U.S. Ninth Circuit Confirms Apple’s Psystar Smackdown

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The Court of Appeals for the U.S. Ninth Circuit issued a ruling confirming Judge William Alsup’s 2009 decision that Psystar was violating Apple’s copyrights on Mac OS X, as well as the Digital Millennium Copyright Act (DCMA) by selling its own PCs with Mac OS X installed on them.

To refresh your memory on this somewhat dusty story, Psystar was a small company in Florida who started buying copies of Mac OS X and installing them on their own PCs it called OpenMac, as seen in the figure below. The name was quickly changed to Open Computer, The Apple Alternative.

As If

Psystar’s Original OpenMac PCs Denied

Apple eventually sued the company, claiming that Psystar was violating Apple’s copyrights, its end-user agreement (EULA), and eventually the DMCA itself. Psystar hired first one, then another law firm, and eventually filed for bankruptcy, releasing multiple new unauthorized Mac clones all the while.

The company threw (laughable) antitrust claims against Apple, there were motions and counter motions and all manner of legal maneuvering in the case. Near the end, Psystar started selling its firmware hack that allowed Mac OS X to work on non-Apple computers, and the company even tried to make a go of it as a clothier.

But in the end, Judge Alsup gave Apple a complete and total victory in its suit against Psystar, including an injunction preventing Psystar from from selling Mac clones, selling or copying Mac OS X in any incarnation, installing Mac OS X on non-Apple hardware, circumventing Apple’s control measures that prevent Mac OS X from being installed on non-Apple hardware, selling or other distributing technology that allows such circumvention, or helping anyone in such circumvention efforts.

While some tiny, bankrupt companies might have thrown in the towel at this point, Psystar appealed the case. On Wednesday, the Ninth Circuit issued its ruling in that appeal. A three-judge panel effectively upheld everything Judge Alsup had ruled in his decision, according to CNet.

Again, some companies faced with the obvious that they can’t make a living predicated on selling or cirucmventing a proprietary OS marketed and sold as a whole widget solution and protected by trademarks, copyrights, and an onerous law called the DMCA that favors IP holders would have simply given up after not one, but four federal judges told them so.

Not Psystar, though. A source told The Mac Observer that the company is asking for an en banc review, which means it wants the full court to check over the homework of the three member panel. If a majority of the judges agree to do so, they would then take a gander at both Judge Alsup’s ruling and the three-member panel’s review of that ruling.

If not, Pystar has the option of appealing its case to the U.S. Supreme Court.

Comments

Lee Dronick

“Not Psystar, though. A source told The Mac Observer that the company is asking for an en banc review, which means it wants the full court to check over the homework of the three member panel. If a majority of the judges agree to do so, they would then take a gander at both Judge Alsup?s ruling and the three-member panel?s review of that ruling.

If not, Pystar has the option of appealing its case to the U.S. Supreme Court”

Something tells me that they wouldn’t give up even if Apple showed them the long form EULA.

geoduck

It’s been said before, but I’ll say it again

This battle, all of these appeals, all of this legal paperwork, all of this eternal struggle, has to cost a fortune. This isn’t being done pro bono. somebody is covering a lot of lawyer time This isn’t being covered by one of the guys talking out a second mortgage..

WHO THE F*** IS PAYING THEIR LEGAL FEES?

Nemo

If the Ninth Circuit denies Psystar’s petition for en banc review or if Psystar gets an en banc review and loses that too, Psystar’s sole remaining remedy is the ultimate federal court of appeal, the United States Supreme Court.  Personally, I don’t think that the Ninth Circuit will grant en banc review, because Judge Alsup got it right and because the three judge appellate panel got it right in affirming Alsup’s judgment.  Nor do I think that the United States Supreme court would grant certiorari of the Ninth Circuit panel’s ruling affirming Judge Alsup, once again because it is correct.

Nemo

I understand that my Brother, Mr. Camara, and his teacher at Harvard Law School, Professor Charles Nesson, take issue with the Nation’s copyright laws and have undertaken to try to change them in the courts by means of advancing what most regard as a radical interpretation of copyright law.  Even so, even taking the case on contingency, it is still quite expensive for Mr. Camara to absorb these costs in what from the outset was a long shot and is now a losing and even longer shot.

Lee Dronick

This battle, all of these appeals, all of this legal paperwork, all of this eternal struggle, has to cost a fortune. This isn?t being done pro bono. somebody is covering a lot of lawyer time This isn?t being covered by one of the guys talking out a second mortgage..

WHO THE F*** IS PAYING THEIR LEGAL FEES?

I would think a large PC manufacture. Not MicroSoft, someone who makes cheap hardware.

Nemo

Sir Harry:  If it be a large PC maker or some other wealthy party, it/he has hidden its/his hand well, because I am confident that Apple has investigated that possibility.

Lee Dronick

Sir Harry:? If it be a large PC maker or some other wealthy party, it/he has hidden its/his hand well, because I am confident that Apple has investigated that possibility.

Perhaps money has yet to change hands, contingent on winning. I am pretty sure that would be a crime, but I defer to your legal expertise. Or maybe I am just thinking to much into it. Whatever, I doubt that they would even get the Supreme Court of the United States to hear the case.

