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Apple Wins Like a Champ - Psystar is Toast -- What? You're Surprised? (groklaw.net)

43 points by butterfi ↗ HN
"Psystar just got what's coming to them in the California case. Here's the order [PDF]. 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."

35 comments

[ 3.9 ms ] story [ 80.2 ms ] thread
nkurz
Interesting judgment, but I could do with less attitude in the writeup. But I suppose that that without the opportunity to perform the summary would never have been written.

They'll say, but, but, but ... what if they hadn't used the master and just used each copy, then would it work? Sons, why do you think Psystar used the master copy? Because it's a business, and in a business, efficiency is money.

Psystar used a master copy because it was more efficient, and because they thought it would work. But this still leaves the question of whether their operation would have been be legal if they had paid someone $10 to rip open the box and install the DVD manually. Perhaps this fits within their efficiencies, or perhaps it doesn't, but for me it's a legal question that I'd like to know the answer to.

tptacek
They still would have been creating a derivative work, and so they'd probably still be screwed.
mbreese
I'm not sure about that. I don't know much about their process, but if they treated each individual machine as a separate "walled off" machine and installed a retail copy of OSX, I don't think that they would be creating a derivative work. Even if their updates/hacks were scripted, I don't think that this would be a derivative work. In this case, first-sale doctrine might apply.
carussell
I'd like to point you to Section 2(C). Judge Alsup's words indicate that, under your conditions, he would have found Psystar still in violation.
indiejade
This is bad, bad news! I wish that for once, the little guy could go up against the big monster and actually win.
bumblebird
It's not about little guy vs big guy. It's about what's right and what's wrong. I think the judgement was right.
jcapote
My favorite line from the article which I think captures the real point here is: "So, if freedom matters to you, don't sell out the goal of a completely free operating system, without any proprietary blobs at all." This is not about freedom, this is about making money off someone else's work.
ghshephard
There is nothing wrong with making money off of someone else's work, if they allow/encourage you to do so. The Creative Commons "Allow commercial use" and the GPL _explicity_ give someone else the permission to make money off of my work. Red Hat, a $5Billion+ company, owes much of it's value to the work of others.

What's happened with PsyStar, is that they tried to do this _without_ the permission of Apple, and did so with software that was distributed under a restrictive commercial EULA. They didn't respect the Author's (Apple) intent regarding their software. That's the issue at hand (in my opinion) here.

I'm actually celebrating this judgment a bit - It highlights the value we get from Free Software. Nobody is going to come knocking on my door, sending lawyers, or dragging me into court because I'm running a business installing (modified) Linux on Computers. Indeed, the community will actually support me in my efforts to do so, http://www.linuxdriverproject.org.

thras
"They didn't respect the Author's (Apple) intent regarding their software."

Huh, is there a law about respecting author's intents?

slyn
As long as EULA's in software are legally binding, yes.
ghshephard
Apple represents its intent with the License It distributes its software under (In this case, a restrictive commercial EULA). If Apple distributes NO license, then standard copyright laws apply. Standard copyright law certainly does not allow Psystar to resell duplicates of Apple's software. Nor does Apple's restrictive commercial EULA.

And regardless, I think we can all view this case on two levels, what is correct by Law, and what we in the community think is reasonable by our guidelines.

Some things that are considered valid by Law (The DMCA's anti-decryption clause) may be seen as negative by those in the community (In fact, by anybody who want to play the DVD that they purchased on their OpenBSD computer)

In the case of PsyStar, I think they are stepping outside the Legal and the mainstream-free-software-community lines in their behavior.

thras
There's the EULA side of things, and there's the copying to RAM or hard disc side of things. That's why Apple won.

Neither of those things have anything to do with "respecting the intent of the author."

kls
My intent for my new software that I am writing, is that white people do not use it. Seriously, this is not a troll (it is not really my intent), but you must realize that is a dangerous mindset.

The authors intent of use terminates at first sale, if you buy a painting from me, I cannot tell you that it can only be framed in a gold frame. I can make it a stipulation of sale and make you provide a gold frame before purchase but if you transfer it to a walnut frame after sale, I have no rights to enforce. Now if you start making prints of my painting then you have violated my copyright which does not transfer. if that nuance changes then the business tactics of the Apples and Sonys will get measurably worse.

On a more realistic note what if Apple decides that their offerings caters to the 175+ IQ group and decides that they will only sell to those individuals, any secondary sale by a different entity to a non 175+ individual would violate their rights and their intentions.

ghshephard
I'll point out the obvious - PsyStar was making duplicates of Apple's software and reselling it.

There is a difference between restrictions such as "You may not make copies of this software and sell it for $$$", "You may not make modifications of this software and resell it" and some fundamentally illegal restrictions. I, and most people in the community, believe that the author of software should be able to restrict whether others have to attribute them as the author, can sell duplicates of it, whether others can redistribute duplicates of it, and whether others can modify and redistribute duplicates of it. See: http://en.wikipedia.org/wiki/Creative_Commons.

