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Psystar Claims Apple Forgot To Copyright Mac OS 648

Posted by kdawson
from the that-would-be-an-oopsie dept.
Preedit writes "Mac cloner Psystar is claiming in new court papers that Apple's copyright suit against it should be dismissed, because Apple has never filed for copyright protection on Mac OS X 10.5 with the US Copyright Office. Infoweek is reporting that the claim, if it holds up, could open the door for third-parties to enter the Mac market without fear of legal action from Apple. In its latest set of allegations, Psystar is also accusing Apple of bricking Macs that don't run on genuine Apple hardware." We've been following the Psystar-Apple imbroglio since the beginning.
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Psystar Claims Apple Forgot To Copyright Mac OS

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  • Berne convention? (Score:5, Informative)

    by Anonymous Coward on Tuesday December 23, 2008 @12:15AM (#26208483)

    I thought since the US joined the Berne convention [wikipedia.org] in the 80s or 90s, registration with the copyright office is not required...

  • Case closed! (Score:5, Informative)

    by Anonymous Coward on Tuesday December 23, 2008 @12:16AM (#26208489)
  • Re:Berne convention? (Score:5, Informative)

    by gruntled (107194) on Tuesday December 23, 2008 @12:24AM (#26208563)

    Sigh. From the US Copyright Office:

    http://www.copyright.gov/circs/circ1.html#cr [copyright.gov]

    Copyright Registration

    In general, copyright registration is a legal formality intended to make a public record of the basic facts of a particular copyright. However, registration is not a condition of copyright protection. Even though registration is not a requirement for protection, the copyright law provides several inducements or advantages to encourage copyright owners to make registration. Among these advantages are the following:

            * Registration establishes a public record of the copyright claim.

            * Before an infringement suit may be filed in court, registration is necessary for works of U.S. origin.

  • Re:Berne Convention? (Score:5, Informative)

    by corsec67 (627446) on Tuesday December 23, 2008 @12:27AM (#26208585) Homepage Journal

    Not trying to flame, but by this argument, the Berne Convention should render the GPL null and void.

    No, the GPL has most of its power because copyrights are automatic. The GPL is an optional license that you can use to copy the program. If you don't obey the license, it is a copyright violation, since copyrights are automatic.

  • Re:Berne convention? (Score:5, Informative)

    by im_thatoneguy (819432) on Tuesday December 23, 2008 @12:27AM (#26208587)

    This is correct. But I'm not certain you can claim "a copy of OSX" is the damage per infringement.

    Psystar in this case is using legally purchased copies of OSX.

    Apple would be forced to disclose the ACTUAL *loss* that they sustain on each OS sale as the split between Retail and Development. So if every copy of OSX is sold at a $100 loss in order to push hardware sales they'd be forced to disclose that amount.

  • Re:Case closed! (Score:3, Informative)

    by Divebus (860563) on Tuesday December 23, 2008 @12:42AM (#26208699)

    Looks like you're right. The Apple lawyers only need to stand up, say "Registration Number TX0006849489" and sit down. (sfx: gavel strike)

  • by evilgrug (915703) on Tuesday December 23, 2008 @12:48AM (#26208737)

    Mac OS X Leopard Version 10.5.
    Type of Work: Text
    Registration Number / Date: TX0006849489 / 2008-01-24
    Application Title: Mac OS X Leopard Version 10.5.
    Title: Mac OS X Leopard Version 10.5.
    Description: Print material + CD-ROMs.
    Copyright Claimant: Apple Inc.. Address: 1 Infinite Loop, Cupertino, CA 95014
    Date of Creation: 2007
    Date of Publication: 2007-10-26
    Nation of First Publication: United States
    Authorship on Application: Apple Inc., employer for hire; Domicile: United States. Authorship: new and revised text, illustrations and compilation; new and revised computer program.
    Previous Registration: 2006, TX-6-325-148.
    Pre-existing Material: Previous versions of "Mac OS" and "Mac OS X" operating system software code.
    Basis of Claim: new and revised text, illustrations and compilation; new and revised computer program.
    Copyright Note: C.O. correspondence.

  • Back to Basics (Score:5, Informative)

    by westlake (615356) on Tuesday December 23, 2008 @12:51AM (#26208773)
    The United States Copyright Office says otherwise.

    "No publication or registration or other action in the Copyright Office is required to secure copyright.

    If made before or within 5 years of publication, registration will establish prima facie evidence in court of the validity of the copyright and of the facts stated in the certificate.

    If registration is made within 3 months after publication of the work or prior to an infringement of the work, statutory damages and attorney's fees will be available to the copyright owner in court actions. Otherwise, only an award of actual damages and profits is available to the copyright owner.

