Apple wins summary judgement against Psystar

A judge has ruled in favor of Apple in it's copyright-infringement case against Psystar, who build and sell Mac clones running Apple's OS X. According to CNET, the ruling does not include an injunction against Miami-based Psystar as Apple have not yet asked for one.

Apple and Psystar both requested a summary judgement, which is a determination made by the judge based on the case's merits. In his ruling, U.S. District Court Judge William Alsup wrote, "In sum, Psystar has violated Apple's exclusive reproduction right, distribution right, and right to create derivative works."

Cupertino-based Apple filed its suit in July 2008, just months after Psystar began selling the Mac clones. Psystar believed it was legally allowed to run Apple's Mac OS X operating system on non-Apple machines, however Apple denied this and stated that the end user license agreement permits use on Apple computers only.

The judge rejected Psystar's contention that it was fair use, stating that the company "does not even attempt to address the four factors used to determine fair use." The Miami-based company also contended that it fell under the "first sale" doctrine, which permits someone who buys copyrighted material to then sell it on. Alsup stated that this doctrine only applies to legal copies, not to "unauthorized copies" produced by Psystar.

Alsup also ruled that Psystar violated the Digital Millennium Copyright Act. "Psystar has violated the DMCA by circumventing Apple's protection barrier and trafficking devices designed for circumvention," he said. He additionally rejected claims that Apple had misused its copyright and that Apple's license was unduly restrictive.

There are still more claims that could go to trial, including breach of contract, trademark infringement and trademark dilution. A hearing for determining remedies is set for December 14th, while the trial is scheduled for January.

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51 Comments

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He's right though. All they have to do is turn off the caps lock after the capital letter, the same with other names. I would go so far as to say they didn't learn English properly, or they do it purposefully for the satisfaction of being annoying.

Brendando said,
He's right though. All they have to do is turn off the caps lock after the capital letter, the same with other names. I would go so far as to say they didn't learn English properly, or they do it purposefully for the satisfaction of being annoying.

I doubt that it is intentional. But most people on this board should be tech savvy enough to know that Mac and MAC are two different things. One is a brand name for a computer systems, the other is (suppose to be) a unique identification string for a NIC.

Cheruman said,
Nic, surely :)

NIC is an acronym and is in all-caps (http://en.wikipedia.org/wiki/Network_card). Just like MAC is an acronym and in all caps. Mac, however, is an abbreviation of Macintosh just like Nic is an abbreviation of Nicholas.

ir0nw0lf said,
And shame on all the people spelling Macintosh wrong in this thread. Off with their heads! /sarcasm off

Too bad sarcasm doesn't really suit you...

I am hoping at the end of this saga of lawsuits, that non MAC hardware will be allowed to run Mac OS X. Either that, or Macs become cheaper. I do not believe that there is no reason for Mac hardware to be that expensive.

Alley Cat said,
I am hoping at the end of this saga of lawsuits, that non MAC hardware will be allowed to run Mac OS X. Either that, or Macs become cheaper. I do not believe that there is no reason for Mac hardware to be that expensive.



Not unless the DMCA gets ruled invalid. Never mind that none of the critical OS X bits are (or have ever been) encrypted (Apple has said that publicly); it is that there are encrypted portions of the OS *at all* that let Apple sneak the DMCA camel into Psystar's legal-defense tent. The mere fact that there is a portion of the OS that is encrypted (it's not critical, and in fact, most "Hackintosh" patches don't touch it) let Apple invoke the DMCA.

With that battle nearly impossible for Apple to lose, Apple will also likely go after hardwre-based patch kits (such as EFI-X) using the saame argument.

so then if I am reading this correctly, if I acquire a copy of snow leopard and run it on a virtual machine on my pc I am in violation of TOS and copyright laws with apple?

Deviant said,
so then if I am reading this correctly, if I acquire a copy of snow leopard and run it on a virtual machine on my pc I am in violation of TOS and copyright laws with apple?

Yes you are, because that box copy is an upgrade of Mac OS X. You need a valid license of OSX which you can only acquire by buying a Mac.

