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OS X The Courts Apple

Apple Says Booting OS X Makes an Unauthorized Copy 865

Posted by timothy
from the slice-the-ram-nodes-to-find-copy-four dept.
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?"
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Apple Says Booting OS X Makes an Unauthorized Copy

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  • Unauthoriazed Copy (Score:5, Informative)

    by fidget42 (538823) on Sunday November 01, 2009 @03:43PM (#29943452)

    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.

  • Litigated before (Score:5, Informative)

    by metaomni (667105) on Sunday November 01, 2009 @03:45PM (#29943466)
    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.
  • by recoiledsnake (879048) on Sunday November 01, 2009 @03:48PM (#29943494)

    Groklaw and PJ seem to have turned the site into a slanted conspiracy site. She was insinuating that MS could be likely behind Psystar(why would MS risk invalidating EULAs on which their cash cows thrive?). Even in this article, PJ doesn't seem to defend the freedoms that she seems to hold dear in her Linux vs. SCO articles. Infact she seems to hold the DMCA dear and Groklaw has gone from giving a nice objective look at things to becoming like BoycottNovell, which is another site operating on anti-MS-at-all-costs grounds. She even fails to highlight the egregious abuse of copyright law that Apple is trying here which would ruin freedom to even run a program without paying for double licences. In fact she appears to side with Apple on this.

  • by sopssa (1498795) * <sopssa@email.com> on Sunday November 01, 2009 @03:49PM (#29943504) Journal

    On top of that Apple has a good case here because Blizzard already won similar argument before [slashdot.org]

    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.

  • Old idea (Score:4, Informative)

    by DoofusOfDeath (636671) on Sunday November 01, 2009 @03:49PM (#29943516)

    Actually, wasn't the idea that copying a program from disk to RAM need specific permission, something that was ruled on very long ago?

    I remember having a serious WTF feeling maybe 10 years ago when reading about a judge's ruling.

  • by Senjutsu (614542) on Sunday November 01, 2009 @03:53PM (#29943568)
    The Supreme Court indicated in Eldred v. Ashcroft that it was comfortable with the view that Copyright governs even private copying like moving a programs bits from a CD to hard disk or from hard disk to RAM. This is a legally settled matter, and Psystar is quite wrong.
  • by BlueBoxSW.com (745855) on Sunday November 01, 2009 @03:57PM (#29943600) Homepage

    I agree, "unauthorized copy" is the key concept here.

    I hate how slashdot posts these half baked articles.

    What is this, the Drudge Report?

  • by leftie (667677) on Sunday November 01, 2009 @04:04PM (#29943664)

    Seems like Apple hardware owners would be making the same unauthorized copies when they boot their computers.

    If I'm I'm Psystar's legal team, I'd argue they make the same unauthorized copies that Apple's hardware owners make. If the Psystar process makes unauthorized copies, then Apple's does too.

  • by recoiledsnake (879048) on Sunday November 01, 2009 @04:10PM (#29943712)

    I agree, "unauthorized copy" is the key concept here.

    I hate how slashdot posts these half baked articles.

    What is this, the Drudge Report?

    The unauthorized copy claim is already covered in the first two copies claims that Apple made. This is about an additional one that Apple claims that happens when the computer is booted.

  • by harlows_monkeys (106428) on Sunday November 01, 2009 @04:30PM (#29943928) Homepage

    No, what they're clearly saying from their brief is that you're making an additional copy of the program by loading it into RAM

    You are making an additional copy. This is well settled, both in law and in computer engineering.

    If Apple wins can MS successfully sue it's customers for having two copies of Windows or Office but license for only one?

    No, because that second copy in RAM is allowed both by Microsoft's EULA and by copyright law itself (see 17 USC 117).

  • Re:Unauthorized (Score:3, Informative)

    by truthsearch (249536) on Sunday November 01, 2009 @04:36PM (#29943974) Homepage Journal

    But why should users need Apple's permission to install OSX on any computer they want?

    Because when you "buy" software you aren't actually buying the software. You're buying into a licensing contract. That contract can limit you in any way that doesn't break any laws. It can limit what hardware it's used on.

    People may not like, but Apple isn't a monopoly. They can choose something with different licensing terms (or no license at all) if that's their preference.

