Stop the Noiz

Psystar Tries the Copyright Abuse Defense

Frank Fox - 2009.02.17 - Tip Jar

Psystar filed its amended claims this week and blamed all its troubles on Apple abusing copyright protection in order to limit use of Mac OS X to Apple's own machines.

How does this latest approach work?

What is copyright, and how does that affect this case?

Copyright Law

Copyright is the right to control how copies are made. Once sold, the copyrighted item can be modified, but it cannot be reproduced without the creator's permission.

There are a lot of "smart" people who say that Apple can't stop someone from changing something they own. This appears to be true. When you buy a textbook, you can mark it up, and the copyright holder can't prevent your changes. You can even sell the marked book without fear of legal action.

What you cannot do is make marks in your textbook, make copies of the marked up textbook, and sell the copies. The copyright holder controls derivative works and any copies.

It sounds at first like what Psystar is doing should be okay. They bought a DVD with Mac OS X from Apple; they even went to the Apple Store to buy the DVD in the original packaging. Then Psystar made changes in order for it to work on their computers. Therefore, Psystar should be allowed to sell its computers with any modifications to Apple's software.

Psystar Is Selling Modified Copies

But this isn't what Psystar has been doing. The original that they purchased was a DVD. The DVD has on it all the information for a full install of Mac OS X. The DVD that Psystar purchased was never modified. (If Psystar had modified the original DVD, maybe this would be a more interesting challenge.)

If Psystar didn't modify the DVD, what did they modify? They modified the copy of OS X that was installed on the computer.

Modifying copies for resale is not allowed without permission of the copyright holder. Apple has not licensed Psystar to make derivative works. Therefore, what Psystar is doing breaks copyright law.

Hold on, you say, how could Psystar possibly modify the DVD? Maybe they can't, but the DVD is the original that they purchased. Only that DVD can be hacked or modified without violating copyright law. The rule in copyright law says that only the original can be modified and resold.

Too bad for Psystar if they don't have the engineering abilities needed to work within the law.

Copyright Law and Software

Applying copyright law to computer programs is funny. It specifically allows for the original program to be copied onto a computer. That DVD wouldn't be of much use if you couldn't copy it at least once onto your computer of choice. You are even allowed to make a backup copy of the DVD.

But these are all unmodified copies, and as such changes for resale are not allowed.

Psystar is smart enough not to claim that it has any right to Apple's copyrighted works. Instead it tries to claim that copyright protection is void because Apple has a monopoly and is abusing its position in the market.

The judge allowed none of those claims to stand.

Abuse of Copyright?

Psystar is instead trying to negate Apple's copyright protection by saying Apple abused the copyright law, first by extending copyright using the EULA (end user license agreement) to restrict use to Macs, and second for using threats of DMCA (Digital Millennium Copyright Act) violation to scare off competitors.

Psystar made a couple of other claims, but the judge denied them.

If Apple can be shown as abusing the law, then protection on its copyright gets loosened. It would be a good defense - if it were true.

If I owned Psystar and that was the best my expensive lawyers could come up with, I'd be worried. Remember that Psystar still has to defend itself against all the claims in Apple's suit - and hope at the same time that it can get one of its two counterclaims to stick.

Copyright and Contract Law

Psystar already has a strike against it with its first claim. Before computer programs were added to the copyright act, there was a National Commission on New Technological Uses of Copyrighted Works (CONTU), authorized by Congress to look at amending copyright to accommodate computer programs. In their final report the commission state,

"Should proprietors feel strongly that they do not want rightful possessors of copies of their programs to prepare such adaptations, they could, of course, make such desires a contractual matter."

This is exactly what Apple did with its EULA. And if the people who came up with these amendments to the Copyright Act of 1980 thought it was a good idea, Psystar is going to have a tough time trying to prove it is unlawful.

How do I know all this? Because Apple mentioned it in its response to EFF claims that "jailbreaking" the iPhone should be allowed. Apple believes that jailbreaking violates its copyright. This is a similar situation to the Psystar hack, so it's no surprise to see the argument popping up there.

Abusing the DMCA

That only leaves the claim that for Apple to even cite DMCA violation against Psystar is illegal, even though Apple believes that Psystar has unlawfully exploited its copyright.

I think that Psystar can reasonably try to claim that it did not violate the DMCA in order to hack the Mac OS X onto its computers - maybe it did, maybe it didn't. But it seems like a stretch to say that for Apple to bring up DMCA is abusive. Psystar itself brought up a few failed claims of antitrust against Apple, but making the claims wasn't abusive, just overly optimistic.

The judge didn't say these claims by Psystar were good arguments. He only stated that there was no legal reason that Psystar couldn't try to use them. This is what the judge says in his own words:

"Apple responds that it is within its rights to determine whether, how or by whom its software is reproduced and how it is to be licensed, distributed, or used. This may ultimately prove to be true. Apple, however, identifies no reason to bar the claim as a matter of law at the pleading stage. This order declines to find the claims futile."

Other Legal Issues

In the off chance that Psystar can show that Apple abused its copyright, it still has to show how it could use Apple's trademarks to sell modified copies and that no contract was broken by ignoring the EULA. Neither of Psystar's claims will help it against the trademark or contract issues they face. (I've always thought the trademark infringement was enough of an issue to shut Psystar down.)

How do I know all this stuff? Am I a lawyer? Heck no, so check out all the links for yourself. See what the law, Apple's lawyers, and the judge have to say. These people should be convincing if I'm not. LEM

P.S. To those who like to point out how permissive Microsoft is with its software, may I remind them that Microsoft also has hardware requirements for the sale of OEM copies of Windows. Just try to buy an OEM copy without having to also buy a dumb cable that you don't need. It is also a restriction of sale based on the inclusion of hardware, although it is not limited to any specific brand of hardware.

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