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 is true... but unfortunately, that is also the reality.
I bow to hypersonic... but helicopter blades do go supersonic... mea culpa... mea hyper culpa ;^)>
Actually, what's even worse, is that before he retired my Dad was a technical writer who supervised writing all the technical manuals for the F100 and F86s for the Air Force...
Sorry, again you are wrong... the costs from VT included the building and cooling... and administration. I saw the breakdown of the build budget back in 2004 and the cost of the 1100 computers was under $2,200,000 with the discount that Apple provided, the racking, Infiniband networking, cabling, etc., added another $300K or so IIRC... and the building, cooling accounted for about $2,000,000 more... with another $1,000,000 left for a couple of years of operation, admin, and staff. All of the assembly labor was volunteer student work. Total $5.2 Million.
Incidentally, the Top500 rankings of the Virginia Tech System X over the last several years are as follows:
I think that's a pretty good run for 2004 Mac OS X technology competing against faster and faster chips... for a total investment of $5.8 million. I don't think VT got screwed or hyped.
So did I ... and wished I could vote for a conservative... but the down Easters foisted a down Easter Texan on us. Still, he was better than the alternatives... and I cannot bring myself EVER to vote for a Damnocrat.
“Sorry, again you are wrong...”
I followed and was in the long running thread on the subject at Arstechnica. Your memory is faulty. Oh, and other cluster installation costs INCLUDED labor. Not everyone has volunteers.
“I don’t think VT got screwed or hyped.”
You don’t actually USE machines like this. Being able to run the top500 benchmark is one thing. Being able to stay stable enough for long runs and having high availability is another thing entirely. Having to COMPLETELY replace the machine to have anything even remotely usable didn’t help their argument. Remember, they built this with the G5 towers the first time. Then they had to completely replace it.
If the G5 cluster was such a success, why are there so few of them? Why are there so few OS X clusters in the first place? It’s not just about cost... SGI, for all their troubles, has more Altix systems deployed than Apple has OS X clusters sold.... This is a market Apple doesn’t undestand.
“You still have not done the math on the rotational speed of those helicopter rotor tips have you?”
You still haven’t looked up the definition of “hypersonic”, have you?
“It still cost 1/5th cost of the next lowest priced of the top ten fastest supercomputers.”
It was incapable of operating as a cluster. It DID NOT WORK.
“From what I hear, stability had little to do with the decision to upgrade.”
You clearly hear lots of things. Doesn’t mean they are correct. I’ve encountered OS X clusters. They are not worth it.
“And the xServe solution made of Apple Mac Xserves was still three times less expensive than any of the top ten and was still the seventh fastest. That still belies your claims of “hype” and being “screwed.”.”
You are excluding costs the other clusters included. An X-Serve was NOT cheaper than the equivalent PC rackmount.
“You might have missed it, but this wasn’t an “legal opinion” out of some lawyer’s office... but a judge’s decision in a case brought to a judge for just such a decision.”
A judge’s *opinion*. You do know that’s what they call it? A written *opinion*.
We don’t have a Papal infallibility assumption for our judges.
“But, I will give you the rundown once again, that we’ve got three branches of government and when the Supreme Court makes that final decision, that’s it. There are no more legal steps to take and that’s the end of the road, as far as the legal system is concerned.”
Nope. The other legislative branch can counter with another law. The USSC was intended to be the weakest branch, as they are not directly accountable to the people.
“Now, convince yourself any way you want, but when you “hit the legal system” — you’ll find out that as far as its concerned — what you “can do” in the legal system is “right” and what you can’t do in the legal system is “wrong”...”
Which does NOT DAMN WELL MAKE ANYTHING ACTUALLY “RIGHT”. Geez. A judge can disregard the Bill of Rights and frequently does. That doesn’t make them right.. as in CORRECT.