John Dingler, artist

Because faults can be found in any of man’s endeavors, I am guessing that Psystar is hoping against all hope that the Ninth Circuit, should it take an appeal, might find that one error which could convince the panel to rule in Psystar’s favor.

Terrin

Copyright laws in our Country are horrible because they have been disfigured terribly from their original Intent: Namely to foster innovation for the public benefit by giving innovators a brief monopoly in their creative works. Once the monopoly expires, the public is free to use the work hopefully to improve upon it. The brief monopoly was originally considered to be ten years. This period of time was predicated on the notion that very little in our world, especially with copyrightable subject matter, is truly original. Instead, creations come from inspiration of already existing creations. For instance, a musician hears music he likes, and builds on that, etc. The standard to obtain a copyright is really low: independent creation, plus a modicum of creativity.

The problem with Copyright law is that greedy companies like Disney started writing the laws and expanding the length of the copyright to over a hundred years. That is absurd considering copyrightable subject matter has a very low threshold to qualify for protection, and the so called creator will be dead before the copyright expired.

On the other hand, when you look at the patent arena where true originality is a standard, the protection only lasts fourteen years. You’d think since the threshold to obtain a patent is much higher, patent holders would have more protection.

The difference in the length of time is with patents the public is not truly represented, and their interests have been severely undermined. With patents deep pocket companies fight for their interests, and patent protection hasn’t strayed much from its inception. Consequently, their seems to be more innovation in the area of patents. In the area of fashion design, the subject matter is not copyrightable, but yet it is one of the most innovative and flourishing industries.


My issue with copyrights is the period of time is too long especially considering the threshold to obtain the protection is low, and the penalties for infringement are draconian.  I could beat a guy to death and suffer less of a financial penalty. It is one of the few areas of law where a copyright holder can collect money when it can’t prove damages.

Further, software code (as opposed to the on screen representations) shouldn’t fall under the protection of copyright as patent protection is more suited to provide the protection as software code is utilitarian in nature (e.g. to make a computer to do something there are only a certain number of ways to efficiently tell it to execute a command).

With all that said, I think the Judge ruled correctly under the current laws, but the laws are not serving their intended purpose and for the most part are not fostering innovation.

I understand that my Brother, Mr. Camara, and his teacher at Harvard Law School, Professor Charles Nesson, take issue with the Nation?s copyright laws and have undertaken to try to change them in the courts by means of advancing what most regard as a radical interpretation of copyright law.  Even so, even taking the case on contingency, it is still quite expensive for Mr. Camara to absorb these costs in what from the outset was a long shot and is now a losing and even longer shot.

greatgazoo192

It’s sad really.  Even if these guys ever manage to get the ruling overturned, I think Apple would probably just borrow a page out of Microsoft’s playbook, and still effectively block their business.
Have you ever wondered why the retail price of a “full” license of Mac OS X goes for $129, while the retail price of a “full” license of Windows 7 goes for anywhere between $199 (home premium) to $320 (ultimate)?  The high full license price of Windows 7 is to “encourage” people to buy new systems preloaded with Win 7 from Microsoft’s hardware “partners” (instead of assembling PC’s themselves or buying a Mac and running Win 7 through Bootcamp).  Microsoft does offer “upgrade” versions ($119 for home premium, to $220 for Ultimate) which require you to have a registered copy of Windows already on the machine.  Microsoft not only discourages people from buying Windows and installing it on “non-approved” hardware by high pricing, it even charges the same (to a lot more) to upgrade a windows machine than Apple charges for a copy of “full” Mac OS X (let alone the $29 Apple charges to upgrade to “Lion” from “snow leopard”).
I’m sure Apple prefers the “flat rate” approach to selling the OS as opposed to the convoluted “tiered” approach Microsoft uses, but it would be feasible for Apple to run up the cost of a “full” copy of OS X and then give steep discounts to users wanting to “upgrade” an existing system that already has OS X installed.

cb50dc

Whoever has these knee-deep pockets to fund all this evidently has sights set on the chances of some sort of overturning (however increasingly slim), as the tiniest legal opening would surely inspire new little Psystars, each willing to take a chance. At least the more stupid ones would.

Still, a new round of little Psystars would probably still be little more than a major annoyance and time-suck for Apple’s legal department.

Lee Dronick

The problem with Copyright law is that greedy companies like Disney started writing the laws and expanding the length of the copyright to over a hundred years.

Yes, the copyright on Disney characters and works was expiring. An appropriate about of political campaign donations were made and then copyrights were extended. Note - The copyright on Mickey Mouse wasn’t expiring, that image is a trademark.

geoduck

Still, a new round of little Psystars would probably still be little more than a major annoyance and time-suck for Apple?s legal department.

That reminds me. When this first came up, there was one poster around here that was sure that Apple was totally in the wrong in this case. (That was no surprise he was convinced they were always wrong in every way about everything.) More importantly, he was convinced that unless Apple changed course, licensed OS-X and let anyone build Mac Clones they would soon be bled dry by “thousands” of little clone builders. He said several times that Apple would go bankrupt trying to stop the upcoming “tide” of clone builders by litigating.

