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.
That's not the way many courts have seen it.
Those courts who don't buy the company's end-run around the law have ruled that a copy of software is a resellable product, not a "use license". But, some courts are still willingly led by the nose by Microsoft's, Apples', et al lawyers and let them get away with it.
More good info can be found in US v WISE, 550 F.2d 1180:
...the first sale doctrine provides that where a copyright owner parts with title to a particular copy of his copyrighted work, he divests himself of his exclusive right to vend that particular copy. While the proprietor's other copyright rights (reprinting, copying, etc.) remain unimpaired, the exclusive right to vend the transferred copy rests with the vendee, who is not restricted by statute from further transfers of that copy, even though in breach of an agreement restricting its sale. See Harrison v. Maynard, Merrill & Co., 61 F. 689, 691 (2 Cir. 1894).This is settled law, and has been for over 100 years. But software companies are doing their darndest to skirt the law with EULAs, to maintain control over EACH COPY, even after the sale.(emphasis added)
It's despicable and should be stopped in every court case, IMO.
Yeah, see? There are the restraints on a copy that has already been sold.
That's a good illustration of what I'm talking about, and exactly the problem I ran into. My copy was a Dell OEM copy for which the hardware had been destroyed. According to Microsoft, that fact stripped me of my right to resell my copy of the O/S.
See my post #181 for links which prove that this is in contradiction to the settled law on the subject.
eBay would rather just go along with Microsoft's wishes, as do too many judges.
Yeah, well that goes on a lot on FR, don't you agree?
In fact, it's kinda the whole POINT of FR, isn't it?
If we all agreed with the decisions of our government, would there even BE a Free Republic website?
This is settled law, and has been for over 100 years.
Actually it sounds like it's only settled inside your own head. I mean by that, if it is relevant, as you say -- then obviously it's not "settled" since we're getting Psycho-star, here, knocked down by the judge.
That doesn't sound too settled to me... in fact, it sounds more like it's "settled" the completely opposite way you are thinking -- namely by the actual results that the software writers are getting with their software, in terms of licenses.
I would say you're grasping at straws... :-)
If we all agreed with the decisions of our government, would there even BE a Free Republic website?
And here's the key understanding of that whole thing. If someone can't get it changed through our system (the three branches of government that we have and the processes involved in all of that) -- then you're simply going to have to live with it (and I guess, continue griping about it... LOL...).
That's really the bottom line here...
What I hear, in a lot of this stuff (whether Apple or anything else) is griping where those who are griping are unable to get anything done the way they want (in the area of what they are griping about)...
I can't help that part of it...
You’ll note, though — they are still selling it... :-)
[they’re just using a few weasel words and selling it anyway...]
eBay would rather just go along with Microsoft's wishes, as do too many judges.
Here's the thing with eBay... they have the right to refuse to sell anything that they don't want to for whatever reason that they don't want to. I personally wouldn't use eBay, because I think they're a crooked outfit -- but if you do, then you're gonna have to put up with whatever they tell you to do.
However, if a judge gives a decision on the matter, then it binds a lot of other people in what they are allowed to do. That's not true with eBay. If eBay decides not to sell it (for whatever reason) they can simply refuse to sell it, giving you whatever bogus reason they want to.
Another outfit will sell it, instead of eBay. That's the way things work in our society.
But, as I said, a judge giving a decision is a completely different matter than eBay.
That doesn't sound too settled to me.
That's because you're confusing one court's opinion with "the law".
They aren't the same thing.
Unfortunately, some courts ignore law with which they disagree. This will hopefully lead to the decision being overturned by a higher court, but sometimes it just leads to injustice.
I have provided links to the actual statute and the decisions of courts dating back before 1900, which each agree with my take on the matter.
Vernor v Autodesk is another one.
Novell v CPU Distrib (2000) - Looking for the decision online...
The bottom line is that this court is willingly letting Apple legislate via court action, as many have allowed Microsoft to do before.
“As it turns out, that’s the way it works — in case you haven’t noticed... LOL...”
There is a distinct difference between being “legal” and “right”. Plenty of judges are wrong.
“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...”
Seems to be evenly split here.
In the Kelo case saying I don't agree with the results is equal to saying the judges interpreted the law incorrectly. The law in that case was the Constitution.
That's because you're confusing one court's opinion with "the law".
They aren't the same thing.
The "law" only is enforceable in real life, when it goes through a judge... :-) Thus, it is law, in the manner in which it passes through a judge and the decision which is made.
The "law" as written, and having never been put to "use" -- as in convictions or overturning something -- is nothing more than a bunch of words on paper. There may be people who refer to the "law" (on paper) and decide to follow it on their own -- but until it reaches a court and a judge -- it's just words on paper.
