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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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  • Seriously?!? (Score:2, Interesting)

    by AKAImBatman (238306) * <akaimbatman@gmai ... m minus language> on Monday December 22, 2008 @11:16PM (#26208485) Homepage Journal

    That's the worst argument I've ever heard. I've got two words for you Psystar: Berne Convention [wikipedia.org]

    You'd almost think they were organized just to antagonize Apple. Hmm...

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

    by Jah-Wren Ryel (80510) on Monday December 22, 2008 @11:21PM (#26208525)

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

    It is required if you want statutory damages (you know, those crazy numbers like $25,000 per song downloaded or whatever it is the RIAA threatens people with). Otherwise the worst you can sue for is actual damages - in this case the cost of a copy of OSX for each copy made.

    It sure would be funny if it is true.

  • These clones suck (Score:4, Interesting)

    by DesScorp (410532) <<DesScorp> <at> <Gmail.com>> on Monday December 22, 2008 @11:22PM (#26208529) Homepage Journal

    I wasn't using a Mac during the last time Apple allowed clones, but several people I knew at the time all claimed that their clones were generally faster than the machines Apple sold. So now that I us OS X, I'd like some Intel clones... but not from these clowns. They sound like the SCO of cloners.

  • Bizzare (Score:5, Interesting)

    by WiiVault (1039946) on Monday December 22, 2008 @11:28PM (#26208595)
    A few months back I would have never bought conspiracy theory that Psystar was mearly a front for other companies who wanted to bundle OS X (think SCO - MS) but with their tenacity and resources I am starting to wonder who Psystar really is. Oddly even Apple has asserted this claim in court docs. Once this is over we will surely hear some interesting stories.
  • by rsmith-mac (639075) on Monday December 22, 2008 @11:28PM (#26208603)

    Psystar is also accusing Apple of bricking Macs that don't run on genuine Apple hardware

    I'm pretty sure only Apple sells Macs, and I'm also pretty sure Apple is using genuine Apple hardware. Ergo there is no such thing as a Mac with non-genuine Apple hardware. Pystar may sell a computer that can hobble on Mac OS X, but that is not a Mac. What Pystar means to say is:

    Pystar is also accusing Apple of bricking their shoddy hardware which has been cobbled together to run Mac OS X

    Of course the bricking claim is also bogus; Apple's firmware updates don't run on any kind of Hack (including Pystar's machines) so nothing can be bricked. At this point Pystar isn't even grasping for straws, it's a Hail Mary attempt when the football game ended an hour ago and everyone has gone home.

  • Re:Seriously?!? (Score:4, Interesting)

    by im_thatoneguy (819432) on Monday December 22, 2008 @11:32PM (#26208619)

    The Berne Convention will be out the window if we ever pass the Orphan Works bill that Corbis keeps trying to push down our throats.

  • Re:These clones suck (Score:2, Interesting)

    by I_want_information (1413105) on Monday December 22, 2008 @11:35PM (#26208645)
    We had one of those clones -- a Power Computing machine. I don't know that I'd say it was faster than similar Apple-branded machines, but I will say that it didn't take me long to decide that it would be the LAST clone I'd ever buy.

    There's a reason why they were cheaper... made from much cheaper components. The case was flimsy, the cables looked gerry-rigged to make them work with Apple monitors, everything about them just screamed cheap!
  • Re:Seriously?!? (Score:5, Interesting)

    by Whiney Mac Fanboy (963289) * <whineymacfanboy@gmail.com> on Monday December 22, 2008 @11:41PM (#26208687) Homepage Journal

    That's the worst argument I've ever heard. I've got two words for you Psystar: Berne Convention

    From the article you link to:

    (note however that when the United States joined the Convention in 1988, they continued to make statutory damages and attorney's fees only available for registered works).

    I suspect this is what Psystar are referring to, rather than Information Week's rather short, content free insinuation that Apple loses all rights if they fail to register.

    You'd almost think they were organized just to antagonize Apple. Hmm...

    Testing the waters, Hardware vendors want to sell something other than windows. I'm willing to bet one (or more) of the big 5 PC vendors is behind this

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

    by kithrup (778358) on Monday December 22, 2008 @11:42PM (#26208695)

    Apple is claiming that the boxed copies are upgrade versions, and not the original license. So "actual damages" would still include whatever cost Apple claims (or could convince a court of 8-)) for the original license.

