Abusing Copyrights to Silence Critics, Control Customers, and Crush Competition
What They've Twisted Copyright Into
"The whole case with Psystar just underlines what big business has twisted copyright into. The so-called 'DRM' in Apple's operating system isn't to prevent copying of the software, but to prevent installation on a non-Apple machine."
"Psystar wasn't selling pirated copies of Apple's operating system, they were simply installing legitimately purchased copies of the operating system on machines not made by Apple. The only thing prohibiting this is the EULA for the operating system, not copyright law, so how does this this by any stretch of the imagination make them "hardcore copyright infringers"? At most it puts them in violation of the EULA, a contract, not copyright law."Since it is not a violation of copyright to install the operating system on other hardware besides Apple's, the DMCA does not apply. The DMCA only applies to circumventing copy protection, not circumventing installation protection (and installation is specifically covered as an exception to copyright protection according to U.S. copyright law, so for legal purposes it does not constitute copying).
"Did Psystar violate the EULA on OS X? Perhaps they did. A better question might be, "Is that part of the EULA legal?" It stomps all over the normal fair use rights of consumers. In any event, this is not a copyright case and shouldn't be regarded as one. Money behind you makes all sorts of things possible though."
Will not stop Mac clones
"If Apple thinks it has scored a major victory here it is mistaken. While Psystar was appallingly brazen by actually marketing and selling Apple clones, the hacker community has been developing methods and hacks for installing Apple's venerable OSX onto ordinary Intel/AMD based hardware for years. The underground community behind these so called "Hackintosh" machines is large and growing. While I understand Apple's position in maintaining total control over the hardware and software, I can't imagine how allowing even unsupported installation of OSX onto generic PCs would hurt Apple. In fact, in my view it would be a win-win situation for all concerned. Perhaps if OSX and its huge commercial software library were available as a viable alternative to Microsoft Windows, we'd actually get some real innovation out of Redmond."
Shutting Up Truth
Court orders three H-1B sites disabled looks like a classic SLAPP (Strategic Lawsuit Against Political Participation) lawsuit, and an example of abusing copyright to shut up critics. Unfortunately in this case it has partially succeeded. If copyrighting documents is all it takes to shield them from critics and whistleblowers, then we are in seriously bad shape as a country. As this reader observes, even the most generous interpretation is hard to put a positive spin on:Can't have it both ways
"I could accept EITHER that they were the copyright holders, or that the contents were false and defamatory. I can't accept BOTH as being true. So the company is lying about at least something, even if we can't tell what. Unless there's a much more subtle explanation (e.g., it was put together as a joke inside the company), which I might believe if they explained it. Possibly."OTOH, news reports usually distort things. So perhaps we're being presented with a distorted image? (This, however, sounds like the kind of things that get reported straight, because they're boring, and thus not worth any extra work.) It sounds much more like legal intimidation and the court abusing the weaker party than anything else."
This case also vividly highlight the perils of Internet publishing-- there are many links in the chain outside of any individual's control (domain name registrar, hosting provider, Internet service provider, telcos), and all it takes to shut down a site is to break any one of these links.
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The one quote from a reader said:
"Psystar wasn't selling pirated copies of Apple's operating system, they were simply installing legitimately purchased copies of the operating system on machines not made by Apple."
Hmmm, actually I think I remember reading in one of the articles about this case that they were only buying approximately one copy for every three or so that they installed. I forget what rational they used for that but I was pretty shocked. If they had actually been careful about doing one for one the judge might have been more receptive. Of course this goes to show that these guys were not actually so honest ... just having a disagreement over what should be appropriate under copyright. Ie can an EULA restrict your chosen use of a product you buy?
As for the H-1B situation, two thoughts, just my opinions about an ideal world. (IANAL)
1. A contract before signing might be able to be protected (as some people sell books of draft contracts - a seemingly valid reason to want protection). But a signed version becomes a legal document and should not be able to be copyrighted as that would preclude reasonable expected uses. Also I would consider this instance a case of fair use as it was not copied for business use but was revealed to inform potential interested parties. This is what I would consider a valid "legal" use. In fact if I traveled a long distance to get a job and only after arriving was given a complex onerous contract to sign I would probably end up signing under duress which by definition would make the contract null and void. This company should be sending a copy of contractual documents before someone travels to the site to ensure that there is no duress. Of course they are purposefully using it in this way to get an unfair contract signed.
(Note to self - always ask for copies of any contracts to be signed to be sent for review at least one week before traveling. Note that any new documents produced on arrival will not be signed until I have my lawyer look at them and note that they are expected to pay my expenses until that occurs whether or not they can allow me to work before it is signed. If the new contract(s) are unacceptable and the issues cannot be resolved they will reimburse all expenses, travel and time (mine and my lawyers) associated with the late contract changes.) Note that if they are unwilling to agree to this protocol then they are trying to pull one over on me and I most emphatically do not want to work for them.)