    If the work is an unpublished or published computer program, the deposit requirement is one visually perceptible copy in source code of the first 25 and last 25 pages of the program. For a program of fewer than 50 pages, the deposit is a copy of the entire program.

    If the work is in a CD-ROM format, the deposit requirement is one complete copy of the material, that is, the CD-ROM, the operating software, and any manual(s) accompanying it. If registration is sought for the computer program on the CD-ROM, the deposit should also include a printout of the first 25 and last 25 pages of source code for the program." Copyright Office Basics [copyright.gov]

  • by ari_j (90255) on Tuesday December 23, 2008 @01:29AM (#26208981)
    You're not quite right. But that's okay, this is Slashdot. Carry on!

    1. You only lose statutory damages, and only for pre-registration infringement.
    2. You can register anytime, although within a short time after publication is a good idea. So you register today, sue tomorrow, and get actual damages for pre-registration infringement and statutory damages for post-registration infringement.

    Any failure to register the copyright isn't going to stop Apple from enforcing its copyright going forward.
  • Re:Berne convention? (Score:3, Informative)

    by sonamchauhan (587356) <sonamcNO@SPAMgmail.com> on Tuesday December 23, 2008 @02:04AM (#26209167) Journal

    > A large part of this case revolves around whether
    > Psystar has a legitimate right to tell the whole world
    > what business Apple is in.

    Nonsense!
    Whatever this case is actually about, it is not the stuff you are stating.

    Hello world - I affirm that Apple is in the browser business.

    Now sue me Apple!

  • Re:Berne convention? (Score:5, Informative)

    by NF6X (725054) on Tuesday December 23, 2008 @02:22AM (#26209241) Homepage

    I'll be really surprised if Apple doesn't agree to simply make a deal with Psystar to manufacture clones for a licensing fee. It isn't that radical - Apple licensed Mac clones back in the late 80s - early 90s (see http://en.wikipedia.org/wiki/Macintosh_clone#The_first_Macintosh_clones [wikipedia.org] ).

    From the Wikipedia article that you linked to:

    Jobs claimed [...] that the Mac clone program was doomed to failure from the start, and since Apple made money primarily by selling computer hardware, it ought not engage in a licensing program that would reduce its hardware sales.

    Prepare to be really surprised. ;-)

  • by osu-neko (2604) on Tuesday December 23, 2008 @02:54AM (#26209353)

    ... copyright is not a verb.

    The dictionary disagrees. [answers.com] Like many words in English, depending on context, it can be a noun, a verb, or an adjective.

  • Re:Berne convention? (Score:5, Informative)

    by JebusIsLord (566856) on Tuesday December 23, 2008 @02:56AM (#26209357) Homepage

    Back then a computer was $4000, which included significant margin. Nowadays, computers (yes, even Macs) are much cheaper, and the margins are lower. Apple sells a new copy of OSX every year to most of its customers, with or without a new computer. This could make them money, if tightly controlled.

  • Re:Berne convention? (Score:5, Informative)

    by Nethead (1563) <joe@nethead.com> on Tuesday December 23, 2008 @03:15AM (#26209411) Homepage Journal

    http://en.wikipedia.org/wiki/Franklin_Computer [wikipedia.org]

    In early 1982, Franklin released the Franklin Ace 100, and in March of the same year, the Franklin Ace 1000; they were very close copies of the Apple II and II+ computers, respectively. The motherboard design is nearly identical and Franklin also copied Apple's ROMs. Two months later, Apple Computer sued Franklin for copyright violation. Franklin initially won. (See Apple Computer, Inc. v. Franklin Computer Corp..)

  • Hip, what? (Score:1, Informative)

    by Anonymous Coward on Tuesday December 23, 2008 @03:22AM (#26209435)

    As long as they want to keep their hip turtle neck wearing image

    This "Apple==hip" thing is getting ridiculous.

    iPods might be hip, but iMacs, Apple TV, OS X, iLife, iWork, Airport Extreme, Time Capsule, etc?

    Have you ever used them? One's a fscking operating system, and the others don't leave your house. In fact, many sit next to your fancy TV, stereo system, entertainment center, whatever, and generally just blend in. None of those, other than maybe the iMac is at all stylish. A better way to describe Apple's designs is "not fugly". You have to admit, "not be an eyesore" isn't a design requirement for traditional PC's, network equipment, set-top-boxes, etc.

    Believe it or not, Apple actually makes some very good products that people buy for completely non-aesthetic reasons.

    No I am not bashing Apple or its users.