Is it technically illegal to run OS X in a Virtual Machine EVEN IF YOU BOUGHT IT? Yes, it is. Same rules apply if you buy an upgrade to Windows 7 and install that onto a machine (virtual or otherwise) with which you did not have a license for.

Shadrack said,
Is it technically illegal to run OS X in a Virtual Machine EVEN IF YOU BOUGHT IT? Yes, it is.

That depends on your license.
Mac OS X server is licensed to run in a virtualized environment provided that the hardware you're running the virtualization on is a Mac.

Buy a Mac pro, install VMWare, buy 4 copies of Mac OS X server. Install those copies of Mac OS X into VMWare. You're legal.

GreyWolfSC said,
No, but it you modify the OSX installer and resell it you're up the creek...

Not true. This ruling shows that Apple's EULA is enforceable and that license forbids installation and virtualization of Mac OS X (client, not server) and requires that the virtualization environment is running on a Mac.

evn. said,
That depends on your license.
Mac OS X server is licensed to run in a virtualized environment provided that the hardware you're running the virtualization on is a Mac.

Buy a Mac pro, install VMWare, buy 4 copies of Mac OS X server. Install those copies of Mac OS X into VMWare. You're legal.

Why do you need 4 copies of Mac OS X Server?

Shadrack said,
Why do you need 4 copies of Mac OS X Server?

For the sake of example I assumed you wanted to run 4 copies of OS X. You need to buy one license for each instance Mac OS X server running in the VM.

If you only wanted to run a single VM instance of Mac OS X server then you'd only buy one license.

evn. said,
For the sake of example I assumed you wanted to run 4 copies of OS X. You need to buy one license for each instance Mac OS X server running in the VM.

If you only wanted to run a single VM instance of Mac OS X server then you'd only buy one license.

Oh lol. Heh, for a minute there I thought you meant Apple required 4 copies before you could run in a virtual environment.

Honestly, since when did nit-picky legality get in the way of what a Computer user wanted to do?

The ruling basically states that Apple has a right to be proprietary; further, because of that right, they basically are their own market. Never mind that the proprietary nature of Apple's software itself is a sham - it is still their right. (No judge anywhere wants to get deeper than that; therein lies chaos, which is anathema to lawyers, judges, and law professors.) Psystar's legal team wanted the sham of Apple proprietariness investigated, which no court (anywhere) is able to do (worse, how willing would they be to do so?). With the DMCA buttressing the *propriety* claim, how can it legally be investigated? (By invoking the DMCA, Apple has basically shielded the sham.)

Unless the DMCA itself is ruled invalid, Apple is safe (because without the DMCA *clothing*, Emperor Apple is well and truly naked).

Yes; I am saying the proprietary nature of OS X is a sham. (If it weren't, modification of OS X, including Snow Leopard, to run on non-Apple hardware would not be so easy to do. Psystar knows it; even Apple itself knows it.) However, that was why Apple dragged in the DMCA. Even though very little of OS X (and none of the critical part of the operating system) uses any encryption, the mere fact that it uses encryption let them invoke the DMCA. (It's the same argument that is still in use today to bar export of certain types of hardware and software to Designated Countries.)


"Neigh!"

Your post is barely legible.

PGHammer said,
The ruling basically states that Apple has a right to be proprietary; further, because of that right, they basically are their own market.

It explicitly said the opposite.

Psystar's legal team wanted the sham of Apple proprietariness investigated, which no court (anywhere) is able to do (worse, how willing would they be to do so?).

No they didn't. They explicitly agreed that the terms of Apple's EULA are legally binding and valid - the court couldn't have moved to summary judgement if this were not the case.

With the DMCA buttressing the *propriety* claim, how can it legally be investigated? (By invoking the DMCA, Apple has basically shielded the sham.)

The DMCA circumvention was one of over a dozen claims Apple made. The majority of the case is built on trademark law, copyright law, and competition fairness rules.

Unless the DMCA itself is ruled invalid, Apple is safe (because without the DMCA *clothing*, Emperor Apple is well and truly naked).

No, the DMCA played a very small role in this case. Even if the DMCA is overturned Apple still has more than enough suppport to prevent anybody from setting up a business like Psystar.

