Apple Cease-And-Desists Stupidity Leak

Remember Apple's "free, plus $19.95 shipping" updater CD for Mac OS X 10.1? Turns out it's actually a full version of the operating system (which helps explain why it's so large) but it adds an extra little package called "CheckForOSX." Remove that and you can install 10.1 on any disk -- or at least, that's the secondhand version I got of what used to be at MacFixIt's Nov. 20 report, which yesterday was taken down after a note from Apple's lawyers. Here's the cease-and-desist story. We've included Apple's letter, below.

Apple cites the Lanham Act (see below) and I have no idea what that covers. But Bill Innanen pointed out on a mailing list that the operating system might be said to violate its own access control rights under the DMCA:

...since the possession of the tools to violate a copyright has been criminalized, we have yet another case of circular legal "logic." The only tool necessary to violate this particular copyright is the very operating system that the copyrighted software (the updater/full-installer) installs (or an earlier version of same).

(Just pop open the installer package with the built-in "context sensitive menu" module, find the CheckForOSX module and drag it to the trash can. Voila!)

Is the possession of MacOS X v10.1 or its installer illegal because it can be used to violate its own copyright?

(Well, actually by the letter of the law in 1201(2) I think you'd have to argue that Mac OS X 10.0 was "primarily" designed to circumvent the access controls in the 10.1 update... but it's still pretty funny.)

Bill goes on to point out: "The problem that this converted updater fixed is that there are reported problems with 10.1.1, and with a 10.0.x and the updater you can't backtrack. With the 10.1 full installer you can."

Apple's lawyers write:

We represent Apple Computer, Inc. ("Apple") with respect to its intellectual property matters. Recently, it has come to our attention that you are providing unauthorized instructions concerning the modification of the Mac OS X 10.1 update software (the "Software") on your website. Specifically, it appears that you are providing instructions for converting Mac OS X 10.1 update Software to a full install version of Mac OS X from your web site in violation of the Copyright Act and in violation of your software license agreement with Apple.

You should be aware that Apple has never authorized you modify the Software. Moreover, by providing instructions on how to modify and circumvent restrictions within the Software, you are infringing Apple's copyrights in violation of the Copyright Act and engaging in acts of unfair competition in violation of the Lanham Act. Additionally, Apple's license agreement, which you accepted upon purchasing a copy of the Software, specifically prohibits you from copying, decompiling, reverse engineering, disassembling, modifying or creating derivative works of the Software.

Consequently, on behalf of our client, we demand that you cease and desist from publishing or distributing the above-referenced materials. We believe that this is a very serious matter, thus we ask that we receive confirmation in writing from you that you have removed the infringing material from your web site.

Thank you for your prompt cooperation on this matter.

Comments

The Lanham Act

[aidoneus]

The Lanham Act is actually a trademark / service mark protection law, not really a copyright law. To see Apple's lawyers use it in this context seems a bit out of the ordinary, although Apple is notorious for vigorously defending their trademark and look-and-feel related concepts (remember the OS X themes debate a few months back?). Still, if they're relying on the Lanham Act to do their bullying, they might be on shakey footing. Stick to the (deservedly despised) DMCA for things like that.

Will Slashdot get a letter as well?

[snoozerdss]

Since slashdot posted this story does that mean that they too will receive a letter from apple?

Apple isn't in the wrong here...

[eXtro]

though I don't think that maxfixit.com is in the wrong either. Providing instructions on how to turn the MacOS 10.1 upgrade into a full installer is no different than providing instructions in how to convert the Macromedia Flash demo into a full working version, or providing a CD crack for Quake. All of the examples exist. You can download the Flash demo and make it a fully functioning copy. You can download a file that disables copy protection.

