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 have defined their “market” as something other than the “personal computer” market.
Well, the judge made his decision having to do with computers... :-)
I wasn’t talking about phones.
"Other" market areas other than computers involves the iPhone... :-)
You don’t remember the clone fight in the 90s, then....
I remember Steve Jobs setting everyone straight at Apple as to what Apple was actually doing -- i.e., making hardware to sell ... LOL...
Hence he scrapped the screwy idea of clones, since it in no way fit Apple's business model. Some phoney-baloney executive at Apple must have been listening to you, about clones, back then... :-)
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.
Well..., there happens to be a whole lot of previously non-Mac Users who think differently about that... :-)
The stats from the Apple Retail Stores show that over 50% of the purchasers of Macintosh computers are from a previous Windows platform, having never owned a Mac before...
They've had enough with the "trash-ware" of Microsoft. They've found out that the superior hardware and software working together, that Apple provides -- is far better than their previous experience.
They just cost more. It’s a boutique computer trading on brand and image. The cult helps.
The cost factor is only relevant if you don't want your Windows computer to do anything useful... LOL...
Once you get all the stuff you want to do and/or need to do, on everything that you thought you could do in the first place -- you're spending what Apple just gives you ready to go on your machine... :-) The FReeper "Swordmaker" has posted plenty of previous posts on price comparisons, like-machine for like-machine. They're right in there together.
But, I suppose some people do want their cars without heaters and/or radios, too. There are always a few like that, I supposed.
But, having computers be a good-looking device is nothing to sneer at. I mean, just because a lot of these "windows-types" want gauche and ugly machines doesn't mean that Macintosh users must imitate "ugly"... I'll leave the "ugly" to the Windows platform... thank you... :-)
They did not. You misunderstood what was sold. One does not purchase a copy of OS X software. Apple does not sell the software. One purchases a LICENSE to run a specific version of OS X on an Apple branded computer under specific limited conditions, nothing more. Apple provides a copy of that version for you to install it on your Apple branded computer. You do not own that software; you own the limited license to operate the software. under that license.
Are they just ticked over the non-Apple hardware part, or are they each illegal copies of OSX?
Where is the third party OEM in the Apple equation? Microsoft was requiring 3rd parties to not only bundle Internet Explorer with their computers but was also threatening to cut them off from being able to purchase Microsoft's OPERATING SYSTEM, a requirement of the 3rd party's survival as a business, if they did not bundle IE with their computer, using Microsoft's overwhelming monopolistic position as a club to force them into accepting an unwanted product. That's a big difference.
Apple sells SYSTEMS... not bare computers. You cannot buy an Apple computer without an OS.
The Apple Software License allows you to sell the product you buy... you are specifically allowed to sell the license you buy... you may not sell it and retain the right to continue to use it as well. You can't have your cake and eat it too. It's that simple. One license; one Apple branded computer. Not one license; one generic computer. The latter is Microsoft's model, not Apple's. Both are legitimate business models. Both are legal. Both are enforceable and licensable... as Psystar has just learned to its expense.
Yes, for use on an Apple branded computer as an upgrade... in conjunction with a fully licensed previous version of OS X. This is established law. Apparently you do not understand the law. The judge does.
“The Apple Software License allows you to sell the product you buy... you are specifically allowed to sell the license you buy... you may not sell it and retain the right to continue to use it as well”
That doesn’t appear to be what Psystar was doing. They were buying retail licenses and reselling them. They were not distributing multiple copies of a single license, nor did I allege that such a thing was fine or legal.
“One license; one Apple branded computer. “
OS X is sold apart from Apple branded computers.
“... as Psystar has just learned to its expense.”
That a judge ruled does not make the judge right.
“Apparently you do not understand the law. The judge does.”
Contract law or copyright law?
Apple at least had full retail licenses of OS X for sale. They have “upgrade” versions for much less.
Software should be treated like any other product.
“Well, the judge made his decision having to do with computers... :-)”
Apple markets their products as distinct from personal computers.
“I remember Steve Jobs setting everyone straight at Apple as to what Apple was actually doing — i.e., making hardware to sell ... LOL...”
Anti-competitive practices are ok when Apple does them. Got it.
“Well..., there happens to be a whole lot of previously non-Mac Users who think differently about that... :-)”
There are quite a large number of people who expect little from a computer and enjoy eye candy.
“They’ve had enough with the “trash-ware” of Microsoft. They’ve found out that the superior hardware and software working together, that Apple provides — is far better than their previous experience. “
It’s the SAME hardware and the software isn’t much better.
