Forgot your password?
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?"
This discussion has been archived. No new comments can be posted.

Apple Says Booting OS X Makes an Unauthorized Copy

Comments Filter:
  • by recoiledsnake (879048) on Sunday November 01, 2009 @03:52PM (#29943548)

    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.

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

  • Re:Litigated before (Score:5, Interesting)

    by recoiledsnake (879048) on Sunday November 01, 2009 @04:01PM (#29943630)

    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.

    Really? From their Snow Leopard EULA:

    A. Single Use License. Subject to the terms and conditions of this License, unless you have purchased a Family Pack or Ugrade License for the Apple Software, you are granted a limited non-exclusive license to install, use and run one (1) copy of the Apple Software on a single Apple-branded computer at a time.

    Looks like Apple doesn't grant you a license to make another copy(as they argue you do by booting). If Apple wins this, can they successfully sue their customers for making unauthorized copies when the computer boots?

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

    by lukas84 (912874) on Sunday November 01, 2009 @04:11PM (#29943736) Homepage

    Doesn't Apple just sell upgrade licenses at retail?

    At least that's how i understood it. And the other licenses are locked to the hardware - just like Microsoft's OEM licenses.

  • by RichMan (8097) on Sunday November 01, 2009 @04:12PM (#29943746)

    I don't know who to root for here. If apple wins then all CD/downloadable music is then by the nature of the distribution system given a derivative allowed copyright license when sold. As the only way to play it is to make several derivative copies of the material. Where the base structure is rearranged and then finally processed Digital to Analog.

    1) CD/base store
    2) CD buffer, linked associated chain
    3) dram copy of data, another linked associated chain with OS and application page tracking
    4) audio card input buffer, another linked associated chain
    5) audio card processor, digital to analog conversion and final digital encoded analog value, then analog sound

    The RIAA and MPAA are going to want to weigh in on this if it goes anywhere.

  • by Dunbal (464142) on Sunday November 01, 2009 @04:17PM (#29943824)

    Uh oh. Imagine, if Apple wins this, then REMEMBERING A SONG OR THINKING ABOUT A MOVIE SCENE will have the MAFIAA at your door in a flash, since after all you made an "illegal copy" in your brain...

  • by rakslice (90330) <> on Sunday November 01, 2009 @04:26PM (#29943900) Homepage Journal

    Here's my understanding of the situation: In both the Glider case and this one, we're talking about the original software being loaded into RAM potentially with third-party modifications to parts of it. This means that, even if the original software (the WoW client, and Mac OS X) was bought and paid for, and a RAM copy at runtime would be subject to the section 117 exception, there is room to argue that what is being loaded is not the bought and paid for authorized copy, but an unauthorized derivative work made by adding the third party modifications.

    However, the section 117 exception gives a specific reason that the software might be allowed to be altered. Take a look (from [] ):

    "Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided:
    (1) that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner, or [...]"

    So an "adaptation" of the software is allowed if it is necessary to use the software with a machine. Now a court could easily whinge its way around interpreting this as a compatibility measure, but if it doesn't, then in Psystar's case, as long as the third-party modifications are deemed by the court to be only for the purpose of enabling Mac OS X to run on a general purpose PC, then the RAM copy (and potentially all the modified copies) aren't infringing.

    Anyway, I don't think this is a big obstacle to Apple; there seems to be enough case law in the US that has allowed for very broad enforceability of software licensing agreements that Apple can still probably out-lawyer Psystar into the dust for breaking their "Apple-labeled" license provision, even without a finding of copyright infringement.

    It's that part of the case I'm most interested in, as "Apple-labeled" is a strange choice of wording, and Apple has in the past employed it willy-nilly (for instance in the license of Safari for Windows when they pushed out millions of copies as a selected-by-default Quicktime/iTunes upgrade [])

  • by bonch (38532) on Sunday November 01, 2009 @04:26PM (#29943904)

    So, we're opposed to copyright in this article discussion, Slashdot? I'm confused, because the GPL is a copyright license, and violations of the GPL are met with anger on the part of Slashdot's readers. However, any non-GPL situation in which copyright infringement occurs is met with jeers and sarcasm.

    Supporting the GPL's copyright protections in some situations while favoring copyright infringement in other situations benefits you guys by getting you free stuff in both kinds of situations. Your viewpoints are driven by pure selfishness.

    I'm sure I'll get modded down again for speaking out about this, but I believe it needs to be pointed out.

