Apple Argues to Include Rebel EFI in Psystar Injunction

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Unauthorized Mac clone maker Psystar is hoping to keep its Rebel EFI on the market, but if Apple's argument holds any weight, that won't happen. Psystar is working to convince the court that its software for installing Mac OS X on PCs shouldn't be included in a proposed injunction that prohibits it from making and selling PCs with Apple's operating system pre-installed.

Apple filed a lawsuit against Psystar in Northern California several months ago claiming the small PC maker was violating the Mac OS X end user license agreement, and that it was violating the Digital Millennium Copyright Act with the steps it used to install the Mac operating system on PCs. Psystar claimed that it should be allowed to build and sell PCs with Mac OS X pre-installed and that Apple is overstepping its bounds by blocking companies from selling Mac clones.

The court ultimately ruled in favor of Apple in a summary judgement, and the Mac maker followed up by requesting an injunction blocking Psystar from selling Mac clones and also from distributing Rebel EFI.

While Psystar has been pushing to keep Rebel EFI out of any injunction, it apparently isn't offering as compelling arguments as Apple.

"Apple's position is well supported by the case law, while in its opposition, Psystar cited almost no authority," The Mac Observer's legal contact said. "And for the one case that Psystar did cite, Apple distinguished it on the facts and showed that it did not apply to the circumstances of the instant matter."

According to Apple's brief, Psystar has already said that it plans to continue infringing on its Mac OS X copyrights and violating the Digital Millennium Copyright Act, and as such all of the PC maker's actions related to Mac cloning and Mac OS X hacking should be blocked.

Should Judge Alsup, the Judge overseeing the case in Northern California, include Rebel EFI in an injunction, that could derail Psystar's efforts to keep its parallel case against Apple alive in Florida. Psystar filed a case against Apple after Snow Leopard was released and argued the new OS version constituted a new product and should be heard independently of Leopard.

Apple has since filed a motion with Judge Hoeveler in U.S. District Court in Florida to dismiss Psystar's suit, but a ruling on that motion hasn't been returned yet.

Psystar's fight to keep Rebel EFI alive, however, may be in trouble based on its current defense. "Apple's Reply taken together with its Motion for a Permanent Injunction is the much stronger brief," TMO's legal contact said. "It has the more persuasive arguments; unlike Psystar's Opposition, ample and controlling legal authorities support the arguments in Apple's briefing."

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11 Comments Leave Your Own

Khaled

Did Psystar make Rebel EFI or did they use some other person’s code?

Nemo

Dear Khaled:  You may have a good point.  There has been much discussion in the open-source community that Psystar misappropriated from other open-source developers the code that it uses to hack OS X to run on non-Mac computers.  One developer in particular, whose name escapes me (see Groklaw), only offered his code provided that it was not to be used in a commercial product.  It is alleged that Psystar ignored that request and used that developer’s codes to run Leopard and Snow Leopard on generic PCs and in its Rebel EFI product. 

Unfortunately, for the X86 project and other radical open-source projects that hack OS X, they have no rights in their work, because it is illegal, being infringement of Apple’s copyrights in OS X and/or violation of the Digital Millennium Copyright Act.  Thus, the courthouse doors are closed to them, and all they can do is rage at Psystar, but, unlike Apple, they can’t sue. 

Now, isn’t that an irony.  The radical open-source community, by which I mean the outlaw members, who reject copyright, now discover that without the very regime that they reject and refuse to respect, they have no rights in their work that anyone is bound to respect.

Khaled

I appreciate the reply, Nemo.

Bosco (Brad Hutchings)

You know Nemo… You may be a lawyer, but you really don’t seem to have much of a clue about what Hackintoshers had to do to get Mac OS X running on non-Mac hardware and what they had to start with.  One of the pieces they got to start with was the actual source code to the Darwin kernel, because that is available for anyone to download from Apple!

What the lawyers who write SLAs have been able to do is essentially hang everything out in the open for everyone to see, then with some terms in a shrinkwrap license agreement, make it a violation of the contract to look for too long. And then, insert your favorite latin term, it’s a copyright violation. You do not have to be a radical anything to understand that this gives tremendous power and control to companies like Apple that they would never enjoy with meat-space products or even traditional copyrighted works like books and music.

Let me bring up my favorite example again… Apple TV. According to the SLA, it’s OK for a user to install open source components, such as SSH, on their own Apple TV. But reselling the Apple TV after doing that would be (according to the SLA) distributing a “derivative work”. Or, how about replacing the Finder.app on that box with a Mac OS X app that you develop and does not need a mouse or keyboard? I was at an Apple Developer Conference where The Steve got up and asked all whatever thousand of us to go and do that for Mac OS X 10.0! He hoped some of us might write a replacement Finder.app. Well, install one on Apple TV and pass the box on somehow (rent, lease, sell, gift, bundle, etc.) and you violate the SLA and they elevate that violation up to copyright violation with the “derivative works” claim.

It is a very practical matter. I could order 20 Apple TVs today for digital signage projects today. But since the SLA precludes any deployment arrangement I can think of where I stick my app as the “Finder” on the box and put it in possession of someone else, I have to go Dell or Asus. How the hell would I even be doing any damage to Apple in this case? Their recourse wouldn’t just be void the warranty (I don’t care), but to sue me for copyright infringement! Isn’t this completely out of the realm of what copyright ought to protect?

And while I’m at it… You know what else Apple does to lock down the Apple TV so that nobody would want to buy it for purposes other than what Apple intended? In 3.x, they rewrote the Apple Remote driver to make it more difficult for developers to interpret what the HID library sends up to applications. Seriously. Because if that worked and the SLA weren’t so damned brain dead, they might sell a few hundred thousand more of the things for all sorts of signage and presentation deployments where this years top-of-the-line PC isn’t needed.