“The cost factor is only relevant if you don’t want your Windows computer to do anything useful... LOL...”
Ah, the Apple fan arrogance. The “I paid more for my computer, so it and I must be better”.
A computer is just a tool. There are entire industries without software support on the Mac.... Lots of pretty picture-making applications, though. If what you are wanting is a simple appliance-type system, go for it. I’m sure it’ll look great in the living room.
“being able to purchase Microsoft’s OPERATING SYSTEM”
False. They were only offering discounted prices to OEMs who bundled IE, not refusing to sell.
Apple is just scared of competition in their own space.
If each of the licenses of OSX was legally purchased, then Apple has no further control over them. Especially since the O/S is sold apart from Apple hardware by Apple themselves, it seems ludicrous that they should be able to then control both which hardware it is installed on and to whom it is subsequently sold, and both acts AFTER Apple's sale.
This would be the same as a court stopping the owners of the house I sold 3 years ago from ever buying another of my homes, all because I don't approve of the vinyl siding they had installed, or because I don't like the people they sold the house to last year. Since I sold the house, I have no say in what the new owners do with it. None at all.
First-Sale says that once something is sold, the seller has no further control. Period. (...or so the law says. As if that matters.)
USC Title 17, 109Software companies have been doing a lot of damage to that doctrine and related law, and too many complicit judges have allowed if not encouraged it.(a) Notwithstanding the provisions of section 106 (3), 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. Notwithstanding the preceding sentence, copies or phonorecords of works subject to restored copyright under section 104A that are manufactured before the date of restoration of copyright or, with respect to reliance parties, before publication or service of notice under section 104A (e), may be sold or otherwise disposed of without the authorization of the owner of the restored copyright for purposes of direct or indirect commercial advantage...
(emphasis added)
Shame on both parties.
Apple markets their products as distinct from personal computers.
LOL... Apple markets their computers in the computer area of the market. They market their iPhones in the smartphone area of the market. They have marketed their iPods in the MP3 player area of the market.
The fact of Apple being in those various markets doesn't mean a thing to the judge who makes a decision on this particular area of the market, dealing with computers... and Psycho-star... :-)
Anti-competitive practices are ok when Apple does them. Got it.
Well..., I'm surprised that you don't know this, but a company can choose anyone and any particular method and any place they want -- to design and manufacture their hardware... LOL...
Sorry, the fact that Apple wants their hardware made a certain way by certain companies is precisely the same choice that all companies have that make their own hardware to sell... :-)
There are quite a large number of people who expect little from a computer and enjoy eye candy.
Well, you may know those types over in the "Windows world" but those who have come over to the Mac OS X and Apple hardware happen to be the ones who are happy to be enabled to do more with their machines/hardware and software.
Heck! The Apple machine can run all the software... like even Linux, along with the system, Mac OS X, and even Windows (who would want to, though... LOL...). These super productive geeks that come over (but they're not the only ones; the average consumers do, too...) -- those geeks really appreciate the increased productivity they get out of the Macintosh hardware... :-)
It’s the SAME hardware and the software isn’t much better.
Ummmm..., not the trash hardware I've seen out there... sorry to disappoint you.
And as for the software, well..., I just don't know why Microsoft is doing so much "copying" then... LOL...
Ah, the Apple fan arrogance. The “I paid more for my computer, so it and I must be better”.
You can comfort yourself with your own self-delusions, while the former Windows geeks and consumers come over to the Macintosh in droves... :-)
The OS X license is sold as a retail "UPGRADE" licensed product—not as a stand alone install version although it is capable of being used as one as a convenience for Apple's customers—and is licensed only as an upgrade to the original license of the software it is upgrading. It must be used on an Apple Branded Computer that already has a LICENSED Apple OS already installed on it. That is EXPLICITLY stated in the Software License Agreement that accompanies OS X which, Favor is not an "End User License Agreement" but is, instead, a Software License Agreement" which covers all uses under which the software may be used, whether by an "end user" or an intermediate installer or someone else. Judge Alsup was quite explicit that the SLA was a CONTRACT that governed how the software could be used... and that Psystar had NOT purchased the software, only the licenses and was NOT in any way the user. He ruled that Psystar was contributing to making all of their customers violators of Apple's copyrights as well, opening them up to liability as well. Not a good thing.