  • Re:By definition... (Score:5, Interesting)

    by MSG (12810) on Monday December 22, 2008 @11:42PM (#26208697)

    "Psystar is accusing Apple of bricking generic PCs that are attempting to illegally run OS X"

    It is not illegal to run OS X on generic PCs. It is a violation of the license, but the license does not carry the force of law. At this point, I'm not even sure that it's been settled that licenses are enforcible, given that their terms aren't available prior to the customer paying for the product, which makes it a sale or purchase.

  • by PCM2 (4486) on Monday December 22, 2008 @11:44PM (#26208713) Homepage

    The way US copyright law works is that copyright exists automatically, no registration is necessary. However, registration *is* required before filing a lawsuit.

    But the important thing to remember is that, even if you haven't registered, if someone infringes you can register and then file a lawsuit. You might not get the full advantages of registering before someone infringed, but having failed to register so far won't stop you. It can be done retroactively.

  • by TD-Linux (1295697) on Monday December 22, 2008 @11:52PM (#26208775)

    I don't see why Mac clones wouldn't be good for OS X in the long run. Look at what happened in the 80s with IBM-compatibles (clones). That basically forged the way for Intel-based architecture to be mainstream

    What you say is true, however it really should be Apple's choice if they want to enable their OS to run on clones or not. Doing so would require a lot of additional work - supporting a wider array of platforms creates a tech support headache, for one. And failing to provide tech support would be unthinkable, as it is one of Apple's most prominent benefits.

  • by gruntled (107194) on Monday December 22, 2008 @11:58PM (#26208807)

    In fact, you can't sue in a US court unless you've registered your copyright. The principles of the Berne Convention do indeed automatically grant copyright from the moment a work is placed in fixed form, but in the US, only copyright owners who register their works can sue for damages. Psystar is correct in this claim (assuming Apple did not in fact register the copyright).

  • Re:Seriously?!? (Score:5, Interesting)

    by LoRdTAW (99712) on Tuesday December 23, 2008 @12:00AM (#26208823)

    Follow the money? It just might lead to Redmond, Palo Alto or Round Rock.

    Apple will never let anyone run OSX on non Apple hardware. As long as they want to keep their hip turtle neck wearing image they must keep complete control. Imagine Dell selling dull gray OSX computers for half the price Apple does? Or OSX Latitudes. The once hip OSX now runs on un cool nerdy looser PC guys computer. Not cool.

    No I am not bashing Apple or its users. This is what their marketing department must think. Remember Apple is kept alive by what I believe is a damn good marketing machine. It keeps Apple looking hip no matter what. Take away the cool hip design and marketing and your looking at another boring PC (technically an Apple is a PC). How else can you explain people high fiving each other when they bought their shiny new iPhones?

  • by QuantumG (50515) * <qg@biodome.org> on Tuesday December 23, 2008 @12:29AM (#26208983) Homepage Journal

    You don't understand because you don't follow legal precedents in copyright law.

    Pystar are trying to make that claim that the Mac OS X bootloader detects their hardware and refuses to run on it. That's illegal - so says the Supreme Court - as it denies competition. That is, you and I are required to buy a computer from Apple and only from Apple if we want it to run Mac OS X. What's more, the Lexmark case has declared that code written to enforce monopoly control is void of copyright. Pystar would really love to have Mac OS X stripped of copyright.. that would make their business model a whole lot more profitable.

  • by beav007 (746004) on Tuesday December 23, 2008 @12:32AM (#26208999) Journal
    Actually, it doesn't say anywhere that it applies to 10.5.0. It says 10.5. - three times, it says that, in fact.

    The question then becomes whether you can legally construe the registration for the major version to apply to the minor versions as well.
  • by itsybitsy (149808) * on Tuesday December 23, 2008 @12:34AM (#26209013)

    Mac OS X runs just fine on a Gigabyte GA-EP45-DQ6 with the EFix (efi-x.com) gizmo and YES IT is still Mac OS X. Can't tell the difference! 4 core processor, 8GB RAM... lots of disk (up to ten 1.5 tera byte drives for that motherboard). NVidia graphics board with 30" Samsung display (so gorgeous I have two, one on my mac book pro and will never go back to the smaller displays for my machines).

