Psystar Continues to Fight Apple With New Tactics

| Analysis

Now that Psystar's counterclaim against Apple, based on an antitrust argument, has been dismissed, the company has embarked on a new legal twist: arguing that Apple has exceeded its rights granted under the U.S. Copyright Act. That could be a tough sell based on precedent.

Psystar's new line of argument is that the copyright act does not permit Apple to restrict Mac OS X to Apple labelled hardware and is asking the court to invalidates Apple's EULA and CMCA claims.

An attorney who has been following the case along with TMO, but wishes to remain anonymous, explained, in his opinion, the significant problems with Psystar's new approach.

"Despite its creativity, I think that Psystar's new counterclaims are also fatally flawed, because the Act gives Apple precisely the rights that Psystar disputes.  As the Act permits a writer to restrict his novel to one publisher or a song to one record company, the Act permits the legitimate holder of a copyright to exclusively license the right to make reproductions of a copyrighted work.  Indeed, an author can forbid the publication of a copyrighted work or license it to one or many or, as is the case with open source licenses, license a work to everyone according to certain terms.

"This broad right to license to one or many according to certain terms is what gives a copyright much, if not all, of its commercial value.  Take that away, and you take away the very benefit that Congress meant to confer on authors by means of the Act.

"Psystar seeks to take away Apple's right, as a copyright holder, to exclusively license OS X to itself and to replace it with a rule that would require Apple and other copyright holders to license their copyrighted works to everyone on the same terms.

"However, under well settled precedent and practice, the Act places the decision on whether to license a copyrighted work exclusively or broadly or not at all to the copyrighted holder so that the copyright holder can enjoy the use and benefit of a legal monopoly for a period of time as set forth in the Act.  

"The only restrictions on this right are those found in antitrust law, and Judge Alsup has already determined that Psystar's antitrust claims are fatally defective. So, there is nothing to do but create from whole cloth new restrictions on copyright, which appear neither in the Act or antitrust law."

Grasping at Straws

In other words, Psystar would like to see a new rule that says, when a competitor doesn't like that exclusive right afforded by the copyright law, it can seek a mandatory licensing even when anticompetitive effects are not present -- all in the name of healthy competition. This goes against well established legal precedent, and it's hard to see how Psystar can make that stick in a court well versed in copyright law, the Northern District of California.

Psystar's claim that Apple's copyright protection and licensing diminishes competition sounds good, but violates historical principles of protecting an author's rights.

The attorney continued with analysis:

"To the extent that a copyrighted work is valuable and superior to other copyrighted works, works that are expressed in that particular medium, it will win the competition against other instances of that medium. For example, popular band, such as the Coldplay, will sell more records with its record company than other records from other record companies.

 "For Mac OS X, the tangible medium is a computer.  To the extent that a customer prefers Mac OS X, he will choose a computer that has it over one that doesn't.  That copyright affects competition in the medium which expresses it has never been a grounds for prohibiting exclusive licensing of copyrighted works. " [Emphasis added by TMO.]

Previously, the courts have only limited a copyright holder's Congressionally granted rights when the exercise of those rights have confered market (monopoly) power on the copyright holder and they use it to squeeze out the competition

Absent that argument, there does not appear to be a basis for Judge Alsup to find that Apple has misused its copyrights. Meanwhile, Psystar continues to accrue very large legal bills, so large that Apple wants to know if there is an an anonymous benefactor.

Comments

daemon

As the Act permits a writer to restrict his novel to one publisher or a song to one record company, the Act permits the legitimate holder of a copyright to exclusively license the right to make reproductions of a copyrighted work.

But it doesn’t allow for the copyright holder to restrict you to using only their device to utilize the copyrighted work.

CDs, while copyrighted, cannot be restricted to a specific brand of cd players, nor can a book be restricted to being read through only a specific brand of reading glasses.

Bryan Chaffin

Daemon, I think the analogy is more around the lines of who Apple has licensed its work to, which is Apple. 

Your reading glasses analogy would be more applicable if, say, Apple were trying to prevent people from using third party displays with its Macs, or at least that’s how I take it.

In any event, for Apple to not be able to develop and market a proprietary OS limited to its own hardware would be a fundamental rewrite of copyright law, and I think the anonymous attorney’s analysis is spot on.

Bryan
Editor
TMO

TiredOldUser

Hold on there daemon - don’t confuse your rights!

You are correct that a copyright holder can’t restrict the devices. But that is because copyrights and devices have nothing to do with each other. A copyright protects the expression of an idea not the idea itself. (A patent can protect an idea.)

CDs are NOT copyrighted, but the content on that CD may be. CD technology owners do indeed restrict players. Manufactures most pay a license fee to sell players.

A book is not restricted to reading glasses because reading a book is not the same as copying the content of that book.

Nemo

The writer in the first comment, supra, confused categories.  The act does indeed allow the copyright holder to restrict the medium wherein the copyrighted work is expressed.  Where a device is the medium for a copyrighted work, such as a computer is for an operating system, the copyright holder can indeed restrict the copyrighted work to a device.  For a novel, the device is a book.  The copyright holder of a novel can certainly restrict the novel to just those books published, for example, by Random House, even though the books from any publisher could be a tangible medium for the novel.