    I figured you mean well, but where do you get this "turtle neck wearing image" BS from? If you can explain that to me, then carry on. Spotting macs in a coffee shop doesn't make us all hipsters.

  • by bledri (1283728) on Tuesday December 23, 2008 @04:00AM (#26209549)

    You can't "forget to copyright" something because copyright is not a verb. ...

    copyright
    noun
    the exclusive legal right, given to an originator or an assignee to print, publish, perform, film, or record literary, artistic, or musical material, and to authorize others to do the same.
    verb [ trans. ]
    secure copyright for (such material).

  • by gnasher719 (869701) on Tuesday December 23, 2008 @05:37AM (#26209855)
    It has been said before in this thread, but I think not clearly enough. Just because Psystar makes some outlandish claim (and how likely is it that Apple forgot to register copyrights on MacOS X ?), doesn't mean it is true. In this case, the fact is that Apple has registered the copyright on MacOS X Version 10.5 Leopard on 24/Jan/2008 under the registration number TX0006849489. You caln follow the link below, which will time out again; when it is timed out do a search for "Mac OS X Leopard" which finds Apple's copyright and three copyrights for books. http://cocatalog.loc.gov/cgi-bin/Pwebrecon.cgi?v1=4&ti=1,4&Search_Arg=Mac%20OS%20X%20Leopard&Search_Code=TALL&CNT=25&PID=wRSriYVKQl7vglCfQyV3qoEcDM4&SEQ=20081223043158&SID=3 [loc.gov] What a waste of time this Psystar company is. Psystar also claims that Apple has code in MacOS X that prevents it from running on non-Apple computers and therefore is evil, but somehow this code isn't copy protection because Psystar would never, never circumvent copy protection and violate the DMCA act.
  • by Anonymous Coward on Tuesday December 23, 2008 @05:39AM (#26209867)

    Gizmodo insight! [gizmodo.com]

  • Re:Berne convention? (Score:5, Informative)

    by AtomicJake (795218) on Tuesday December 23, 2008 @05:46AM (#26209897)

    Sight, if you quote the link, do it completely and correctly. Then you see that: (1) you can register anytime your copyright, and (2) your claims are limited if you register after an infringement.

    Quote from: http://www.copyright.gov/circs/circ1.html#cr [copyright.gov]

    Copyright Registration

    In general, copyright registration is a legal formality intended to make a public record of the basic facts of a particular copyright. However, registration is not a condition of copyright protection. Even though registration is not a requirement for protection, the copyright law provides several inducements or advantages to encourage copyright owners to make registration. Among these advantages are the following:

            * Registration establishes a public record of the copyright claim.

            * Before an infringement suit may be filed in court, registration is necessary for works of U.S. origin.

            * If made before or within 5 years of publication, registration will establish prima facie evidence in court of the validity of the copyright and of the facts stated in the certificate.

            * If registration is made within 3 months after publication of the work or prior to an infringement of the work, statutory damages and attorney's fees will be available to the copyright owner in court actions. Otherwise, only an award of actual damages and profits is available to the copyright owner.

            * Registration allows the owner of the copyright to record the registration with the U. S. Customs Service for protection against the importation of infringing copies. For additional information, go to the U.S. Customs and Border Protection website at www.cbp.gov/xp/cgov/import. Click on âoeIntellectual Property Rights.â

    Registration may be made at any time within the life of the copyright. Unlike the law before 1978, when a work has been registered in unpublished form, it is not necessary to make another registration when the work becomes published, although the copyright owner may register the published edition, if desired.

  • Re:WTF (Score:5, Informative)

    by wild_berry (448019) * on Tuesday December 23, 2008 @06:14AM (#26210011) Journal

    Read a comment to TFA. It links to http://www.copyright.gov/circs/circ1.html#cr [copyright.gov], which has the following line: "Before an infringement suit may be filed in court, registration is necessary for works of U.S. origin."

    AIUI, if PsyStar have rightly identified that Apple failed to register the version of Mac OS X sold by PsyStar within 3 months of publication, then Apple can't bring the suit.

  • Re:Berne convention? (Score:4, Informative)

    by TheRaven64 (641858) on Tuesday December 23, 2008 @08:03AM (#26210359) Journal
    Except they aren't. I used to have an upgrade disk for 10.3 (which cost £10, as opposed to the full price of around £60). It required me to have 10.2 installed before it would run (which was very irritating when I needed to do a reinstall after the machine was repaired, since I had to install 10.2, and then 10.3, even though the 10.3 installer was deleting everything already on the disk). In contrast, the boxed copies of 10.4 and 10.5 that I own install without checking for a previous version.
  • Re:WTF (Score:5, Informative)

    by GauteL (29207) on Tuesday December 23, 2008 @08:52AM (#26210529)

    "AIUI, if PsyStar have rightly identified that Apple failed to register the version of Mac OS X sold by PsyStar within 3 months of publication, then Apple can't bring the suit."