Depending on how you use any of these instructions and/or pieces of software it may be illegal. It also might be legal, or at least grey. Suppose I've got a legitimate copy of MacOS 10. I've also legitimately purchased the 10.1 installer. My hard drive fails and I want to run 10.1 again. I can install MacOS 10, then install MacOS 10.1 - or - I can defeat the protection on MacOS 10.1 and install it in a single step. In this case the end result is the same, I've legally installed a copy of MacOS 10.1.

If I don't legally have MacOS X and use this trick to get a copy of MacOS 10.1 for 20 bucks then I'm at least doing something immoral, and possibly illegal. Apple has the right to try to prevent this (beyond that, they've got an obligation to as well, an obligation to their stock holders).

That said, it will also be ineffective. The crack will appear on some dyndns.org warez site and on gnutella etc. I had suspected that upgrade CD was a full install but didn't have a chance to verify it. I upgraded my sisters G4 over thanksgiving weekend. The CD seemed pretty full for an upgrade, and you could actually boot from it.

Am I violating the DMCA?

[Wakko Warner]

By posting a link that tells you how to do it?

- A.P.

all bark, but it still bites

[frankie]

Remember that anyone can write a Cease and Desist letter. Remember that lawyers are not required to be honest in such letters.

Their job is to convince the "offending" person that it would be a bad idea to piss off their employer. The C&D is basically a more business-like version of sending a 200 pound hired goon to your door.

Re:Apple is still a company

[edremy]

The Mac OS 10.1 update is given away for free. You walk into any Mac-carrying retail outlet and they will hand you this nicely-packaged CD with instructions and send you on your way.

Actually, they won't. They will look at you with a confused expression and go "I don't think we have that", or perhaps a "Sorry, Apple didn't send us any- all we have is the full version."

At least, that was my experience when I went to upgrade 10.0. The former was 2 separate Circuit City's, the latter a Mac store (Not one of Apple's). I finally asked a guy I knew online to make me an (illegal) copy.

Apple screwed the pooch bigtime on this upgrade. I'm one of the few folks here who will speak of Macs without spitting and they made it close to impossible for a loyal user to upgrade from a slow, buggy, feature incomplete beta version of the OS.

Eric

OS/2 was the first

[nusuth]

Warp's free trial versions had a time limited kernel related file (I don't remember what it was), which had a non-time limited version in the bootable install medium (floppies or the bootable cd.) You just had to copy it on top of installed one and that could be done a single drag of mouse too.

Re:Am I violating the DMCA even more?

[Fnkmaster]

LOL. This is just too funny. Apple thinks that it is illegal to TELL people to violate their EULAs. What is this, contributory EULA infringement? I don't think it exists. I don't see how telling people that deleting a file from their install CDs will let them use the CDs elsewhere could be illegal under any law, except possible the worst law ever written, the DMCA.

Infringing sentence: Make a copy of the CD without the line "CheckforOSX" in the System/Installation/Packages/Essentials.pkg file". Ooops, I've broken the law. Heh. This is even worse than the 3 line RSA being illegal - this isn't even an algorithm but a tiny fragment of english text.

Re:EULA?

[imadork]

Does Apple really make you agree to the EULA at PURCHASE TIME?

So that's why when I got my "free" upgrade at CompUSA, they went through great pains to charge me exactly $.01 for it! (They said I didn't have to give them the penny, but I did anyway).

Apple usually includes a boilerplate license on a sheet of paper (in several languages) in the box with all their software, and a big red dot on the CD pouch that says "By opening this, you agree to the license". I would imagine that's the earliest point at which you agree.

And the license they included really was a boilerplate, including the part where you can only install it on one computer!?!?!! What did they want me to do, get two "free" copies from CompUSA so I could upgrade my "Smurfy" B&W G3 as well as my iBook? If I installed it on more than one computer, am I liable for triple damages?

Remeber you don't own software.

[UnifiedTechs]

I am surprised this fact has not been pointed out. Remeber software is licensed not bought. For all it matters apple didn't even need to install a checker at all.

