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.
Mockery is a poor substitute for reasoned debate.
Anyone who has followed this company knows that their name is “Psycho-star”.... with their lawyers, their ideas, their arguments and the total idiocy... LOL...
All they’re good for is a few good laughs... about now...
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.
There's no use arguing with idiots, they're more fun to laugh at... and Psycho-star fits into the idiot category, definitely....
I wouldn't be associating with idiots and idiot-ideas, if I were you... :-)
Certainly easier for those who aren't up to it.
What a gadfly you are.
Who here wasn't guilty of that in, say, the Kelo decision on eminent domain?
Sorry... it is you that missed the boat. What I quoted to you was from Judge Alsups Summary Judgment ruling and USC Title 17, 109 was what the judge was quoting... the extra "1" was an accidental inclusion from the line number from the PDF file that I missed editing out. My apologies. Had you read what I posted, you would have noticed that the Judge quoted chapter and verse of what you linked to.
Here's Title 17, 109 for you again. Read it.
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.
No, I have read it, several times and the judge cited the law, and applied it as written. Show me where a properly written software license has not been allowed to be resold? I would bet you, you can't. In most cases they are allowed to be resold. The one case most people point to where the right of first sale was upheld Autodesk, the seller never actually installed the software, buying an unopened box at a garage sale and reselling it on eBay. The courts held that he was never a party to the click-through SLA and could resell his purchase...
So your cut and paste is irrelevant. AND your point is irrelevant.The judge ruled in the Apple v, Psystar matter did indeed rule on 17 109. holding that Psystar's copies on their Psystar Open machines were inherently NOT legal copies made with the permission of the copyright holder... ergo the fair use was null and void.
Certainly easier for those who aren't up to it.
The judge certainly was up to it... :-)
Sorry if you don't like his decision...
Who here wasn't guilty of that in, say, the Kelo decision on eminent domain?
Well, to say that you don't agree with the results of a decision and the laws that pertained to the decision -- is not the same thing as saying that the judged was stupid or wrong or interpreted the laws incorrectly.
Those are two different matters.
We've got a system, here in this counntry, with the three branches of government are balanced off, the one against the other. And where one branch is arriving at the wrong results we, as citizens can act to change it. The "given" which is necessary for this change to happen -- however -- is that a sufficient enough majority agrees with you that it needs changing. If that isn't the case, then you're plain out of luck no matter what you think is right or not.
So, I just go by the process, as it is..., and say that if something needs changing, then we do it as citizens. If we can't get enough citizens to agree with me that it needs changing (enough to make a difference and get it changed) -- then obviously, I don't have a strong enough position to get it changed -- and in this society, I have to live with those results, then.
That's the society that we live in...
So, if the judge was wrong, he'll be overturned. If he wasn't wrong, then it will stand. If the decision was right, but the result is not what the sufficient majority of the public wants, then they will change it. If they can't get it changed, then they don't represent a sufficient enough majority to make their changes (that they want) effective and so -- they have to "live with it"... and so it goes...
The case was appealed from a decision by the Supreme Court of Connecticut in favor of the City of New London. The state supreme court held that the use of eminent domain for economic development did not violate the public use clauses of the state and federal constitutions. The court held that if an economic project creates new jobs, increases tax and other city revenues, and revitalizes a depressed urban area (even if not blighted), then the project qualifies as a public use. The court also ruled constitutional the government delegation of its eminent domain power to a private entity.
The United States Supreme Court granted certiorari to consider questions raised in Berman v. Parker, 348 U.S. 26 (1954) and later in Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984).[2] Namely, whether a "public purpose" constitutes a "public use" for purposes of the Fifth Amendment's Taking Clause: "nor shall private property be taken for public use, without just compensation". Specifically, does the Fifth Amendment, applicable to the states through the Due Process Clause of the Fourteenth Amendment (see main article: Incorporation of the Bill of Rights), protect landowners from takings for economic development, rather than, as in Berman, for the elimination of slums and blight?
