the law.
This is the old copy/license issue where content producers want it both ways. If I bought a copy I have various rights under copyright and the UCC, but if it gets stolen out of my car or my kids destroy it, then I'm out that copy. I have to buy another. But if I only bought a license, then supposedly I lose a bunch of my rights. However, the content producer owes me new free copies for my lifetime as my old ones get broken, lost or stolen, because I bought a license to have a copy. Of course they don't want to live up to that, so they then say I bought my copy and I'm out of luck. But if I bought a copy I keep my rights, and we're back to the beginning.
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.
Trust that the author isn't exceeding his authority under copyright. Trust that various provisions don't run contrary to law and are thus unenforceable.
Apple NEVER relinquishes control of their rights.
An author never relinquishes control of his rights in a straightforward sale of a copy either. The extent and limits of the rights a user has when buying a copy, and the extent and limits of the rights retained by an author selling a copy, are well-established.
No, and you're being a jerk for comparing me with Saddam.
I quoted and provided links to the law I referred to. Have you read them?
The judge ruled in Apple's favor and ignored Title 17, 109. He should have found the restrictions in the license to be null and void.
This is pure, unadulterated judicial legislation.
I think the big problem here is that Psystar’s lawyers SUCKED!
This was a bad company, with bad representation, to be defending such an important test case.
That certainly appears to be the case.
No, and you're being a jerk for comparing me with Saddam.
Well, that's a typical "line" that I can just hear ringing in my ears from some criminal element ["Why are you comparing me with Saddam Hussein" said in a most indignant fashion, of course... LOL...]
As to why you would use such a criminal's line, I have no idea...
The judge ruled in Apple's favor and ignored Title 17, 109. He should have found the restrictions in the license to be null and void.
You may be a "judge-wannabe" but the fact of the matter is that you're posting on this board and an "actual judge" has already determined the facts of the matter...
And so am I posting on this board, but I'm not so crazy as to tell that judge how to do his job... :-)
I love hearing from "wannabes"..., they're always so entertaining when they try to tell the guys who are actually "doing something in their own profession" how they should do it... LOL...
This was a bad company, with bad representation, to be defending such an important test case.
Well now..., the "big money" that was behind Psycho-star, just shoulda given them more money for attorneys then....
Of course, when the big money saw what was about to happen, and to avoid them being exposed -- they cut and ran, leaving Psycho-star hanging out there by itself... ooops... (for Psycho-star... LOL...).
LOL!
Really? LOL!
Do you comment on, say, politicians and post on how THEY have made wrong decisions? LOL!
Gosh, it looks like every FReeper is a "wannabe", eh? LOL!
You're just being an annoying twit and making this about me, because you won't (can't?) argue the facts of the case and the law.
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.