Psystar may be ruining hackintosh for everyone....

[aphex]

http://www.tuaw.com/2008/12/02...r-wins-trademark-suit/

In yet another new facet to this already-draining legal battle surrounding Psystar's sales of non-Apple hardware that runs Mac OS X, Apple has amended its original suit after it discovered "additional information," according to Computerworld.

Apple now claims Psystar circumvented Apple's copyright protection code, in violation of the Digital Millennium Copyright Act. Apple said in its original filing that Psystar was in violation of the Mac OS X End-User License Agreement, but tacked on this additional charge last week.

The amendment also names 10 "John Does" -- persons who were not part of the Psystar company, but broke the copyright protection scheme. Apple doesn't know who they are yet, but plans to name names when its lawyers find out who they are.

In other Apple legal news, Apple won a trademark infringement case in China against New Apple Concept Digital Technology Co., Ltd., based in Shenzen. Judges decided that the Chinese company had a logo too similar to Apple's. New Ap -- aw, eff it -- NACDTCL was ordered to pay 400,000 yuan (? US$58,000) to Apple, Inc.

 

[Kaido]

What a bummer. Hobbyist programmers created this stuff for the user community, which was then stolen by Psystar and commercialized. Then they take Apple to court and end up getting the beat-down. Sigh. Guess I'll still be saving up for that increasingly-expensive Mac Pro...

 

[Kaido]

Wait a minute...that's a tricky title! They didn't win a suit against Psystar, they won it against the Chinese company over a logo!

 

[sourceninja]

Originally posted by: Kaido
What a bummer. Hobbyist programmers created this stuff for the user community, which was then stolen by Psystar and commercialized. Then they take Apple to court and end up getting the beat-down. Sigh. Guess I'll still be saving up for that increasingly-expensive Mac Pro...

Seems to me if apple puts the hurt on Hobbyists and punishes them for their creativity then the last thing you should want to do is reward them.

If apple starts suing non-commercial developers who make hackintosh possible I will never buy another mac.

I love my mbp, but I can be just as happy with a ubuntu notebook next time.

 

[Kadarin]

^^^Agreed. Vote with your wallet, if you feel strongly about it.

 

[sjwaste]

If I had to guess, the 10 does are probably contractors that Psystar hired to help with the development effort. I doubt they're hobbyists from the community. Apple probably just doesn't know who they are because they didn't get that far in discovery.

The thing about it, and I'm not an expert in this area of the law, is that I don't see what they violated even if they did make it work on non-Apple branded hardware. They violated the EULA, but that's a contract between them and Apple whose enforceability needs to be determined. That's not a copyright infringement in itself, though. I think Apple's bringing a DMCA claim, but is there any actual encryption that was broken or circumvented to make this work? If so, there's still the interoperability exception to the DMCA, contained in 17 USC 1201(f). In other words, there are defenses to what Apple's bringing, but they're not sure bets, and who knows if they have the money to litigate/defend.

 

[Kaido]

Originally posted by: sourceninja

Originally posted by: Kaido
What a bummer. Hobbyist programmers created this stuff for the user community, which was then stolen by Psystar and commercialized. Then they take Apple to court and end up getting the beat-down. Sigh. Guess I'll still be saving up for that increasingly-expensive Mac Pro...

Seems to me if apple puts the hurt on Hobbyists and punishes them for their creativity then the last thing you should want to do is reward them.

If apple starts suing non-commercial developers who make hackintosh possible I will never buy another mac.

I love my mbp, but I can be just as happy with a ubuntu notebook next time.

It's funny because Apple started out as two kids in a garage. And now Woz publicly shows off his jailbroken phone while Jobs won't even add MMS

 

[sjwaste]

It'll be interesting to see where this ends up.

I know Apple doesn't love people installing OSX on their beige box hardware, but I'm willing to bet that they tolerate it as a marketing strategy. The $100 I paid for OSX is probably going to turn into a $1500 notebook purchase, for instance.

It's another to have a company marketing their own hardware as a perfect substitute for Apple's. They're not going to like that and are going to try and fall back on the EULA and/or DMCA to prevent it. Unfortunately for them, I don't think it need go as far as a DMCA claim (which would probably be the weaker one in this instance) because the EULA pretty much spells out exactly that they can't do what they're doing. The litigation would have to be over whether or not the EULA applies, is conscionable, etc.

 

[Nothinman]

Psystar may be ruining hackintosh for everyone....

Apple's the one ruining hackintosh for everyone, Pystar was just stupid enough to try and sell a product based on an illegal product.

They violated the EULA, but that's a contract between them and Apple whose enforceability needs to be determined.

I never really thought about it before and I'm not a lawyer but technically they're not the end user so the EULA might not come into play, since they're reselling the licenses they've likely got other laws to worry about.

I think Apple's bringing a DMCA claim, but is there any actual encryption that was broken or circumvented to make this work? If so, there's still the interoperability exception to the DMCA, contained in 17 USC 1201(f). In other words, there are defenses to what Apple's bringing, but they're not sure bets, and who knows if they have the money to litigate/defend.