PGHammer said,
The ruling basically states that Apple has a right to be proprietary; further, because of that right, they basically are their own market.

No they don't. Is Ford in their "own market" because it has a right to make the Ferrari and (*gasp*) it is proprietary?

This is no surprise. Apple did it before, and will do it again to offenders. It's how they set up their model of making money. After Jobs leaves, maybe they will lighten up and focus on consumer electronics and software, which I tend to think they make more money on than they do with their computers, but I could be wrong.

I have read that Apple actually doesn't make money form OS X sales, they make their money from the PC sales. If OS X had a much higher market share then maybe, but for now they need PC sales to supplement the development cost. Yes, they make a lot of money on the consumer electronics side too, but I'm talking about computers at the moment.

This will be used as a precedent the next time someone gets busted for selling OEM copies of Windows.

"First sale" doctrine is brought up whenever Microsoft tries to stop people from dumping OEM Windows copies. This ruling on "first sale" in Apple's favor can now be used as precedent in other cases.

This business about "ruining Apple's business model" is irrelevant. The Microsoft antitrust suit ruined Microsoft's then-current business model, but it was illegal.

This case isn't really about first sale because they are not just selling a boxed copy of OS X with their computers...that would probably be perfectly fine. They are selling it preinstalled (which could be considered a modification or derivative work—which they do not have a license to do). Also, they are having to circumvent Apple's protection schemes to make that work, which is where the DMCA comes into play.

GreyWolfSC said,
This will be used as a precedent the next time someone gets busted for selling OEM copies of Windows.

Like Newegg?

The way I see it, if you build your own system from parts (mobo, cpu, memory etc), then you are a system builder and are entitled to the OEM pricing for Windows.

I doubt this will be the end of hackintoshes. Take one down, 10 more spring up to take it's place. I know Apple considers the hardware and the operating system to be 2 parts of the same product but until they find a way to sell the OS stored directly on memory chips, this will go on forever.

And just a thought...how easy is to win a trial in USA these days...just invoke the DMCA and that's it.

There is always going to be someone selling pirated software, that will never change. But when a company starts up with a business model of infringing on copyrights then Apple should sue to shut them down. This really has nothing to do with DMCA. Psystar is reselling Apple products without permission and in violation of the license agreement. DMCA only comes in because Psystar is having to circumvent Apple's protection mechanism to install the OS, but I would think that is small fish compared to the other aspects Apple could go after.

sphbecker said,
Psystar is reselling Apple products without permission and in violation of the license agreement.

Do they really resell the Apple software? And is that really illegal?

It is not illegal to sell OSX standalone... its the fact they modify it to circumvent Apples terms or use and then resell it presintalled on a computer.

mmck said,
It is not illegal to sell OSX standalone... its the fact they modify it to circumvent Apples terms or use and then resell it presintalled on a computer.

There is a funny thing about the OSX standalone software. The funny thing about OSX when you buy a box of the latest and greatest, is that it is considered an upgrade. Same rules apply as they do in the world of Windows.

Upgrade + No (legal) License = No License to run Upgrade

As it is now, the only legal way to get a full license of OSX is to buy an Apple computer. All box copies of the software are considered upgrades.

soldier1st said,
evil apple must be more leinient.

Who says they haven't, what have they done against the OSX *86 project?

Nothing, zip, nada.

But when Frystar started selling it preinstalled without a licence to do so that's when they crossed the line. It's really an astoundingly simple concept, I'm at a loss as to why so many people are so block headed about it.

I will admit that I like apple and their products however, why has no one posted a law suet against them for Monopoly. I understand that they both own the software and hardware however if you can only install the MAC software on Apple Hardware (which are obviously the same company) then isnt that against the American Monopoly laws. Just saying.

littleneutrino said,
I will admit that I like apple and their products however, why has no one posted a law suet against them for Monopoly. I understand that they both own the software and hardware however if you can only install the MAC software on Apple Hardware (which are obviously the same company) then isnt that against the American Monopoly laws. Just saying.