    Not correct. Please read your own sources better. As your link clearly states: "Registration may be made at any time within the life of the copyright."

    However as the grand parent state (and your link confirms) Apple can't file for statutory damages or attorney fees unless they filed the registration within 3 months.

    Another quote from your link:
    "Even though registration is not a requirement for protection, the copyright law provides several inducements or advantages to encourage copyright owners to make registration."

  • by frdmfghtr (603968) on Tuesday December 23, 2008 @08:57AM (#26210551)

    None of them could just send me a darn shift key. I just want the key, I can do the rest myself. With any other vendor, replacing my shift key would have been simple. Hell I can get a cheap laptop for $283.

    Have you tried ifixit.com? The parts may be used, and you may void the warranty by replacing it yourself, but it's an option. (I'm not defending Apple in this--I got pissed when my local Apple store wouldn't swap my iMac's hard drive with a new one that I would supply--just offering an alternative.)

  • by nxtw (866177) on Tuesday December 23, 2008 @09:26AM (#26210715)

    I would imagine that trying to run OSX on non-64-bit hardware would be a recipe for disappointment.

    It wouldn't be. The OS X kernel isn't even 64-bit yet; it's 32-bit with the ability to run 64-bit processes. Snow Leopard [appleinsider.com] will have the first 64-bit kernel.

  • by platypussrex (594064) on Tuesday December 23, 2008 @09:47AM (#26210847)

    Registration is not required to secure a copyright on a work. Copyright is secured automatically when the work is created. So the very fact that Mac OS X 10.5 Leopard exists is a copyright.

    However, Apple must have registered their copyright on Mac OS X 10.5 Leopard before they can file suit for infringement on this copyright.

    Read about all that at copyright.gov:
    http://www.copyright.gov/circs/circ1.html [copyright.gov]

    This would all seem to be moot though. According to copyright.gov, Apple registered their copyright on Mac OS X Leopard Version 10.5 on January 24, 2008, Registration Number: TX0006849489.

    http://cocatalog.loc.gov/cgi-bin/Pwebrecon.cgi?v1=4&ti=1,4&Search_Arg=Mac%20OS%20X%20Leopard&Search_Code=TALL&CNT=25&PID=-H_wcyyigtEZ3UT-QtRpXsTJUefv&SEQ=20081222171112&SID=1 [loc.gov]

    I have no doubt that there is something we're missing here, as it seems unlikely that Psystar's Lawyers couldn't do a simple search at copyright.gov for "Mac OS X Leopard". But this article offers little more than an announcement that Psystar has responded to Apple's copyright suit.

  • Re:Berne convention? (Score:3, Informative)

    by BobTheLawyer (692026) on Tuesday December 23, 2008 @09:47AM (#26210849)

    How can that be? The cost of physically producing a copy of OS X is tiny. There may be a huge sunk development cost but - no matter what it is - Apple will make money off each sale. Whether this is increasing Apple's profit from OS X, or reducing its loss doesn't change that.

  • by Jimithing DMB (29796) <dfe AT tgwbd DOT org> on Tuesday December 23, 2008 @10:12AM (#26211057) Homepage

    I assure you they are not trying to claim the bootloader does any checks since they are using my bootloader [tgwbd.org] and not Apple's boot.efi.

    I think what they are trying to claim is that Apple's kernel startup routine blocks certain machines. And this is true. It blocks any CPU that is not family 6 and I think also checks for certain models (like 14 and 15 which are Core and Core 2). Beyond that it also checks for LAPIC version which if they actually were to enforce it would really fuck with running OS X under VMware.

    Of course the problem with Psystar's argument is that Apple is checking for these things because you need this information to properly initialize things for the processor. Apple can easily argue that they only bother checking for CPUs that they use in their machines because they have no reason to explicitly support anything else. And it would require at least some small amount of explicit support.

    The flip side of this is that for the last few OS X point releases, Apple has finally got someone dedicated to doing the code releases and the equivalent Darwin xnu kernel source is coming out like the next day after Apple pushes out the update. It takes like 5 minutes to apply your patch to the new version since the startup code doesn't change very much. Then it takes like 10-20 minutes to build the new kernel.