  • by harlows_monkeys (106428) on Sunday November 01, 2009 @04:27PM (#29943914) Homepage

    17 USC 117 starts out thusly:

    Making of additional copy or adaptation by owner of copy. Notwithstanding the provisions of section 106 [17 USC 106], it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided:

    (emphasis added). The word "owner" is significant. When 17 USC 117 was originally written, it said something like possessor rather than owner, but during the ratification of this law, that was changed in Congress to owner, indicating that Congress really does intend this to apply to owners, not mere possessors.

    If the purported sale of the copy that ended up in Psystar's possession was conditioned on acceptance of contractual terms that Psystar is failing to honor, it is possible they are possessor of that copy, but not owner, and thus do not get to use 17 USC 117.

  • Re:Anyone surprised? (Score:2, Interesting)

    by lukas84 (912874) on Sunday November 01, 2009 @04:33PM (#29943948) Homepage

    I can take my newly purchased Snow Leopard disk and install it on any machine I wanted that was Intel Inside

    Yes, but were talking about licensing here, not about technical possibilities.

    That said, the Snow Leopard 29$ is an upgrade-only offer. You may use to do a full uninstall, but without an underlying Leopard license, you're unlicensed.

  • by betterunixthanunix (980855) on Sunday November 01, 2009 @05:16PM (#29944348)
    Yeah, I know there are plenty of Apple fanbois here who will see nothing wrong with this whole situation. Really though, this is exactly why proprietary licensing is bad for society -- Apple is basically declaring that you are not allowed to build a computer than runs Mac OS X, you must BUY one from them, at a price that THEY determine. If Psystar loses, every hobbyist in the USA should take note to avoid Apple computers like a plague, because of the legal risk they impose on hobbyist groups. Anyone who was planning to buy a computer from Apple should take a moment to rethink that decision, and consider a more freedom respecting company.

    Just my opinion. I will probably be flamed off the edge of the Earth by Apple fanbois though.
  • by maccodemonkey (1438585) on Sunday November 01, 2009 @06:12PM (#29944832)
    So your friend was a moron and didn't do any research? You can buy PC's that don't support graphics upgrades either. I'm not sure what your point is. Your idiot friend could have done the same thing with a Windows box. Not to mention the 24" iMac graphics cards are not all that bad, AND can be upgraded to a gaming level card at purchase time. Seriously. So many things wrong with this post.
  • Re:They might lose (Score:3, Interesting)

    by fafaforza (248976) on Sunday November 01, 2009 @06:35PM (#29945018)

    I don't think that Apple now, or in the future, would offer support for OSX installed on non-Apple hardware. So the argument that it will raise their support costs is bogus. Do they even support all the addon hardware (video, audio cards, etc) that you could put into your legit Mac now? Probably not.

  • Re:Unauthorized (Score:4, Interesting)

    by Mista2 (1093071) on Sunday November 01, 2009 @06:43PM (#29945080)

    Unless by monopoly you mean the only computers legally allowed to run OS X and the applications written to run under OS X.
    When you have monopolies, you have price gouging.
    EyeTV ship a Haupage USB digital TV encoder, that costs twice as much as a similar Haupage encoder for Windows. I have a Logitec web cam I stupidly bought as this version was OS X supported, not knowing it was exactly the same under the white plastic as the black one sold for Windows that was $50 cheaper. Odd that Logitec feel they should charge more for supplying a web cam with no drivers (OS X sees it fine) as opposed to the Windows one which does actually come with some nice extra Windows features.

  • by painandgreed (692585) on Sunday November 01, 2009 @06:50PM (#29945122)

    He is fuming with Apple because he would really like to play a few modern games but the video card of this model cannot be upgraded. (He didn't research that possibility as he never thought it possible to get a desktop system for 2500 Euros with a crappy portable MXM video without the option to upgrade.)

    *DING* Your friend didn't do research and ended up buying the wrong thing for what they wanted. Then they had to go and spend all that money to do it again to do exactly what they wanted. Now he's pissed at the maker of the first item who listed the specs for him to check. I bet he checked the specs the second time around, or are they happy with WinTel because they could just buy random off the shelf components and combine them to a machine that worked for them by default?

    Since this is /.
    Car Analogy:

    This is like a person buying an off road kitted Unimog and then being upset that they can't get above 55mph when on the highway for long road trips. Then going out and buying a fast car and being pissed at the Unimog makers because it doesn't do what it wasn't built to do.

  • Re:They might lose (Score:5, Interesting)

    by segedunum (883035) on Sunday November 01, 2009 @08:24PM (#29945728)

    I don't think Apple will lose this case, given the current legal situation, but if by some slim chance Psystar wins its case on the grounds that Apple should have no control over how their product is used as long as the software license is paid for, i.e. that the EULA doesn't hold in this case...

