Posted on 12/15/2009 11:16:26 PM PST by Swordmaker
After months of contentious litigation, Judge Alsup today granted Apple’s request for a permanent injunction and ruled that the injunction encompasses not only includes Snow Leopard, but Psystar’s Rebel EFI software as well. As a quick reminder, Rebel EFI is a piece of downloadable software available on Psystar’s website that allows users to install OS X onto non-Apple hardware. The order notes that Psystar has until December 31, 2009 to cease all infringing activities, with the Court specifically stating that Psystar “must immediately begin this process, and take the quickest path to compliance; thus, if compliance can be achieved within one hour after this order is filed, defendant shall reasonably see it done.”
Put simply, Psystar’s entire OS X “business” is completely shut down.
For all you legal hounds, the scope of the injunction reads as follows:
IT IS HEREBY ORDERED that Apple’s motion for a permanent injunction is GRANTED, and defendant is permanently and immediately enjoined from:
- 1. Copying, selling, offering to sell, distributing, or creating derivative works of plaintiff’s copyrighted Mac OS X software without authorization from the copyright holder;
- 2. Intentionally inducing, aiding, assisting, abetting, or encouraging any other person or entity to infringe plaintiff’s copyrighted Mac OS X software;
- 3. Circumventing any technological measure that effectively controls access to plaintiff’s copyrighted Mac OS X software, including, but not limited to, the technological measure used by Apple to prevent unauthorized copying of Mac OS X on non-Apple computers;
- 4. Manufacturing, importing, offering to the public, providing, or otherwise trafficking in any technology, product, service, device, component, or part thereof that is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to plaintiff’s copyrighted Mac OS X software, including, but not limited to, the technological measure used by Apple to prevent unauthorized copying of Mac OS X on non-Apple computers;
- 5. Manufacturing, importing, offering to the public, providing, or otherwise trafficking in any technology, product, service, device, component, or part thereof that is primarily designed or produced for the purpose of circumventing a technological measure that effectively protects the rights held by plaintiff under the Copyright Act with respect to its copyrighted Mac OS X software.
Over the past few weeks, Psystar has suffered a series of legal blows in California. In mid-November, Apple’s motion for Summary Judgement was granted when the Court found that Psystar’s business model of selling their own hardware with pre-installed copies of OS X constituted copyright infringement. Two weeks later, things got worse for Psystar when Judge Alsup ruled that Psystar owes Apple $2.66 million in damages for infringing upon Apple’s OS X copyrights and violating provisions in the DMCA. Apple and Psystar, however, stipulated that Apple would not exercise its right to collect damages until Psystar has exhausted all appeals on the matter.
Psystar, always looking for a way to skirt around the law, had no choice but to accept the Court’s ruling, but argued at the same time that any permanent injunction handed down shouldn’t include Snow Leopard or its Rebel EFI software. In a motion filed last week, Psystar argued that because Rebel EFI didn’t even exist during the course of the original discovery process, it should therefore fall outside the scope of the permanent injunction. And in a separate motion filed in Florida yesterday, Psystar argued, yet again, that Snow Leopard should fall outside the scope of the permanent injunction because it wasn’t part of the original litigation and raises new factual and legal considerations that shouldn’t be subject to a broad sweeping injunction.
But in a 17-page ruling handed down today, Judge Alsup tosses Psystar’s arguments out the window, essentially stopping Psystar dead in their tracks.
When it comes to a permanent injunction, the law holds that the scope must be “reasonable to prevent or restrain” further infringement of a copyright or violation of the DMCA:
In situations where there is a clear pattern of copyright infringement by the defendant, and there is a threat that other copyrights of the plaintiff may be infringed by the defendant, an injunction may be issued as to future works of the plaintiff as well as existing works. This principle undoubtedly applies here, as Psystar has been found liable of not only direct infringement of Apple’s copyrights in numerous releases of Mac OS X, but contributory infringement and multiple violations of the DMCA related to Apple’s protected works. Additionally, a continuing threat to Apple’s future works — specifically, future versions of Mac OS X — is clearly evidenced by the very existence.
The ruling goes on to state that the scope of a permanent injunction should include all works where the underlying infringement is the same, even if the actual copyrighted work has changed. After all, under Psystar’s train of thought, they’d be able to sidestep any court order every time Apple released a new version of OS X. Clearly, such a scenario would run contrary to the entire purpose of the injunction in the first place.