  • Re:Anyone surprised? (Score:5, Informative)

    by Windowser (191974) on Sunday November 01, 2009 @04:36PM (#29943984)

    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.

  • by mixmatch (957776) on Sunday November 01, 2009 @04:50PM (#29944088) Homepage
    Maybe your confusion is due to the fact that you think the GPL zealot crowd actually cares about copyright. What we care about is freedom. In the GPL's case, it is guaranteeing everyone the freedom to take a program and modify it however they desire. In this case, the concern is about the freedom to use software one has purchased however one desires. As far as I know, this has not been settled by court as copyright infringement. Incidentally, you don't have to support everything about copyright or detest it completely. You can see good and bad implications and places where there is room for improvement. Its perfectly reasonable for me to want to see GPL content covered by copyright and not desire that 40-year old books also be covered.
  • by kimvette (919543) on Sunday November 01, 2009 @05:00PM (#29944188) Homepage Journal

    It's Apple's OS, they developed it, spend years and millions of $$$ making it - why shouldn't they be allowed to say what machines can and can't run it?

    The first sale doctrine and that they offer the OS separately via both their web site and retail stores; their right to dictate how you use their product ends the moment the deal is done. It's not a work for hire so only copyright law applies.

  • Re:Anyone surprised? (Score:3, Informative)

    by The Cisco Kid (31490) on Sunday November 01, 2009 @05:02PM (#29944200)

    Things to google:

    "First Sale Doctrine"

    "Rights of the owner of a purchased item to control its disposition."

    If I were, for some reason, to *PURCHASE* a copy of OSX, then there is no 'contract'. I do not agree to any EULA's or shrinkwrap licenses.

    I can do FUCK ALL WHATEVER THE HELL I want with that individual copy, as long as I don't distribute copies of it to other people. I *CAN* make a personal copy for backup purposes. I can use the disc as a coaster or I can use its contents as an entropy source for a random number generator. I can use it as a bookmark while reading War and Peace, or I can nail it to the wall to use as a mirror. And I sure as hell can run it on whatever hardware I choose that I can manage to get it to run on, including but not limited to my toaster, my microwave oven or my fax machine, or any computer I purchase from anywhere made by anyone.

    Again, this is assuming that the party in question has purchased a copy of OSX. If they received it via some manner of distribution that violated copyright, then that is an entirely different matter.

    I also *CAN* sell that copy to another individual (providing I do not retain any backup copies) for any price that I am willing to accept and the other individual is willing to pay.

  • by The Cisco Kid (31490) on Sunday November 01, 2009 @05:12PM (#29944300)

    Unless Apple has a contract signed by Psystar where they agreed to such terms, then Psystar is not a party to any such contract. Further, if they exchanged cash (or cash-equivalent, eg check, electronic payment, etc) for a physical item such as a disc, then they did in fact *buy* a copy of a program, and they are in fact owners of it.

  • by shentino (1139071) on Sunday November 01, 2009 @05:13PM (#29944310)

    First sale doctrine means that Psystar already has the rights the EULA is trying to hoard for apple hardware owners.

  • Re:Litigated before (Score:4, Informative)

    by Mr2001 (90979) on Sunday November 01, 2009 @05:44PM (#29944590) Homepage Journal

    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.

    Yes, but...

    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.

    No. Like Psystar said, 17 USC 117 [bitlaw.com] grants the owner of a copy of a program the right to make copies or adaptations as needed to run it. You don't need a license from the copyright holder; copyright law itself gives you that right.

    And before you respond with "it's licensed, not sold": (1) if you purchase a DVD containing a copy of OS X, you own a copy -- that's what owning a copy means; (2) most courts have found that software is actually sold, not licensed, regardless of what the company "licensing" it wants you to think.

  • by bahamat (187909) on Sunday November 01, 2009 @05:51PM (#29944648) Homepage

    This goes back to the 80's, or possibly even 70's and deals with how computers work on a fundamental level. As you know, copyright means that the rights holder is the only one allowed to authorize copies. When a program runs, it is copied from the storage medium (i.e., disk, but back then it was tape) and into RAM. That's a copy. Copyright law was modified to explicitly permit these types of copies (I believe they are termed "transient copies") for license holders.

    Apple's argument goes back to this statute. Apple's license says that you can only run Mac OS X on Apple hardware. Thus, the copy from disk to RAM on non-Apple hardware is an unauthorized copy.