Microsoft sells both Windows upgrades AND upgrade versions—and MS Windows upgrades are not licensed as full installs just as OS X are not licensed as full installs even though both are sold as retail products—so that point is moot. You are aware that MS has been known to brick computers with impermissably installed upgrade versions of Windows when Windows Genuine Advantage detects that an upgrade version was used for the install? They are within their rights to do so even though the user bought their copies at retail and are installing them on a machine that is perfectly capable of running it... if it wasn't for that pesky Software License Agreement that says they need a legitimate full install version. Oh, gee... too bad.
Apple would be well within its rights to brick every Psystar Open computer that is currently running any version of OS X as well... and, under the recent ruling, can demand that every Psystar computer be recalled and destroyed... or at least delete the copy of OS X that exists on those machines. The owners would probably be free to install Linux or Windows if they cared to. I doubt that Apple will go to that extreme.
I believe that most software license agreements go beyond the grant of power that constitutional copyright gave to the developer of the software.
IOW, much of what is in EULAs should be unenforceable. We’ve already made a little progress on that, with some of the worst EULA terms out there being stricken, but we have a long way to go.
And if you truly believe in EULAs, try benchmarking some software and exercising your right to free speech by publishing those benchmarks on your own terms. That’s a violation of quite a few EULAs out there.
What I know about them personally, is that I’ve never had one of them get in the way of what I was going to do as a consumer.
I’ve read about others having problems, having to do with various things that they want to do, but I’ve just never had a problem with them. Maybe I just don’t do too much with my software, or whatever it is, that causes me, as a user to not have problems with them, I just don’t know... :-)
I don't think Apple has the right through copyright to prevent cloners from doing business. However, Apple does have the right to refuse to support OS X on non-Apple platforms. You use OS X on non-Apple platforms at your own risk, or the clone company has to invest in its own support infrastructure.
"Fair Use" was always strictly limited and Software Licenses were always law. Nothing is dead. I don't know where you got the idea they weren't. You can't just make a copy of someone's software and just use it without paying and claim "fair use." Fair use" was a concept that allowed the citation of a small portion of a written work of a sentence or two, or a paragraph, or a outtake of a recorded work, of under 30 seconds for example, for criticism or quotation purposes in a scholarly paper or for reporting without triggering copyright infringement. It also allowed the copying of software you are licensed to use for backup and archival purposes so long as that was the sole purpose and most software licenses specifically make provisions for that. For personal recordings or videos, it allowed a single backup copy be made for everyday use while archiving the original for safe-keeping. The other "fair use" was the installation of software on to the buyers computer(s) for normal operational use within the limits of the Software License as delineated by the grantor of the license. It did not allow violation of Software License Agreements or End User Software Agreements. AS cited by Judge Alsup there is a large body of settled case law backing that conclusion and very little disputing it... in fact Psystar could come up with almost none backing their position.
The law, as far as licensing of software goes, has always made a distinction between a "sale" and a "license" when discussing the "doctrine of first sale," recognizing that the "doctrine of first sale" does not apply when a sale has not taken place—which is the case in software "sales" as what is really being sold is a "permission" to use the software, a license—and that the licenses contract provisions take precedence so long as they are properly written, meet public policy, can be read before the software is installed, and provision is made that allows the software to be returned. Once the software license agreement has been "clicked through," installed, it is, by law, assumed to have been agreed to, and its provisions are then in force. At that point, the only part of the "doctrine of First Sale" that applies is that the buyer may sell his license to operate that software to another party so long as all copies in his possession, including any archival, backup, or operational or work copies on his computer are deleted, and his originals are transfered to the buyer, who then becomes the the subsequent owner of the license, subject to the same restrictions of the license.
Another bastardization of copyright. Imagine you don't buy a book at the book store, but instead purchase a LICENSE to read the book under very strict terms. It's idiotic. Copyright governs both books and software, so they should be treated the same. "License not purchase" is simply an end-run around constitutional copyright and commercial codes.
In what way? The SLA, not EULA, is a restriction of exactly how the copyrighted work may be used in accordance with the wishes of the OWNER of that copyright granted by the US Constitution.
The courts have consistently upheld those rights. They have also consistently upheld properly written Software License Agreements.
It is a contract. It REQUIRES the buyer's agreement before installation and contains the right to return the product for a full refund with no restocking fee if he chooses not to agree to the terms. According to law, this meets the requirement of a "meeting of minds" before purchase as the purchase can be nullified.
The 2nd Amendment is a non sequitur in this discussion.
Here's the trick: Apple doesn't have to "allow" me a damn thing. Under constitutional copyright it is simply not within their power to restrict me from selling the product in the first place. EULAs have tried to grab that power too through "Licensed not sold."
Does the government "allow" you to worship God, or does the government just not have the power to dictate your worship in the first place?
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