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.
Both. Judge Alsup is considered an expert on Copyright law.
Apple at least had full retail licenses of OS X for sale. They have “upgrade” versions for much less.
They do? Not true until just recently with the release of Snow Leopard and even then it was a combo deal for people who had skipped an upgrade. That was a first for Apple. The upgrade price for OS X.6 Snow Leopard Snow Leopard was only $29 also a first, because they wanted all Intel Mac owners to upgrade. Because of fairness, Apple decided that owners of the previous version of OS X (Tiger), who had not upgraded to Leopard, would have to buy a Leopard License as well and the combined Box Deal would also include upgrades to iWorks'09 and iLife'09 with OS X.6 Snow Leopard for $169. Prior to that decision all OS X upgrades had been $129 for at least ten years and there were no "full install retail/upgrade install" differences.
Psystar was selling their Open computers with Snow Leopard for the $29 price. Which. Proves. The. Point. They were buying the OS X upgrade and installing it, not the so-called full license, version.
Software should be treated like any other product.
Not because you think it should. If that were the case, what would stop me from buying one copy of Window7, removing the portion that uses the serial number and duping the hell out of it and selling millions of copies for $20 bucks to every Tom, Dick and Sandhu in the world and retiring as Rich and as unethical as Bill Gates?
Ad hominem attacks are certainly informative about people’s character.
Are we a bit sensitive here... :-)
I was happy to find something EFFECTIVE against a smitfraud variant on a work computer today. The tool is an EXE file that sets up an ISO, d/ls updated virus-fighting data files, then burns a bootable Windows 7 CD.
Of course, I’d have liked this even better if the computer had been bootable afterwards...
This particular version of W7 has a nice, sparse Ubuntu look to its desktop, but some of the fit and finish of Mac OS.
Who cares? Macs are for gays.
Did Apple get what it intended to be sold for? No. The LICENSE it sold was for the OS X to be used only on a Macintosh computer, not for the OS X to be used on a Psystar computer. . . that probably would have cost quite a bit more.
Are they just ticked over the non-Apple hardware part, or are they each illegal copies of OSX?
If the copies are installed on a Psystar computer, they are, by definition, infringing copies of OS X... thus illegal.
Not true. The manufacturers would not be licensed by Microsoft to be Original Equipment Manufacturers if they did not bundle Internet Explorer... they would lose their licensing. That is a BIG deal.
Microsoft's practices in this matter got them CONVICTED of monopolistic practices. Don't try to obfuscate the facts, Favor.
Sorry, Chris, but you are wrong.
Judge Alsup directly addressed USC Title 117, 109, in his Summary Judgement decision (PDF Reader required for PC users) and it simply does not apply and came to the conclusion that any attempt by Psystar to use 117 in the context of how they used copying of OS X would be a frivolous attempt at a defense:
A. Reproduction Right and Section 117.There are several reasons why 117 "fair Use" does not apply to Psystar. First of all, Psystar was not merely "an owner"... they were making COPIES which they were selling. In the process of manufacturing their computers they were making at least three copies of OS X Leopard. Secondly, they were making a DERIVATIVE copy of OS X Leopard by modifying the boot loader so that it would boot on their clone... thus violating that section of the law. Thirdly, Psystar was decrypting the encrypted code that Apple had added, and removing the said encryption, to get around the protection that prevented OS X from running on non-Apple hardware, thus violating the Digital Millenium Copyright Act (which was passed a few years after the 1976 Act).According to Apple, Psystar has violated its exclusive right to copy Mac OS X. Psystar admits that it has made copies of Mac OS X and installed those copies on non-Apple computers (Def. Opp. 10) In addition, when Psystar turns on its computers running Mac OS X, another copy of the software is made to the random access memory. Psystar has thus infringed Apple’s reproduction right.