Softman v Adobe
It's not as one might assume... :-)
The Court finds that Adobe's EULA cannot be valid without assent. Therefore, Softman is not bound by the EULA because it has never loaded the software, and therefore never assented to its terms of use.
You'll note that the judge in the Psycho-star case did the right thing, because Pyscho-star was installing software in addition to altering and changing it -- things that it could not do under the law.
In addition, Pyscho-star didn't even buy the requisite amount of software in the first place -- deciding to "skim off" a few copies and make their own copies... LOL...
The eBay thing isn’t so clear. Microsoft will go after any venue that allows auctions of its products. Auction houses aren’t about to fight Microsoft to allow a tiny percentage of their auctions.
eBay is just the most egregious syncophant, not only complying but bending over backwards to help. At one time Microsoft had an eBay account, and they used that account to make complaints about legitimate auctions of Microsoft products and have the auctions pulled. Because of this people rated the Microsoft account very low. eBay changed all of those ratings to neutral, and then people left comments on the Microsoft account saying things like “Microsoft had my auction of a new, shrink-wrapped copy of [product] pulled. This is a negative rating.” Any further negative ratings still came out neutral.
In the Kelo case saying I don't agree with the results is equal to saying the judges interpreted the law incorrectly. The law in that case was the Constitution.
Well..., you've got a real big problem -- with that definition you gave... LOL...
If you say that you believe that Supreme Court Jutices in their decision interpreted the Constitution wrong -- then your definition (of what happened) gets you absolutely nowhere.
That's because the epitome of "explanation" for what the Constitution means in theory and in practice (of real life) -- is -- a decision by the Supreme Court.
NOW..., I say that the more effective "understanding" for what is going on -- is rather -- that the judges did decide right, but the "outcome and result" of the decision is not the outcome and result that you desire.
Therefore, you act in such a manner as to change the law (and/or the Constitution) to get the desired result the next time the case comes up again...
That's the more productive way of dealing with it.
Of course, that's the way to deal with it -- that's built into our entire political system.
The way you're describing it, will only degenerate into incessant complaining and nothing will get done, except the complaining (especially, when you're referring to a Supreme Court decision).
I’m a Mac
I’m a PC
Seems VERY clear what Apple thinks.
The only problem in describing things the way you are, is that software developers could write software so that the end-user could do anything they wanted to do it, rewrite certain sections, resell it, pass it on as a subsequent work that they did on top of that software, and just treat the software just like a ham sandwich — but they don’t (that is, the ones who want to make a living... LOL...)
What’s the problem? Well..., they can’t make a living... the way you’re talking about. There may be some software writers that contribute, for fun or for principle, to different kinds of software, but the vast and overwhelming majority of software is written and sold just like Microsoft and Apple handle their own software. That’s because they make money and the other software developers will do the same thing because they also make money.
If no one makes any money — they’re simply not going to write the software, except in the case of some “cause” or “celebrated” effort that a bunch of writers get together to do. The vast majority of software would go totally unwritten. No one would put forth the effort at all.
That’s why you see the law the way it is, the court cases the way they are and the judge’s decisions the way they are. That’s how people (including all the various and different kinds of software writers) make their money — in this country.
I think so too... :-)
There is a distinct difference between being “legal” and “right”. Plenty of judges are wrong.
If they don't get overturned and they are used in future and more cases, it becomes "right"... and that's exactly how it works.
And if such a thing reaches the Supreme Court, and they decide for it, it becomes what I would call "absolutely right" (in our own system of law).
In other words, that's the way the legal system is going to define "right" from then on.... :-)
You ARE an idiot and a Troll. The PowerMac PPC xServes did use Error Correcting memory. Flash in the pan? They were still in daily service as of this year last I heard. And you have no idea in what fields I work.
You can order here and have a copy of OS X delivered to your doorstep. That is your copy just as if you'd bought a book at your local bookstore.
Copyright law controls what you can do with your copy of OS X. Apple's attempt to grab more rights than copyright grants them through an adhesion contract is a different matter. But there are many terms in licenses that have been overruled due to the rights holder overstepping his bounds on copyright.
One problem with EULAs is that we still leave it up to disagreeing courts to decide where rights holders overstep for most of their egregious terms. The Supreme Court hasn't weighed in, and Congress hasn't directly addressed the issue. However, some states define your purchase of software under the UCC as a purchase of a consumer item, not a license. Considering EULAs as contracts, other states have enacted laws specifically to override portions of EULAs, especially the choice of forum provision. The latter prevents companies from suing in their states where the judges and laws are friendly to them.
They claimed that they completely rewrote Office for the O2007 product. However, the all-new product still used the same APIs and not .NET, a fact that left many developers wondering why Microsoft was pushing .NET so hard when they don’t use it themselves on their flagship product.
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