In reaching that conclusion, the Court cited a case from 1984 which involved an individual who illegally sold t-shirts featuring copyrighted images of Mickey and Minnie Mouse. The court in that case enjoined the defendant from selling t-shirts that featured images of other Disney characters that weren’t at issue in the case, such as Donald Duck and Goofy. Though the defendant reasoned that the injunction was overly broad to the extent that it covered images not at issue in the actual case, the court ruled that when “liability has been determined adversely to the infringer” and there is a significant possibility of future infringement, “it is appropriate to permanently enjoin the future infringement of works owned by the plaintiff but not in suit.”
So within that legal framework, the Court found that even though Snow Leopard may not have been part of the original litigation, the underlying principles are exactly the same.
And for anyone who has followed the legal saga between Apple and Psystar, it shouldn’t come as too much of a surprise that Judge Alsup chastised Psystar, yet again, for questionable legal tactics. ”Finally, it must be noted that Psystar continues to grossly mischaracterize prior rulings in this case to justify their position on this issue.”
Ouch.
As to the Snow Leopard issue, Judge Alsup concludes that
. . . because a copyrighted work need not be included within the scope of discovery to fall within the scope of a permanent injunction, Snow Leopard will not be excluded from the scope of the injunction. Rather, it will be included to the extent that it — and any other non-litigated Apple software programs of similar character to Mac OS X — qualifies as a protected work under the Copyright Act.
Now as for Psystar’s Rebel EFI software, things are a bit trickier since the software consists solely of Psystar’s own code. As mentioned above, Psystar argued that its Rebel EFI software raises new factual and legal issues that should preclude it from falling under the umbrella of an injunction. But Judge Alsup points out that Psystar cited absolutely no decisions to back up its claim. And proceeding to call Psystar out, Judge Alsup notes that Psystar’s interpretation of the Disney precedent cited by Apple gives off the impression that Psystar never even gave it more than a casual once over.
Judge Alsup also disuades Psystar from even thinking about continuing to sell its Rebel EFI software, writing that “Psystar - if it continues to do so - sells Rebel EFI at its own peril.” The problem is that Psystar attempted to argue that its Rebel EFI software was different, but never even explained to the Court how it exactly worked.
Moreover, Psystar’s opposition brief appears to purposefully avoid providing 19 a straightforward description of what Rebel EFI actually does. Thus, it is not only inappropriate, but impossible to determine on this record whether Rebel EFI falls within “the same type or class of unlawful acts” found at summary judgment. This order declines to “bless” a product about which it knows little of substance.
Judge Alsup, though, does note that if Psystar so chooses, it can file a new motion that “includes real details about Rebel EFI” if it later wants to open up formal discovery on the matter. But as mentioned above, continuing to sell the software in the interim would be a dangerous move for Psystar.
Next, the ruling address’s Psystar’s argument that the Court in California shouldn’t address its Rebel EFI software because its ruling may subsequently interfere with and contradict established rulings on the very same topic in Florida. Remember that Psytar, in the midst of the California litigation, filed a similar lawsuit in the state of Florida.
Judge Alsup, however, astutely calls Psystar’s bluff in noting that there are no established rulings regarding the legality of Rebel EFI in Florida, and as such, “Psystar’s argument lacks merit.”
Again, Psystar has until December 31, 2009 to comply with the ruling.
I always get a chuckle over Apple's indignation over their rights to their IP. I mean, for a company that was built using money "earned" selling telephone "blueboxes" and then lifted Xerox's STAR interface (eventually sued by Xerox -- after Xerox watched Apple sue Microsoft for using the UI, after Microsoft PAID Apple for a licence TO use the UI -- a UI invented by Xerox.)
So, pardon my belly laughs at Apple's raging algorian indignation over "their" rights being "violated" -- and join me in pondering the REAL question, mainly, why on earth anyone would WANT to run that crappy excuse for an OS? (My wife is forced to use that garbage at workplace, good grief, what a stinking pile of dog crap!)
“Not true. The manufacturers would not be licensed by Microsoft to be Original Equipment Manufacturers if they did not bundle Internet Explorer... they would lose their licensing. That is a BIG deal.”
Like I said, they would have to pay more to bundle another browser.
