Filed under: Analysis / Opinion, Apple Corporate, Hardware, OS
Psystar, Apple file motions for summary judgment
Apple and Psystar have been embroiled in litigation for quite a while now. At the core of the dispute: Psystar modifies Apple's operating system software so that it can run on its clone machines. It then sells its computers with Mac OS installed to, well, anybody who wants one. As you can imagine, this does not make Apple happy. Anybody familiar with The Great Clone Crackdown of 1997 will tell you that Apple likes to keep a very tight grip on any device that presumes to run its software. Apple points out that Windows machines are a mishmash of often conflicting hardware and suffer from quirks and errors and incompatibilities that such a set up can bring.
So Apple's cadre of lawyers descended quickly on Psystar. In July of last year, the company sued Psystar for copyright and software licensing violations, quickly amending its lawsuit to additionally charge Psystar with violations of the Digital Millennium Copyright Act (DMCA).
And there was much lawyering.
More than a year later, now that discovery has been completed, the two parties have each filed for summary judgment, which, in effect, asks the judge to rule in favor of the filing party because enough evidence has been shown that either makes or breaks the lawsuit.
Psystar's argument, and the one covered in its motion, somewhat relies on the "first sale doctrine" which says that any purchaser of a copyrighted product can then take that lawfully-made copy and sell it, so long as no additional copies can be made. For its part, Apple says that when one "purchases" its OS, you are only purchasing a license to use the product. Its Software Licensing Agreement (SLA) quite clearly states [PDF link to Snow Leopard SLA] that the user cannot modify the software to run on a non-Apple system.
The idea that what you are purchasing is a license to use the product is pretty commonplace among software manufacturers, because, the argument runs, you can cut any software company's profits off at the knees if every purchaser became an owner with free rein to redistribute the software. Apple states that no software company in its right mind would put the money into research and development of any software product at all if that were the end result of bringing its product to market. Groklaw suggests this could have ramifications for FOSS and and the GPL.
In the remaining portion of its motion, Psystar attempts to argue out of a DMCA violation by stating that the act only prohibits "unauthorized" circumvention of a technological protection measure in a digital work. Psystar argues that if the OS was sold, not licensed, then the DMCA doesn't apply. Again, this comes down to the character of the ownership of the product, which remains a disputed issue of fact and law.
In the end, each motion relies on its own particular take on the character of the sale that takes place when you buy Apple's software. And lest anybody think this matter has been definitively decided, it has not, which is what is making this Psystar case stick in Apple's craw for so long. That's not to say that Psystar is likely to have its motion granted; it's still standing on some precarious and novel legal ground that isn't usually cause for summary relief.
Unfortunately for Apple, however, it may end up having to continue to swat at the Psystar fly for a little while to come. Of course, if Psystar would like to stay in the good graces of United States District Court Judge William Alsop, it may want to consider not allowing its CEO Rudy Pedrazza to lie at a deposition, for which it was subsequently ordered to pay $5,000 in attorney's fees to Apple.
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Reader Comments (Page 1 of 1)
Adam said 4:43PM on 10-14-2009
I'm not sure your description of the first-sale doctrine is accurate. Specifically the part where you say "any purchaser of a copyrighted product can then make a copy of the product and sell it". I think what the first-sale doctrine actually says is that any purchaser of a copyrighted product can later sell that same item. E.g., if I buy a book, I can sell that physical book to someone else. I cannot copy the book and then sell it to someone else.
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Lauren.Hirsch said 4:48PM on 10-14-2009
Whoops, meant to say "take a" not "make a."
Edited to avoid confusion. Thanks!
mike said 4:52PM on 10-14-2009
"Psystar modifies Apple's operating system software so that it can run on its clone machines."
Is this true? I though Psystar was emulating the Apple bootloader and leaving the OS unmodified. You can use a normal Leopard install disc with the Psystar software.
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Mr Lizard said 5:14PM on 10-14-2009
you are correct - it is however alleged that psystar reverse-engineered the OS in order to create it's bootloader software.