The Copyright Act (Act) requires that an copyrighted expression be reduced to a tangible medium where it can be interpreted.  The writer of the first comment, supra, confuses the medium for a copyrighted work, the CD, with device that plays CDs but that is not a medium for expressing the copyrighted music.  CD players are not the medium for music; the CD is that medium.  And Universal Records, for example, can indeed, pursuant to the Act, restrict a song to its licensees CDs but not restrict the devices that play the CDs.  A computer is the tangible medium for an operating system: it is the medium or is, at least, a medium that expresses an operating system.  Without a computer, OS X and any operating system is at best useless lines of code on a sheet of paper. The medium where an OS is operationally expressed is the computer, and, because a computer is a tangible medium for OS X, Apple, under the Act, has the authority to restrict copies of OS X to a particular computer; however, Apple would have no authority under the Act to prevent a person from installing an Apple-labeled computer that is running OS X into a device that, for example, made widgets.  This former is a legitimate exercise of Apple’s rights under the Act to restrict its expression, OS X, to a particular medium, Apple-labeled computers; the latter would be an improper attempt by Apple to use its copyright in OS X to restrict a device that is not a medium for expressing OS X.

Thus, Apple?s restriction of OS X to its Apple-labeled computers is a restriction on a tangible medium of expression, not an improper restriction on a device.

Tiger

Judge to Psystar

“Talk to the hand, ‘cause the face don’t care.”

Lee Dronick

I was just reading a story about this on CNET and someone posted this link about Pystar’s EULA, a very revealing read

http://www.groklaw.net/article.php?story=20081204231414746

daemon

The Copyright Act (Act) requires that an copyrighted expression be reduced to a tangible medium where it can be interpreted.

At one point you say that copyright protects an expression of an idea, not the idea itself, at another you say that the idea is copyrighted, not the expression of the idea. Which is it?

Nemo

Copyright protects only the expression of an idea in a tangible medium; it does not protect or confer any rights in the underlying idea.  In other words, a particular idea can have many distinct copyrighted expressions that are reduced to a tangible medium, but the underlying idea can not be protected under the Copyright Act.  Thus, OS X on a CD or a computer can be protected as a copyrighted work, but the neither the idea of OS X or the abstract expression of OS X can be copyrighted.

daemon

Copyright protects only the expression of an idea in a tangible medium; it does not protect or confer any rights in the underlying idea.  In other words, a particular idea can have many distinct copyrighted expressions that are reduced to a tangible medium, but the underlying idea can not be protected under the Copyright Act.  Thus, OS X on a CD or a computer can be protected as a copyrighted work, but the neither the idea of OS X or the abstract expression of OS X can be copyrighted.

Then can you tell me how exactly Copyright can be used to prevent the installation of OS X from a purchased OS X CD (The Copyrighted Work) on to any computer not branded Apple? Keep in mind, the installation is assumed to not patch OS X from the CD (The Copyrighted Work), and is ran on hardware specifically designed to reproduce the firmware requirements of Apple based computers (a process previously defended by Compaq versus IBM when IBM tried to prevent any other company from selling computers with BIOS on them).

TiredOldMan

Now you are starting to see the complexity of this issue. Copyright protects the software. So you can’t just make a copy of the software and use it as you wish (fair use not withstanding). When you install the software, you are copying it to another medium. The copyright holder has granted the right to do that.

When you buy the OS X disc, you do not purchase the software, you purchase the medium (the disc). You do however purchase a license to copy and use the software in a way described by the copyright holder.

Intruder

Deamon,
Apple has done nothing to prevent you, as an individual, from doing what you state in your post. You are not trying to profit. That is probably why they haven’t shut down OSx86.org. Psystar, on the other hand, is a business attempting to make money using Apple’s intellectual property.

You are confusing what you as an individual can do with the restrictions placed on a business. Are you violating the EULA? Technically, yes. Could Apple come after you for it? Yes, but it probably isn’t worth the trouble. Does Apple care about a few individuals doing that? Obviously not (again, not worth the trouble). Does Apple care if a business does the same thing? You bet they do.

Psystar’s actions are as if they were really looking for a legal fight, which is probably why Apple feels there are other forces backing them.

ctopher

So what if I went to a book store and purchased the top 5 books on the best seller list, glued them together and advertised and sold them as a Ctopher special containing: SCARPETTA, by Patricia Cornwell, THE CHRISTMAS SWEATER, by Glenn Beck with Kevin Balfe and Jason Wright, CROSS COUNTRY, by James Patterson THE STORY OF EDGAR SAWTELLE, by David Wroblewski and ARCTIC DRIFT, by Clive Cussler and Dirk Cussler.

Is the act of gluing them together a violation of the copyright?

Psystar is purchasing retail copies of OS X and using them. They are not making copies as TiredOldMan indicates. (of course I understand that to use an operating system you have to copy it onto a computer, just like to read a book I have to have my glasses.)

Nemo says:

Copyright protects only the expression of an idea in a tangible medium; it does not protect or confer any rights in the underlying idea.

If that’s the case then how did George Harrison lose Bright Tunes Music v. Harrisongs Music? He didn’t copy the entire song, he just used some of the same musical motifs and called it his own work. That appears to be a protection of the underlying idea. Note that Psystar does not claim to have written OS X, just as they don’t claim to have invented the microprocessor, they are merely purchasing the microprocessor on the open market and using it in their final assembly.

Log-in to comment