Yesterday, Judge William Alsup, United States District Judge for the Northern District of California, dealt Psystar a crushing blow in its ongoing litigation with Apple over whether or not Psystar could market and sell non-Apple computers running modified copies of Apple's operating system. If you're not familiar with the circus case, I refer you to, well...grab a coffee and click here. The two companies, embroiled in litigation since early last year, recently completed pre-trial discovery and each filed cross motions for summary judgment.

Judge Alsup put the ultimate hurt on Psystar when it granted Apple's motion for summary judgment and denied Psystar's motion for the same. In a sweeping order (courtesy Groklaw), the court agreed with Apple's take on the case and dismissed all of Psystar's defenses, both on the merits and for having waived and failed to properly plead.

The end result was a dramatic and startling court order in an ongoing series of dramatic legal squabbles between the two companies. And at least one of Psystar's attorneys saw this coming. The litigation doesn't end here; various issues still remain for trial such as breach of contract and trademark infringement, but Psystar has been gutted. The court is clearly unsympathetic to Psystar's core position and while damages on the copyright issues falling in Apple's favor in the order have not been ruled upon, it would probably behoove Psystar to start looking under the couch cushions for spare change.

A hearing is scheduled for December 14 on the remaining issues and for damages.

Read on for a more detailed analysis of the court's order....

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.

We've talked before about ways to control a BitTorrent client from the iPhone, and some unofficial developers have gotten it working in a jailbroken way. But apparently that's as far as we'll get -- µMonitor, a little iPhone app to control µTorrent (a popular BitTorrent app that I use pretty often) was recently submitted to the App Store, and Torrentfreak reports that it's been rejected out of hand. This isn't the first time something like this has come up: Drivetrain, another torrent remote control tool, was also rejected back in May.

Apparently Apple tells the developer that they are disallowing all types of BitTorrent-related apps "because this category of applications is often used for the purpose of infringing third party rights." Often does not equal always, but technically that's another point: it's Apple's App Store, and they can take their ball and go home if they want. Torrentfreak claims that the myNZB app technically does the same thing (it basically controls a newsreader that can be used to download large numbers of files, possibly in violation of copyright), but it's the word "torrent" that Apple (and, likely, their content partners) have an issue with. Sure enough, a search of "torrent" on the App Store doesn't bring up anything related to the BitTorrent technology.

You can still run µTorrent on your iPhone, although you'll have to jailbreak it and dive into the Cydia repository, where it's listed under "Utilities." As for Apple's stance, I wouldn't hold your breath waiting for things to change on this one -- µTorrent isn't even an app that enables BitTorrent downloading; it just makes it easier (by accessing a client that's doing the work elsewhere), and if they aren't willing to pay heed to these distinctions now, it's not likely they'll bother in the future, either.

See update from Apple PR at the bottom of the post. Despite what at least one developer was told, the ebook category is not 'banned from the store.'

Apple recently invited a great deal of criticism after it rejected Google's Google Voice application from App Store. At the same time, it pulled third party GV apps leaving their developers without recourse and forced to swallow refund costs that exceeded their initial per-sale earnings. Today Engadget notes Daring Fireball's story of a simple dictionary being censored. Now it looks as if Apple may be targeting the e-book section of App Store.

TUAW has learned that Apple has begun rejecting all e-book submissions because "this category of applications is often used for the purpose of infringing upon third party rights. We have chosen to not publish this type of application to the App Store." At first glance, this policy seems in line with Apple's approach to applications that promise charitable contributions. Apple cannot police the developers and will not allow possibly fraudulent postings on their store. Apple does not want to be in the position of vetting rights claims.

At the same time, Apple has been rejecting applications from content providers who do in fact own the rights to their materials and can prove those rights. A colleague who spoke on the condition of anonymity related that a project he developed for a national content syndicate was rejected without recourse. He still got paid for his work but the application languishes without an outlet.

