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.
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.
