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

Well..

[mindstrm]

Regardless of the technical stupidity...
Publishing information about this does qualify as providing a mechanism to circumvent a copy control mechanism.

A little background on the Lanham Act

[atom6]

The Lanham Act essentially includes all the federal laws governing trademark registration and usage (but not state laws). Apple appears to be seeking protection under Title VIII of the Act, which has to do with misappropriation or misrepresentation of trademarks for use in commerce.

I'm just a college student who's taken a few law classes, but it seems to me this is a fairly weak claim, and Apple could make a much stronger one under other areas of federal law. Can anyone with more legal knowledge comment on the strength of Apple's claim?

Here's a link to the complete text of the Act.

Re:Amendment I

[Milican]

Congress made the law that Apple is using as leverage to file the lawsuit. I wish Congress would do a better job keeping the constitution (CDA, CDA-II, etc..) in mind when passing laws. Oh well, at least our courts are doing a better job. If you ask me Congress likes to pass the buck so they can get re-elected. Thats a whole other subject though.

Anyway, you're right anyone can sue for anything. That is where intimidation and money come in. Winning a law suit is another matter. Thanks for pointing that out.

I would like to mention that the post by dillon_rinker regarding copyright was very informative, and brings into perspective why fundamentally Apple has a leg to stand on and why some of our copyright laws are the way they are.

JOhn

Re:Think about Time To Market

[kindbud]

Are they dumb? NO. It's about money.

Since when does "It's about money" excuse stupidity and legal bullying? I know, I know, -1 Redundant for me....

Are they trashing freedom-of-speech? FUCK NO.

No? Apple threatened a party with a lawsuit if they didn't retract what was said, even though nothing that was said was illegal in any way. What is trashing freedom of speech if not this?

Software Vendors have those agreements so they can actually make money off of the shit they make. Duh.

So of they put a clause in the license agreement for OSX 10.2 that says by using the software, you agree to pay them $100/mo for the privilege, you'll have no problem with that, and gladly will fork over your CC number so they can automate the charges. Right? I mean, just like you said, they put those licenses out there so they can make money off the software...

MacFixIt handled the situation very maturely but anyone here invoking "freedom of speech" rights for this particular case is merely making a devious use of one of our most cherished inallienable rights, and such behaviour can easily become one day its most threatening enemy.

Yeah, I've heard that one before, and it still doesn't wash. You cannot protect your rights by refraining from exercising them when it bothers the Powers That Be. Those are the times when you should be exercising your rights simply because you CAN.

Very Clear Instructions!

[BoarderPhreak]

Everything Mac has posted some very clear instructions on how to do this!