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.
They provided a means to run purchased copies of Apple’s OS on non-Apple hardware. Perhaps you might be happier on a Jobs worship forum?
Ummmm..., if you're talking about free enterprise and companies being wildly successful in our capitalistic economic system.... I think the right board is right here....
[it's definitely not the board for socialistic ideas of taking a company's ideas/products/etc and appropriating them for the "public good"... LOL...]
Psystar didn’t violate a “copyright” in reality, but provided a tool that could be used to violate a license agreement. You know, the unilateral software license agreement Apple imposes on you without your consent (the “you could take it back after opening the box” argument is nonsense) or approval and can change it at will?
It sounds like you're learning how to become a good socialist, with your socialist ideas... LOL...
“It sounds like you’re learning how to become a good socialist, with your socialist ideas... LOL...”
You do know the legal definition of a contract, right?
I find it fascinating the things that Apple fans will excuse for Apple, but accuse Microsoft.
Requiring OEMs to bundle IE with Windows is different from requiring bundled Apple hardware with OS X how?
Microsoft and AAPL are different companies with different business models. Microsoft is a software outfit that does sell some hardware; Apple is a systems house which does sell software. Big PC makers including Dell, Gateway, HP, et al depend on Microsoft continuing to license Windows to run on their products, whereas Apple sells computers which are able to run Windows but is sold with OS X installed and without any Windows license.As it happens, Apple used to sell computers which were not capable of running Windows, and is delivered those computers with an OS which could not run on a PC. Was Apple evil, in your opinion, for selling computers which could not run Windows? Was Apple evil for making software for that hardware, which was intrinsically incompatible with being run on a PC?
If Apple is evil for not licensing the use of its OS on non-Apple computers now, it must have been just as evil when it wasn't selling an OS which even could run on non-Apple computers. But then, you (unless you're working for Microsoft or Red Hat) aren't selling an OS that will run on PCs, either. Does that make you evil too?
“Ummmm..., if you’re talking about free enterprise and companies being wildly successful in our capitalistic economic system.... I think the right board is right here....”
I said nothing about appropriating other company’s products or any “public good”.
What I do not support is the concept that I am not allowed to sell a product I buy. I realize these arguments fail when directed at Reality Distortion Field(tm) operating around Jobs and his addicts....
Did you support the lawsuits against MSFT? If so, you’re a hypocrite.
“Microsoft and AAPL are different companies with different business models.”
Immaterial, from a legal standpoint. OS X is available as a separate product.
“Was Apple evil for making software for that hardware, which was intrinsically incompatible with being run on a PC?”
No, they were not - for that. For destroying the cloners?
Yes.
Did you support the lawsuits against MSFT? If so, you’re a hypocrite.
Yes, a company that has 90% of the computer market is prohibited, legally, from doing what any company is legally able to do with 10% of the computer market... :-)
And that could be the reason that Microsoft got hammered... a novel idea, huh?
I see you're not very versed in our economic system and its laws...
[ ... it's just like a socialist to operate within a tangled mind and a web of disinformation... :-) ... ]
I would say “Fair Use is dead” in response, but the ruling on Rebel EFI seems to be more about the incompetence of the Psystar counsel than on any facts. The judge just swallowed every assertion Apple made about it, and granted the injunction.
Requiring OEMs to bundle IE with Windows is different from requiring bundled Apple hardware with OS X how?
I see you're still mixed up on the facts and information, which probably contributes to your socialist ideas... :-)
First Apple is a hardware company, not a software company, and that's by what they explain of themselves, so it's not just me saying that. They're in the hardware business.
And they make the specific software to support their own hardware -- that hardware being the primary focus and business of the company.
NOW, maybe you're not familiar with "business" -- but it really does not make any business sense at all for Apple to make software to give away to their competitors to use on their hardware (i.e., the competitor's hardware)... LOL... that's a "laugh a minute" if you're thinking you're using some kind of "business acumen"... :-)
But, leave it up to a socialist to think this and that a company should let other companies use it's own support software on the competitor's hardware -- that support software which was made specifically to support Apple's business.
Yep, that's a socialist idea all right.
It's sure a good thing you've not running Apple...
” I see you’re still mixed up on the facts and information, which probably contributes to your socialist ideas... :-) “
BS.
“First Apple is a hardware company, not a software company, and that’s by what they explain of themselves, so it’s not just me saying that. They’re in the hardware business.”
They’ve made a point of stating they are in the “Mac” business, not just the “computer” business or the “Personal Computer” business.
“NOW, maybe you’re not familiar with “business” — but it really does not make any business sense at all for Apple to make software to give away to their competitors to use on their hardware (i.e., the competitor’s hardware)... LOL... that’s a “laugh a minute” if you’re thinking you’re using some kind of “business acumen”... :-)”
I believe Psystar was purchasing retail copies of Apple’s OS, were they not? Where’s this “give” thing?
“But, leave it up to a socialist to think this and that a company should let other companies use it’s own support software on the competitor’s hardware — that support software which was made specifically to support Apple’s business.”
OS X is sold as retail product. Psystar was purchasing said product. IE specifically supported MSFT’s business and was made to. Same thing.
“It’s sure a good thing you’ve not running Apple...”
Apple apologists are amazing people. Mostly liberal people with superiority complexes, but amazing people nonetheless.
“Yes, a company that has 90% of the computer market is prohibited, legally, from doing what any company is legally able to do with 10% of the computer market... :-)”
Define their market? Apple’s PR states they aren’t in the personal computer market. In fact, they clearly define their product as something other than a “PC”. I think Apple is just - and their history with clones shows - scared to death of competition and unable to compete with said competition.
