Psystar Loses Big To Apple
from the and-so-it-goes dept
When Psystar first started selling PCs with Apple OS’s installed on them, we knew there would be a lawsuit — though it took a bit more <a href=https://www.techdirt.com/articles/20080715/1154271690.shtml”>time than we expected. Originally, Psystar tried to claim that Apple was violating antitrust law, which seemed like a wasted path for exploration — and, indeed, a court rejected that claim. Then Psystar went back to more reasonable defenses… or so we thought.
The court hearing the case didn’t seem to think any of Psystar’s main lines of defense had any validity at all and granted summary judgment to Apple on all of the major points, saying that a trial wasn’t even necessary. The “fair use” claim was already weak, and the judge noted that Psystar didn’t even try to discuss any of the four factors generally used in determining fair use. The two (I thought) stronger claims were that (a) the right of first sale applied, and once Psystar purchased OSX legally, it could resell it, provided it was only installed on that one computer, and (b) that Apple went too far in its EULA terms, which demanded that OS X could only work on a Mac. Unfortunately, the judge didn’t agree to either one, though I find the judge’s reasoning perplexing and hardly convincing.
On the issue of first sale, here’s what the ruling said:
The copies at issue here were not lawfully manufactured with the authorization of the copyright owner. As stated, Psystar made an unauthorized copy of Mac OS X from a Mac mini that was placed onto an “imaging station” and then used a “master copy” to make many more unauthorized copies that were installed on individual Psystar computers. The first-sale defense does not apply to those unauthorized copies.
Perhaps I’m missing something here, because earlier reports had suggested that Psystar legally purchased each copy of OS X and then installed the legally purchased copy on the new machine (which it then included with the sold machine). But from the description above, it sounds like part of the problem is that a single “master copy” was used to make multiple installations. Of course, that raises a whole host of separate issues. If Psystar legally purchased a separate license for each one, but still used a single master copy, is that really infringing? After all, the code is identical, and it seems positively ridiculous to say that even though you bought, say, 20 licenses, you can’t just use one master copy to install 20 times. It seems like this could use additional clarification. Because, the other way one could interpret this is that there is no right of first sale if the company says a copy is unauthorized — which would have troubling implications.
On the EULA front, the court again basically just takes Apple’s position, and insists it did nothing wrong. I’m not surprised by the outcome at all, but I would have expected at least a more complete response to the First Sale doctrine rights issues. Even ignoring that a “copy” was being made — with the physical copy, it really is a matter of first sale. The company is selling something it legally purchased.
Psystar will likely appeal, though I still have little faith that will get anywhere.
Filed Under: copyright, eula, first sale, mac os
Companies: apple, psystar
Comments on “Psystar Loses Big To Apple”
No right of first sale.
We’ve really lost the right of first sale, and it’s kind of our own fault.
For years we ignored shrinkwrap and clicky EULAs, because there were so laughable and unenforceable that they didn’t need to be challenged.
Except that they did. Because now the political clout and the technology exists to enforce these documents, and they didn’t get any less stupid as time went by.
Now we’ve got online activation and lobbying like never before, and we can’t use a piece of software other than how we’re asked. Everyone’s doing it, and half of them change the rules of the game as you’re playing it, so it’s hard to know who to trust and who to avoid until it’s too late.
It’s a brave new world, and we sat back and lazily made it.
Re: No right of first sale.
really? EULAs are enforceable these days?
I’d best take the copy of Mac OSX off my compaq laptop then…
EULAs are no more enforceable today on a customer than they were several years ago. You just have to know what you’re doing, and how to hide it.
Re: Re: No right of first sale.
If the consumer can’t buy a hackintosh because the EULA prohibits it, then the EULA is being enforced on the consumer.
Re: Re: No right of first sale.
You just have to know what you’re doing, and how to hide it.
You seem to be contradicting yourself. Why would you need to hide it if EULA’s really weren’t enforceable?
Re: Re: No right of first sale.
exactly .. no one cares what you do with your modded software as long as you dont try to make money from doing so
Re: Re: Re: No right of first sale.