    So yes, Mac OS X is just the same on "generic" hardware.

    Apple could specify supported configurations and keep the drivers open. NeXT did this very successfully with OpenStep 4.3 years ago. In fact many years after NeXT was purchased by and took over Apple people were still writing drivers for OpenStep!

    It can work. They've proven it before.

    Microsoft needs to be whipped by a better system. Unleash the beast Apple. Unleash it for the good fight against Microcrap.

  • by arminw (717974) on Tuesday December 23, 2008 @12:46AM (#26209067)

    ....Because I would like to build my own machine that runs OS X.....

    Apple has known for a long time about people like you and have never sicced their lawyers on any of them and most likely won't ever do that. Only, if you started manufacturing them in your basement or garage, trying to make money, that their lawyers with spring into action.

    (..to not actively attempt to sabotage my system...)

    There is no evidence whatsoever that they do this, even with the iPhone, but their software is written for their hardware not yours. Therefore, if your hardware is not exactly like theirs, which is most likely true, then it is highly likely that their next update will not work correctly on non-Apple hardware.

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

    by JebusIsLord (566856) on Tuesday December 23, 2008 @12:46AM (#26209069) 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] ). My uneducated guess is that Psystar has been negotiating for a licensing agreement for a long time, and then calculated that an outright court battle would land them a better deal than paying the fees initially suggested by Apple.

    That or they're a fly-by-night outfit.

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

    by fishbowl (7759) on Tuesday December 23, 2008 @12:49AM (#26209083)

    >No, the automatic protection allows for criminal prosecution. If you want to sue yourself you have to register.

    Sort of. The trouble you'd run into, is that the law allows Apple to make that registration at *any time*, like, say, on the morning of your hearing.
    Even without the statutory damages, they *can* sue you, and there is no limit to what they can ask for as damages. It's good to have things registered because that constitutes "Notice", which provides the plaintiff with an automatic advantage in terms of preponderance of evidence,

    The misconception all over the thread, is that without the right to seek statutory damages, Apple would be limited in the amount of civil damages they could seek. This is untrue, and I can assure you that the amount of "actual damages" that Apple's very expensive and capable legal team would confront you with over OSX, would utterly dwarf even the "per infringement" maximum of statutory damages. And even if they sought statutory damages, which they still would do, that would basically amount to nothing but a "tip" on top of the really stupendous civil damages, which would seek liquidation and civil forfeiture of, 100% of your assets. Willful and knowing copyright infringement on an institutional scale is really not a good idea, registration or not.

    IANALBIHSLAWITF, consult a lawyer before you do something boneheaded like putting yourself on the defendant end of a civil suit with Apple.

  • by Anonymous Coward on Tuesday December 23, 2008 @01:09AM (#26209187)

    You can't "forget to copyright" something because copyright is not a verb. By creating an independent work you gain copyright on it. There is no independent act of "copyrighting". Trying to think in terms of copyright being a verb just leads to muddled thinking from the get-go.

    You can register a copyright, and in some countries need to do that as a formality prior to taking someone to court for infringing said copyright. But registration is not required for having copyright protection on a work.

    Any noun can be verbed - except copyright.

  • by Brownian Motion (463959) on Tuesday December 23, 2008 @01:19AM (#26209229)

    The copyright is for "10.5" not "10.5.0".

    Psystar's claim is that they buy commercially available leopard disks and use them.

    I've not bought a retail version of Leopard lately, but there is still a pretty good chance that it's 10.5.0. After all, it'll boot any machine that did not come with leopard (and hence, has it's own restore disks). Not sure why Apple would go through the effort to make a new version, the only pay off is to save bandwidth starved users from downloading a combo update.

    Just because Apple shipped macs with 10.5.1 ... 10.5.6, doesn't mean you can buy the disks. The only way to get them is to buy a new mac.

    Though, I guess you can claim that THOSE disks don't have a copyright, and thus you are copying them. Buy one new mac, get a leopard disk and use it.

    But, since you get hit for "only costs", Apple can claim these non-retail disks cost more. And, in fact they do as they contain iLife and an emergency disk. As well as some effort to make them run on the new machine (which wouldn't run the current version of OS X when they were released).