    It makes sense, from a letter-of-the-law point of view, and I find it very interesting because by and large nobody thinks about software copying in that sense anymore, but back in the day it was a very hot issue. I'm not saying I endorse this argument, but IIRC, this is how the law is written. Also, IANAL, so if you want to know more about this, go look it up yourself.

  • by Todd Knarr (15451) on Sunday November 01, 2009 @06:01PM (#29944744) Homepage

    True, but UCC Article 2 section 401 [cornell.edu] has something to say on the matter, specifically that title to the goods passes to the buyer at the time of delivery by the seller unless there's an explicit agreement otherwise. And that agreement has to be in place before delivery, otherwise title's already passed and the buyer can simply refuse the new agreement and retain title. And you'll note that in most software sales there is no explicit agreement entered into before the clerk hands you your package. There's only an implicit agreement requested by Apple, with no attempt to make the terms known to the buyer beforehand, no attempt to get the buyer's explicit acceptance of the agreement and no attempt to refuse to proceed with the sale until the buyer agrees. So the buyer is the owner of the goods after the sale, he holds title to them.

    Apple may claim the sale is conditional, but they don't attempt to make it so. They only presume acceptance of their requested terms, and that runs afoul of 2-401's use of that little word "explicit". Which, if you look at the legal history of UCC Article 2, is exactly what it intends. One common abuse by merchants was the inclusion of implicit or hidden terms the buyer wasn't aware of at the time of sale, and 2-401 was written in response. It's commonly called the "quacks like a duck" clause: if it looks like a sale, and it sounds like a sale, then it is a sale as commonly understood and if the merchant wishes otherwise it's up to them to make that clear to the buyer and get them to agree to it.

    Of course an obvious response is that the merchant isn't Apple and doesn't have power to transfer title. To which the response is UCC Article 2 section 403 [cornell.edu] which says that if Apple entrusts it's software to a merchant to sell it automatically gives the merchant all the power to transfer title that Apple would have had. It was again written to counter exactly that sort of claim, allowing consumers to deal with sales exactly as they see them without having to worry about the behavior or desires of a party they're not dealing directly with (ie. when you buy a car from your local Ford dealer you don't have to worry about Ford coming back and saying "No, this was only a lease and not a sale.").

  • by IntlHarvester (11985) on Sunday November 01, 2009 @06:05PM (#29944768) Journal

    The two copies here (and the one on psystar's server) are not.

    And that's the key point. Psystar admitted to using disk duplication software to install OS X, which is almost assuredly a violation of copyright law. (PC OEMs and corporations need to obtain an special licence from Microsoft to do this.) After that it doesn't really matter how many additional copies were made.

    Plus, Apple's legal strategy here is "throw the book at them" -- including traditional copyright, EULAs, derivative works, DMCA, trademarks, and patents. I wouldn't read too much into any particular argument, Apple will find something that sticks.

  • by savuporo (658486) on Sunday November 01, 2009 @07:04PM (#29945220)
    Execute in Place ( XIP ) from flash is very common on low-end embedded hardware, especially with System-On-Chip machines having internal flash on chip. Most ARM7 ( not to be confused with ARMv7 ) systems out there probably do this. And that is a very very big segment of CPU market.
  • Re:They might lose (Score:4, Informative)

    by lorenlal (164133) on Sunday November 01, 2009 @07:05PM (#29945232)

    From the (limited) cases I've had involving AppleCare, they'll support what they sold you. That's it. Anything you add is fine... But unless you bought it from Apple directly, that's all they'll cover.

    If you get a new video card, and install it yourself and you get no picture, you'll need to remove the card and try again before they'll step in. Which is okay for those of us who'd be adding hardware anyway.

  • by mysidia (191772) on Sunday November 01, 2009 @09:33PM (#29946188)

    FakeSMC is not Open Source Software, for reasons similar to the ones that Microsoft Shared Source [microsoft.com] is not open source.

    One of the fundamental requirements requirements [opensource.org] for software to be open source is No Discrimination Against Fields of Endeavor.

    That is, if the license of the software says you can't use the software freely, then it's not open source at all.

    It's called "freely available, but restricted", i.e. not open.

  • by mysidia (191772) on Sunday November 01, 2009 @11:24PM (#29946918)

    Capitalizing it or not has no significance.