“exactly .. no one cares what you do with your modded software as long as you dont try to make money from doing so”
You seem to have missed the recent news of M$ cutting off around a million XBox owners for modding the software on their boxes.
Court Order
I have uploaded the Court’s order granting Summary Judgment if anyone wants to view or download it. It is a well reasoned order and summarized the arguments fairly well. The following claims are still to be litigated in the case: (1) breach of contract; (2) induced breach of contract, (3) trademark infringement; (4) trademark dilution; (5)trade dress infringement; and (6) state unfair competition under California Business and Professions Code § 17200; and (7) common law unfair competition.
Master copy vs. individual copies
This particular battle has been lost repeatedly. You can go all the way back to, err, what was the pre-Napster company that would serve you a copy of a CD *if* you first proved you had physically bought a copy? Most recently, one of the cable companies won the right to provide a “VCR in the cloud” to their customers – but only if they kept separate physical copies of stuff each customer recorded.
The fact is, identical bits may not be identical under the law. Provenance – how the bits got there – matters. It may sound silly, it may be a distinction that will prove impossible to maintain in any meaningful way – but right now, it’s there, and given that distinction, it’s not surprising this case came out the way it did.
— Jerry
Re: Master copy vs. individual copies
The fact is, identical bits may not be identical under the law. Provenance – how the bits got there – matters. It may sound silly, it may be a distinction that will prove impossible to maintain in any meaningful way – but right now, it’s there, and given that distinction, it’s not surprising this case came out the way it did.
except that disk imaging is how every PC manufacturer (apple included) ships pre-installed software. disk imaging is also a common practice in the IT departments of large corporations. if imaging is illegal in this case, what does that say for the practice elsewhere? if the practice is legal elsewhere, why is it illegal in this case?
Re: Re: Master copy vs. individual copies
Disk imaging isn’t illegal, per se. As a previous poster noted, disk imaging is only prohibited when it results in unauthorized copies. “Authorization” becomes a matter of what the company providing says is authorized. Whether we should be okay with companies authorizing uses of their software or not really should be the issue. If we agree that companies should be able to ask for you to agree to a specific use before authorizing a sale (I don’t), then the outcome of this legal battle is correct.
Re: Re: Re: Master copy vs. individual copies
If we agree that companies should be able to ask for you to agree to a specific use before authorizing a sale (I don’t), then the outcome of this legal battle is correct.
It’s not a question of whether they should be able to “ask” you. Of course they should be able to ask. The question is whether such an agreement should then be legally enforceable. The court said yes.
Re: Re: Master copy vs. individual copies
No no, I believe Mike’s summary isn’t 100% accurate. Disk imaging is fine; that is not the issue. Psystar edited the OS X kernel to allow it to boot on non apple hardware. The court determined that this was infringement. Psystar then used this master image to install on other machines, which was additional infringement.
Psystar may have included a copy of OS X with each clone, but what they installed on the clones was not OS X, but a modified operating system that infringed on Apple’s OS X
Re: Re: Re: Master copy vs. individual copies
Do you have the right to modify what you have legally purchased? You are saying no. I very strongly disagree. What I spend my hard earned money on I want to be able to do whatever I want to. It doesn’t matter if it it my car, home, computer hardware, software, clothing, or anything else I own. Now if a modification I make is then used to do something illegal, like removing the emission controls from my car, then i should be punished for the emission violation, not for modifying itself.
Re: Re: Re:2 Master copy vs. individual copies
@StupidOne – the difference between your car and OSX is that you haven’t purchased OSX, you’ve only licensed it.
In any case, OSX is the small player, not the monopoly. If you don’t like the terms of use that you have to sign up to in order to use it, choose another o/s and move along.
Re: Re: Re:3 Master copy vs. individual copies
And why should a license be required to use an infinite product, anyway? Any digital product is an infinite resource, and any kind of restricting of such products is both inefficient and stupid.
Re: Re: Re:4 Master copy vs. individual copies
Why do you think OSX is an infinite resource? It isn’t. And it isn’t sold that way.