    And, that pre-supposes that Apple has to re-register point releases to get the full benefit of Copyright protection. If I fixed some errata in a published book, and did not re-file the copyright, is it still fully protected? And is this what 10.5.1 is?

    How much change is needed before someone has to re-file?

  • DING DING DING! (Score:1, Interesting)

    by Anonymous Coward on Tuesday December 23, 2008 @03:11AM (#26209591)

    We have a winner!

    So far Pystar is sounding more like Darl McBride than McBride does! Throw out a pile of wild claims, follow them up with even wilder ones, all the while reinterpreting the law to mean all everyone else's work belong to them.

    And they have to have already spent more than they ever made, so who IS footing the bill?

  • by igb (28052) on Tuesday December 23, 2008 @04:29AM (#26209833)
    Unless US law is radically different to the UK and EU situation, anti-trust legislation is only relevant when there is a trust: when you exert what we British call significant market power. Analogies involving cars are weak, certainly in the EU, because there is explicit legislation covering cars which is not applicable elsewhere --- long-term parts availability and permission for pattern manufacturers to produce copies is permitted for reasons of social and industrial policy, but it's not necessarily applicable elsewhere.

    So car manufacturers are obligated to provide parts for fifteen years after last sale, and pattern part manufacturers are permitted to operate within certain constraints, and car manufacturers aren't permitted to insist that initial warranties are dependent on dealer servicing (although they are allowed to impose this on `extended' warranties). But makers of domestic appliances, say, can decline to sell parts, sue people who copy them and tear up warranties for equipment that you've tried to repair with, and all you can fall back on is sale of goods act rights or their local equivalent.

    Now this all changes once you exert significant market power. BT isn't allowed to insist you only use their phones on their lines, say, because it's a regulated company which has market power. Microsoft (like IBM before it) is the US equivalent: it's been found to be a near-monopoly (ie to exert significant market power) both in the US and the EU, IBM weren't allowed to `close' interfaces between their CPUs and their disks; Honeywell were. Microsoft are legally bound to disclose the APIs and protocols used between their applications and their operating systems; Sun aren't.

    And Apple aren't, either. Psystar are pissing in the wind, attempting to argue that there's a monopoly market for OSX which Apple run. That's like arguing there's a monopoly market for Cadbury's Dairy Milk, totally ignoring the rack of Hershey Bars next to it. For as long as there's a reasonably substitutable good which isn't under the control of monopolist, trusts are very hard to prove.

    This is why Apple was kept alive by Microsoft in the 90s, and is why Microsoft continue to build and develop Office for OSX (and, particularly, Entourage): by showing that there are alternative platforms for Office they greatly reduce the power of the government to regulate them. I'm always surprised that Microsoft are so antagonistic to Linux and Open Office: if they could show there were three credible, available desktop operating systems with application stacks on them, they could nip over to the anti-trust people and make the point that they aren't a monopolist. And they'd be right, too.

    ian

  • by gd23ka (324741) on Tuesday December 23, 2008 @04:33AM (#26209847) Homepage

    I can't find the coax cable to plug my 15 year old network card into. What makes you think people want their
    vintage hardware supported on their main OS they use for work and play everday? Why can't OSX deal with all the
    commodity hardware that is out there. Anybody can write a driver for OSX and did you know, the Xcode Development
    Environment is FREE as opposed to M$DN.

    If whatever doesn't work with OSX that's a combination of whoever not seeing the need to sell to OSX users and
    the whatever being without merit that it doesn't attract opensource driver developers.

    "The reason Microsoft got into trouble with Vista was largely in part due to pressure from system builders pressuring them to include hardware that wasn't actually capable of running Vista smoothly, or had inadequate driver support."

    Actually speaking of inadequate to the point that it's a joke, I have rarely to do with other people's desktops but today helping a
    coworker I wanted to see if they could connect to a certain port from their machine... and I found out

    Vista doesn't include telnet. What a piece of crap!! Telnet is the easiest way imaginable to see if a certain port is open,
    I use it all the time for that.

    As far as your argument goes, nobody forced Microsoft to _cripple_ an already questionable system. Vista driver problems are only
    a small part of why Vista failed so miserably.