Monopoly???? If you think Apple has a monopoly on operating systems then you need to go back to economics class in a hurry. Also, what American monopoly laws are you talking about??? We have none. There are antitrust laws making it illegal for a company with a monopoly to use it to an unfair advantage (that is what MS got in trouble for when they told computer makers that they could only sell Windows if it was the only operating system option they offered and that they could not include any browser other than IE).

Apple̢۪s OS can be licensed anyway they choose. If it was the only OS on Earth and locking it down meant no one else could sell computers then you might have a case, but with Windows and Linux there are other options, not a monopoly, no antitrust issues.

No. A monopoly is when a company holds majority control of a marketplace in such a way that it stifles or restricts competitors from fairly competing. Just because Apple produce the software specifically for their hardware, doesn't make it a monopoly. Apple do not have an arguably controlling market share, so the act of doing this does not stifle competition... evidenced by the fact that Microsoft seem to be doing pretty well even with this restriction in place on Apple software. Apple are allowed to restrict the sale of their own product, this isn't anti-competitive.

Some might argue that Apple owns a monopoly in the iPod market, and while this isn't strictly relevant to this article, there's nothing actually illegal about a monopoly, it's only when that monopoly is deemed to be anti-competitive. Apple doesn't do anything to prevent other products from getting on the shelf except for market themselves well. The iTunes argument is similar. They are allowed to tie software to a specific device. Sony and companies like them do it for all of their PC compatible devices, they all have software specifically for managing their devices. Apple doesn't force you to only upload their music from their store though. While you can only use iTunes with the device, you can still go to other stores and download their mp3's or use CD's and put them onto the device. You can also get almost anything on the iTunes store, from another source. This is called a natural monopoly and is not illegal as it doesn't prevent or manipulate the consumers choice.

littleneutrino said,
I will admit that I like apple and their products however, why has no one posted a law suet against them for Monopoly. I understand that they both own the software and hardware however if you can only install the MAC software on Apple Hardware (which are obviously the same company) then isnt that against the American Monopoly laws. Just saying.

No. The only reason why this is an issue is because the underlying OS software IS accessible. I can think of plenty of examples of hardware+software produced and owned by the same entity where you can't move the software to another product legally. DVRs for example. I can't "rip" the software off my DirectV box, install it on a generic DVR that I make and re-sell it claiming DirectV compatibility.

But by your logic if you are the first to invent something, then you are automatically in violation of anti-trust laws since you are the only one who owns that something.

"Monopoly" is a term that has really been thrown around in recent years and is a great big cleché. Monopoly does not mean that you own some part of the market. Monopoly doesn't even mean that you own ALL of the market. A corporation can own 100% of the market and not have a Monopoly. A monopoly means that an entity owns enough of the market and can keep others from entering the market. Apple cannot keep others from producing an OS and distributing it. They do not control the means of production. And don't try to make this specific about Mac OS. The market is Operating Systems.

littleneutrino said,
against the American Monopoly laws. Just saying.

You're joking right, what's Apple market share, 6 or 7%?? Monopoly (Antitrust)?

There's many, many operating systems out there that Apple doesn't control.

By your logic any device that uses software that's tied to it's hardware is a monopoly. Somehow Ford has to share its engine control software with you for its fuel controls? Carvewright has to share it's operating system so you can use it on other home woodworking CNC machines? Sony has to share the operating system on the Playstation? Festool has to share it's designs for it's unique Domino Joiner.

Your reasoning is ludicrous.

monopoly |məˈnäpÉ™lÄ“|
noun ( pl. -lies)
1. a company or group having exclusive control over a commodity or service : areas where cable companies operate as monopolies.

Apple isn't the only supplier of computers, either computer hardware or operating systems. It doesn't have a majority holding on market share. It didn't get to it's current position by it's own means, heck, a decade ago they Apple nearly went belly up. Other computers went out of computer business or exited. Names like Commodore, Atari, Texas Instruments, Sinclair, Tandy Computers, Amstrad, Dragon Data, Ltd., BBC Micro, Coleco Adam and Robotron (I could go on).

Check out Section 2 of the Sherman Antitrust Act, you REALLY need to brush up on it.