Re: Re: Re:5 Master copy vs. individual copies
You must be new here. 🙂 OSX is an infinite resource because it can be copied infinitely with essentially zero marginal cost. Apple makes it artificially scarce via copyright and EULAs, and maybe other techniques too.
Re: Re: Re: Master copy vs. individual copies
There were two types of modification that took place, only one should have been identified as infringing.
Psystar added code to make OS X interoperable with the independently created machine level computer programs on their hardware. Under the DMCA, that is legitimate reverse engineering for interoperability.
TECHNICALLY THE PROBLEM: They also removed kernel code from OS X, which they can’t legally do.
If instead they had found a way to keep that code and disable the same at boot, they would have been in A LOT better position to argue the rest of the case.
What I don’t get is this: Why is Psystar not selling a computer with OS/X sitting in the box next to it with instructions on how to install it? It seems that they have gone one step too far, and it is their undoing.
The judge is correct, their master copy thing is dangerous, in part because there is no clear indication that every computer that leaves their factory would have a unique operating system.
Re: Re:
Because as I understand it, those install instruction would be a little wacky for your average consumer to understand and follow
Re: Re: Re:
So they add a second disk that automates the install with the change.
Re: Re:
The judge is correct, their master copy thing is dangerous, in part because there is no clear indication that every computer that leaves their factory would have a unique operating system.
Umm, each computer left their factory with a separate Apple license but the OS was the same. Who says they’re supposed to each be “unique”? That certainly isn’t the case with other computers so why should Psystar be different?
How is this going to effect PC manufacturers?
So if this means that you can’t build a master drive and burn daughter drives off of it for the units being sold then does this mean every machine would need to be installed from it’s own internal disk drive? That sure removes the ability to scale up production.
I doubt M$ would ever push this point but they could.
Re: How is this going to effect PC manufacturers?
If MS every tried to use this rulling as basis this would kill 90% of corp america as thats how every one does mass deployment use a single image to deploy and have purchased license for each node. Heck thats how the computer manufactures deploy, and I bet thats how apple does there deployment I highly doubt they have a box monkey manually installing the OS on each mac that they sell.
Re: Re: How is this going to effect PC manufacturers?
Microsoft even has instructions on how to make your own custom installer for Windoze. Like, if you wanted all your installations to be unattended with a preset timezone and/or license key.
Re: Re: Re: How is this going to effect PC manufacturers?
That would be setting up an unattended installation disk which works but still takes too long.
This is talking about setting up a master disk image and then doing a direct copy of the image to the new machine which is much faster especially if you’ve already pre-installed and configured applications.
Re: How is this going to effect PC manufacturers?
I doubt M$ would ever push this point but they could.
Why not? They can use it to reduce competition between PC sellers in the market place by allowing only their preferred “partners” to do it but threatening to sue anyone else. That would make it hard for anyone to compete with M$’s partners on a large scale. That sounds like exactly the kind of thing M$ would do if they could get away with it legally and this judge just gave them that ability.
Re: Re: How is this going to effect PC manufacturers?
But Microsoft already had that ability and always has, they just choose not to do it. Apple’s ultimate goal is to keep OS X on Apple hardware, but Microsoft doesn’t care if you install Windows on your toaster as long as you buy a license.
It's not going to effect PC manufacturers...
Microsoft mainly sells SOFTWARE. Apple mainly sells HARDWARE.
Re: It's not going to effect PC manufacturers...
Microsoft mainly sells SOFTWARE. Apple mainly sells HARDWARE.
So? Do they have separate laws?
Re: Re: It's not going to effect PC manufacturers...
Yes, in fact they do have separate laws. Hardware is covered by patent protection and software is covered by copyright protection.
More importantly, hardware and software business models are different so the go-to-market strategies will be different.
Re: Re: Re: It's not going to effect PC manufacturers...
Yes, in fact they do have separate laws. Hardware is covered by patent protection and software is covered by copyright protection.
I don’t know where you got the idea that Microsoft and Apple are covered by different laws but it’s wrong. Both of them sell both hardware and software and the law doesn’t say “this set of rules covers you if you sell mostly software and this set covers you if you sell mostly hardware”. Maybe you ought to lay off the cheese sauce for a while.