Section 117(a) permits the owner of a copy of a computer program to copy or modify the program for limited purposes without incurring liability for copyright infringement. See Krause v. Titleserv, Inc., 402 F.3d 119, 121 (2nd Cir. 2005). But the question is whether Psystar can rely on Section 117 to escape liability. It cannot. As Apple pointed out, Psystar waived any Section 117 essential step defense when it failed to plead it. Psystar counters that it has not waived Section 117 because that provision is a limitation on a copyright owner’s exclusive rights rather than an affirmative defense. An earlier Ninth Circuit decision stated “Section 117 defines a narrow category of copying that is lawful per se” and “Section 107, by contrast, establishes a defense to an otherwise valid claim of copyright infringement.” Sega Enters. v. Accolade, Inc., 977 F.2d 1510, 1521 (9th Cir. 1992). Since then, the Ninth Circuit has expressly referred to Section 117 as a defense. See Wall Data Inc. v. L.A. County Sheriff’s Dep’t, 447 F.3d 769, 776 (9th Cir. 2006) (referring to Section 117 as an affirmative defense); Asset Mktg. Sys. v. Gagnon, 542 F.3d 748, 754 (9th Cir. 2008) (referring to Section 117 as a defense). As such, this order treats Section 117 as an affirmative defense.
Alternatively, if Section 117 is considered an affirmative defense, then Psystar argues it has pled it in its answer and raised the substance of its Section 117 argument in its interrogatory responses. Neither the answer nor interrogatory responses, however, refer to Section 117. And Psystar has not demonstrated any good cause for its failure to assert the defense after a year of litigation. Also, there has been no showing that its failure to do so will not prejudice Apple. As such, Psystar has waived the defense. At all events, the assertion of Section 117 is so frivolous in the true context of how Psystar has used Mac OS X that a belated attempt to amend the pleadings would not be excused.
Judge Alsup found in his Summary Judgement that customers who purchased an OS X license agreed to the following:
In brief, customers were contractually precluded from utilizing Mac OS X on any computer hardware system that was not an Apple computer system.2. Permitted License Uses and Restrictions.It also restricted redistribution and modifications to the software (id. at ¶ 3) sublicense the Apple Software. Subject to the restrictions setA. Single Use. This license allows you to install, use and run (1) copy of the Apple Software on a single Apple-labeled computer at a time.
You agree not to install, use or run the Apple Software on any non-Apple-Labeled computer or enable another to do so.*** C. You may make one copy of the Apple Software (excluding theBoot ROM code and other Apple firmware that is embedded or otherwise contained in Apple-labeled hardware) in machine-readable form for backup purposes only . . . . Apple Boot ROM code and firmware is provided only for use on Apple-labeled hardware and you many not copy, modify or redistribute the Apple Boot ROM code or firmware, or any portions thereof.*** F. Except as and only to the extent permitted by applicable licensing terms governing use of the Open Sourced Components, or by applicable law, you may not copy, decompile, reverse engineer, disassemble, modify or create derivative works of the Apple Software or any part thereof.
3. Transfer. You may not rent, lease, lend, redistribute, or forth below, you may, however make a one-time permanent transfer of all of your license rights to the Apple Software (in its original form as provided by Apple) to another party, provided that: (a) the transfer must include all of the Apple Software, including all its component parts (excluding Apple Boot ROM code and firmware), original media, printed materials and this License; (b) you do not retain any copies of the Apple Software, full or partial, including copies stored on a computer or other storage device; and (c) the party receiving the Apple Software reads and agrees to accept the terms and conditions of this License. You may not rent, lease, redistribute, sublicense or transfer any Apple Software that has been modified or replaced under Section 2D above.
Psystar was a customer, a purchaser of OS X... therefore, they had agreed to the terms of the contract and were in violation of that contract as well in egregious violation of Apple's copyrights.
Shame on both parties.
No, TChris, the shame here falls only on Psystar and their illegal activities.