“I’m sorry you didn’t learn that at an earlier age. It can be disconcerting to have your worldview shaken up at a later age... :-)”
You seem confused about the subject of “right” or “wrong”. You equate it only with an opinion of a judge.
“Not as five times faster. I probably should have been using “supersonic” instead. “
Big difference... and the the issue with helicopter rotor blades is in the *transonic regime*, not supersonic.
“but helicopter blades do go supersonic... mea culpa... mea hyper culpa ;^)>”
Transonic.
We don’t have a Papal infallibility assumption for our judges.
You can make all the assumptions you want, and it won't make any difference. The only "difference" that anything is going to make is the bottom-line result of a decision in a court. :-)
I'm sorry that you don't want to live in the real world and want to live, tangled up in a whole gaggle of assumptions that you put together. The rest of us know that regardless of any "assumptions" made -- when a judge speaks and gives a judgement, that this is what is done... LOL...
Now, as I said before (but you seem to have a problem comprehending it), is that when a judge makes a decision and it's either not appealed or it's not overturned, and even if it gets to the Supreme Court and is affirmed -- that no matter what kind of "assumptions" you want to make -- the legal system is through with it. That's it -- and thus the decision is the end of the line and for the legal system. And..., what you "can do" [in the legal system] is "right" [as far as it's concerned] and what you "cannot do" is "wrong"...
Sorry that you don't like the legal system and sorry if it interferes with your own ideas of what is right or wrong -- but that's just the way it is.
But, I can tell that you're one of those kinds of people who have a hard time facing "reality" and like to construct "castles in the sky" to help your weak mind... LOL...
Nope. The other legislative branch can counter with another law. The USSC was intended to be the weakest branch, as they are not directly accountable to the people.
Duh! You just don't read, do you, or your comprehension doesn't exist... LOL...
I guess you missed the part of where I said that there were three branches of government and that as far as the legal system is concerned, when the Supreme Court gave the final decision that was the end of the line as far as it's concerned...
And I said that you would have to convince a bunch of other people to change the law or get another law put through to get a different effect than the one that you just got...
I can only help you so far and I see it's getting nowhere... :-)
Which does NOT DAMN WELL MAKE ANYTHING ACTUALLY “RIGHT”. Geez. A judge can disregard the Bill of Rights and frequently does. That doesn’t make them right.. as in CORRECT.
Once again, brush up on your reading skills... LOL...
I said that as far as the legal system is concerned, what you can do is "right" and what you cannot do is "wrong"... and that's it as far as anything legally... Sorry to disappoint you but the legal system is just that and no more.
And as far as any judge "disregarding" anything, as I said, if it goes to the Surpreme Court and it's affirmed, it doesn't matter what you think or think is "wrong" or think the judge was stupid or whatever -- when it gets there and it's decided -- that's the end of the line as far as the legal system is concerned.
But, since I know you have Alzheimers, I'll also remind you that if you don't like the "results" of the legal/judiciary system, there are two other branches of government to work with to get a "different result" if you want to add or change a law.
However, it's over as far as the legal system is concerned at that point.
You seem confused about the subject of “right” or “wrong”. You equate it only with an opinion of a judge.
You're the one who is confused in regards to "reality".... LOL...
You can stand up in front of a judge and complain about "right and wrong" all you want and it won't make a bit of difference to the judge. It will only be decided on the law and what the judge decides (or perhaps a jury if it's a criminal trial of an individual). It's the "law" that is all that matters -- not your own sense of "right or wrong". Your own sense of right or wrong makes absolutely no difference in deciding a case. It's decided solely on the basis of the law, and when it comes down to a judge's decision, it's decided on what "he says" and not what you think is "right or wrong"....
Again, get a life in the real world...
No, the answer is copyright. Without it they wouldn't be able to stop people from doing whatever they want. Copyright gave them their grant of limited monopoly. How do you take more power than the law gives you?
Ah... y’all just miss the reality of “real life” — doncha...