Rob said 9:10AM on 10-15-2009
You are right; Psystar has not modified OS X in any way. However, there is a part of the Apple EULA that says the full, retail OS X may only be run on "Apple branded hardware". That's the part Psystar is violating. If they were smart, they would just include the (snow) Leopard disk and give a slight suggestion that people could install OS X on their computers if they wanted to; if the end user does the installation, Psystar's in the clear.
Todd said 5:00PM on 10-14-2009
This is even more interesting as AutoDesk just lost a case about a month ago on this very topic. Someone was trying to resell their copy of AutoCad on eBay, and AutoDesk contended that the user did not own the software, but just a liscense to it, and the liscense did not allow resale of the software. Autodesk was cut off at the knees in trial and their arugment was rejected on first-sale doctrine.
As Phystar is reselling the copy of OSX they purchased from Apple, I think they may have a chance, since they are selling the original copy they purchased from Apple to their end user.
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ilkyone said 5:32PM on 10-14-2009
BINGO! And it is specious of anyone to contend that the first sale doctrine undercuts profits. The profit was made on the first sale of the copy of the software.
Psystar is the one that has to figure out how to make a buck selling something that it paid retail for. If I have a copy of snow leopard, I can't make more than $25 on it, which is what I paid for it, because anyone can go on Amazon and buy the same thing brand new. So I have to sell it for less, or somehow add value to it.
Record labels didn't go out of business because people resold old LP albums.
What the software companies are trying to do is control downstream sales under the cover of copyright law thereby trying to avoid anti-trust issues. As Autodesk found out, it's a bad argument.
FAIL said 5:19PM on 10-14-2009
Apple Fail.
I hope, based on the AutoDesk case, Apple fails in this as well.
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Liquidmark said 1:08AM on 10-15-2009
The Autodesk case was different. Apple is claiming copyright infringement.
ilkyone said 5:50PM on 10-14-2009
NITPICK ALERT:
The Apple side of the scales is missing on the of the chains. The Psystar side shows all three chains coming down to the plate for the scale. The apple side, has the right-side chain obscured by the Apple, but it appears that the Apple should be behind the front most of those chains.
/nitpick
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NoAndThen said 10:39PM on 10-14-2009
It's because the Apple is evenly weighted and therefor well-balanced, requiring only the two- whereas the Psystar logo requires three due to it's odd shape and distribution.
/ ;p
trayser said 6:04PM on 10-14-2009
The safer thing for apple to do would have been to not sell the OS as a complete entity at all. It should have called all its new versions 'upgrades'. Your base OS will come with the hardware and you would only upgrade to newer versions if you want. A recovery disc could be provided with the hardware, which essentially would be the whole OS, but never available for sale.
This way it would have ensured that anybody using the discs for anything else would be breaking the law since they are meant to be upgrades only.
For example, although we know snow-leopard disks have complete OS, if Psystar buys the $29.99 version of the disks and uses it, it would be clearly breaking the law and it will be easier to convince the judges. They will have to buy the full-versions (mac-box-set). However, it would have been better if apple called snow-leopard disc in mac-box-set as 'upgrade from Tiger', instead of complete disc.
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LH said 7:28PM on 10-14-2009
@trayser
I'm really surprised that Apple doesn't seem to be arguing this point. This appears to be the be the least ambiguous defense against Psysar, yet Apple seems to be doing nothing about it. Snow Leopard is VERY CLEARLY sold at $29 as an UPGRADE for Leopard users. I can't understand how Psysar can get away with buying the upgrade for $29 and selling it pre-installed on a non-Apple machine.