    Yes it can be. BSD licenses allow software to be restricted in it's use but the BSD is still open source, notice I did not capitalize "open" or "source".

    You're using a strawman argument, and you're completely wrong. The BSD license allows me to take the source, modify it, and give you source code with a restriction that you may not use it in a certain way, for example, I may include a restriction that you may not modify the code or re-publish parts of it.

    In that case, the code I received under BSD license is open source, the code I gave you is not open source, because of the additional restrictions I have imposed.

    If I take BSD licensed code and give you only binaries (but no source) or add restrictions to the license, such as "You may not use this for commercial purposes", or "You are only allowed to run this program on fridays", or "You may not create derivative works, or republish this code",

    Then the code I gave you is not open source software.

  • by Lord Kano (13027) on Sunday November 01, 2009 @11:38PM (#29947014) Homepage Journal

    When Jobs came, one of the first things he did was up the major version number from 7 to 8 because the license for Mac OS 7 allowed third parties to make computers that could run Mac OS.

    Thus fucking over millions of customers and potential customers in the process.

    It's just my guess but I think the reason Apple is doing this because some of the price that goes into it's computers is the price of developing the operating system.

    That's precisely why each licensee had to pay Apple a fee. If they weren't getting enough, they could have negotiated a higher fee.

    If Psystar wins this case, it will give a carte blanche to everybody else to create Mac clones, bringing Apple back into the situation they were in in 1998.

    Hardly. Apple would be in a worse situation. In the late 90s they had fairly unique hardware. The only affordable PPC computers were either an Apple or a clone. Today, their hardware is custom x86. Everyone and their brother is making hardware that could run the OS if not for Apple's artificial barrier.

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

    Apple is certainly entitled to try whatever business model they choose, but the are not entitled to have the courts enforce their wishes to make higher profits.

    LK

  • Re:They might lose (Score:3, Informative)

    by s73v3r (963317) <s73v3rNO@SPAMgmail.com> on Monday November 02, 2009 @12:52AM (#29947418)
    The main difference is that the GPL actually has the clause in it that says you don't need to agree to the GPL in order to use the software. Just about every closed source app has a clause that says you MUST agree to the license before you can use the software.
  • by s73v3r (963317) <s73v3rNO@SPAMgmail.com> on Monday November 02, 2009 @12:55AM (#29947438)
    Apple shut down the clone program because most of the clones were shitty computers. Jobs wanted to control the quality of the product, and he couldn't do that with the clones.
  • Re:They might lose (Score:3, Informative)

    by Jerry Smith (806480) on Monday November 02, 2009 @01:50AM (#29947752) Homepage Journal

    You're assuming they know that the person who purchased OS X is running it on a valid piece of Mac hardware. That is where it would get ugly. These OSX86's look like standard hardware when you profile them in System Profile. Apple could waste a lot of time and resources troubleshooting 3rd party hardware without even knowing they were troubleshooting a hackintosh. Especially if they don't inventory all of the hardware, or the hardware matches an actual Mac for the key components.

    One the first thing an Apple employee registers is: The Serial-number. All serial-numbers are matched with a database that tells the employee what macintosh is on the other side with the customer. Psystar can't circumvent that.

  • by AmiMoJo (196126) <mojo@NOspaM.world3.net> on Monday November 02, 2009 @08:09AM (#29949076) Homepage

    I think you are being too charitable. When you look at Apple's products it's obvious that they make a lot of money by locking you in and putting huge mark-ups on.

    Take the iPod. The battery is not supposed to be user replaceable because they want you to either pay them to change it or just buy a new iPod. They also go out of their way to make sure only iTunes works with it, because then you will be exposed to the iTunes store. Only apps sanctioned by Apple can enter the App Store, and Apple get a cut of the price on them. There is no option to install apps from any other source.

  • Re:They might lose (Score:3, Informative)

    by dbet (1607261) on Monday November 02, 2009 @10:56AM (#29950224)

    and also do damage to their brand as it would get watered down. The latter is an important part of Apple's strength and I can understand them fighting this for dear life.

    If you have to break the law for your brand to have strength, maybe it doesn't deserve to be strong. Do you really want the law to support companies deciding what BRAND of hardware you use in conjunction with their software?

Whenever a system becomes completely defined, some damn fool discovers something which either abolishes the system or expands it beyond recognition.

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