Apple isn't stopping with content source providers. They're also targeting those who provide media browsing tools. Another developer who built an e-book reader received a recent rejection along the same lines. The application might be used to read copyright infringing books, so Apple will not let it in App Store. In an e-mail, he wrote, "Leaving aside the presumption of innocence, [what] about iTunes and iPod; shouldn't they be banned too? After all many users indeed are using them to listen to the music that is not always legally obtained."

It's obviously premature to assign an external motivation to Apple and TUAW has no evidence whatsoever that Apple is using these rejections to pave its way to a new market. At the same time, the timing of these rejections couldn't be worse. With Apple rumored to enter the e-book market sometime in the winter, this new policy could fly very close to regulatory scrutiny.

Update

Apple wrote to TUAW to clear up the speculation around ebook app approvals. From a representative at Apple:

"We have not stopped approving ebook readers and ebooks in fact we've approved 221 new ebooks to the App Store since 7/30/09. The book category in the App Store lists 6,000 apps and this doesn't cover the full scope since ebooks are included in other categories like medical, reference and education."

The Electronic Frontier Foundation has posted the news that Apple has filed comments with the US Copyright Office stating that the act of jailbreaking your iPhone is a copyright infringement and a DMCA violation, and therefore illegal. The EFF says that Apple is claiming that jailbreak apps still require modified versions of Apple's software, and Apple apparently believes that those versions are infringing on their copyrights.

The EFF responds, in turn, that "reverse engineering is a fair use when done for purposes of fostering interoperability with independently created software," saying that yes, even though jailbreakers are using Apple's copyrighted code, they are doing so in a way that allows them functionality that Apple doesn't provide access to on their own.

At this point, of course, this is just a complaint in the copyright office, and Apple hasn't made any legal moves yet against anyone responsible for jailbreaking. As the EFF states, it would be extremely hard for them to go after individual jailbreakers -- if you buy an iPhone, it should be your right to "get under the hood," as they say, and do what you want.

But (and keep in mind that this is TUAW, not The Unofficial Legal Weblog, and we are not lawyers) it seems Apple may be able to try and make a case against anyone offering software that does modify or otherwise "misuse" their copyrighted code. We'll have to see if they explore that position more in the future. You can read Apple's full response here (27 pages). You can see the EFF's initial filings here.

Stay tuned for more news and analysis on the issue.

Previously in the Apple-Psystar legal battle, the clone maker amended its countersuit to charge that Apple was unfairly leveraging its copyright by binding Mac OS X to Mac hardware.

On Friday, the federal judge assigned to the case ruled that the amendment will be heard by the court, a small victory for Psystar. It's something of a reversal for the company, since they had federal antitrust allegations thrown out in November. Similarly, Psystar's assertion that Apple is in violation of California's antitrust laws was thrown out Friday as well.

Judge William Alsup said, "Psystar may well have a legitimate interest in establishing misuse [of copyright] independent of Apple's claims against it -- for example, to clarify the risks it confronts by marketing the products at issue in this case or others it may wish to develop." This isn't to say that the judge necessarily agrees with Psystar's point, but just that it's legally reasonable enough to be argued in court.

Apple has also not yet revealed its 10 "John Doe" defendants: alleged conspirators who worked on Psystar's technique for loading Mac OS X on non-Apple hardware.

The case will decide whether or not Apple can disallow other hardware makers -- including Psystar -- from including Mac OS X on computers shipped to end users. Last week, a company in Germany claimed that Mac OS X's End User License Agreement didn't apply to them, and is selling Mac clones to customers.

The case is scheduled to go to trial on November 9.

[Via Macworld.]

In what might be the most outlandish claim yet to surface in the case, Psystar now claims that Apple never registered Mac OS X with the U.S. Copyright Office, rendering its copyright invalid, according to InformationWeek. Note that registration isn't a condition of protection, but it is a condition of certain types of infringement actions and damages.