Apparently, Apple doesn't care that much -- they could have very easily included a check for a previous version of OS X prior to installing Snow Leopard. If they did, I'm sure Psysar would circumvent it and continue selling machines, but this would give Apple a lot more ammunition against them. The fact that Apple didn't do anything despite pricing Snow Leopard so low should say something about how serious they are about preventing this kind of thing. It's a little strange given how protective they are of the iPhone OS.
shmooopy said 8:22PM on 10-14-2009
if they put a check for system in there it would not be a useful disk in many cases. like if if you had to install a new hard disk or if you needed to wipe and re-install the OS. I think Apple's intent was to keep things simple for customers. So that purchasers of 10.6 could simply install the OS once and not to get all Window-ish and first install an older crappy OS and then the upgrade on top of that. We should be grateful for that.
What I don't understand is why they did not at least come up with 2 boxes for the disk - one that at least says upgrade on it. Currently there is not "Upgrade" version, even nominally so I can't see how they can enforce the section of the EULA that says 10.5 needs to be there. Oh well.
It is an interesting question. Can they enforce restrictions on use beyond copying?
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Chris said 11:28PM on 10-14-2009
"Psystar modifies Apple's operating system software so that it can run on its clone machines."
True, but you must also consider that Apple modifies its own operating system so that it will be incompatible with potentially equivalent but UNBRANDED hardware which might very well not work simply because a particular string that Apple preloads on branded configurations of the SAME hardware cannot be found. Apple, having taken deliberate action to make OS X compatible with processors sold to the general public, also decided to sell OS X to the general public. Not only is it illegal for Apple to insist that end users MUST run OS X ONLY on their branded configurations, it was also illegal to make OS X deliberately crash for the sake of protecting Apple's OS X/Macintosh monopoly interest in the market. Both of these actions are clearly illegal under Clayton Act 3 §, 15 U.S.C. § 14. Judge Alsup is quite correct in calling this problem "one largely of Apple's own making."
Don't get me wrong: I am not condoning Psystar's actions. However, you must realize that Apple needs to take a good look in the mirror if it wants to see the true source of this predicament.
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Liquidmark said 1:08AM on 10-15-2009
"you must also consider that Apple modifies its own operating system so that it will be incompatible with potentially equivalent but UNBRANDED hardware which might very well not work simply because a particular string that Apple preloads on branded configurations of the SAME hardware cannot be found."
That is their prerogative.
By your logic, XBOX's OS should be opened up to general PC's because that is the same thing Microsoft did with the original Xbox.
" Not only is it illegal for Apple to insist that end users MUST run OS X ONLY on their branded configurations"
WHAT THE?!
Ever heard of bootcamp???
"it was also illegal to make OS X deliberately crash for the sake of protecting Apple's OS X/Macintosh monopoly interest in the market."
Apple doesn't have a monopoly. That point has already been settled in this case. Also, it is NOT against the law for Apple to assure that their software doesn't run on non-branded systems. In fact, it is their prerogative to decide what they want to support.
"clearly illegal under Clayton Act 3 §, 15 U.S.C. § 14"
did you even read Clayton Act 3 §, 15 U.S.C. § 14???
David H. said 9:14AM on 10-15-2009
Liquidmark wrote:
"Also, it is NOT against the law for Apple to assure that their software doesn't run on non-branded systems. In fact, it is their prerogative to decide what they want to support."
True, but beside the point. No one is asking Apple to provide support for OS X on non-Apple hardware. Even the most dimwitted person is not going to try to call 800-SOS-APPL and ask for support on their Psystar (or home-built hackintosh).
IANAL, but Psystar may not be able to legally justify shipping a machine with OS X installed. But if they just sell you a box with a bootloader that let's *you* install OS X after the fact, I don't see why they aren't in the clear.
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Liquidmark said 1:14PM on 10-15-2009
If apple allows their os to proliferate on non-apple computers, they have to support that hardware just as they would macintoshes.
Psystar sells their computers with OSX installed
Chris said 3:47PM on 10-15-2009
"If apple allows their os to proliferate on non-apple computers, they have to support that hardware just as they would macintoshes."
Incorrect. Apple has no obligation to ensure compatibility with third party hardware. They also have no obligation to provide any assistance to third party customers. The obligation Apple has is one of a negative nature: it may not infringe on personal freedom in independent marketplace transactions.
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