    If the EULA held up and could be enforced then Apple would have had a legal injuction enforced against Psystar pretty much immediately and wouldn't need to resort to trying to argue flimsy scenarios like this one regarding the applicability of copyright to supposed copies of OS X made. The fact that they haven't managed to do that and this is what they're having to do speaks volumes about what their chances on EULA enforcements are.

    ...on the other it weigh Apple down with an enormous amount of support costs (unless they specifically exclude this in their EULA) and also do damage to their brand as it would get watered down.

    It's about the only thing in their EULA that would hold up, and they wouldn't have to provide support for anything they didn't want to. It probably wouldn't make economic sense for them to do so however. You only need to look at Microsoft for the massive profits to be had from a far larger market with a far larger supply of hardware.

  • I'll answer that... (Score:2, Interesting)

    by zogger (617870) on Sunday November 01, 2009 @09:35PM (#29946202) Homepage Journal the finest of slashdot traditions "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?"

    Because it's complete bullshit, that's why.

    Here's the /. traditional analogy, so you can see how stupid it is. Right now today there's a huge enthusiast aftermarket industry and hobby developing electric vehicles from existing gas engine vehicles. Conversions. Because it's cool and a lot of folks want them. You can get kits and plans, or entire turnkey built vehicles, based off of ford rangers or chevy s-10s for example, those are common.

    What apple is doing would be the same as if ford or chevy "didn't allow" unauthorized use of their "product" by modifying it to be something the end user customer really wanted, but that the original OEM doesn't provide. So, Ford and Chevy should be allowed to dictate that? After all, thousands of man hours of research and development and expensive manufacturing costs and so on, all went into their product. Well, the car companies freaking tried years and years ago to make it that way, they didn't even want to have after market replacement parts "allowed" because it "violated their precious". They wanted you locked into factory dealer prices for parts and labor. The courts said that was bullshit (in legalese of course, too bad they can't just speak plainly) shot them down on that, but for some reason so far the courts seem to think software is just so darn special it needs it's own "class", copyrights AND patents with the added bonus of NO WARRANTIES required, then you get the EULA treatment on top of that.

    I think that's pure bullshit as well. It's "legal", but still bullshit.

    OK, another one, how about some novel, with a full copyright, the author spends all this time in "development work", sitting in front of a keyboard, (sound familiar?) then the publisher has to "manufacture copies" for the end users, so then, they decide to force you to agree to some "End User Reading License". Only YOU may read that book, you may not lend it to another person because only YOUR eyeballs are "licensed to read it and make a copy in memory". The only "authorized copy" in anyone's brain "allowed" by the agreement is the first purchaser, if he was to lend it, OMG, the second person would then have an unauthorized brain copy in memory that he didn't pay for nor was allowed to make.

    So what say you, the above examples should be legal as well, end user vehicle modding not allowed, end user reading and sharing the copy not allowed? Or would that be bullshit. I vote bullshit.

    The law may technically be on apple's side right now, but that still doesn't make it right, it's bullshit.

    There's been any number of "laws on the books" that were complete bullshit, and sometimes they stick there way past when they should be changed. In that case, only mass adoption of saying "Fuck you, jerks, that's bullshit!" works. This usually involves "interesting times", but such is human history made of, sport!

    Now alcohol prohibition was on the books way before my time, and it only got changed when enough of the population just went "this is just bullshit" and drank anyway. Smoking the naughty naughty is that way today. Proly get changed..eventually,because the law is bullshit.

    Now later on, when I was a younger dude, we had still a lot of civil rights issues to get sorted out, in one instance the "law" was taking its sweet time since the emancipation was a century previous. So, what happened is enough people got together and went "fuck you, that's bullshit!" and defied their "laws", me included. "Illegal"? Sure it was..sort of. Technically it wasn't, but technically it was a clusterfuck because of conflicting "laws". You'd go someplace and blah blah "wasn't allowed", there were "restrictions" on some people that didn't apply to others. It was "on the books" though. Except over here it wa

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

    by maharb (1534501) on Sunday November 01, 2009 @09:46PM (#29946274)

    That is not a flawed assumption. You CLEARLY stated that you think once something is sold you should be able to do ANYTHING with it. If this means copy and redistribute those copies then that is fine right? Or are you taking back your prior statements and saying that there should be some regulations on what it means to sell something. You are now clearly contradicting your own moral assertions because you are saying that there are conditions to the sale i.e. You can't do certain things with the product once you buy it (such as copy and redistribute the copies).