Psystar argues, thus, that since Apple doesn't own the copyright, there's no way for Apple to enforce its claims that Psystar violated its copyright. The claim was filed in U.S. District Court last week.

Although copyright registration number TX0005401457 describes a "computer program" named Mac OS X, it's unclear how Psystar argues this isn't the copyright Apple owns on its operating system. Moreover, contrary to what Psystar appears to argue, copyright is secured automatically in the United States when the work is created, and registration is not a condition of copyright protection (although it can help in fighting infringement). Our Engadget colleague Nilay Patel sums up this latest Psystar legal stratagem as "desperate." Plus, you can file suit while registration is pending, so even if there was some technical defect in the Mac OS X registration, Apple could fix it while pursuing its lawsuit.

If this long shot claim were true, it could undermine Apple's ability to restrict third parties from selling generic clones that run Mac OS X. The back-and-forth arguments are part of a lawsuit Apple originally brought against Psystar for selling Mac OS X with its clones, allegedly in violation of Apple's license agreement. According to InformationWeek, Apple now suspects that a larger company interested in selling Mac OS X-compatible computers is bankrolling Psystar's legal battle.

[Via Engadget.]

You have to admire Psystar's tenacity. Since Judge William Alsup's decision to disallow federal antitrust claims against Apple in Psystar's countersuit, Psystar is amending its countersuit, alleging the misuse of copyright based on different antitrust claims.

It boggles the mind.

Apple is already suing Psystar, of course, claiming that they are violating Mac OS X's End User License Agreement (EULA). Psystar, in its new set of counterclaims, says that Apple is improperly extending the scope of copyright law to include its argument that Psystar broke the EULA.

Psystar claims that -- while admitting that it can't make arguments based on federal antitrust law -- Apple has "leveraged" the power granted them by the Copyright Act and extended it to lock in users post-sale. This, Psystar says, is unlawfully monopolistic, and makes Apple's copyrights unenforceable.

Psystar is also seeking to prove that Apple's behavior is illegal under California's unfair competition statute.

The judge will decide in January if the new claims can be argued in court.

[Via Ars Technica.]

In yet another new facet to this already-draining legal battle surrounding Psystar's sales of non-Apple hardware that runs Mac OS X, Apple has amended its original suit after it discovered "additional information," according to Computerworld.

Apple now claims Psystar circumvented Apple's copyright protection code, in violation of the Digital Millennium Copyright Act. Apple said in its original filing that Psystar was in violation of the Mac OS X End-User License Agreement, but tacked on this additional charge last week.

The amendment also names 10 "John Does" -- persons who were not part of the Psystar company, but broke the copyright protection scheme. Apple doesn't know who they are yet, but plans to name names when its lawyers find out who they are.

In other Apple legal news, Apple won a trademark infringement case in China against New Apple Concept Digital Technology Co., Ltd., based in Shenzen. Judges decided that the Chinese company had a logo too similar to Apple's. New Ap -- aw, eff it -- NACDTCL was ordered to pay 400,000 yuan (≈ US$58,000) to Apple, Inc.

[Via Cult of Mac.]

We noted yesterday that the Mac clone maker, Psystar, was sued by Apple for copyright infringement, among other things. According to a recent ZDNet post, Apple wants Psystar to recall all of the Mac clones sold since April. "Psystar's actions have been committed with intent to damage Apple and to confuse and deceive the public," Apple claims.

"As a direct and proximate result of Psystar's infringing conduct, Apple has suffered and will continue to suffer lost sales and profits in an amount not yet fully ascertained in an amount to be proven at trial," Apple notes.

I really don't see how Psystar will be able to recover all of the Mac clones sold since April. But, if you bought one, would you send it back? I certainly wouldn't. Engadget, our sister blog, is also looking deeply into this high-profile lawsuit. They take a look at what each allegation means for both Apple and Psystar.