The decision was widely criticized.[3] Many of the public viewed the outcome as a gross violation of property rights and as a misinterpretation of the Fifth Amendment, the consequence of which would be to benefit large corporations at the expense of individual homeowners and local communities. Some in the legal profession construe the public's outrage as being directed not at the interpretation of legal principles involved in the case, but at the broad moral principles of the general outcome.[4] "Federal appeals court judge Richard Posner wrote that the political response to Kelo is "evidence of [the decision's] pragmatic soundness." Judicial action would be unnecessary, Posner suggested, because the political process could take care of the problem."[5][6]
December 16th, 2009 at 3:05 AM - News by Bryan Chaffin
Judge William Alsup granted Apple's request for a permanent injunction against erstwhile Mac cloner Psystar. That injunction prevents Psystar from selling Mac clones, selling or copying Mac OS X in any incarnation, installing Mac OS X on non-Apple hardware, circumventing Apple's control measures that prevent Mac OS X from being installed on non-Apple hardware, selling or other distributing technology that allows such circumvention, or helping anyone in such circumvention efforts.
In short, Apple won what amount to a complete and total victory in its legal battle to stop Psystar from selling unauthorized Macs or from selling and/or distributing Rebel EFI.
Holiday Season in Cupertino
"This ruling will mean a Merry Christmas for Apple, Inc.," an attorney who has been following the case told TMO, "but for Psystar Inc, the new year brings the end of their business in Mac clones and circumvention technology, unless either Judge Alsup or the Ninth Circuit grants a stay of Judge Alsup's Order, pending appeal."
Psystar has said it would appeal the ruling that lead to this injunction, and that appeal will be heard by the 9th Circuit Court of Appeals in California, should that court decide to accept the case.
In his ruling, which was obtained by TMO, Judge Alsup made it clear that he would not tolerate stalling or delaying on the part of Psystar, and ordered the company to comply with the injunction no later than December 31st, 2009.
"Defendant must immediately begin this process," Judge Alsup wrote, "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." [Emphasis added by TMO]
Much of the rest of the ruling was written in similarly unequivocal language, and the judge stipulated that Psystar is not allowed to conduct a fire sale on its existing supply Open(Whatever) computers with Mac OS X installed.
Rebel EFI
As of this writing, Psystar is still advertising its Mac OS X system, though all are listed as being "Out of Stock." Rebel EFI, Psystar's software that allows Mac OS X to boot on non-Apple hardware, is listed as still being available for US$49.99, and TMO was able to download a two-hour trial version of the software.
Judge Alsup's ruling specifies that Rebel EFI is not included in the injunction per se, as, in Judge Alsup's determination, Psystar worked hard to keep Rebel EFI out of the proceedings and had asked for a specific exclusion for the software in the court's injunction.
However, Judge Alsup noted that while he would not grant an exclusion on a product about which he knew little, if the software falls under the above-mentioned terms of the injunction (for instance, should it turn out that Rebel EFI is software that allows users to circumvent Apple's Mac OS X control measures), that it would, indeed be covered by that injunction.
"Psystar -- if it continues to do so -- sells Rebel EFI at its peril," the judge wrote.
Snow Leopard
Psystar had attempted to exclude Snow Leopard from the proceedings, trying to find what it hoped would be a friendlier court in its home state of Florida. Judge Alsup, however, ruled in his injunction that Snow Leopard will be included, leaving it to the United States District Court for the Southern District of Florida to decide if it wants to intrude on Judge Alsup's ruling in the case that is pending there.
In this aspect of his ruling, Judge Alsup expressed displeasure at Apple, who had originally sought to keep Snow Leopard, which hadn't been released when this case began, out of the proceedings until Psystar launched its own case against Apple for Snow Leopard in the Florida court.
"The high-handed unilateral self-help by Apple certainly smacked of trying to 'have it both ways'," he wrote, "and offended the undersigned's sense of fair play."
Despite this, however, Judge Alsup wrote that the situation "clearly favors the extension of a permanent injunction to future copyrighted works."
Addressing the practical realities of operating system updates, the judge's ruling headed off all future infringement.
"The inclusion of future works within the scope of an injunction ensures that litigation need not be needlessly replicated when the defendant's infringing acts are the same, but the copyrighted work has changed."
I'll look for the email sent to me from eBay when I tried to sell a used, legal copy of Windows NT Server 4.0. The hardware, which had been given to me, had been trashed, so the license was mine to sell. They removed the sale and told me that Microsoft doesn't allow the resale of their software.