“I see you’re not very versed in our economic system and its laws...”
Yep, you’re a Mac user.
“[ ... it’s just like a socialist to operate within a tangled mind and a web of disinformation... :-) ... ]”
It’s just like a cultist to blindly follow and agree that everything Apple does is RIGHT!, even when they do the SAME kinds of things other companies are attacked for. Remember the clone deals? Remember what they did then? Oh, wait... Apple did it, so it’s all ok....
You can take your “socialist” insults and stuff them.
Uh, no, the judge found that Psystar was in violation of copyrights and in fact had shipped Psystar Open computers with OS X installed in violation of several provisions of the copyright laws including making derivative works and multiple copies. Some Open computers were delivered without retail copies of OS X but the judge ruled that was irrelevant to the violation of copyright laws. He also ruled that they were in violation of the copyright rights that Apple had spelled out in the software users license which he ruled WAS a valid contract. Finally, he ruled that Psystar cannot sell tools to be used to violate said valid contract or violate the copyrights of Apple.
Define their market?
Their market in terms of this article is the computer market (like the computers they sell). In that market they have about 10% of the market. :-)
But, Apple has entered other markets, too, as you know, and they are competing there, too. But, this court judgement wasn't about those markets...
The iPhone is another product (i.e., hardware) in one of those other markets, the iPod is closely related and somewhat connected in the same market. Although the iPhone has a bit different market, they do converge in one area. The iTunes Store and the iPhone App Store is the "support market" that Apple developed to assist and complement their hardware sales, that being the primary market that they are in.
I think Apple is just - and their history with clones shows - scared to death of competition and unable to compete with said competition.
No, what you're doing is confusing one kind of "business model" with another kind... LOL...
Some other companies have a different kind of business model. Like for instance, with computers, Microsoft concentrates on software. That's their business model. The "hardware" for Microsoft is just to help them sell software... LOL...
Now, with Apple, they have a different "business model". For them, the hardware is what they are in the market for and selling. The software is to exclusively help their hardware sell and complement all aspects of that hardware, making it the best user interface and integration of any hardware sold in the market.
That's why it makes no sense for Apple to help another hardware company sell their hardware... LOL...
As I said, I'm glad you're not advising Apple or running Apple...
With your ideas, Apple would turn from a wildly successful company selling many cutting-edge hardware devices, supported by their superb software to complement that hardware, having "Billions" of dollars in the bank from their success -- to your ideas making them a has-been company going out of business.... LOL...
I'll be pleased to see you stay in the Microsoft sphere of influence so that Apple product users don't have their quality of products diminished by your kind of ideas... :-)
No, they were not - for that.“Was Apple evil for making software for that hardware, which was intrinsically incompatible with being run on a PC?”
For destroying the cloners? Yes.
You demand that Apple sell its OS on terms which they do not choose to meet.They insist on terms which give them more credit for their initiative in identifying and implementing useful functionality than you are willing to grant.
So install Linux on your PC - what's the big deal?
“Uh, no, the judge found that Psystar was in violation of copyrights and in fact had shipped Psystar Open computers with OS X installed in violation of several provisions of the copyright laws including making derivative works and multiple copies.”
In short, the Fair Use is dead and EULAs are now law?
“He also ruled that they were in violation of the copyright rights that Apple had spelled out in the software users license which he ruled WAS a valid contract. Finally, he ruled that Psystar cannot sell tools to be used to violate said valid contract or violate the copyrights of Apple.”
Considering a EULA as copyright is a perversion of the intent of copyright laws - including the Constitution.
No EULA can be a legitimate contract, as there can be no “meeting of the minds” before purchase. That this judge does not agree... well, judges also have said that Commerce is more than trade and the 2nd Amendment no defense.
“Their market in terms of this article is the computer market (like the computers they sell). In that market they have about 10% of the market. :-)”
They have defined their “market” as something other than the “personal computer” market.
“But, Apple has entered other markets, too, as you know, and they are competing there, too. But, this court judgement wasn’t about those markets...”
I wasn’t talking about phones.
“No, what you’re doing is confusing one kind of “business model” with another kind... LOL...”
You don’t remember the clone fight in the 90s, then....
“With your ideas, Apple would turn from a wildly successful company selling many cutting-edge hardware devices, supported by their superb software to complement that hardware, having “Billions” of dollars in the bank from their success — to your ideas making them a has-been company going out of business.... LOL...”
Oh, I agree they are successful. I do not agree that putting fancy cases on Intel reference boards qualifies as “cutting-edge”. Microsoft had billions in the bank... often by using the same tactics.
“I’ll be pleased to see you stay in the Microsoft sphere of influence so that Apple product users don’t have their quality of products diminished by your kind of ideas... :-)”
I’m primarily a Linux user. So are most in my field. We started with IRIX. When we had to pay a premium - SGI - it was because there was nothing else close in performance. With Apple vs anyone else, that isn’t even remotely true.
They just cost more. It’s a boutique computer trading on brand and image. The cult helps.
“You demand that Apple sell its OS on terms which they do not choose to meet.”
They sell their OS retail. The idea that a EULA - which can have ANYTHING in it - is considered enforceable as a contract and defense of copyright - is offensive to the very nature of copyrights. I demand that software be treated like any other tool.
“So install Linux on your PC - what’s the big deal?”
I have no interest in Psystar’s products. OS X is of little interest to me. Of course, eye candy and limitations aren’t something I’m willing to pay a premium for.
“A boutique bigger than Dell.”
Still a boutique computer.
“As to the rest, delusional.”
Hardly. Just no Reality Distortion Field.
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.