Psystar Claims Apple Forgot To Copyright Mac OS

Preedit writes "Mac cloner Psystar is claiming in new court papers that Apple's copyright suit against it should be dismissed, because Apple has never filed for copyright protection on Mac OS X 10.5 with the US Copyright Office. Infoweek is reporting that the claim, if it holds up, could open the door for third-parties to enter the Mac market without fear of legal action from Apple. In its latest set of allegations, Psystar is also accusing Apple of bricking Macs that don't run on genuine Apple hardware." We've been following the Psystar-Apple imbroglio since the beginning.

Comments

Berne convention?

[Anonymous Coward]

I thought since the US joined the Berne convention in the 80s or 90s, registration with the copyright office is not required...

Re:Berne convention?

[Jah-Wren Ryel]

I thought since the US joined the Berne convention in the 80s or 90s, registration with the copyright office is not required...

It is required if you want statutory damages (you know, those crazy numbers like $25,000 per song downloaded or whatever it is the RIAA threatens people with). Otherwise the worst you can sue for is actual damages - in this case the cost of a copy of OSX for each copy made.

It sure would be funny if it is true.

Re:Berne convention?

[WiiVault]

I wonder what that will mean since Psystar buys actual OS X disks? Would Apple sue for the "damage" of not selling the hardware?

Re:Berne convention?

[gruntled]

Sigh. From the US Copyright Office:

http://www.copyright.gov/circs/circ1.html#cr

Copyright Registration

In general, copyright registration is a legal formality intended to make a public record of the basic facts of a particular copyright. However, registration is not a condition of copyright protection. Even though registration is not a requirement for protection, the copyright law provides several inducements or advantages to encourage copyright owners to make registration. Among these advantages are the following:

        * Registration establishes a public record of the copyright claim.

        * Before an infringement suit may be filed in court, registration is necessary for works of U.S. origin.

Re:Berne Convention?

[corsec67]

Not trying to flame, but by this argument, the Berne Convention should render the GPL null and void.

No, the GPL has most of its power because copyrights are automatic. The GPL is an optional license that you can use to copy the program. If you don't obey the license, it is a copyright violation, since copyrights are automatic.

Re:Berne convention?

[JebusIsLord]

I'll be really surprised if Apple doesn't agree to simply make a deal with Psystar to manufacture clones for a licensing fee. It isn't that radical - Apple licensed Mac clones back in the late 80s - early 90s (see http://en.wikipedia.org/wiki/Macintosh_clone#The_first_Macintosh_clones ). My uneducated guess is that Psystar has been negotiating for a licensing agreement for a long time, and then calculated that an outright court battle would land them a better deal than paying the fees initially suggested by Apple.

That or they're a fly-by-night outfit.

Re:Berne convention?

[fishbowl]

>No, the automatic protection allows for criminal prosecution. If you want to sue yourself you have to register.

Sort of. The trouble you'd run into, is that the law allows Apple to make that registration at *any time*, like, say, on the morning of your hearing.
Even without the statutory damages, they *can* sue you, and there is no limit to what they can ask for as damages. It's good to have things registered because that constitutes "Notice", which provides the plaintiff with an automatic advantage in terms of preponderance of evidence,

The misconception all over the thread, is that without the right to seek statutory damages, Apple would be limited in the amount of civil damages they could seek. This is untrue, and I can assure you that the amount of "actual damages" that Apple's very expensive and capable legal team would confront you with over OSX, would utterly dwarf even the "per infringement" maximum of statutory damages. And even if they sought statutory damages, which they still would do, that would basically amount to nothing but a "tip" on top of the really stupendous civil damages, which would seek liquidation and civil forfeiture of, 100% of your assets. Willful and knowing copyright infringement on an institutional scale is really not a good idea, registration or not.

IANALBIHSLAWITF, consult a lawyer before you do something boneheaded like putting yourself on the defendant end of a civil suit with Apple.

Re:Berne convention?

[mstone]

The unit cost of OS X is irrelevant.

Apple doesn't sell OS X for non-Apple-branded hardware, and Psystar doesn't sell copies of OS X per se. Psystar isn't taking any money out of Apple's pocket in a software market for 'copies of OS X', because no such market exists.

The place where Psystar is taking money out of Apple's pocket is in hardware. The difference between "an Apple-branded computer running OS X" and "a Psystar-branded computer running OS X" is the machine itself, not the OS. Therefore, the damage to Apple is the cost of equivalent hardware less the cost of one retail copy of OS X. Apple's retail computer prices are public knowledge, so adding up the damages would be trivial.

That's only where Psystar's barbed-wire enema begins, though. The big money will be in 'brand dilution'.

Apple's brand is immensely valuable, and Psystar has been trying to redefine it. Apple has always presented itself as a company that sells "the whole widget." They've spent a lot of money in every aspect of their business, from R&D to manufacturing, to sales and support, pushing the idea that a box from Apple is a single unit that Just Works (TM). Then along comes Psystar, telling everyone that Apple is really just a component vendor, whose OS division is just like Microsoft and whose hardware division is just like Dell. If you want an "Apple compatible computer," you can pick and choose pieces from any vendors you want.