Nemo

Dear Bosco:  I haven’t read the SLA agreement for Apple TV, but I doubt that it is OK for you to make a derivative work by installing SSH or any other open-source component in Apple’s software that is part of Apple TV.  Be that as it may, after reading your post on this site, it is my opinion that your view of U.S. IP and antitrust law is seriously defective, so that even more for you than other laymen, I, with the greatest solicitude for your welfare, urge you to consult with a competent IP lawyer before acting on any of your ideas about IP law or about the licensing agreement that you encounter.

As for whether hacking OS X at all, much less to get it to run on a generic PC, is legal or illegal, I refer you to Apple, Inc. v. Psystar, Inc. U.S. Dist. Ct., N.D. Cal, Case No. 08-03251 (Summary Judgement granted in favor of Apple on all copyright and DMCA issues and Psystar’s Motion for Summary Judgment denied in toto). 

As for Darwin, you download and use it subject to Apple’s license, and nothing in the license for Darwin give you or anyone else any rights in any version of OS X.

Bosco (Brad Hutchings)

@Nemo, please step out of lawyer-speak for a moment. If I go to the bookstore and I purchase Sarah Palin’s “Going Rogue”, and I make little cartoons in the margins, I can resell that book for whatever I like and there is no issue with copyright or derivative works. Students do this all the time with textbooks.

In fact, if I buy that book in bulk and hire an army of teenagers to make little cartoons in the margin, I still would not have a copyright problem. It’s the same as if I buy that book in bulk and bundle it with another book in bulk. The copyright owner has no say on my reselling of that book.

So, can you tell me from some kind of common sense perspective why a company like Apple should be allowed to use its SLA to make the same action with their software a violation of copyright? Yes, I recognize that that is exactly what they are doing, and no, I’m not planning to challenge them in the market or in court over this. But it doesn’t make Apple’s licensing any less braindead, not does it make the whole practice of taking SLAs beyond “one computer per purchased copy” a very slippery slope. AutoCAD v. Vernor sets the tone for this kind of inquiry.

mathue

Heh, Bosco, you’re a stitch “please step out of lawyer-speak for a moment.” Nemo is nowhere NEAR lawyer-speak, their post is easily readable and comprehendible to anyone at a ninth grade level. Spend some quality time on Groklaw with the SCO and Frystar cases, it’ll be helpful. smile

Bosco (Brad Hutchings)

@mathue… FYI… This is a lawyer being condescending: Be that as it may, after reading your post on this site, it is my opinion that your view of U.S. IP and antitrust law is seriously defective, so that even more for you than other laymen, I, with the greatest solicitude for your welfare, urge you to consult with a competent IP lawyer before acting on any of your ideas about IP law or about the licensing agreement that you encounter.

I’ve spent enough money on having lawyers write me EULAs over the years that didn’t disrespect my customers, and I know that the ones who specialize in this stuff would just love to try to lock up every imaginable “right” for the developer because they can bill by the word. I ask what amounts to a philosophical question in a philosophical debate, and he advises me to pay a lawyer for specific advice because my views of IP are “defective”.

So let me re-ask the question. Philosophically speaking. You have two computing devices, a Mac Mini and an Apple TV. I extract the hard disk from both and hook it up to another machine. I edit a file of default firewall settings on both drives. I add a compiled ssh (either GPL or BSD license, and compiled under Linux if you want it completely untainted by Apple Open Source License) to the drive from the Apple TV. I replace Finder.app on both machines with my own app renamed as Finder.app. I even leave the old Finder.app in place. I reconnect the hard drives to their respective machines.

Now, if I give the Apple TV to someone else (or gods forbid, sell it), under the license, I have created a derivative work and violated copyright. Not so with the Mac Mini. How is this a good thing that an SLA be capable of making such a distinction? I haven’t even copied anything outside the license for copying it! I can paint the thing green and resell it. However, I cannot add two files and modify parameters in a third and do the same.

Nemo

Dear Bosco:  Neither lawyers or courts answer philosophical questions.  Courts interpret the law based on the facts of the dispute before them, giving effect to Congressional intent or, in the case of common law, interpret the law to apply the appropriate substantive rule of law to the facts.  Lawyers, inter alia, advise clients on what the law is and, when representing a client in a dispute, argue for an interpretation of the law or facts or both whereby their client will prevail in the dispute.  Philosophical questions are left to the legislature, at least to the extent that philosophy, particularly one’s personal view of philosophy, deviates from legislative intent and/or the controlling legal precedents that interpret that Congressional intent or the common law rule being applied.

Judge Alsup applied the law as set forth in the applicable federal statutes and as those statutes have been interpreted by the appellate courts, and his judgment settles the dispute and states the binding law, and unless Judge Alsup is reversed on appeal, which I think is unlikely, you may not, without Apple’s permission, alter, copy, or distribute its software.  However, you are entitled to your philosophy.  Just don’t try to rely on it as a defense in a court, unless it happens to coincides the court’s judgment on the law, which, after reading your posts, I think is highly unlikely.

WetcoastBob

Hacking the iPhone seems to be a problem.  Will this ruling have an effect there?

zewazir

Hacking the iPhone seems to be a problem.  Will this ruling have an effect there?

Not really.  It’s two completely different (opposite?) scenarios.

What PsyStar is doing is creating (stealing?) and selling a hack that allows Apple software to be installed on non-Apple hardware.  What hacking an iPhone does is allow non-Apple (approved) software to be installed on Apple hardware.

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