Psystar Crushed In Court

We've been following the case of Mac cloner Psystar for some time now. Apple was just handed a summary judgement over Psystar, and as usual Groklaw has the scoop. Here is the order (PDF), though PJ supplies it in text form at the link above. "Psystar just got what's coming to them in the California case. ... It's a total massacre. Psystar's first-sale defense went down in flames. Apple's motion for summary judgment on copyright infringement and DMCA violation is granted. Apple prevailed also on its motion to seal. Psystar's motion for summary judgment on trademark infringement and trade dress is denied. So is its illusory motion for copyright misuse. ... So that means damages ahead for Psystar on the copyright issues just decided on summary judgment, at a minimum. The court asked for briefs on that subject. In short, Psystar is toast." Reader UnknowingFool adds, "There are still issues to be decided but they are only Apple's allegations: breach of contract, induced breach of contract, trademark infringement, trademark dilution; trade dress infringement, state unfair competition, and common law unfair competition. Even if Psystar wins all of them, it is unlikely to help them very much."

Comments

Not first-sale doctrine: Psystar altered OS X

[javacowboy]

All this goes to show is that, contrary to the statements of some Slashdotters, Psystar did not re-install OS X as-is. They replaced key segments, including the bootloader and kernel extensions, in order to get it to install on commodity hardware. That makes Psystar the distributors of a derivative work, thereby violating copyright laws. This is not about the EULA:

"Psystar infringed Apple's exclusive right to create derivative works of Mac OS X," the ruling reads. "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."

I fail to understand how Psystar is even within light years of being right on this issue.

Re:This comment surprises me

[UnknowingFool]

Well, legally the court said in the ruling there are cases where using a master copy in the name of efficiency is acceptable. For enterprises, the use of an image to install an OS to a large numbers of computers for the sake of efficiency is fine. For example, a large company may install a volume Windows license from MS onto a bunch of computers or they may use a disc image to do an install and then replace the generic license key with a specific one after the install is over.

Psystar's use however was not because typically enterprises have agreements with the original copyright owner to do this when they buy enterprises licenses. Apple did not sell Psystar such a license and did not grant them the authority to do so.

Psystar bought from Apple a single OS X copy, installed it onto a Mac Mini, loaded it onto an X86 computer ("master copy"), made modifications to it, then used the master copy to install to other computers. Psystar said since they included a retail copy of an OS X DVD, this was all legal. The court however found that Psystar did not always include a copy and that even if it did, the computer copy was not always the same version of OS X as the DVD. (I think this meant the DVD was Leopard whereas the computer had Snow Leopard installed, etc).

Even if it was the same version, fair use does not allow for anyone to make multiple, unauthorized copies as Psystar had done. Likewise if a person made a copy (even several copies) of your software, music, etc, that might be fair use. If a person made 500 copies of each, that might not be covered.

Lastly since Psystar modified OS X to run on X86 computers, it is guilty of creating a derivative work without Apple's permission.

Re:Not first-sale doctrine: Psystar altered OS X

[burris]

The court rejected 117. Partially because Psystar's lawyers suck. (emphasis mine)

The question is whether Psystar can rely on section 117 to escape liability. It cannot. As Apple pointed out, Psystar waived any Section 117 essential step defense when it failed to plead it. Psystar counters that it has not waived Section 117 because that provision is a
limitation on a copyright owner’s exclusive rights rather than an affirmative defense. An earlier Ninth Circuit decision stated “Section 117 defines a narrow category of copying that is lawful per se” and “Section 107, by contrast, establishes a defense to an otherwise valid claim of copyright infringement.” Sega Enters. v. Accolade, Inc., 977 F.2d 1510, 1521 (9th Cir. 1992). Since then, the Ninth Circuit has expressly referred to Section 117 as a defense. See Wall Data Inc. v. L.A. County Sheriff’s Dep’t, 447 F.3d 769, 776 (9th Cir. 2006) (referring to Section 117 as an affirmative defense); Asset Mktg. Sys. v. Gagnon, 542 F.3d 748, 754 (9th Cir. 2008) (referring to Section 117 as a defense). As such, this order treats Section 117 as an affirmative defense.

Alternatively, if Section 117 is considered an affirmative defense, then Psystar argues it has pled it in its answer and raised the substance of its Section 117 argument in its interrogatory responses. Neither the answer nor interrogatory responses, however, refer to Section 117. And Psystar has not demonstrated any good cause for its failure to assert the defense after a year of litigation. Also, there has been no showing that its failure to do so will not prejudice Apple. As such, Psystar has waived the defense.

At all events, the assertion of Section 117 is so frivolous in the true context of how Psystar has used Mac OS X that a belated attempt to amend the pleadings would not be excused.

Re:Darwin is not OS X

[BasilBrush]

Grand Central Dispatch is interesting, written fro scratch by Apple, and open sourced. You lose.

No, it doesn't.

[langelgjm]

Read carefully the full section, and you'll see that while it allows for the creation for "adaptations", it explicitly disallows resale of those adaptations if you don't have permission from the copyright holder:

(b) Lease, Sale, or Other Transfer of Additional Copy or Adaptation.— Any exact copies prepared in accordance with the provisions of this section may be leased, sold, or otherwise transferred, along with the copy from which such copies were prepared, only as part of the lease, sale, or other transfer of all rights in the program. Adaptations so prepared may be transferred only with the authorization of the copyright owner.

Re:Not first-sale doctrine: Psystar altered OS X

[eggnoglatte]

Jesus Fucking H Christ. You are like the 10th moron in this thread who quotes part (a) of that section, but is completely utterly incapable of reading on to part (b). If you actually read part (b), it expressly prohibits resale of the modified versions.

Are you all aiming for the Selective Reading of the Year Award or what?