Apple Says Booting OS X Makes an Unauthorized Copy

recoiledsnake writes "Groklaw has an extensive look at the latest developments in the Psystar vs. Apple story. There's a nice picture illustrating the accusation by Apple that Psystar makes three unauthorized copies of OS X. The most interesting, however, is the last copy. From Apple's brief: 'Finally, every time Psystar turns on any of the Psystar computers running Mac OS X, which it does before shipping each computer, Psystar necessarily makes a separate modified copy of Mac OS X in Random Access Memory, or RAM. This is the third unlawful copy.' Psystar's response: 'Copying a computer program into RAM as a result of installing and running that program is precisely the copying that Section 117 provides does not constitute copyright infringement for an owner of a computer program. As the Ninth Circuit explained, permitting copies like this was Section 117's purpose.' Is Apple seriously arguing that installing a third party program and booting OS X results in copyright infringement due to making a derivative work and an unauthorized copy?"

Comments

Unauthoriazed Copy

[fidget42]

Is Apple seriously arguing that installing a third party program and booting OS X results in copyright infringement due to making a derivative work and an unauthorized copy?

I think what they are saying is that everytime you run an unauthorized copy of a program, you infringe its copyright.

Re:Unauthoriazed Copy

[sopssa]

On top of that Apple has a good case here because Blizzard already won similar argument before

Blizzard won on two arguments: first, that if a game is loaded into RAM, that can be considered an unauthorized copy of the game and as such a breach of copyright; second, that selling Glider was interfering with Blizzard's contractual relationship with its customers.

Re:Unauthoriazed Copy

[dontmakemethink]

Careful, you just made an unauthorized copy of a registered trademark on my monitor!

Re:Unauthoriazed Copy

[prockcore]

I'd rephrase that to say Apple has an effective case... because I certainly wouldn't call what they're doing "good".

Re:Unauthoriazed Copy

[IgnoramusMaximus]

I think what they are saying is that everytime you run an unauthorized copy of a program, you infringe its copyright.

This, in fact, is the logical consequence of the absurdity that is "copyright". Ultimately, when you look at something, the photons bouncing off its surface (a copy) enter your retinas whereby they trigger electro-chemical impulses (a copy) in your receptor cells and travel down axons to other cells (a copy) and end up bouncing around your brain (multiple copies).

As one can easily see, the argument of "unauthorized copies" in any medium, once precedents are established (as they already apparently are), must logically lead to convictions for "unauthorized copies" in your mind (also known as "illegal thoughts"). Otherwise some "copies" are unequal to others based on arbitrary rules pulled out of some law-monkey's ass.

This will become even more apparent once technology advances to the point where computer/brain integration will become feasible and deployed on a large scale in form of mind-enhancing implants, thus blurring the distinction between a "copy" in one's brain or one's implants.

Copyrights (as all so-called "Intellectual Property") are illogical, nonsensical make-believe results of greed overpowering common sense and as the time goes on and technology progresses, their utterly moronic nature will only become more and more odiously apparent.

Re:Unauthoriazed Copy

[MobyDisk]

Personally I'm rooting for Apple on this one. It's their business model, and it has benefits for their users.

Don't do that. You are rooting for someone to win not based on the merits of their arguments, but because you like them and think the other side are jerks. That's very dangerous.

Litigated before

[metaomni]

This has actually been litigated before -- as crazy as it sounds, courts HAVE consistently held that booting a computer (and thus loading it to memory) does create a copy. End-users are granted a license to do so, and here Pystar doesn't have such a license. Crazy yes -- but Apple is on solid precedential ground in claiming so.

Re:My brain hurts, Steve!

[outZider]

You are completely not their target market. Apparently, you want a two inch thick laptop that runs Linux and KDE. There are plenty of them. Buy them.

That might be irrelevant

[rakslice]

Here's my understanding of the situation: In both the Glider case and this one, we're talking about the original software being loaded into RAM potentially with third-party modifications to parts of it. This means that, even if the original software (the WoW client, and Mac OS X) was bought and paid for, and a RAM copy at runtime would be subject to the section 117 exception, there is room to argue that what is being loaded is not the bought and paid for authorized copy, but an unauthorized derivative work made by adding the third party modifications.

However, the section 117 exception gives a specific reason that the software might be allowed to be altered. Take a look (from http://www4.law.cornell.edu/uscode/17/usc_sec_17_00000117----000-.html ):

"Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided:
(1) that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner, or [...]"

So an "adaptation" of the software is allowed if it is necessary to use the software with a machine. Now a court could easily whinge its way around interpreting this as a compatibility measure, but if it doesn't, then in Psystar's case, as long as the third-party modifications are deemed by the court to be only for the purpose of enabling Mac OS X to run on a general purpose PC, then the RAM copy (and potentially all the modified copies) aren't infringing.

Anyway, I don't think this is a big obstacle to Apple; there seems to be enough case law in the US that has allowed for very broad enforceability of software licensing agreements that Apple can still probably out-lawyer Psystar into the dust for breaking their "Apple-labeled" license provision, even without a finding of copyright infringement.

It's that part of the case I'm most interested in, as "Apple-labeled" is a strange choice of wording, and Apple has in the past employed it willy-nilly (for instance in the license of Safari for Windows when they pushed out millions of copies as a selected-by-default Quicktime/iTunes upgrade [http://news.cnet.com/8301-10784_3-9904445-7.html])

Re:Anyone surprised?

[Windowser]

I don't think Apple has a right to say what piece of hardware you can run OS X on. It's paid for, end of story.

They may not have a right (morally, that is), but, since the EULA states what you can run OS X on, they would seem to have a legal right.

Not everyone lives in USA. Different places have different laws. Where I am, that EULA as no validity. You can't impose a contract to use your product after I bought it. You have to make me accept that contract before I buy it. So it looks like eveybody in Quebec can go buy OS X and run it on anything they seem fit, even a toaster if they can make it work.

Re:Anyone surprised?

[93 Escort Wagon]

No surprise, which is why you can search my house:0 NO Apple/Mac, no iDevices, not today, not ever. Not even welcome on the property (a recent guest was surprised but accepted my position).

So to summarize - because of Apple's heavy-handed behavior, you will not associate with anyone who does not allow you to force your beliefs on them.

There's some irony in there, somewhere. But on the bright side, I'm guessing this doesn't affect a significant number of people at all.