For years, legislators in Japan have wanted a portion of the price of a digital recording device (up to 3%) to go to recording companies, songwriters and artists. The so-called "iPod tax" has met opposition from electronics manufacturers, as you could imagine.

However, it looks like it's not going to happen. A group failed to create an agreement yet again this week, prompting official Masafumi Kiyota to say that "...there is virtually no hope for getting the legislation passed." Certainly good news for consumers.

Other electronic devices like minidisk players and DVD recorders have a copyright tax built into the price tag in Japan. The logic (if you want to call it that) is that consumers will use these devices to illegally acquire copyrighted material, so why not have them pay for it before hand, as a preemptive strike? Sounds to me like someone has contempt for their customers.

A firm named Man and Machine is suing both Apple and CBS for trademark infringement for using the Mighty Mouse name to describe a computer input device. Man and Machine makes hygenic water- and chemical-resistant keyboards and mice for hospitals and laboratories.

Man and Machine claims CBS (who owns the cartoon property, which may or may not be pictured) did not have the legal authority to license the name to Apple. Man and Machine holds a trademark for use of the Mighty Mouse name in conjunction with an interface controller. It claims it first used the term in 2004, but only filed for the trademark in December 2007. CBS's trademark (which covers Apple's device) was filed in July 2007, indicating its first use was in 2005 (when the Mighty Mouse came out).

Thus the tension. It's unclear if Man and Machine licensed the Mighty Mouse name (as Apple did) and whether or not that will influence the outcome.

[via 9-to-5 Mac]

The latest news in the NBC/Apple battle? NBC is going to make their own iTunes. With blackjack! And women! In fact, forget the blackjack and the women-- they're calling it "NBC Direct," and a brand new player (not available on Mac for a little while, go figure) will be used to download and play television shows just as soon as they finish airing on television.

Sounds cool, right? What's the catch? The player is NBC only, and heavy DRM in there keeps it from playing anything else at all, including that scary "stolen copyrighted material." If you're going to use their player, you'll have to watch their shows, or else. I'd make a prediction that someone will hack it to play other stuff, but frankly, who cares. If NBC wants to go play in their own (non-Mac pool) let 'em, I say.

They also say that, in the future, they may even offer download-to-own, rental, and subscription business models. If only there was a well-designed, very established and compatible, widespread piece of software out there that let them easily do that right now. Oh well. Good luck, NBC. Say hi to Tina Fey for me, and tell her I'll see her on bittorrent.

[via MacRumors]

We've just received word via Engadget that you may not use iTMS-purchased music or previews as ringtones.

Engadget's awesome Nilay Patel addressed the issue this morning, clarifying that although you can legally install ringtones ripped from your personal CDs, iTMS tracks and previews are off-limits. He writes that the iTMS EULA prohibits the use of downloaded files as ringtones, probably due to its contracts with the music industry. Music ripped from CDs, however, are not derivative works and do not infringe copyrights.

Looks like Steve Jobs has found allies in the form of Yahoo! Music and Monster Cable executives in the quest to banish DRM. An executive from competitor Yahoo! Music, Dave Goldberg chimes in with: ``I've long advocated removing DRM on music because there is already a lot of music available without DRM, and it just makes things complicated for the user." Claiming Microsoft's brand of DRM ``doesn't work half the time", the exec claimed Yahoo! made several attempts to offer music with or without DRM, and the removal of DRM has improved sales.

Additionally, Monster Cable backed up Jobs with a statement from head Noel Lee: ``Monster Cable shares Mr. Jobs' vision of breaking constraints for legal music downloads.... DRM is a complex and political issue, but digital music compatibility is even more complicated to consumers and limiting to the industry.... We are proud to support an open format and leaders like Steve Jobs who are making the efforts to get us there." The Monster Music branch offers a music format known as SuperDisc, which contains high definition surround tracks and DRM-free files. So... what now? Will other companies continue to stand up, or will Apple and the others buckle under the continued pressure from major labels to keep the DRM system intact?