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.
Title 17, 109 isn't about reproduction right, it's about control of a sold item, specifically resale. It says that something that has been sold may be sold again without the say of the first seller.
The argument that the O/S is illegally copied when the computer loads it into RAM while it boots is outrageous and ludicrous. Such a "copy" is absolutely essential to the very purpose of an O/S and MUST occur during the use of ANY copy of EVERY O/S. Because that act is inherent in the very meaning of the term O/S, it's despicably dishonest of Apple to claim that it's illegal. The very argument is offensive to the meaning of the law.
If you have a license to use ANY software, you have a license to "copy" it into your computer's RAM so it can execute.
You can drop the Title 117 arguments, because they aren't the point. This isn't a "fair use" issue, but a "first sale" one.
The copies of OSX obtained by Psystar were legal copies and were purchased from Apple. Title 17 (not 117) says that the new owner of the licenses may subsequently resell those licenses without infringing on copyright.
INHERENT in the license of an O/S is the right to actually install and use it, otherwise the license is entirely meaningless. For the license seller to attempt to control HOW it is used, WHERE it is used, or on WHAT it is installed AFTER the sale is a direct violation of Title 17, 109 and is therefore null and void.
You CANNOT control how your customer subsequently uses something he legally buys from you or the legal copies he buys from you, nor can you control who he sells them to.
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.
Wrong.
Here's Title 17, 109 for you again. Read it.
Also, here's the definition of "null and void".
A provision in the license which violates Title 17, 109 is null and void, as it violates that law.
The judge is simply being an Apple puppet and ignoring the law.
Many states, whos judges better understand this law, have struck down software licenses as null and void for that very reason. Microsoft tries to deny you the right to resell your license after you no longer need it, a direct violation of the same law. Some states ignore the law to Microsoft's advantage, while others do not.
Apple is playing the same game, and this judge winked and nodded to allow them to violate the law and destroy Psystar.