The first guy may have had to get his lawyer on it... the rest of them followed along in a real big long line... LOL...
The building and cooling were included. As I pointed out the VT grunt assembly labor was volunteer and that was nothing to sneeze at as everyone else's was pofessional. They should have made an accounting estimate in their cost factors for that.
You don’t actually USE machines like this.
No, I don't. Some of my friends work at Lawrence Livermore lab and do use Beowulf clusters and also use Macs by choice. There are actually quite a few small Beowulf clusters being built now with Mac Minis; they are very economical to do.
Thanks, Favor. Not being in aeronautics, I don't know the jargon. i appreciate it. Enlighten me. What does "supersonic" denote?
Listen, you arrogant and insulting twerp, there is an absolute right and wrong not defined by a judge. The legal system defines what is legal and illegal. They frequently ignore the Constitution to do so, which makes them WRONG when they do so. The legal systems in other countries have at various times considered genocide to be LEGAL.
If a judge - even the Wise Latina Sotomayor - decides we no longer have 1st Amendment rights or 2nd Amendment rights, she will not be “right” in that opinion and Conservative response will be that she can try to enforce it and would be cordially invited to go straight to hell. The legal system just hasn’t completely crossed that line yet. At least half the judges and justices are idiots - and that includes half the USSC.
They can make their decision.. and let them enforce it.
You would meekly roll over to tyranny. The courts were intended to be the weakest, not strongest, branch. They only have the power the other branches - and the People - allow them to continue having.
“The building and cooling were included. As I pointed out the VT grunt assembly labor was volunteer and that was nothing to sneeze at as everyone else’s was pofessional. They should have made an accounting estimate in their cost factors for that.”
The building already existed. You can’t build a building like that for that little amount of money. They spent a million on facilities upgrades, and a million on a UPS system.
From “Dr V’s” presentation:
Price/performance. Goal of 10 teraflops sustained.
Total cost 5.2 million. Budget was set long before system designed.
- Facilies upgrade 2 mil
- 1 mill facilities
- 1 mill UPS and backup power generators
- Cheapest world class supercomputer
III. Facilities
Data Center - 1980’s machine room
9000 sq ft total
Scrunched other machines to get space
3000 reserved for research
2.5 miles from main campus
The other system quotes he compares to includes the building or other things. He’s a bit disingenuous in some of his press releases - particularly about the whole “build a cluster for a benchmark and then have to rebuild it to use” thing, but he is a university professor. They’re like politicians.
“No, I don’t. Some of my friends work at Lawrence Livermore lab and do use Beowulf clusters and also use Macs by choice. There are actually quite a few small Beowulf clusters being built now with Mac Minis; they are very economical to do.”
Well, I use the big machines. None of them are Macs. LLNL can do what it wants. I’ve worked with some of those guys. The other labs do not and most Mac clusters are built by Mac fans, not for the best cost/performance ratio. You can ignore that, if you like, but it’s my experience AS a user and sometime builder of these systems.
Apple has nothing on any of the other vendors. The hardware is Intel reference hardware. Paying a premium for that is NOT a proper use of resources. Buying from a company that caters to consumers and has no real enterprise-level support infrastructure is generally a mistake.
“What does “supersonic” denote?”
Usually 1 or 1.1 to 5. The transonic regime (can be down to 0.7, but .9 to 1.1 usually is the range) is difficult to model accurately. Supersonic is easy, comparatively.
If the tip of the advancing blade of your helicopter goes supersonic, you are going to have a bad day.
Listen, you arrogant and insulting twerp, there is an absolute right and wrong not defined by a judge.
You keep getting a failing grade on "reading"... LOL...
As I keep trying to help you understand, as far as the legal system is concerned, whatever "you can do" is right, and whatever "you cannot do" is wrong. And that's as far as it goes. It's as simple as that, for the legal system.
You really do need to either get glasses or brush up on your reading skills... :-)
The legal system defines what is legal and illegal.
