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.
The fact that eBay complied with a demand from Microsoft would have little bearing on whether it was actually legal to resell the software. FWIW, Disney used to try and claim it was illegal for places like Blockbuster to rent their movies.
“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.”
The first multi-million-dollar PowerMac cluster did not and was entirely removed from service.
“And you have no idea in what fields I work.”
Nothing even remotely technical. That much is clear.
“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.”
O2007 is heavily integrated with .NET. Just like Apple, they will develop APIs custom for their major projects.
I’m pretty sure Visual Studio is not used for Office, either.
“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.”
No, it becomes precedent.
“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).”
BS.
“In other words, that’s the way the legal system is going to define “right” from then on.... :-)”
Uh, no. They’ll define it as “legal”. Anyone who things the two are the same also believes in hypersonic helicopters, so one should consider the source.
By virtue of having written a program, a developer automatically retains the exclusive right for all of that under copyright. Except reselling it -- he doesn't have the right to restrict resale. Specifically, those two actions fall under the exclusive right of a copyright holder to create derivative works. No EULA is needed to protect against the end-user doing those things.
In the case of free (but not public domain) software, a license is given. That license is what lets others freely distribute the work, and make derivative works, without infringing on the author's copyright.
While all of that is technically true, it would be hard to find a FReeper who thought the Supreme Court interpreted the takings clause correctly because the decision was in direct opposition to the plain language and meaning, instead operating off of precedent and practicality.
No it isn't. The book does not come with a license you must agree to before starting to read it. If such a book does exist, and it might, it would be a very notable exception that would make it more like software and less like a book. But to equate ownership of OSX to ownership of a book is incorrect and misleading.
Sorry.
The bottom line here is that whatever restrictions that the software developers want to put on their software to make money is what they do... :-)
While all of that is technically true, it would be hard to find a FReeper who thought the Supreme Court interpreted the takings clause correctly because the decision was in direct opposition to the plain language and meaning, instead operating off of precedent and practicality.
And it's because that is true (technically or not...) -- that is why I say that it's a disagreement with the result -- of the law and the court's judgement -- that is the problem. This "understanding" of it -- then points to the perfection solution -- "change the law in order to get the desired result"...
No, it becomes precedent.
That's the "right" of the matter.... :-)
BS.
Just because you don't like the fact that a Supreme Court decision is final with the law and the courts -- doesn't make it any different. That's what is "right" in our legal system and that will be the final word.
You're only other alternative is to change the law -- which is one of the options that I was talking about. But, then..., you would have to get a super-majority on your side to change the law and/or the Constitution -- and at this point, you would get nowhere near that... :-)
Uh, no. They’ll define it as “legal”.
You can fiddle with the words all you want and it still won't change the fact that the "right" of the matter in our legal system -- is what you "can do" -- and the "wrong" of the matter is what you cannot do... LOL...
Hypersonic was what was reported. I was wondering myself. But apparently a rotor can reach very high velocities at the extreme ends of the blades that can excede Mach 1 which can cause turbulence and Air cavitation problems. The Mach5 was doing simulation of airfoil tip designs to minimize the problems. I am not an aeronautics expert by any means but that was what I was told by a Colsa rep at a Macworld conference in 2005 that they were doing with Mach 5. You can laugh all you want, but I can see how rotational velocities at the extreme end of helicoptor rotors just might exceed 1116 ft/second (Mach1) which in some circumstances and might be a concern. Even a civilian helicopter at peak rotation can reach about 1000 feet per second at the tips of the rotors. Do the math.
55ft. Rotor diam. X pi = 173 ft. Rotor tip circumference X 350 peak RPM = 60,550 ft/min/60sec = ~1000 ft/sec.
There is a good reason to be concerned for high performance military copters. Especially if you want quiet copters. Now, do you want to keep ROTFLYAO?
Why should they have to do that? Just document the APIs they are keeping hidden from other publishers who could compete with Office.
What are you talking about? The version of OS X you bought was the same regardless of what processor it ran on until the release of Snow Leopard, as was the price.