A large part of this case revolves around whether Psystar has a legitimate right to tell the whole world what business Apple is in. At present, it looks like the answer to that is a big, fat "No."

If a court rules that Psystar has indeed been blowing smoke out its ass, then the equivalent advertising cost of every square inch of newsprint or second of airtime devoted to covering this case in the public view can be treated as damage to Apple. Every "they can't tell me what to do with the OS after I've bought the box" comment in these threads counts as noise that Apple will have to spend time, effort, and money arguing against. That time, effort, and money are resources Apple could otherwise have spent writing more software, designing new hardware, or otherwise expanding or improving its business. Psystar would have imposed an operating expense on Apple without having any legal right to do so. And following the theory that "if you light the fire, you can be held liable for whatever gets burnt," the court can rule that Psystar owes Apple the cost of cleaning up the mess it created.

Re:Berne convention?

[dubl-u]

The big money will be in 'brand dilution'.

There are a relatively small number of sorts of information that are legally protected. Brand is not one of them, except insofar as you are boosting somebody's trademarks. But Psystar's whole point is that they aren't Apple, and they aren't using Apple's trademarks to pretend they are.

the equivalent advertising cost of every square inch of newsprint or second of airtime devoted to covering this case in the public view can be treated as damage to Apple

Heh. Normally people just say "I am not a lawyer" rather than proving it dramatically. Maybe you should try that next time?

Case closed!

[Anonymous Coward]

The United States Copyright Office says otherwise.

This might save Psystar, but it won't help others

[swillden]

The way US copyright law works is that copyright exists automatically, no registration is necessary. However, registration *is* required before filing a lawsuit. If Apple really failed to register before suing Psystar, they might be able to get the suit dismissed. If the judge is particularly nice, they might even get it dismissed with prejudice, meaning it can't be brought again (though I can't see why a judge would do that).

However, that will in no way prevent Apple from registering their copyright and then filing suit against others. Nor will it prevent Apple from suing Psystar over alleged infringements of other copyrights (say, newer versions of OS X).

This is an ordinary bit of legal maneuvering by some attorneys who noticed an apparent procedural oversight by their opponents and who are attempting to capitalize on it to get at least a little delay, and perhaps even more. It's really not a big deal.

(IANAL, and I didn't even stay in a Holiday Inn Express, so the above is likely complete crap.)

Re:Seriously?!?

[Anonymous Coward]

Indeed they were. Apple formed Psystar as a way to boil the blood of Apple zealots and make them feel good about spending money on overpriced hardware.

By definition...

[GrahamCox]

Psystar is also accusing Apple of bricking Macs that don't run on genuine Apple hardware

Since the definition of "Macintosh" is a computer built/branded/sold by Apple, and no-one else, this statement is nonsensical. It could say "Psystar is accusing Apple of bricking generic PCs that are attempting to illegally run OS X", but, like it or not, I would have thought they are entitled to do so.

Re:By definition...

[TheoMurpse]

No, it's more like registering a username on Slashdot, and then being told you're not allowed to use car analogies.

Re:Weird claims by Pystar - their giant leap

[im_thatoneguy]

Yes. But would OSX be OSX if it ran on someone else's hardware.

As soon as you allow Joe Schmoe to install OSX he's going to want to start making demands. "Why doesn't my 15 year old network card work?" "Why doesn't my printer work?" "Why does my computer keep crashing."

The reason Microsoft got into trouble with Vista was largely in part due to pressure from system builders pressuring them to include hardware that wasn't actually capable of running Vista smoothly, or had inadequate driver support.

Opening OSX would be like kicking a house cat out into the gutter and expecting it to fend for itself. It's just not ready for the rediculous diversity of hardware that Windows is obligated to support by running on commodity hardware. That smooth "just works" will be descend into the same brand tarnishing sludge that is compatibility.

Re:Seriously?!?

[Whiney Mac Fanboy]

That's the worst argument I've ever heard. I've got two words for you Psystar: Berne Convention

From the article you link to:

(note however that when the United States joined the Convention in 1988, they continued to make statutory damages and attorney's fees only available for registered works).

I suspect this is what Psystar are referring to, rather than Information Week's rather short, content free insinuation that Apple loses all rights if they fail to register.

You'd almost think they were organized just to antagonize Apple. Hmm...

Testing the waters, Hardware vendors want to sell something other than windows. I'm willing to bet one (or more) of the big 5 PC vendors is behind this

*sigh* needs more quality editors.

[Meor]

This is just an editor rant. I'm sorry, kdawson is just a horrible editor. First he posts "google is horrible they're not giving bonuses and feeding the masses dogfood; P.S. use linux" Then he posts this article which dozens of people have immediately spotted as B.S. I want my 7 minutes of reading Slashdot back.

Re: Yes, Mac OS X on generic hardware is great!