The license states you need to own a copy of OS 10.0 to use the CD, that is the illegal part. For all it matters what the CD contains they could make one CD that has 9, 10.0, and 10.1 on one disk, if you only paid for the use of 9 then that is all you can legally install.

I can legally buy a gun, I can legally walk in a store, but if I use that gun to rob that store it is illegal, the tool dosen't matter, that you use it for the legal/approved outcome does.

Re:No, they're not

[imadork]

The correct analogy is if the cashier at a store gives you a $20 instead of the single that you were supposed to get in your change. Or buying a car from someone and finding an expensive watch between the seats.
You inadvertently receive something you didn't pay for. Keeping it (or similarly, installing it without paying for a copy) is stealing.

Yeah, but if I find that watch in the seat and give it back, do I have to "give back" the identical watch I already own as well?

I already own two copies of 10.0 (one bought retail and one that came with my iBook), as well as two copies of the 10.1 upgrade, (one bought from the Apple Store and one obtained for $.01 from CompUSA). I possess every license I need to run Mac OS 10.1 on BOTH of the Macs in my house. Why am I "stealing" if I use this method to save a step in the installation process if I ever have to reinstall? And why does Apple (and all other Software vendors) automatically assume I'm a thieving, commie Pirate if all I want to do is make a copy to make life easier for myself? Doesn't intent mean anything anymore, or should we outlaw all means to copy anything?

Re:No, they're not

[DunbarTheInept]

It is morally wrong to keep it. It is stealing, no matter how clever your arguments are to the contrary.

Whether it is wrong to steal is is irrelevant since that's not what the complaint is about. Apple isn't going after people doing the stealing. They're going after the people *publicizing* how easy it is to steal it. It's like pointing out that someone left their front door unlocked, and getting sued for pointing it out when someone ELSE uses that information to burgle the house.

It is a disturbing trend that businesses are more concerned with the act of POINTING OUT how crappy their security is than they are with the actual act of exploiting that bad security. They don't give a damn about the theft - they just don't like the bad press, and will gag you for trying to point out a truth about them that they find embarassing.

The DMCA - the law that makes it illegal to tell the truth.

Re:No, they're not

[3am]

Come on!

What do we hate here? Current enforcement of copyright law. Why do we hate it? Because it takes laws that exist for good reason (protecting inventors from others immediately stealing their work and profiting from it) and twists their meaning to protect bad behavior (not letting me keep a backup of an ebook, if i stopped my personal boycott of the product). IE, it make morally shaky actions legal.

I won't condescend to you and make the obvious comparison here...

Re:how many lawyers does it take...

[killmenow]

...Apple's license agreement, which you accepted upon purchasing a copy of the Software, specifically prohibits you from copying,

There may be an argument that they copied the CD, but posting instructions is not copying and so is not a violation of this part of the license

decompiling,

Nope...no decompiling going on here

reverse engineering,

This is not reverse engineering. In order to figure out how to do this, it seems all you have to do is poke around a bit. And Apple gives you the tools directly to do it. It's not like you have to have SoftICE or some-such to step through the thing to figure this out. This is simply using a feature of the software itself.

disassembling,

No disassembly going on here...move along.

modifying

Okay...now they've got 'em. Doing this may very well be legally considered modifying the software. Of course, I still want to know what constitutes modifying. If I simply turn [off|on] a feature using the menuing system or some other built-in facility of the OS, is that modifying? I think an argument may be made that if modifying the OS is illegal, then changing your desktop wallpaper as well as a number of other configuration tasks are rendered illegal as well. Hell, setting your TIME ZONE could be illegal!

or creating derivative works of the Software.

Well, burning it onto a CD after deleting that file may very well be creating a derivative work...but the whole point of this is: describing the actions on a website is not anything the license says you can't do. Putting up these instructions on the web may be a violation of the DMCA, but it is most definitely not a violation of the EULA.

Actually following the instructions probably is.