I think the DMCA covers protection, whether it's encryption or not. I don't know if any encryption was involved but there is definitely code in OS X to make sure it only runs on Apple hardware so circumventing that would probably be enough for the DMCA to apply.

I know Apple doesn't love people installing OSX on their beige box hardware, but I'm willing to bet that they tolerate it as a marketing strategy. The $100 I paid for OSX is probably going to turn into a $1500 notebook purchase, for instance.

I'd bet they're not willing to deal with it because you're most likely the exception and not the rule.

 

[sjwaste]

Well, I also refuse to download a torrent of the OS, even if I own a retail copy. It's just another reason to go after people, and seeding/peering an OSX rip is definitely the wrong way to go about it. At least with a retail purchase, Apple's getting their money for the OS and it's impressive enough that their hardware may be someone's next purchase.

Legally, if everyone was doing that and only that, it'd be tougher to get good defendants. Breaching the EULA probably has low actual damages, but as soon as people start repackaging and torrenting this stuff, that's a whole different legal issue. I think folks installing the Retail copy for their own use is probably a lot closer to the DMCA interoperability exception as well.

However, I'm not a lawyer so this isn't legal advice.

 

[Kaido]

Originally posted by: sjwaste
Well, I also refuse to download a torrent of the OS, even if I own a retail copy. It's just another reason to go after people, and seeding/peering an OSX rip is definitely the wrong way to go about it. At least with a retail purchase, Apple's getting their money for the OS and it's impressive enough that their hardware may be someone's next purchase.

Legally, if everyone was doing that and only that, it'd be tougher to get good defendants. Breaching the EULA probably has low actual damages, but as soon as people start repackaging and torrenting this stuff, that's a whole different legal issue. I think folks installing the Retail copy for their own use is probably a lot closer to the DMCA interoperability exception as well.

However, I'm not a lawyer so this isn't legal advice.

I agree, this is why I really like the new BOOT-132 method: it forces you to buy a geniune Leopard disc for installation. Technically you can still download it, but there are always going to be pirates as long as there's digital products available. The nice thing about BOOT-132 is that you are still paying Apple for the privledge of using Leopard, just like you pay Microsoft for using Windows. I think this is a much fairer approach than simply downloading a modded Leopard installation without having to buy your own copy of Leopard.

 

[Kaido]

Originally posted by: Nothinman

They violated the EULA, but that's a contract between them and Apple whose enforceability needs to be determined.

I never really thought about it before and I'm not a lawyer but technically they're not the end user so the EULA might not come into play, since they're reselling the licenses they've likely got other laws to worry about.

I think Apple's bringing a DMCA claim, but is there any actual encryption that was broken or circumvented to make this work? If so, there's still the interoperability exception to the DMCA, contained in 17 USC 1201(f). In other words, there are defenses to what Apple's bringing, but they're not sure bets, and who knows if they have the money to litigate/defend.

I think the DMCA covers protection, whether it's encryption or not. I don't know if any encryption was involved but there is definitely code in OS X to make sure it only runs on Apple hardware so circumventing that would probably be enough for the DMCA to apply.

Yes, the EULA enforcement issue needs further clarification. Technically the EULA says you can only install Leopard on an Apple-branded computer. So if you take out the Apple stickers that come with your Leopard DVD and slap them on your computer, is that Apple branding? Technically it has the Apple brand logo on it. Second, consider the following:

1. You purchased your own personal copy of Leopard on DVD
2. You read the EULA
3. You did not sign the EULA
4. You did not send a signed copy of the EULA to Apple
5. You did not have two witnesses watching you sign a copy of the EULA

So in a court, I think Apple would have a difficult argument when prosecuting a Hackintosh end-user because (1) they own their own copy of Leopard, which means they can do whatever they want with it, (2) they are not distributing or selling it, and (3) there is no signed record indicating that you agreed with, or for that matter even read, the EULA.

Regarding the DCMA, I'm not sure which decryption system Psystar is using, but they are using a decryption system to allow Leopard to boot. The most current kext on InsanelyMac is Decrypt.kext, which decrypts the encryption on-the-fly. This sounds more legal than previous versions, since it's not storing the decryption system in the file, but I believe the kext still has the decryption for the encryption system in place somehow after reading through the thread, so I'm kind of fuzzy on that. Anyway, the issue is that Psystar is selling computers with a built-in decryption system designed to commercially circumvent Apple's encryption system for their Operating System product.

I think the bottom line is, Psystar thought it'd be fun to poke a sleeping dog, whereas the OSx86 community stayed on the other side of the fence. Apple probably appreciates the OSx86 project because so many people get frustrated with it and buy real Macs :laugh:

 

[sjwaste]

I'm in a bit of a hurry now so I don't have time to go into a ton of detail, but regarding the EULA, it probably meets the requirements from Specht v. Netscape, and is therefore very likely a valid contract. Basically, buying the software might mean you can do what you want with it, but in the course of installing it, you've likely contracted away that right. That's basically the idea of a EULA.