If I still have it, it's in my old email at home.
No, they were not.
Neither you nor I nor Psystar nor anyone else can "buy" OSX from Apple. All we can do is buy the right to use that software in accordance with the EULA. (Now there is a term of art you ought to force yourself to become familiar with). Since Apple's EULA has explicit restrictions and prohibitions against the use that Psystar was making of it, Psystar voided the EULA and with it their right to make any use of the software at all.
Perhaps you would like to put you money where your mouth is and become the next Psystar? Why not? You seem to work from the same level of arrogance and ignorance.
The only "copies" involved in the case were the absurd "copied to RAM so the machine could boot" ones. Psystar didn't make illegal copies, they resold the legal copies they had purchased. The "copied to RAM" hogwash is a pathetic dance around the plain meaning of the law.
It wouldn't be much more crazy to claim that YOU make an illegal copy of a book when you read it because the image of the page appears on your retinas!
Again, "fair use" is irrelevant because there was no real copying involved, only the insane "copied to RAM" thing. It's a red herring to cover the court's refusal to abide by 17, 109.
I'll look for the email sent to me from eBay when I tried to sell a used, legal copy of Windows NT Server 4.0. The hardware, which had been given to me, had been trashed, so the license was mine to sell. They removed the sale and told me that Microsoft doesn't allow the resale of their software.
There are obviously some hoops to jump through, but it looks like one can sell it, per what was said here... :-)
The following copies of old and used Windows NT/2000 operating systems are in stock today (our stock changes daily) at EMS Professional Software. Unless otherwise specified, each product includes ONLY original manuals and media in usable condition. Note! EMS is not selling licenses to use any software on any media for any specific use. EMS only sells original materials to computer professionals who understand the complexities of software licensing.
Effective immediately, we will no longer sell any Microsoft product, including books, that includes a COA (certificate of authenticity) unless it is the complete product, as originally sold. Yes, MS's interpretation of 18 U.S.C. 2318 is that even a book with a COA on it is licensed material and may not be transferred except as the IP owner permits, and it's not worth $20K+++ to us to have a federal judge rule on this. Customers who are not systems builders must purchase OEM software as part of a hardware purchase. Systems builders may purchase sealed OEM products without hardware. OEM packages with broken seals must always be sold with hardware, and must include all materials originally included with the package.
Before buying, you should contact Microsoft to arrange any licensing needed for your application. EMS is not affiliated with Microsoft or any other company.
It's a red herring to cover the court's refusal to abide by 17, 109.
The other way to say this is -- "I'm mad because the legal system and judges don't see the law the way I read it..." LOL...
“All we can do is buy the right to use that software in accordance with the EULA.”
EULAs fly in the face of copyright and contract law - or at least the intent of the concept.
“(Now there is a term of art you ought to force yourself to become familiar with). “
What is it with the arrogance level of Apple fans?
“You seem to work from the same level of arrogance and ignorance.”
Right back at ya!
“The other way to say this is — “I’m mad because the legal system and judges don’t see the law the way I read it...” LOL...”
You really are just chock full of logical fallacies.
Let’s see: the judge is right *because* he’s a judge. That’s one of your more entertaining ones.
Let’s see: the judge is right *because* he’s a judge. That’s one of your more entertaining ones.
As it turns out, that's the way it works -- in case you haven't noticed... LOL...
The judge may be overturned, but if he is not and any challenge (if there is any) is upheld -- then it's going to be "just because he said so" -- that's the way it's going to be.
And as I said, if there is a problem that someone doesn't like the "end result" of what the law and judges and judicial system produces -- they've got the right to change it -- but of course, you would have to get a whole bunch of people to agree with you.
The big problem is that you can't even get many people on Free Republic to agree with you -- so I doubt you're gonna change the law, the legal system or this judge's decision...
Keep griping if it makes you happy... LOL...
Judge Alsup had to rule on Psystar's absurd claim that Apple was a monopoly in the OS X computer market which had to do with the very definition of a PC. So you are very wrong. Again.
You guys would sure be helped a lot in your expounding if you would just READ THE JUDGE'S RULINGS! They are all available own Groklaw.com in PDF. Then you woudn't be making such ignorant comments.
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