    I don't care if I lose karma over this; get the fuck off your high horse. Current copyright is not perfect, but the idea that people should have no control over their creative works because it is "immoral" to place stipulations on the sale of something is the dumbest thing I have ever heard. Stipulations on the sale of something is the basis of our modern society.

    You are advocating anarchy through your 'morals'.

    Normally I respect ones 'morals' but I think you have clearly demonstrated you are a self interested individual. You only care how this affects you and have no considerations to who else if affected by your ideas of right and wrong. You want to just go out and buy shit and have control over it with no thought of the work the creators put into making it. The reasons for wanting something to be sold with conditions is not to screw over the buyer. In fact most of the time it facilitates the buyer into being able to buy (and then get to use) something that would otherwise be too expensive. By reducing the level of control over said purchased item, or by stripping 'unnecessary' qualities from it, the product or service can be sold at a reduced price. The perfect example of this is a DVD. If there were no stipulations a DVD would probably cost in the thousands or higher because anyone could copy, screen, and otherwise profiteer by the purchase of the item. By imposing limitations the price can be reduced to a more reasonable level because the product is sold for a certain purpose. In the case of a DVD; private viewing with friends and family. Without this condition DVDs could not exist because the makers of the movie would not get compensated for their time and effort but someone else would. I really hope I don't need to go into a whole economics lecture here to explain why people need money to do things.

    You can argue that morals are held by individuals, but all morals are the product of socialization one way or another. Socialization is the product of a society. Society is very closely involved with shaping the morals of the individual. All you need to do to prove this is compare America to say Iran. The vastly different morals are not due statistical anomalies or rational choices in individual persons. It is due to society socializing its members. Morality is inherently based on a set of generally accepted beliefs that a society has. In some societies it is immoral to do things that are perfectly normal in other societies. Laws are generated off of morals that the general society feels so strongly about that they are willing to FORCE that moral on anyone who is wishing to live within the societal structure. i.e. If you feel like parking in a handicapped spot you will get a ticket. There is nothing inherently wrong with parking in a spot arbitrarily marked as special, yet as a society the general moral belief is that those spots should be reserved for certain people who need them more. If this was not a general moral belief of the society.. it would not exist.

    So while you can blab on about what you think is correct, morals are not just opinions. []

    Only in the most abstract sense of morality do you end up in the zone where morality is just an opinion. The generally accepted definition requires some sort of semi-logical justification of the view you take.

  • by indiechild (541156) on Sunday November 01, 2009 @11:32PM (#29946984)

    I call BS on your ill-considered FUD-laden argument. How does Apple going after Psystar endanger hobbyists in the USA?

    There's fanatical fanboy zealots here in this thread, but they're not on Apple's side.

  • Re:They might lose (Score:4, Interesting)

    by dave87656 (1179347) on Monday November 02, 2009 @03:25AM (#29948128)

    On the one hand this would be the thing that would enable Apple to break Microsoft's stranglehold on the PC market

    Apple doesn't want to break MS's stranglehold on the PC market. It works out nicely for Apple and MS. Apple gets a niche market for machines which are significantly more expensive and MS makes sure the MS Office runs on their PC's as long as Apple doesn't tread on their turf.

    Apple could have ported OSX to PC architecture long ago (at least since they moved to Intel).

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

    by mwvdlee (775178) on Monday November 02, 2009 @03:29AM (#29948144) Homepage

    If - by some miracle - Apple would be legally forced to allow 3rd parties to install OSX on non-Apple hardware they would be knowingly selling OSX for non-Apple hardware. Wouldn't that automatically give them SOME support requirements?

    Can't Apple just lower the service level for OSX?

    How do companies like Microsoft and Red Hat handle this?

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

    by drinkypoo (153816) <> on Monday November 02, 2009 @07:07AM (#29948830) Homepage Journal

    You misunderstand. The EULA is a copyright license.

    The EULA is not a copyright license. The EULA is a use license. That's why it's the end user licensing agreement, and not the purchasing agreement. P.S. It's also not a legal contract, because you didn't sign it. ESPECIALLY as the user in a corporate environment, where you never saw it.

    You have to be a complete idiot to think you can include "mac" in the name of a computer you're selling despite Apple having a trademark on that term in the computer market.

    So, this is about copyright, but you think the EULA applies when it's a use license and not a distribution license (it does have some stuff about distribution too, but it's redundant to copyright law) and now you're talking about trademarks. What are you even going on about?

FORTRAN is for pipe stress freaks and crystallography weenies.