I wonder what happened to that person? I wonder if he’ll admit that he was utterly, completely, and totally incorrect about this case, Apple’s position, Copyright law, and the ramifications of it.

amergin

Does it not seem obvious that if Apple want this ruling copperfastened that it might be the one pursuing it to the nth degree? If all the courts in the land find Apple in the right from every angle in this case then what chance any company in the future ever finding a loophole. Precedence has a very strong hand in any litigation.

Bryan Chaffin

Does it not seem obvious that if Apple want this ruling copperfastened that it might be the one pursuing it to the nth degree? If all the courts in the land find Apple in the right from every angle in this case then what chance any company in the future ever finding a loophole. Precedence has a very strong hand in any litigation.

Amergin, when you’ve won a court case, you can’t force your opponent to keep appealing.

FrankNiets

Truly a conundrum. Psystar is so stubborn it snags a little respect. Well, a smidgen. Does it have an agenda beyond the obvious, money? A modern day Robin Hood, maybe.

And indeed, where are its lawyer fees coming from? Does it sell so many MacPsystars that is has the money to pay for all these legal fees? I can?t even find it on to view so it must not be selling much. Maybe a zillionaire having a chuckle and a saga over Friday beers with some buds.

I wanted to make a Hackintosh but it seems nearly as expensive as an iMac and the mini looks pretty good now. And then there is the quality thing. And no service plan, though being on the cheap, one probably wouldn?t want to spend the extra hundred deuce.

I do like conundrums.

amergin

Amergin, when you?ve won a court case, you can?t force your opponent to keep appealing.

I know Bryan, but you could probably slip them a few bob. I can’t think of anyone else who might benefit from keeping this overflogged horse from just limping off the track and collapsing.

zewazir

Does it not seem obvious that if Apple want this ruling copperfastened that it might be the one pursuing it to the nth degree? If all the courts in the land find Apple in the right from every angle in this case then what chance any company in the future ever finding a loophole. Precedence has a very strong hand in any litigation.

Interesting theory, but the precedent has already been established by the lower courts.  The only reason for pursuing higher courts would be to overturn precedent.  There is no real need to use higher courts to affirm precedence once it is established.

gnasher729

And indeed, where are its lawyer fees coming from? Does it sell so many MacPsystars that is has the money to pay for all these legal fees? I can?t even find it on to view so it must not be selling much. Maybe a zillionaire having a chuckle and a saga over Friday beers with some buds.

The numbers are: Psystar sold less than 800 computers; they were fined $60,000 total for copyright infringement, and $2500 per computer sold for DMCA violation. And the original court order was that they had to pay the fine if and when their appeal failed, which is now.

My original guess about the source of money was that two enterprising brothers might have been able to bamboozle some local businessman with not too much knowledge of copyright law into financing their business with a few hundred thousand dollars (however, it seems the business would have failed even without Apple’s court case from the numbers I’ve seen), but when they declared bankruptcy one of the brothers was a creditor for $125,000.

NotPaidToSayThis

Copyright laws in our Country are horrible because they have been disfigured terribly from their original Intent: Namely to foster innovation for the public benefit by giving innovators a brief monopoly in their creative works. Once the monopoly expires, the public is free to use the work hopefully to improve upon it. The brief monopoly was originally considered to be ten years.

Sorry, the Copyright Act of 1790 granted copyright for a term of 14 years, which the author could extend to 28. Congress has indeed lengthened those periods. But even if it were still only 14 years, and even if Psystar had not infringed patents, trademarks and license agreements, the most they could hope for would be the right to clone Mac OS 8, released in 1997, and unable to run on their Intel-based hardware. If the term was 28 years, they couldn’t even clone the original Mac 128 (1984).

Drew

why is linux not sueing apple for stealing the linux kernel for powering mac os? Why do you think it takes a simple hack to run mac os on a pc. mac is a superior os but it is not because they innovated a new os.

Bryan Chaffin

why is linux not sueing apple for stealing the linux kernel for powering mac os? Why do you think it takes a simple hack to run mac os on a pc. mac is a superior os but it is not because they innovated a new os.

You are mistaken, Drew. Mac OS X is built on NeXTStep, which uses the Mach kernel. The Mach kernel was originally built off of BSD, not Linux. Apple has, to my understanding, complied with all appropriate licensing every step of the way.

geoduck

Exactly. Check out two charts

the huge one
http://www.levenez.com/unix/unix.png

or the simplified reasonably small one.
http://clusterize.net/wp-content/uploads/2009/08/Unix_history-simple_20021.png

both show the same thing. Linux and OS-X are not genetically related to other. They evolved in parallel. OSX came from the Mach kernel and BSD. Linux evolved on it’s own with early contributions from Minix.

It’s the same relationship that birds and bees have. They both can be tied together to some primordial form lost in the mists of time but evolved on their own. Just because both animals fly does not mean that either copied from the other. Just because there are two forms of UNIX with nice GUI interfaces does not mean that either copied from the other.

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