If you buy that book, do you also buy the rights to the ideas, the format, the layout, the pictures, the typeface, etc. Can you then reset the pages, print up a new edition and sell as many copies as you want to the general public? The book analogous to the computer, the OS is analogous to the words and pictures on the pages.
You can sell the book, burn it, lend it, give it away, tear it up, cherish it, draw in crayon in the margins, but you don't own the ideas or the rights to do what you want with impunity with what's in that book or claim the words in it as your own. Nor can you make a copy of it to give to your friends.
Essentially, although you do OWN the book, it is a license to read what the publisher has placed in the generic holder...
If you buy that book, do you also buy the rights to the ideas, the format, the layout, the pictures, the typeface, etc. Can you then reset the pages, print up a new edition and sell as many copies as you want to the general public? The book analogous to the computer, the OS is analogous to the words and pictures on the pages.
You can sell the book, burn it, lend it, give it away, tear it up, cherish it, draw in crayon in the margins, but you don't own the ideas or the rights to do what you want with impunity with what's in that book or claim the words in it as your own. Nor can you make a copy of it to give to your friends.
Essentially, although you do OWN the book, it is a license to read what the publisher has placed in the generic holder...
Yes, it is. They don't have to sell it to you at all. There is nothing in the law that forces them to sell anything to you. In fact, they are NOT selling it to you. They are essentially selling you the right to right to USE something they own with certain limits they set.
The government does not have the right to let me worship God... that is a Right reserved to me. But I do not have the RIGHT to take something that belongs to my neighbor either. My neighbor does have the right to let me use something that he owns and retains ownership to... that's his right as well. I thank him by paying him for the privilege... or let him use something that I own in exchange.
Oh bull.
“Are we a bit sensitive here... :-)”
I don’t take well to be accused of being a socialist for not supporting perversion of copyright.
You want to have a debate about the merits, fine.
Ah, Judge Alsup found that in some instances Psystar was doing just exactly this and claiming "fair use," andk although Psystar did not directly plead "Fair Use," they were, in fact, claiming it as a back-door defense as a "necessary step in installing it on their Open Computers. TChris was implying that Psystar's entire business plan was based on Chapter 117's Fair Use exemptions for Copyright infringement. I was disagreeing.
Which is an incorrect distinction.
OK, you make the distinction... I've been reading the distinctions the courts have been making. Have you? Licenses are not sales and are not subject to "first sale" restrictions. None-the-less, Apple allows a "first sale" of the license to take place for each subsequent license holder so long as the previous licensee destroys any copies he has before passing on his license.
“No and No.”
What was your point, then?
“Ah, Judge Alsup found that in some instances Psystar was doing just exactly this and claiming “fair use,”
Then, if they were doing THAT, fine. Fine them.
That wasn’t the primary complaint from Apple.
“Licenses are not sales and are not subject to “first sale” restrictions. “
They are sales and they should be. Software should be treated no differently than books.
Yeah, just last week I was using my Mac to design a multi-megaton nuclear device and I just found out that it's against the SLA... my bad. I guess I will have to get a Windows machine for that use... rats.
Of course, my nuclear device is merely a new, fairly heavy nuclear iPhone battery, but I'm working on getting it a bit lighter. But it should last at least a millenium! Right now it's a bitch to carry around and you should see what happens when I try to go through the Airport security check points...
“Both. Judge Alsup is considered an expert on Copyright law.”
By whom?
“Not true until just recently with the release of Snow Leopard and even then it was a combo deal for people who had skipped an upgrade. That was a first for Apple.”
They’ve offered that for a while. The non-$29 copies.
Mac is a brand name... so is Vaio... and HP... a company uses its brand name to differentiate its products within the market it competesin.
The MARKET is an economic Market, a specific definition in a technical field of economics and/or advertising. The Market in this instance is both: the Personal Computer Market. C'mon, You are NOT AN IDIOT. Don't pretend to be one although you are doing an excellent job of convincing us that you are.
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