“If Psystar legally purchased a separate license for each one, but still used a single master copy, is that really infringing?“
The right of sale gives us the right to sell our physical media, even if the content is copyrighted. It does not give any right to transfer licenses to third party.
That’s what Psystar was doing. It was installing a single copy of OSX on multiple computers, which as the court pointed out, was a violation of law. The mere fact that Psystar also bought licenses for each installation is irrelevant to the first sale doctrine.
In the same way, I don’t have the right to sell copies I burned of a DVD even though I bought a separate license. Maybe under contract law that might make sense, but it has nothing to do with the first sale doctrine.
Re: Smackdown!
Spoken by someone who knows nothing about computers or how installs are done.
As someone IN the industy, I can tell you that Psystar was doing it the same way Dell, HP, and probably every other vendor does it.
You create an image and you burn the image to every computer (usually one image per model configuration).
The OS is the same. It’s the license that makes it legal. The physical media is irrelevant.
Re: Re: Smackdown!
“Spoken by someone who knows nothing about computers or how installs are done.
As someone IN the industy, I can tell you that Psystar was doing it the same way Dell, HP, and probably every other vendor does it.”
Spoken by someone who doesn’t have a clue what the real issue is.
The other vendors sell pre-installed versions of Windows. Microsoft has chosen to support this distribution model because that is their core business – selling software. Apple has chosen not to support this model because their core business is selling hardware, not software. Apple’s position has NOTHING to do with how installs are typically done, it is all about supporting their hardware-centric business model. If Psystar (or anyone else) gets away with distributing OSX to non-Mac PCs, then Apple will lose a big chunk of the differentiation associated with Macs. Apple would need a new business model. Of course Apple will use whatever legal tools they can to stop Psystar.
Re: Re: Re: Smackdown!
Whether or not Apple supports this distribution model is irrelevant. If it is an industry standard for distribution, it’d be bullshit for the court to throw a blanket label of ‘unauthorized copy’ on it.
The real issue was the modifications. Unfortunately, some very important matters of fact and law related to the modifications were not tried here.
However, I think it’s probably due to a crappy defense. Usually, if you give a judge the tools he needs to determine something should be tried, he will want it to be tried. In this case, I can’t see where the defense even understood the strengths of their own case. They certainly didn’t bring them to bear.
Re: Re: Re:2 Smackdown!
“Whether or not Apple supports this distribution model is irrelevant.”
This statement makes the rest of your post irrelevant because it’s bollocks. Apple owns the copyright on their software and therefore can decide on whatever distribution model they like. Any company in any industry can decide to use a distribution model that varies from the norm. Sometimes it’s even called innovation.
Re: Re: Re:3 Smackdown!
This statement makes the rest of your post irrelevant because it’s bollocks. Apple owns the copyright on their software and therefore can decide on whatever distribution model they like. Any company in any industry can decide to use a distribution model that varies from the norm
Talk about bollocks. It’s well establish that you cannot keep a buyer from reselling something just because it’s copyrighted. Once they’ve bought it they can sell it on if they want to. It’s called the doctrine of first sale, which you seem to be trying to pretend doesn’t exist.
Re: Re: Smackdown!
“Spoken by someone who knows nothing about computers or how installs are done.
As someone IN the industy, I can tell you that Psystar was doing it the same way Dell, HP, and probably every other vendor does it.”
Spoken by someone who doesn’t have a clue what the real issue is.
The other vendors sell pre-installed versions of Windows. Microsoft has chosen to support this distribution model because that is their core business – selling software. Apple has chosen not to support this model because their core business is selling hardware, not software. Apple’s position has NOTHING to do with how installs are typically done, it is all about supporting their hardware-centric business model. If Psystar (or anyone else) gets away with distributing OSX to non-Mac PCs, then Apple will lose a big chunk of the differentiation associated with Macs. Apple would need a new business model. Of course Apple will use whatever legal tools they can to stop Psystar.
Re: Re: Smackdown!