Ask the Psystar and the Padraza Brothers if THEY agree now that it isn't " enforceable. Judge Alsup says it is indeed very enforceable.
I beg to differ. You seem to have a comprehension problem. What part of the words "hypersonic rotor blade" are you failing to understand? Do you think that is impossible that it is impossible for a portion of a helicopter rotor to reach a rotatioan velocity that can be faster than 1116 ft/sec??? I don't. Do you think it might be an issue in achieving silent helicopter flight? I do. Could the turbulence of the rotor tips be a major problem fir helicopter flight. You bet. Could modelling what happens in that turbulence be important? Of course.
READ THE DECISION.
So, who did YOU vote for???
Sorry, TChris, the judge DID NOT IGNORE Title 17, Section 109... an entire subsection of his decision addresses it. YOU are the one ignoring what he wrote and his decision on what it meant and what Psystar did that meant it did not apply.
Here is what Groklaw had to say (Full Article, including a text version of the Summary Judgement against Psystar), along with the quotation from the decision:
The court's message is clear: EULAs mean what they say; if you don't want to abide by its license, leave Apple's stuff alone.We have the order for you as text.
On the first sale defense, you'll find it in the section on distribution right and Section 109:
Apple contends that Psystar has violated its distribution right by offering and selling Mac OS X on Psystar computers to the public. Psystar admits that it has distributed Mac OS X (Chung Exh. 17 at 4).Catch that? Even if Psystar were the lawful owner of the copy, it still can't do what it did. The court quotes from Microsoft Corp. v. Software Wholesale Club, Inc.: "the first-sale doctrine does not apply to an admittedly counterfeit unit". So, no, you can't buy a copy and use it to go into a counterfeiting business, in effect. Terekhov's theory has bitten the dust and then had to eat some. Just like Daniel Wallace's anti-GPL theory did. Whoever is relying on their legal theories might want to buy a vowel and try to figure this puzzle out.But Psystar responds that its conduct is protected by the Section 109 first-sale doctrine. Section 109 provides that "the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord." 17 U.S.C. 109. This provision is a limitation on the distribution right. It applies only to an owner of a copy.
The parties spill much ink on whether Psystar was the owner or a licensee of the copy (i.e., the tangible copy) of Mac OS X that it purchased. Even assuming arguendo that Psystar was the owner of a copy, the first-sale defense fails here. Section 109 provides immunity only when copies are "lawfully made." The copies at issue here were not lawfully manufactured with the authorization of the copyright owner. As stated, Psystar made an unauthorized copy of Mac OS X from a Mac mini that was placed onto an "imaging station" and then used a "master copy" to make many more unauthorized copies that were installed on individual Psystar computers. The first-sale defense does not apply to those unauthorized copies. See Microsoft Corp. v. Software Wholesale Club, Inc., 129 F. Supp. 2d 995, 1006 (S.D. Tex. 2000) ("the first-sale doctrine does not apply to an admittedly counterfeit unit"); see also 2-8 NIMMER ON COPYRIGHT § 8.12 ("if the manufacture of a copy or phonorecord constitutes an infringement of the reproduction or adaptation right, its distribution will infringe the distribution right, even if this is done by the owner of such copy or phonorecord").
Ergo, contrary to your ignorant and libelous assertion against Judge Alsup, the judge DID NOT CORRUPTLY IGNORE THE LAW. he honestly addressed it, and found Psystar in violation of the letter and spirit of the law.
That's strange.... the first team were the one's everyone was touting as the only one's that could possibly bring Apple down as they had gotten some kind of win once before. Then Psystar failed to pay them... and declared bankruptcy owing them $85,000...
The next guys were "cowboys" from Texas... who "thought differently" and opened a new Florida offensive case (in both meanings of the word) with much the same arguments the first guys used for defense in California that had ALREADY been tossed out of court: "Apple was an illegal monopoly in the OS X computer Market... only this time it's "Apple is an illegal monopoly in the over $1000 computer Market." Boy, do they think different...
The real "different thinking" was that they were willing to work on a contingency fee basis.
But, all in all... you are probably right.
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