Using the BOOT-132 method, is the same encryption being bypassed, or is something being emulated to allow it to work?

Besides, I'd hardly call the OSx86 community, or at least the subset seeding and peering the various torrents, staying on the other side of the fence. If anything, the potential legal issues from doing that are a lot tougher in terms of the remedies available to Apple. The folks trying to make the retail DVD boot up and install, that seems to be a lot more in line with things you can do, or at least well into a gray area, under the DMCA.

 

[Kaido]

Originally posted by: sjwaste
I'm in a bit of a hurry now so I don't have time to go into a ton of detail, but regarding the EULA, it probably meets the requirements from Specht v. Netscape, and is therefore very likely a valid contract. Basically, buying the software might mean you can do what you want with it, but in the course of installing it, you've likely contracted away that right. That's basically the idea of a EULA.

Using the BOOT-132 method, is the same encryption being bypassed, or is something being emulated to allow it to work?

Besides, I'd hardly call the OSx86 community, or at least the subset seeding and peering the various torrents, staying on the other side of the fence. If anything, the potential legal issues from doing that are a lot tougher in terms of the remedies available to Apple. The folks trying to make the retail DVD boot up and install, that seems to be a lot more in line with things you can do, or at least well into a gray area, under the DMCA.

That's a good point.

Has anyone ever been taken to court in light of the Spect vs. Netscape case?

 

[Kaido]

Here's an interesting article regarding online contracts:

http://www.ivanhoffman.com/onlinecontracts.html

 

[Kaido]

Apple is after the Man behind the Curtain

 

[Nothinman]

Yes, the EULA enforcement issue needs further clarification. Technically the EULA says you can only install Leopard on an Apple-branded computer. So if you take out the Apple stickers that come with your Leopard DVD and slap them on your computer, is that Apple branding? Technically it has the Apple brand logo on it.

Which would be trademark infringement since you don't have permission to place Apple's logo on that hardware. On your home machine it's no big deal but if you resell that box you're opening up a whole other can of worms.

 

[sjwaste]

Originally posted by: Nothinman

Yes, the EULA enforcement issue needs further clarification. Technically the EULA says you can only install Leopard on an Apple-branded computer. So if you take out the Apple stickers that come with your Leopard DVD and slap them on your computer, is that Apple branding? Technically it has the Apple brand logo on it.

Which would be trademark infringement since you don't have permission to place Apple's logo on that hardware. On your home machine it's no big deal but if you resell that box you're opening up a whole other can of worms.

Actually, the better question is, what constitutes Apple hardware? If someone goes and buys an Apple keyboard and mouse, or a stick of memory at their usurious prices, does that count?

After all, not everything inside the Apple box is Apple branded (Or is it? I haven't actually looked).

What they really want to say is "Purchased from Apple" but they would likely face first purchaser backlash from the used market, or have it be clearly unconscionable since the machine originally ran Apple software legally.

I've seen bits and pieces of the EULA that people have showed me, and it's not all that well written. Then again, they could've done that w/ flexibility in mind, knowing they'd have more money than their named defendants to litigate.

I'm just a lowly law student, but I find this stuff interesting.

 

[rivan]

Originally posted by: sjwaste

Originally posted by: Nothinman

Yes, the EULA enforcement issue needs further clarification. Technically the EULA says you can only install Leopard on an Apple-branded computer. So if you take out the Apple stickers that come with your Leopard DVD and slap them on your computer, is that Apple branding? Technically it has the Apple brand logo on it.

Which would be trademark infringement since you don't have permission to place Apple's logo on that hardware. On your home machine it's no big deal but if you resell that box you're opening up a whole other can of worms.

Actually, the better question is, what constitutes Apple hardware? If someone goes and buys an Apple keyboard and mouse, or a stick of memory at their usurious prices, does that count?

After all, not everything inside the Apple box is Apple branded (Or is it? I haven't actually looked).

What they really want to say is "Purchased from Apple" but they would likely face first purchaser backlash from the used market, or have it be clearly unconscionable since the machine originally ran Apple software legally.

I've seen bits and pieces of the EULA that people have showed me, and it's not all that well written. Then again, they could've done that w/ flexibility in mind, knowing they'd have more money than their named defendants to litigate.

I'm just a lowly law student, but I find this stuff interesting.

I'd imagine if pressed to hang the whole thing on a single item, I'd say "Genuine Apple EFI", or perhaps a motherboard.

 

[Nothinman]

Actually, the better question is, what constitutes Apple hardware? If someone goes and buys an Apple keyboard and mouse, or a stick of memory at their usurious prices, does that count?

Well you can't install OS X onto a keyboard or mouse so I doubt that would fly. I'd say the minimum from a technical perspective is probably a motherboard with Apple EFI flashed onto it. Although I'm not sure how much you would need to be from Apple to convince a judge that it's still an Apple PC.