…that being said, there was a case involving AutoDesk recently that might have had some bearing on this case if Psystar had bought retail copies of OSX and shipped those disks with the machine it was installed on. In a situation like that, first sale might have held sway. Since Psystar was loading the OS from a master image on each machine, Apple probably argued that the licenses were not transferable. The ruling in the AutoDesk case basically said that the sale and transfer of the media implied a legal transfer of the license.
If I were Psystar, I would have sold the hardware and OS as separate line items, along with the installation fee and shipped the machine with the install disk.
Re: Re:
The right of sale gives us the right to sell our physical media, even if the content is copyrighted. It does not give any right to transfer licenses to third party.
So, you’re saying Mike was wrong when he wrote
Court Once Again Confirms Right Of First Sale For Software: You Own It, Not License It?
Mike cites some references in that story. Why don’t you do the same if you want to refute it?
Re: Re:
In the same way, I don’t have the right to sell copies I burned of a DVD even though I bought a separate license.
So, the companies that are licensed to manufacture copies of DVDs are illegal, huh? Just where do you think all those movies come from, anyway? Do you think they remake the whole movie for each DVD? Well, I’ve got news for you, they don’t. The studios don’t even make the copies themselves, they license others to do so it’s perfectly legal, despite what you say.
Re: Re: Duh!!
“So, the companies that are licensed to manufacture copies of DVDs are illegal, huh? “
No, because the DVD companies you mention are licensed to make these copies. Psystar is not licensed to do anything with OSX. Is this really that hard to understand?
Re: Re: Re: Duh!!
No, because the DVD companies you mention are licensed to make these copies. Psystar is not licensed to do anything with OSX. Is this really that hard to understand?
Maybe you should have made that reply to Ima Fish because she was the one arguing otherwise. Or is it really that hard for you to follow a thread?
Re: Re: Re: Duh!!
Maybe you should read the story. Psystar was buying licenses.
Can Psystar Cure the Defect by Individually Loading?
If you buy the argument that you are infringing by using a single master to load all machines, but giving each machine its own genuine copy of the Apple OS, can’t you argue that the damage is de minimis?
While a bit troubling...
I guess Mike missed the part where Psystar couldn’t prove OSX purchases for each computer they sold.
That muddies the case big time as to the issues, because they simply DIDN’T buy a copy of OSX for each computer they sold.
Re: While a bit troubling...
That muddies the case big time as to the issues, because they simply DIDN’T buy a copy of OSX for each computer they sold.
Are you making that up or do you have a source to cite?
Re: While a bit troubling...
Even if they did buy a copy of OSX for each computer, I recall another issue in this case is that they were buying upgrade copies of OSX, since the only way to get a full install of OSX is by buying a Mac.
If Psystar bought an upgrade disc, hacked and installed it, and sold it, that most likely isn’t a valid/legal copy anyway.
Ilegal Copying into RAM
I believe the court said that the ‘illegal copy’ of the OS was when it was copied into RAM. This never made any sense to me, but I remember reading a while ago that there was precedent to this argument. The copying of the OS into RAM is usually authorized when software is purchased, but in this case Apple did not authorize the copying of their code in that fashion.
addendum
I should make note the RAM thing was in addition to the imaging station thing. Groklaw.net seems to have an in-depth explanation.
Another interesting aspect of the judgement
is the fact that the judge declared that psystar violated the DMCA by recoding certain sections of OSX to make it play nice with their boxes. Doing so created a “derivative work”.
Psystar infringed Apple’s exclusive right to create derivative works of Mac OS X. It did this by replacing original files in Mac OS X with unauthorized software files. Specifically, it made three modifications: (1) replacing the Mac OS X bootloader with a different bootloader to enable an unauthorized copy of Mac OS X to run on Psystar’s computers; (2) disabling and removing Apple kernel extension files; and (3) adding non-Apple kernel extensions.
http://www.geek.com/articles/apple/a-court-massacre-psystar-infringed-on-apples-copyrights-says-judge-20091115/
Overall, I understand Apple is just trying to maintain the “Apple Experience”. Users could buy a psystar box and then start complaining that ‘man, osx is so buggy” rather than, “wow -this is a really poor port over onto this hardware”.