These are separate issues from the First-Sale doctrine that you are referring to. PsyStar wasn't selling PCs with retail box purchased from Apple in the same Bag. I would have been cheering PsyStar on if that were the case.

kls
I understand what PsyStar was doing and that was covered in my post, with the copyright portion. My post was specifically focusing on the intention that you stated. In which, rightfully so the intentions of a company after first sale are none existent. PsyStar was trying to confuse this with a host of other items to try to convolute the issue.
ghshephard
Fair enough - can we agree that we should all respect the author's intent (even after sale) when it comes to:

  o Whether you can distribute duplicates to others.
  o Whether you have to provide Attribution on duplicates
  o Whether you can distribute modifications
  o Whether you can resell duplicates for $$$
kls 

  o Whether you can distribute duplicates to others.
Yes and no depends on who produced the duplicate. Each OSX apple produced dvd is a duplicate of the original work.

  o Whether you have to provide Attribution on duplicates
Yes

  o Whether you can distribute modifications
This is dependent on copyright, but in the case of Apple's stance I would say no.

  o Whether you can resell duplicates for $$$
Yes, if they are duplicates produced by Apple. No, if you are producing the "back-ups" and you are just a reseller. The "US" courts have been clear on personal use back-ups before.
DougBTX
Just watch out for infringement of patents :-/
ghshephard
Read Pamela's comments. I couldn't agree with her more. If you want complete freedom to duplicate and distribute, do so with software that guarantees you that freedom with an appropriate license.

As a Linux fan, I actually approve of anything that encourage people to enhance that platform with better graphics, fonts, and software.

Apple has made it very clear that they are going to actively oppose the commercial distribution of hackintosh system, so hopefully that will encourage the freedom loving hackers to develop for platforms more accommodating to their world view.

wmf
Psystar doesn't want complete freedom to duplicate and distribute OS X so that's a bit of a strawman. They're willing to pay for every copy that they distribute.
ghshephard
Right - but you aren't allowed to do that under any theory of Law that I've ever heard. Copyright law explicitly prohibits you from duplicating and reselling. If Pystar had wanted to do this legally, they could have sold X86 Computer and a retail package of OS X that they purchased from Apple bundled together. First Sale Doctrine would have allowed them to resell the retail copy of the software.

Let's not argue the hypothetical what Pystar was "willing" do do - they were actually making duplicates of OS X, modding it, and then reselling the results.

It was actually a pretty good checklist of what copyright law prohibits you from doing.

[edit - Ah. I reread your statement - I see that you are saying that Psystar wanted _limited_ rights to duplicate, modify, and resell - with the understanding that they would pay Apple the retail price for each copy they made. ]

lucifer
You can pay for a copy you use. And that copy is intended to be run on an Apple platform. You do not have the liberty to put your copy on a non Apple platform that you are selling for a price.

Don't like the terms? There is always Linux for you.

carussell
Actually, that's not why Psystar lost the case. Read the rest of the comments and Judge Alsup's order. The ruling had nothing to do with running OS X on a non-Apple hardware, and everything to do with Psystar cutting corners in such a way that it qualified as ordinary copyright infringement.
gamble
They're willing to pay ... all of $35 for the Leopard->Snow Leopard upgrade disks. Psystar wouldn't even shell out the full $150.
wmf
This lawsuit is only about Leopard, so Psystar was paying $130 per copy.
bugs
This is like the little monster going up against the big guy and being squashed.
alaskamiller
A profile of the Psytar brothers two days ago: http://www.sfweekly.com/content/printVersion/1744650
felipe
Excellent article. The author does a great job highlighting the parallels between the Psytar and the rebellious early stages of Apple.

I find this Shanzhai phenomenon fascinating. These are the true hackers of today.

http://www.bunniestudios.com/blog/?p=284

http://en.wikipedia.org/wiki/Shanzhai

tptacek
The true hackers of today create pirated electronics?
felipe
I really wish you could take a look at the link I posted before calling it simply "pirated electronics"
yardie
I never understood how they could think a business model that circumvents DMCA was going to succeed. Folks, every hackintosh uses a kext called dsmos.kext. It's purpose is to decrypt Apple encrypted system binaries. It wasn't written or authorized by Apple.

As an avid OSX86 tinkerer I was conflicted about the case. Part of me wanted Psystar to win while the other part wanted the entire thing to go away. If Psystar had prevailed it would only bring difficulties for the hackintosh community. Apple would have taken drastic measures to secure their business at the expense of hackintoshers.

drewcrawford
False. The new fakesmc.kext replaces dsmos and doesn't perform any decryption. It simply fakes the SMC hardware device and provides the same encryption keys to the software that a real mac has in hardware, allowing Apple-provided code to do all the decryption just like what happens on a real mac.

This is still a violation of the DMCA. But it's no more of a DMCA violation than selling software that plays DVDs on Linux, something that, IMHO, should definitely be legal.

drinian
Unfortunately, "should be legal" and "is legal" are not the same thing. AFAIK there is, or was, a "legal" DVD player for Linux that pays the CSS patentholders' license fees.

The situation is ridiculous. I was hoping that Psystar's case would at least help expose some of the DMCA's problems.

JamieEi
Apple has always had good lawyers.
sfk
They should move their business to Europe. Here, overly restrictive EULAs are regularly ignored by the courts. Which is a good thing.