“Microsoft’s practices in this matter got them CONVICTED of monopolistic practices. Don’t try to obfuscate the facts, Favor.”
Microsoft settled with the DOJ and they still bundle IE.
“Mac is a brand name... so is Vaio... and HP... a company uses its brand name to differentiate its products within the market it competesin.”
What “brand name” is a “PC”? What are they competing with?
“The MARKET is an economic Market, a specific definition in a technical field of economics and/or advertising.”
Markets are defined and redefined. The most important rule of business is to know what business you are actually in.
“The Market in this instance is both: the Personal Computer Market. C’mon, You are NOT AN IDIOT. Don’t pretend to be one although you are doing an excellent job of convincing us that you are.”
Apple’s PR implies their product is not a “PC”. Now, I know what they mean by that, but they are not stating they are offering a competing “PC” in their marketing.
It’s the same. The same chipsets. The same boards. The same panels.
It's pointless trying to reason with the Macolytes.
They're blinded by their religion (one of them even admitted that he "converted"), degrading themselves by worshiping a leftwing stooge who founded his company by selling illegal telephone pirating devices, and then lifted Xerox's IP (and got sued for it)... and then plays the "It's mine, I stole it fair and square" game -- while courting such conservative luminaries as Al Gore.
Their cult icon is the hottest brand among the hard-left and gay "community" -- and the more they bleat their devotion, insult their betters, and emulate their master, the more they SEEM like the same branded sheep that normal, rational people despise.
In short, you can't reason with them. Elevated BP lies in that path. It's pointless. Might as well try to talk philosophy with a drunk, or calculus with a whore, or political science with a crackhead. Pointlessness defined.
Leave them to their bogo-religion, scorn them openly when in the company of other rational sentient beings, but don't let them bait you into descending to their level to try to "debate" them, because... well it's pointless.
“It’s pointless trying to reason with the Macolytes. “
True, but one would have thought some reason might have descended after Apple tacitly admitted they’d been lying about the performance of their systems for years by switching to PC hardware....
Virginia Tech got a bit screwed when they believed the G5 hype and built a cluster with them....
You can sell the book, burn it, lend it, give it away, tear it up, cherish it, draw in crayon in the margins, but you don't own the ideas or the rights to do what you want with impunity with what's in that book or claim the words in it as your own. Nor can you make a copy of it to give to your friends.
If you have a phone -- and a phone line, a phone number, which you pay the telco for each month -- does that entitle you to connect a "blue box" to use it to gain access to "free" long distance calls without paying the telco's tolls and fees?
Just curious. Just trying to get the lay of the land.
In other news, The Emperor has no clothes. ;)
(86 posts before someone points out the obvious? Tsk tsk! What ARE we anyway? A bunch of "boring straights"? LMAO!)
I am not gonna say it... I am not gonna say it... I am not gonna say it... ;)
What "anti-competitive" practices? Those that require the permitting of third parties to pirate your hard work? Those that require the allowing others to piggy back on your research and development without making the investment? Nothing in the law requires that, contrary to your wishful thinking.
I suppose if one’s needs are limited... then an Apple would be adequate.
And your experience in the Apple Mac world gives you the knowledge to make that judgement that it would be adequate is WHAT? Exactly how much have you used the fully functional, fully certified UNIX™ that is Mac OS X? From your claims on here, I believe your experience is about ZERO.
Well, as a lawyer, you make only a passable engineer... thank God no one is depending on you to defend their intellectual property.
Where do you find an ad hominem attack here?
Not much point in writing the software if you're not going to distribute it.
But I do not have the RIGHT to take something that belongs to my neighbor either.
But the developers don't have a natural right to the software, unlike the natural right your neighbor has to his property. The software belongs to everyone by default, but the Constitution allows for a limited monopoly of rights solely for the purpose of advancing the arts and sciences.
Thus, they can tell me all day long that I can't re-sell or make backup copies of software, but the right to tell me that wasn't granted to them by copyright. Any extension of power beyond copyright that they try to grab with a EULA is by definition invalid, because copyright is what gives them the right to say anything in the first place.
Selling a tool that lets a person install his own legally purchased copy (not purchased license, purchased copy) of OS X is not the equivalent of pirating OS X DVDs and reselling them. But the doctrine of First Sale says that once Apple sells me a copy, Apple loses control of that copy. They have no power to tell me what I can and cannot do with that copy, as a publisher can't tell me what to do with the book. The expanse and limits of their powers are already defined -- in copyright law.