But i think a more reasonable response would be to mandate a notice saying “This hardware is not supported by OSX.”.
From Experience...
Building PCs, you don’t reinstall the OS, and the drivers, etc, each PC you build. You do it for the first configuration of hardware, then make an image, and for each other computer, you stick a different MS License sticker on the side. Then the person that buys the PC puts that license key into the software on first boot. Far as I’m aware, MS states two things to businesses that do this: We’ll let you do this, as long as every ‘Computer’ you sell has Windows pre-installed on it (No selling skeleton systems without OS installed.) You must have a different license sticker for each computer, and include a Windows CD/DVD with each computer you sell.
ALL THIS SAID: Far as I’m aware, MS allows businesses to do it because, as it’s been mentioned, MS sells software. So in theory, Apple *can* get all uppity with anyone who does something similar. EXCEPT for two things: First, the customer has essentially paid for 1) A Computer. 2) A Mac OS. 3) Technician install of OS. I see no arguement that could be made against this sequence of events.
Now, the last point to be made is that apparently Psystar modified the kernel of the Mac OS? … This I doubt, because OSX will actually run on Intel-architecture now. If they’re trying to get it to work on AMD machines, I’d be impressed at their determination… IF, however, they did modify the code, then they’re in legal trouble.
Re: From Experience...
Modifications to the kernel are required. The processor architecture is common but OSX has a different concept of BIOS.
your factually incorrect on this one, Mike
“The company is selling something it legally purchased” is not factually correct. They purchase a copy of MacOS, then use it to create a virtual machine which they then clone (5 clones per copy of OSX bought according to Psytar’s defense), they don’t sell the original OSX they bought either. So they are not selling what they bought so first sale is just too big a stretch. They are not abiding by the MacOS license so they lose on that front as well. Fair use maybe but they wouldn’t get very far along the four-factor test, would they? So scrap that. Anyway this is good news that the court takes the license so seriously – its the same foundation the GPL is built on.
Re: your factually incorrect on this one, Mike
They purchase a copy of MacOS, then use it to create a virtual machine which they then clone (5 clones per copy of OSX bought according to Psytar’s defense)…
That’s interesting. I wonder why they would limit it to 5. Anyway, citation, please.
they don’t sell the original OSX they bought either.
Do you mean they apply Apple supplied updates and patches before they mod it? So, would it also be illegal for a person to sell a Mac with a patched or updated OSX, since it wouldn’t be “the original OSX they bought either”?
Re: Re: your factually incorrect on this one, Mike
Lots to mull over here:
http://www.groklaw.net/staticpages/index.php?page=Psystar
And good discussion of the issue here:
http://groklaw.net/article.php?story=2009090111072988
“A first sale does not, however, exhaust other rights, such as the copyright holder’s right to prohibit copying of the copy he sells…. For example, the first sale doctrine permits a consumer who buys a lawfully made DVD copy of “Gone With the Wind” to resell the copy, but not to duplicate the copy.”
Re: Re: Re: your factually incorrect on this one, Mike
For example, the first sale doctrine permits a consumer who buys a lawfully made DVD copy of “Gone With the Wind” to resell the copy, but not to duplicate the copy.”
That’s legal by another doctrine. Not first sale, but fair use.
Re: Re: Re:2 your factually incorrect on this one, Mike
That is NOT fair use.
[1] http://www.copyright.gov/fls/fl102.html
Re: Re: Re:3 your factually incorrect on this one, Mike
That is NOT fair use.
Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered fair, such as criticism, comment, news reporting, teaching, scholarship, and research.
Those are just *some* examples, not an all-inclusive list. The US Supreme Court, in Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984), ruled that personal home recording of copyrighted video is legal under fair use.
Re: your factually incorrect on this one, Mike
Bull. Psystar claims to have bought a copy for every one they sold. That was the whole basis of their defense. I notice you didn’t respond with a citation for your claim of 5 to 1 either which leads me to conclude that you’re making stuff up.
Cold dose of Reality
There certainly seem to be a lot of thick headed jailhouse lawyers on here, that have just gotten their first lesson in what happens in the Real World vs cyberhackerbloggo bullshit.