  • by gnasher719 (869701) on Tuesday December 23, 2008 @05:10AM (#26209997)

    Pystar are trying to make that claim that the Mac OS X bootloader detects their hardware and refuses to run on it. That's illegal - so says the Supreme Court - as it denies competition. That is, you and I are required to buy a computer from Apple and only from Apple if we want it to run Mac OS X. What's more, the Lexmark case has declared that code written to enforce monopoly control is void of copyright. Pystar would really love to have Mac OS X stripped of copyright.. that would make their business model a whole lot more profitable.

    In Lexmark, the court decided that a fifteen byte program, that had to be written in exactly that way not for technical reasons but because the hardware calculated a checksum, had no copyright. Copyright is on the _expression_ of an idea; if there are limits that are so strong that something cannot be expressed in any other way, there can be no copyright. MacOS X is hundreds of megabytes of code, and there are hundreds of megabytes that could have been written in a different way and are therefore protectable.

    What you say about the Supreme Court is nonsense. The law protects competition - it doesn't protect competitors. Even in the case where a company has a monopoly, it is under no obligation to help its competitors compete. For example, Xerox had for a long time an unbeatable monopoly due to their plain paper photocopying process. There was no competitor coming close. Yet, even though Xerox _had_ a monopoly, a competitor could not force them to license their patents.

    Apple can do whatever they want with their software, including tying it to Apple hardware, as long as they don't have a monopoly in either the operating system market (where Microsoft has 90% market share) or in the computer market (where Dell and HP sell significantly more than Apple).

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

    by Reservoir Penguin (611789) on Tuesday December 23, 2008 @06:21AM (#26210229)
    And some people stiull say that Apple hardware is not overpriced. The profit margins on the hardware must DAMN LARGE if they'd rather sell one system than one OS.
  • Re:Berne convention? (Score:5, Interesting)

    by GizmoToy (450886) on Tuesday December 23, 2008 @07:10AM (#26210391) Homepage

    Apple would argue that there is no reason for them to check for a previous version. From Apple's point of view, in order to install them you need to have a Mac, which would have come with OS X, therefore making the boxed copy an upgrade.

    Since you can't get a Mac without OS X, all boxed copies of the OS are upgrades.

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

    by TheRaven64 (641858) on Tuesday December 23, 2008 @07:19AM (#26210435) Journal

    Clones were bad for Apple because Apple produced high-quality hardware. The clones produced machines with better specs, but much cheaper components, so were able to undercut Apple and take away their business. Now, however, Apple produce fairly shoddy computers (in absolute terms - they're still a bit better than a few of their competitors), from off-the-shelf components. From their financials, their margins on most computers are less than a boxed copy of OS X, which means that letting people install bought copies of OS X on other hardware would be in their interests.

    A few years ago, I suggested that they should partner with IBM or Sun to sell OS X-based machines for the business market. They would license OS X under a non-compete agreement, so the other company could only ship machines in market segments where Apple didn't have a product, and would both market each other's systems. IBM (back when they were making chips for Macs) would get a nice desktop OS for business desktops built with their chips, and Apple would get a second source. Sun would have been the other option, since they had quite a nice kernel and at the time the OS X kernel was an embarrassment (it's quite nice with 10.5), and had a history of working with Cocoa/OpenStep (although not one that makes them friends with Steve Jobs).

  • Re:WTF (Score:2, Interesting)

    by mysidia (191772) on Tuesday December 23, 2008 @08:17AM (#26210645)

    Plus Apple still has a right to register their copyright. They can go register with the copyright office, and then proceed with their action.

    How helpful of psystar to inform them early of their possible failure to register.

    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)...

  • Re:WTF (Score:2, Interesting)

    by Huggs (864763) on Tuesday December 23, 2008 @11:42AM (#26212611)
    I believe GP is referring to the code they HAVEN'T released as OSS. You know... the stuff that makes OSX... OSX and not Unix, and hence copyrightable.

    However, in 70+ years, when that code is no longer subject to copyright... I would surely hope they've long switched to newer, more efficient, powerful, and better code... That is to say, if that code would even run on the processors (in whatever way, shape, or form) we'll be using.

    As early as we are in our current stage of computing, an additional 70 years may as well be as an eternity. So, I'm not entirely certain that GP's argument is quite valid. I'd be more worried about the code getting leaked from poor patent handling.

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