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Psystar Claims Apple Forgot To Copyright Mac OS
Posted by
kdawson
on Tue Dec 23, 2008 12:13 AM
from the that-would-be-an-oopsie dept.
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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Apple Files Suit Against Psystar 805 comments
Reader The other A.N. Other, among others, alerts us to the news that Apple has filed suit against Psystar, the unauthorized clonemaker. (We've been discussing Psystar from the start.) The suit alleges violation of Apple's shrink wrap license and trademarks, and also copyright infringement. News of the lawsuit, filed on July 3, first surfaced on a legal blog. There's speculation that the case has been sealed.
[+]
Psystar Will Countersue Apple 1084 comments
An anonymous reader sends us to CNet for news that Apple clone maker Pystar plans to countersue Apple. We discussed Apple's suit last month. "Mac clone maker Psystar plans to file its answer to Apple's copyright infringement lawsuit Tuesday as well as a countersuit of its own, alleging that Apple engages in anticompetitive business practices. Miami-based Psystar... will sue Apple under two federal laws designed to discourage monopolies and cartels, the Sherman Antitrust Act and the Clayton Antitrust Act, saying Apple's tying of the Mac OS to Apple-labeled hardware is 'an anticompetitive restraint of trade,' according to [an] attorney... Psystar is requesting that the court find Apple's EULA void, and is asking for unspecified damages."
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Berne convention? (Score:5, Informative)
I thought since the US joined the Berne convention [wikipedia.org] in the 80s or 90s, registration with the copyright office is not required...
Re:Berne convention? (Score:5, Interesting)
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.
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Re:Berne convention? (Score:5, Insightful)
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Re:Berne convention? (Score:5, Informative)
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.
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Re:Berne convention? (Score:5, Interesting)
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.
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Re:Berne convention? (Score:5, Informative)
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.
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Re:Berne convention? (Score:5, Insightful)
So the copyright law basically says that you're protected automatically, but that the protection isn't worth anything until you actually register for protection? Nice. Good to know.
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Re:Berne convention? (Score:5, Interesting)
>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.
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Case closed! (Score:5, Informative)
The United States Copyright Office says otherwise [loc.gov].
Back to Basics (Score:5, Informative)
"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]
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This might save Psystar, but it won't help others (Score:5, Insightful)
The way US copyright law works is that copyright exists automatically, no registration is necessary. However, registration *is* required before filing a lawsuit. If Apple really failed to register before suing Psystar, they might be able to get the suit dismissed. If the judge is particularly nice, they might even get it dismissed with prejudice, meaning it can't be brought again (though I can't see why a judge would do that).
However, that will in no way prevent Apple from registering their copyright and then filing suit against others. Nor will it prevent Apple from suing Psystar over alleged infringements of other copyrights (say, newer versions of OS X).
This is an ordinary bit of legal maneuvering by some attorneys who noticed an apparent procedural oversight by their opponents and who are attempting to capitalize on it to get at least a little delay, and perhaps even more. It's really not a big deal.
(IANAL, and I didn't even stay in a Holiday Inn Express, so the above is likely complete crap.)
By definition... (Score:5, Insightful)
Since the definition of "Macintosh" is a computer built/branded/sold by Apple, and no-one else, this statement is nonsensical. It could say "Psystar is accusing Apple of bricking generic PCs that are attempting to illegally run OS X", but, like it or not, I would have thought they are entitled to do so.
Re:By definition... (Score:5, Interesting)
"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.
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Re:By definition... (Score:5, Funny)
No, it's more like registering a username on Slashdot, and then being told you're not allowed to use car analogies.
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Bizzare (Score:5, Interesting)
US Copyright Office search (Score:5, Informative)
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.
*sigh* needs more quality editors. (Score:5, Insightful)
Re:Seriously?!? (Score:5, Funny)
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Re:Seriously?!? (Score:5, Interesting)
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:
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
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Re:Seriously?!? (Score:5, Interesting)
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?
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Re:Sorry, but how exactly is this informative? (Score:5, Insightful)
I believe I am in fact correct on this. From the US Copyright Office:
http://www.copyright.gov/circs/circ1.html#cr [copyright.gov]
"Before an infringement suit may be filed in court, registration is necessary for works of U.S. origin."
Yes, you can register after the fact, but if you don't do so within 90 days of publication or -- and this is particularly important in this instance -- *prior* to infringement of the work, your award is limited to actual damages; hardly worth the money Apple would be paying to its lawyers. Again, assuming that Apple didn't register the work.
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Re:Berne Convention? (Score:5, Informative)
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.
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Re:Weird claims by Pystar - their giant leap (Score:5, Insightful)
Yes. But would OSX be OSX if it ran on someone else's hardware.
As soon as you allow Joe Schmoe to install OSX he's going to want to start making demands. "Why doesn't my 15 year old network card work?" "Why doesn't my printer work?" "Why does my computer keep crashing."
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.
Opening OSX would be like kicking a house cat out into the gutter and expecting it to fend for itself. It's just not ready for the rediculous diversity of hardware that Windows is obligated to support by running on commodity hardware. That smooth "just works" will be descend into the same brand tarnishing sludge that is compatibility.
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Re: Yes, Mac OS X on generic hardware is great! (Score:5, Interesting)
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.
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Re:In Proof Of Stupid, Look No Further (Score:5, Interesting)
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.
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