I keep trying to help you out here. This is the "right" and "wrong" of it, as far as the legal system is concerned. It's a simple concept and it's not hard to grasp. But, you seem to be working very hard at not grasping it. :-)
They frequently ignore the Constitution to do so, which makes them WRONG when they do so.
Well..., once again, you just don't seem to be reading well. I've said repeatedly that in the legal system either it gets appealed or challenged and then it either stops (someone wins) and/or it goes up to the Supreme Court and then that's the end of the line as far as the legal system is concerned.
I just don't know why you've failed to grasp this after you've been around here for a while. Perhaps you're a newcomer to our country, I suppose... :-)
We have three branches of government and the legal system (the Judicial Branch) takes care of its end of things. Now, the other two branches may act on something that they don't like in the legal system, but that's going to take a lot of work and effort and it doesn't always work out.
The bottom line is that when a court decides and when it's all done, the legal system makes its pronouncement and especially when the Supreme Court makes it -- it's finished -- all except for the "yelling and screaming" for those who may not like a particular decision.
And once again, as far as the legal system is concerned, whatver you "can do" in the legal system is "right" -- and whatever you "cannot do" in the legal system is "wrong". And there is no more simple explanation than that.
The legal systems in other countries have at various times considered genocide to be LEGAL.
Sorry, I'm not discussing other countries... :-) I'm talking about our country.
If a judge - even the Wise Latina Sotomayor - decides we no longer have 1st Amendment rights or 2nd Amendment rights, she will not be “right” in that opinion and Conservative response will be that she can try to enforce it and would be cordially invited to go straight to hell. The legal system just hasn’t completely crossed that line yet. At least half the judges and justices are idiots - and that includes half the USSC.
Again, the bottom line is simply whatever the Supreme Court decides on whatever issue is brought before it ... their "word" is the "right" of the matter and/or the "wrong" of the matter -- as they speak to what you can and cannot do -- in our legal system.
I don't know why you can't get it.
NOW..., as I've abundantly explained before, if some people don't like the result that comes from the Supreme Court, they can work with the other two branches of government and get a different law, or change the current one, or amend the Constitution -- in order to "get the result" that they want.
If you cannot grasp these very simple matters, I really have no help for you.
And, you don't have to abide by decisions if you don't want to..., but if you violate court decisions and laws as they have been decided upon in courts -- you will simply be pronounced guilty of violating these things. Depending on how serious the matter is -- it can result in the loss of "life, liberty, and your pursuit of happiness" -- as a result of what is called "due process".
You're not going to be able to get around that, unless you decide to become like an uncivilized terrorist and ignore these kinds of things in our system of government and decide to "make your own laws"... LOL...
They can make their decision.. and let them enforce it.
They have the full power of the government at their disposal, and it will be carried out. We have plenty of examples, day-in and day-out, of that...
But, I suppose if you don't like our system of government, you can resort to the kinds of actions that other and outside terrorists resort to, when they don't like our system of government either... :-)
You would meekly roll over to tyranny. The courts were intended to be the weakest, not strongest, branch. They only have the power the other branches - and the People - allow them to continue having.
The founding fathers gave us this system of government and I'm sticking with it. You can resort to violence and overthrow of the government if you wish, just like the terrorists that we are fighting, but I won't be supporting those kinds of actions.
“As I keep trying to help you understand, as far as the legal system is concerned, whatever “you can do” is right, and whatever “you cannot do” is wrong. And that’s as far as it goes. It’s as simple as that, for the legal system.”
Take your reading grade crap and stuff it. I am clearly talking about actual “right” and “wrong”.
“The founding fathers gave us this system of government and I’m sticking with it. You can resort to violence and overthrow of the government if you wish, just like the terrorists that we are fighting, but I won’t be supporting those kinds of actions.”
The Founders did not give us this form of government. They gave us a Republic. Do you remember what the Founders did to get there?
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.