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? Where? Show us.
“They have? Where? Show us.”
In their marketing materials, they define their product as something other than a “PC”.
Another bastardization of copyright.
Whatever way you look at this, it has nothing to do with exclusively Apple and its computers and software. I mean, if a company is formed and it makes machines and software within a market segment and that turns out to be how that company is able to do business to compete with others in the field -- then I don't see the overall structure of the "system" (of how computer software is marketed and licensed/sold) to be the problem of that company.
This is an entire industry and that's the way it operates. So, that's not really Apple's problem...
Personally, in regards to that (being actually bought or simply licensed) -- I don't care because it hasn't made one whit of difference to me in practice... :-)
” “Fair Use” was always strictly limited and Software Licenses were always law. “
Hardly.
“You can’t just make a copy of someone’s software and just use it without paying and claim “fair use.””
Where is ANYONE saying it would be fine to do this? Even Psystar wasn’t doing this!
“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,””
Which is an incorrect distinction.
Usually you just violate it without knowing. Try actually reading a EULA sometime. They can be downright scary.
Some Microsoft EULAs say you "may not without Microsoft's prior written approval disclose to any third party the results of any benchmark test." Claria says you can't even use a packet sniffer on your computer. And they get worse.
In their marketing materials, they define their product as something other than a “PC”.
Oh... you silly goose... that's what you're talking about... LOL...
Apple means "PC" as that trashware system called Windows...
Just look at their commercials... you know "I'm a PC" -- "I'm a Mac".... :-)
Apple is letting you know that they're not a trashware PC... Mac is not that, at all...
It's like telling a joke that someone "doesn't get" -- it's no fun anymore, if you don't get it... LOL...
Usually you just violate it without knowing. Try actually reading a EULA sometime. They can be downright scary.
You're probably right... LOL... I guess I don't get scared about what I don't know on a EULA :-)
But, really..., there's stuff that can be enforced and then there's stuff that can't be enforced. And then I think there's stuff that they won't even bother with, but it makes lawyers happy...
They were buying UPGRADE retail licenses and installing them on bare machines... as initial installs. Try doing that with Windows and see how far MS would let them go. And yes, they were found to have been distributing multiple copies of a single licensed copy as well. Your posts seem to imply that violating a legal contract was fine and legal.
OS X is sold apart from Apple branded computers.
So what?! Gasoline is sold to power automobiles and lawnmowers and go-karts. It can also be used in arson to burn down buildings... that does not make that last use legal.
That a judge ruled does not make the judge right.
Uh, until overruled by a higher court, yes, it does. And since Judge Alsup's rulings is backed by years of prior rulings in very similar cases all saying essentially the same things, nor, since Psystar does not have the $1,333,000 to post as bond to appeal in this case, I don't think he will be overruled.
“Apple markets their computers in the computer area of the market.”
So, that’s why their advertising places a distinction between “Macs” and “personal computers”.
“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... :-)”
This has what to do with “anti-competitive practices”?
“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.”
I suppose if one’s needs are limited... then an Apple would be adequate.
“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... :-)”
Ah, “super productive”... Uh huh....
“Ummmm..., not the trash hardware I’ve seen out there... sorry to disappoint you.”
Apple’s products are made by the same companies in Asia using the same chipsets from Intel. You confuse industrial design with manufacturing.
“You can comfort yourself with your own self-delusions, while the former Windows geeks and consumers come over to the Macintosh in droves... :-)”
Lemmings will do as they will. Personally, a computer is a tool. Nothing more. It is not a lifestyle. You think having limited choices as to hardware makes you more empowered.... I find that amusing.
Of course, I’m an actual engineer, not a “geek” fanboy. What do I know.
“Uh, until overruled by a higher court, yes, it does.”
No, it doesn’t. Not even remotely.
Until you get sued, and people have been sued.
I’m always “late to the game” on that one... :-)
I just checked.
Your point?
Well, I can imagine so... but at the same time, I can’t imagine an average and ordinary user getting sued for doing normal and ordinary stuff with their computer...
I guess I’m just too ordinary to get sued that way, or else, these companies are going to started suing a whole lot of consumers about now... :-)
But, wouldn’t that start being bad for their “sales” if they did that?? LOL...
But the hardware you do get is soooo much better.
I converted a couple years ago, and I think it says a lot for the quality of Apple systems that I like the products so much even though I disagree with Apple on most legal fronts.
Like you say, it's a tool, and I don't let my ideology get in the way of me using the best one.
You’ve heard the phrase, if you have to ask you can’t afford it... LOL...
Well, if you have to ask (here), you can’t comprehend it... :-)
“However, Apple does have the right to refuse to support OS X on non-Apple platforms. “
They absolutely can refuse support for non-Apple hardware.
“You use OS X on non-Apple platforms at your own risk, or the clone company has to invest in its own support infrastructure.”
Yep.
I’ve been burned on the whole “license transfer” thing over the years on some pretty expensive software. The whole concept and abuse of copyright laws by software companies - as if their industry was special - has had me steamed for a long time. Constitutional copyright protection was not meant to grant the holder ALL power in perpetuity.
I’ve read EULAs. blech
“But the hardware you do get is soooo much better.”
It’s the same. The same chipsets. The same boards. The same panels.
“Well, if you have to ask (here), you can’t comprehend it... :-)”
Let me guess:
One’s join date is used frequently as an ad hominem approach to stifle arguments? Is that about right?
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