    Of course none of this has anything to do with what you were talking about which is the actual check for Mac hardware. That is separated into its own kernel extension called "Dont Steal Mac OS X.kext" And it isn't actually a check. It asks the SMC kext to ask the SMC (Systems Management Controller present only on Apple hardware) for two values. It then installs a hook function with the kernel (and you can find dsmos_hook in the open source) which the kernel will call anytime it needs a page decrypted. The Dont Steal Mac OS X.kext then implements the function to use the decryption keys it retrieved from the SMC to AES-256 decrypt the pages that the kernel asks to be decrypted. I've done a write-up [tgwbd.org] of this on my site which should hopefully demystify the process a bit.

    Might it be that Psystar can win on that part due to the Lexmark decision? Maybe. Or maybe they get their ass handed to them because the replacement for Dont Steal Mac OS X.kext is a clone of Apple's kext that contains the keys as constant data instead of pulling the keys from the SMC. Those keys are copyrighted and presumably specifically registered with the copyright office as a separate work from OS X.

    The bottom line is that this is basically a legal minefield and it looks as though it was specifically architected as such by Apple. Should Apple lose on one thing they can bring suit for something else.

  • Re:Berne convention? (Score:4, Informative)

    by xstonedogx (814876) <xstonedogx@gmail.com> on Tuesday December 23, 2008 @10:34AM (#26211263)

    Normally people just say "I am not a lawyer" rather than proving it dramatically.

    Except Jack Thompson.

  • Re:Berne convention? (Score:5, Informative)

    by thesandtiger (819476) on Tuesday December 23, 2008 @11:15AM (#26211625)

    You are missing a lot of factors that go past the margin on the hardware.

    One of the reasons Windows gets a bad rap for crashing a lot is because it has to be able to handle any kind of hardware you throw at it. One of the reasons Linux gets such a bad rap for being difficult to install and use is because virtually everyone who's ever installed it has probably run into a problem where some piece of hardware that should be easy to make work just won't. Apple, on the other hand, gets a reputation for "just working" because they control what hardware is used with it - yes, there are problems, but in general they are much less on a user-per-user basis than alternatives.

    Another big factor would be reputation as a premium brand. iPods are the bit of Apple that anyone can afford, but they maintain their image as premium by generally doing a good job trying to control the retail experience, charging a premium for the hardware, and all that. Being just another OS would remove that and would take a lot of tarnish off the corporate identity.

    Another would be a huge spike in support costs. Right now, many of Apple's customers buy AppleCare and that subsidizes the costs of support to some extent. If they're just selling the OS and people start having problems because Cheap Chinese Piece of Shit Video Card doesn't work with OSX, they have to be able to handle that OR risk ruining their reputation for "just working" and their premium brand image, both of which eventually lead to their margins.

    It isn't just the margin on the hardware that Apple's worried about - it's everything else. They'd have to completely change the way they do business and completely overhaul the company. I suspect that the margin on the hardware + all that other stuff is what makes it so much more profitable to sell complete systems instead of just an OS.

  • Re:WTF (Score:5, Informative)

    by mweather (1089505) on Tuesday December 23, 2008 @11:27AM (#26211741)
    Registration may be made at any time, but it MUST come before the lawsuit.
  • Re:WTF (Score:5, Informative)

    by mweather (1089505) on Tuesday December 23, 2008 @11:29AM (#26211755)

    One reason proprietary OS vendors might refrain from registering their copyright; is the need to reveal source code to the copyright office.

    And in 70+ years, when that code is no longer subject to copyright, it may be available to the public (in printed form)...

    You mean like this? http://www.apple.com/opensource/ [apple.com]

  • Re:Berne convention? (Score:4, Informative)

    by tgibbs (83782) on Tuesday December 23, 2008 @01:08PM (#26212961)

    I have boxed copies of 10.{1,2,3,4,5} at home. Never once have I signed any agreement or acknowledgement or waiver of rights.

    It is stated in the documentation and presented on screen when the software is installed. To install, you must click a button to agree to the license restrictions. If you choose not to do so, you are entitled to return the software to Apple for a refund.

  • Re:Berne convention? (Score:3, Informative)

    by Just Some Guy (3352) <kirk+slashdot@strauser.com> on Tuesday December 23, 2008 @01:51PM (#26213569) Homepage Journal

    Without a licence, or a statutory right, you have no right to install the software on a piece of hardware - that requires copying, which, in respect of a copyrighted work, is an act restricted by copyright.

    You're completely, indisputably wrong. From Title 17, section 117 of the United States Code [copyright.gov]:

    (a) Making of Additional Copy or Adaptation by Owner of Copy. â" Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided:
    (1) that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner, or
    (2) that such new copy or adaptation is for archival purposes only and that all archival copies are destroyed in the event that continued possession of the computer program should cease to be rightful.

    You are directly, explicitly allowed to make a copy of software that you have purchased for the purpose of using it.

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