Developers are free to give away their own rights, such as open source freely allows copying. That is the true license, as a license is an allowance to do something you would otherwise not be allowed to do under law (in this case under copyright law, copy and redistribute).
The big question is, what gives them the power to grab more rights than copyright law gives them to their software in the first place?
The JUDGE and the LAW disagree with YOU. The CONTRACT you agree to when you INSTALL your software also disagrees with you. READ IT. YOU LOSE THIS ARGUMENT. You bought a license to use someone else's property. YOU OWN PERMISSION TO USE IT. Nothing else. Be glad you have that permission.
Software is NOT a book... it is a digital expression of an idea, easily copied. A book is something that is tangible and not so easily copied (unless it has been transferred to software)... You think that because software was not thought of when the Constitution was written that we cannot make reasonable accommodation in the law for protecting it and other easily reproducible expressions of art so as to allow their creators to be rewarded suitably for their work? Or should anyone be allowed to merely copy it to their hearts content and give it away.
I'll tell you where I come from on this. I have a good friend who in the 1970s wrote a program for the Apple II. It was a classroom management application that eventually became the gold standard for grade management and attendance record keeping in elementary and secondary schools for over a decade in public schools in the United States. He copyrighted his work. He drew out his life savings and formed a company, wrote and printed a manual on how to use the software, and published his software on floppy disks. He put his software on the market for teachers and schools to buy and use. His price was a mere $79 for software and manual, with volume discounts for district purchases. He was acclaimed for his achievement in School districts, PTAs, and teachers unions everywhere for his work. Eventually, thousands of copies were in use in classrooms around the country. He sold fewer than 100 copies. Someone broke his protection and started handing out copies willy nilly... One of the major Teacher Unions published its own version. Many of them, adding insult to injury, still included his copyrights claims. Various versions were even published in magazines... free to be typed by hand and even contained bits of code my friend had included as identifiers of his work. My friend went bankrupt and never wrote another bit of code in his life.
I have been a professional musician. I've had my music stolen. I have also been a professional writer. I've had my writing stolen, and published, even though copyright by me, with someone else's name on it. Don't tell me about copyrights. I have ghost written articles and books... and when I do, I sell the rights to those articles and books to the person who hired me to write them. I do not retain any rights of copyright to them. THEY OWN the COPYRIGHT. If I write something for my employer, I do not own the copyright, my employer owns it, unless I have a contract with my employer that explicitly allows me to retain my copyrights... that's very rare.
Awhile??? What's awhile?? Snow Leopard has only been available since August 28, 2009. Every other major upgrade release of OS X since its debut in 2001 has been $129... or free for x.y releases. You really DON'T KNOW what you are talking about, do you?
Some of what you posted is pure MYTH. More is just a lie.
First of all... while Jobs and Wozniak, as teenagers did indeed sell "Blue boxes", the money for Apple came from venture capitalists... and Apple did NOT lift the STAR interface for the UI. Apple paid XEROX 1,000,000 shares of pre IPO APPLE Common stock for mere 16 hours of visits to PARC and the rights to use what the learned there (they took no code, only ideas). Secondly, Apple's and Xerox's implementations of the User interfaces were very dissimilar... and Apple invented quite a bit of it independently including such things as the drop down menus, movable windows, the trashcan metaphor, drag-and-drop, and sub menus. These things are documented.
I agree that Apple got hoodwinked by a more sophisticated legal team from MS... Apple thought they had signed a limited one year license agreement for the Desktop UI with MS but the judge ruled the one year limitation was invalid... and the rest is history. XEROX's suit was initiated by a new XEROX CEO who was not familiar with the 1978 visit to PARC and the terms of the agreement. The suit tossed out of Court when Apple produced the written agreements that revealed that Apple had indeed paid for the rights and had not "lifted" anything from Xerox's Parc and were entitled to what they used. Xerox had sold the stock it received for the visit for about $16,000,000 shortly after Apple went public in 1980. The made about $1 million an hour for a show and tell dog and pony show. s
The undocumented/secret APIs has been proven in court during the antitrust trial. Microsoft hasn’t changed from that; in fact, they’re still using them instead of their own .NET products for Office.