[itsybitsy]

Mac OS X runs just fine on a Gigabyte GA-EP45-DQ6 with the EFix (efi-x.com) gizmo and YES IT is still Mac OS X. Can't tell the difference! 4 core processor, 8GB RAM... lots of disk (up to ten 1.5 tera byte drives for that motherboard). NVidia graphics board with 30" Samsung display (so gorgeous I have two, one on my mac book pro and will never go back to the smaller displays for my machines).

So yes, Mac OS X is just the same on "generic" hardware.

Apple could specify supported configurations and keep the drivers open. NeXT did this very successfully with OpenStep 4.3 years ago. In fact many years after NeXT was purchased by and took over Apple people were still writing drivers for OpenStep!

It can work. They've proven it before.

Microsoft needs to be whipped by a better system. Unleash the beast Apple. Unleash it for the good fight against Microcrap.

Re:Seriously?!?

[mstone]

Feeding the troll, I know, but what the hell..

Yes. Apple does have a right to a monopoly on Apple-branded computers. The Coca-Cola corporation has a right to a monopoly on Coke. Nike has a right to a monopoly on Nike running shoes.

The whole purpose of patent, copyright, and trademark is to grant a monopoly on ideas, expressions of ideas, and icons associated with a specific company.

If you want a computer whose OS is just as good as OS X, you have every right in the world to go out and write one. Apple can't do shit to stop you. You can sell it for profit, or just give it away if you want. You might even create a license that requires people who use and modify your code to release their own modifications so that other people can continue to share the wealth.

That's what we call "a competitive market."

Taking work that someone else spent the time and money to create, then using it to compete against them, is called "being a huge flaming asshole" ... a concept you've obviously mastered. If you do it in contradiction to the terms of the license -- the one whose validity is defined in terms of the monopoly granted by patent, copyright, or trademark -- that's called "illegal."

There's both a legal and ethical difference between "I'm willing to share everything I have with you," and "I'm willing to share everything you have."

Re:In Proof Of Stupid, Look No Further

[QuantumG]

You are required to buy a Honda car if you want to run it with a Honda engine. Honda can take any steps they want to prevent you from running their engines in a Toyota. That is not illegal.

This is what is really annoying about talking about anti-trust stuff with geeks. No, Honda can not.

All this stuff has already been done - in dozens of markets - in the 1800s. It has been made perfectly clear that any action taken by a manufacturer to deliberately break interoperability with competing products is illegal.

In fact, even your exact example has been addressed in US courts. Honda is not required to maintain compatibility with any competitors that are using their engines, but if they make modifications specifically to break competitor's ability to use their engines, then they are engaging in anti-trust action.

It's not hard.

Re:WTF

[afidel]

It doesn't matter, under the Berne Convention and the Berne Convention Implementation Act of 1988 you do not need to register your work to hold copyright and have protections under copyright law. The only remedy not open to Apple is attorneys fees and statutory damages if they didn't register, since their main goal is a permanent injunction I don't think they care.

Re:WTF

[Whiteox]

WTF does OMG stand for?

Re:WTF

[wild_berry]

Read a comment to TFA. It links to http://www.copyright.gov/circs/circ1.html#cr, which has the following line: "Before an infringement suit may be filed in court, registration is necessary for works of U.S. origin."

AIUI, if PsyStar have rightly identified that Apple failed to register the version of Mac OS X sold by PsyStar within 3 months of publication, then Apple can't bring the suit.

Re:WTF

[GauteL]

"AIUI, if PsyStar have rightly identified that Apple failed to register the version of Mac OS X sold by PsyStar within 3 months of publication, then Apple can't bring the suit."

Not correct. Please read your own sources better. As your link clearly states: "Registration may be made at any time within the life of the copyright."

However as the grand parent state (and your link confirms) Apple can't file for statutory damages or attorney fees unless they filed the registration within 3 months.

Another quote from your link:
"Even though registration is not a requirement for protection, the copyright law provides several inducements or advantages to encourage copyright owners to make registration."

Re:From the comments to TFA

[platypussrex]

Registration is not required to secure a copyright on a work. Copyright is secured automatically when the work is created. So the very fact that Mac OS X 10.5 Leopard exists is a copyright.

However, Apple must have registered their copyright on Mac OS X 10.5 Leopard before they can file suit for infringement on this copyright.

Read about all that at copyright.gov:
http://www.copyright.gov/circs/circ1.html

This would all seem to be moot though. According to copyright.gov, Apple registered their copyright on Mac OS X Leopard Version 10.5 on January 24, 2008, Registration Number: TX0006849489.

http://cocatalog.loc.gov/cgi-bin/Pwebrecon.cgi?v1=4&ti=1,4&Search_Arg=Mac%20OS%20X%20Leopard&Search_Code=TALL&CNT=25&PID=-H_wcyyigtEZ3UT-QtRpXsTJUefv&SEQ=20081222171112&SID=1

I have no doubt that there is something we're missing here, as it seems unlikely that Psystar's Lawyers couldn't do a simple search at copyright.gov for "Mac OS X Leopard". But this article offers little more than an announcement that Psystar has responded to Apple's copyright suit.