2. If the contracts and etc. were reproduced verbatim then the forum comment is correct, this by definition cannot be defamation.
I saw a suggestion that this looks like a SLAP suit which I think is in basic terms "using the legal system to intimidate". I am not sure but this is probably illegal, can anyone enlighten us to the specifics, definition and defenses?
Great article. Important topics. Keep up the good work.
Of course the kicker in the Psystar case is that it is OK when we do it, see SFLC v. everyone that uses busybox commercially. Way to be hypocrites, people.
Hi Bob,
The cost of avoiding any unpleasantness when including the millions of lines of code and hard work of the Busybox project in your product is to have your lawyer read 2,968 words of the GPLv2 license.
To be completely fair about this, I discovered that there is a technicality involved which allows them to make this case about copyright. The installation of Mac OS X on the Psystar hardware requires them to bypass the encryption in the software through a modification of the operating system. By selling the machines with the modification already done, it can be argued that they are in actuality distributing a derivative work. Of course, it can also be argued that this minor modification is fair use and being done simply as a service by Psystar. The court didn't see it this way, but calling Psystar "hardcore copyright infringers" is still, at best, a gross exaggeration, since they did pay Apple for each copy of the operating system they sold.
It's similar to that case a while back about the guy (kid really) who bought name brand sneakers, like Nike and Reebok, and then made modifications to them (to add "bling") and resold them at a higher price. Was he violating the rights of the company that he bought the sneakers from by doing this? I'm not sure if I ever heard how that case turned out, but this is really a similar situation.
Hmmm, actually I think I remember reading in one of the articles about this case that they were only buying approximately one copy for every three or so that they installed. I forget what rational they used for that but I was pretty shocked. If they had actually been careful about doing one for one the judge might have been more receptive. Of course this goes to show that these guys were not actually so honest ... just having a disagreement over what should be appropriate under copyright. Ie can an EULA restrict your chosen use of a product you buy?
If that's actually the case, then I withdraw my objection to the phrase "hardcore copyright infringers." :-) For Psystar to be square in my book, they would need to have included the original software package from Apple in the box with every computer they sold with a pre-install. The only rationale I can imagine for installing it on multiple machines for each copy would be a license from Apple allowing customers to do this on a limited number of machines. This could only be legitimate, even with such a provision from Apple, if it was done as a straight service, and they were certain that all the machines installed from each license were actually going to the same customer (who also already had or would receive the license). It would be better to stay away from that type of thing altogether, though.
Bob: No, the SLFC vs Everyone is about making sure those using/selling the software comply with a Copyright License, not a EULA. A copyright license that specifies what must be done in order to distribute the software.
These companies are not complying with the 4 freedoms of the GPL. Once they comply, law suite gone. Unlike Apple, they are not restricted from using busybox beyond that. There is no way around Apple's EULA unless it is declared unlawful.
C. Whitman's comment, "For Psystar to be square in my book, they would need to have included the original software package from Apple in the box with every computer they sold with a pre-install", resonates with me.
Thinking again about my earlier comment, I cannot remember the location of the article but I'll bet that Pystar was buying the Family packs of OSX which license the software for 5 machines. Of course the family pack provides only one set of media. In any case I guess that they were installing on 5 machine rather than 3, the article did not mention the family packs but this would cover the fact that pystar thought they had a valid rational. However, I would agree with C. W. that Pystar should have been providing Apple media for every installation. Of course they knew they were violating the EULA so they were begging for a confrontation but that is another issue.
I view an individual trying a purchased copy of OSX on their own existing hardware as being fundamentally different than Pystar doing what they did. In the first case there is a good chance that the individual may decide to purchase a Mac next time they buy a computer this provides Apple with a software sale and the chance at additional future sales. In the case of Pystar, a new non-apple machine is being sold in place of an Apple machine. (So there is harm to Apple.) Now whether the Law should allow this is beyond my ability to argue one way or the other but I see them as two distinctly different types of actions with very different results. If I were to try to take market share from Apple I would legally reverse engineer their APIs and user interface. However I am too happy with Linux to bother. (Disclaimer - I own and use both Apple machines and generic PCs. I Run Linux most of the time, OSX occasionally and though I have many licenses for W2K XP and Vista(1 only) I only have one copy of W2k installed in a virtual machine, and usually use Wine instead on those rare occasions that I need windows.)
Given the current risk of viruses and malware on Windows (why I avoid using Windows) I would have to say that Apple is missing a great marketing opportunity right now by not selling OSX for non-Apple hardware. Of course that also ignores the extra effort it would take to ensure that OSX runs well on all the hardware you find in generic PC hardware. I would love to watch the market share numbers move if they did this.
bypass encryption? iirc, the apple motherboards use EFI rather then BIOS, and maybe have a special magic bit or something that the apple installer looks for, but beyond that there is no encryption in use...
and i seem to recall that what psystar was doing was create a drive image of a mac install, and then using that to preinstall the systems (same as dell, hp or any other company do with windows), but they did provide original osx media along with the machine.