Don't you know? Apple is competing with every computer out there that is running an operating system that is not running Apple Mac OS X... generically called a PC.
Do you want them to waste precious screen time saying "Hi! I'm a Mac" and "Hi! I'm a Vaio" and "I'm an IBM" and "Hi! I'm a Sony" and "Hi! I'm a HP" and "Hi! I'm a Dell" and "Hi! I'm a Compaq" and "Hi! I'm a Vostro" and "Hi! I'm a TigerDirect" and "Hi! I'm a Lenovo" and "Hi! I'm a ASUS" and "Hi! I'm a NewEGG" and "Hi! I'm a Viewsonic" and "Hi! I'm a Psystar Windows" and "Hi! I'm a Cyberposer" and "Hi! I'm a LYC" and "Hi! I'm an AcousticPC" and "Hi! I'm a SuperPC" and "Hi! I'm a CybermetmanPC" and "Hi! I'm a EEEPC" and "Hi! I'm a OUTLETPC" and "Hi! I'm a ChicoPC" and "Hi! I'm a Joe'sPC... etc... etc,,, etc... and on and on...
Everybody, except apparently you, knows what is being talked about... a PC is a reference to a personal computer that runs Windows.
Apple’s PR implies their product is not a “PC”. Now, I know what they mean by that, but they are not stating they are offering a competing “PC” in their marketing.
They are stating that they are offering an alternative to PCs in their marketing... better than a PC. An alternative. Why use "A" when you could be using "B"?
Markets are defined and redefined. The most important rule of business is to know what business you are actually in.
Exactly. Apple knows exactly what they are selling. They are selling a solution to a problem. The solution to the problem that many people who have been experiencing... the one that has been inflicted on them by Microsoft... Windows.
And all those people who are sick and tired of the issues they have had with all those boxes with the names I've helpfully listed above will know that those are what they DON'T WANT... something that all of them have in common that the alternative does NOT have... and they will try something different... a Mac. Most of them will find that a Mac is what they want. It does just work... unlike the things they have been fighting with... Windows PCs.
Please quit with the lies, Don Joe. The facts prove you are a liar. Xerox lost that lawsuit because Apple paid them handsomely for the PARC visit... and took no code, stole nothing. The Quote you are citing is actually more closely attributed to Bill Gates than Steve Jobs.
Ad hominem attack is the last refuge of those who have no facts to apply to an discussion... ergo, you have lost this discussion before you even entered the fray.
OH Bovine Excrement!
With that lie, I know you ARE a TROLL... and are working hard to prove you are not pretending to be an idiot. Quit lying.
That Mac based Beowulf Cluster was the 3rd fastest supercomputer in the world, hitting a sustained 11 TFlops and peaking to 15 when it was built for 1/5th the cost of the next least expensive of the top ten fastest machines at the time it was built in 2003, with 1100 dual processor G5 PowerMacs (2200 processors). The next fastest was only slightly faster (15 TFlops) and cost over ten times more and the fastest (33.5 Tflops), the Japanese Earth Simulator, was 30 times more expensive at $150 million.
The following year, they replaced the 1100 PowerMacs with 1350 Dual processor xServes, saving space and power, and, although others had built even larger Beowulf Clusters, the new VT cluster was still the 7th fastest Supercomputer in the World in 2004, and it still came in at a cost three times lower than any of the others in the top ten.
How you can say they "got screwed" is beyond me.
Shortly afterwards the US Army purchased a 1566 PowerMac based Supercomputer called the Mach 5 with 3132 processors in it for $5.8 million, that, although classified, was reported to have been able to do over a sustained 15 Tflops. The Mach5 was reportedly going to be used in designing hypersonic helicopter blades... but nothing was heard much about it after it went into service, being classified. I question whether the Colsa Mach 5 would reach the 15 TFlops speed because the VT got its high speed because of using a high tech Infiniband intercommunications system while the US Army was planning on using the lower tech and much slower built-in gigabit ethernet for intercommunications between the units. My guess is the speed would have been about the same, despite the greater number of processors.
Last year, November, they Virginia Tech built System G with 325 Xeon based MacPros (2600 processor, 2600 gigaBytes RAM) and produced a sustained 22.5 Tflops (trillion ops per second) of throughput with peaks of up to 29.5 TFlops.
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