RSSPsystar throws the 'kitchen sink' defense at Apple
By Scott M. Fulton, III | Published December 23, 2008, 10:48 AM
In its latest defense filed in US District Court in San Francisco last week, Mac clone-maker Psystar buffered its well-reasoned claim that it didn't violate the DMCA as Apple has charged, with no fewer than 41 other claims, some unexplained.
Among the single-sentence defenses that Psystar's attorneys have added to the company's defense are some which appear on the surface impossible to be true simultaneously. One states that Apple can't claim copyright infringement since it failed to file proper claims with the US Patent and Trademark Office. Another states that Apple's copyrights (which apparently include the non-existent ones) may be invalid on the grounds that 1) the covered material isn't original enough to merit copyright; 2) Apple may not have been the original creator of the copyrighted material.
"Psystar denies that Mac OS, Mac OS X, Mac OS X version 10.5, and Mac OS X Server all constitute 'an original work of authorship' 'constituting copyrightable subject matter' as those terms are defined by the United States copyright laws and on that basis denies the allegations," reads the clone-maker's defense filed on December 16. "Psystar is without information or knowledge as to who contributed to the purported works of authorship identified in paragraph 26 of the First Amended Complaint and on that basis denies the any corresponding allegation; Psystar admits that the plaintiff claims to be the owner of the copyright registrations identified in paragraph 26 of the First Amended Complaint. Psystar is without information or knowledge as to whether registrations should have been granted as to the aforementioned works and on that basis denies the remaining allegations in paragraph 26. Psystar denies the allegation that Psystar has infringed any valid copyright held by the plaintiff."
The Paragraph 26 that Psystar refers to comes from Apple's amended complaint of December 2. That paragraph asserts that the Mac OS and its associated software is comprised of "each original works of authorship created by Apple constituting copyrightable subject matter." It goes on to say those copyrights were valid, and predate the time of Psystar's alleged infringement.
Of course, Psystar's defense that it did not infringe Apple's valid copyrights assume that Apple has valid copyrights. Later in last week's filing, Psystar's attorneys attached boilerplate text to what they call the company's Fourteenth Affirmative Defense, which claims that Apple's claims are invalid for "failure to register said copyrights with the Copyright Office."
Elsewhere among the boilerplate defenses added to Psystar's otherwise more well-reasoned assertions, is the claim that Apple lacks standing to be bringing such allegations to court, that Apple's trademarks cannot be directly associated with a good or service, that the trademarks are too vague to warrant protection, that any use by Psystar of Mac OS X constitutes fair use, and that Apple's contract with Mac OS X users is not only illegal but "procedurally and/or substantively unconscionable."
Providing an oasis of reason in a sea of buckshot is Psystar's potentially defensible claim that Mac OS' use of a processor check during startup, resulting in an infinite loop or arcane error message if it's found to be in a non-Macintosh computer without an approved Intel CPU, does not constitute a technological protection measure protected by the Digital Millennium Copyright Act.
"There is no specific reason as to why this infinite loop is present in the code as the kernel is capable of restating/rebooting on a much broader range of hardware. Thus, the restart/reboot infinite loop exists for no functional reason. This loop stops the execution of the Mac OS on any x86 processor not sold by Apple -- that is, an Apple-Labeled computer hardware system."
Psystar argues that this mechanism may be a violation of copyright law in itself, in that it forces customers into certain purchasing patterns down the road, making them use Apple's software and components only in ways that materially benefit Apple. Such a leveraging of copyright, Psystar claims, is a violation of the first sale doctrine -- the notion that once a product is sold completely to a customer, its manufacturer is barred from being able to enforce how that customer uses it.
Of course, if the first sale doctrine were completely enforced in the US, a vast number of end user license agreements -- not just Apple's -- would become immediately null and void. Thus the Psystar case could become a landmark test of the first sale doctrine...that is, if the company's lawyers seemed willing to pursue that course, rather than lob everything they have at the plaintiff to try to get the case over with.
Psystar is not well organised int its attacks, going over many unrelated items in its defense.
This should be a very interesting case. If Psystar gets points for "first sale doctrine" then there is hope for Jail-Break for iphone and other such circumventing software which frees us from the strong hold of one company.
I had a Mac for almost a year, but gave it away as it was too constricting and controlling. This is also the reason why I hate my iPod and will never get an iPhone.
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|It is not likely that Apple will open up after the court. Apple thinks that the only way to maintain high status is the total control of everything Apple. It can't stand it when another clone maker able to sell similar products which is out of its control. It thinks that by having a clone maker, the image will suffer. By having dictatorial control, Apple able to make nice and fashionable products. The price to pay for this dictatorial control is the consumers have to pay premium for its products.
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|This could be an interesting court battle. Someone will pressure them to settle though because this case might set a precedent that certain corporations might not appreciate. That's how I see it anyhow. The really good cases never make it to court because big business sees a ruling as a possible threat to its current practices. They'd rather pay a cash settlement than let a judge actually pass down a ruling.
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|I hope that Psystar wins in court, however it probably is not likly. If Apple would open up a bit, it might save them millions of dollars in court actions. Further, what is wrong with making clone Apple computers. IMB allowed it years ago and has never been sorry, for if they did not, we all be using IMB today. Apple need to wake up...I have to say, Apple computers are among the best, but I wish Psystar good luck.
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|You say that "Apple's computers are among the best" and yet you want to suggest they should change how they run their business.
You can't have it both ways!
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|I love how they blame Apple for not having copyright laws then blame them for breaking their own laws that don't exist.
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|I think it's the idea that if part 1 doesn't work, part 2 stands a chance.
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|They're trying really hard but I just don't think it's going to work.
And I don't think Apple will EVER change their marketing strategy or sell OSX and their computers seperately because OSX is what brings new flies to the fruit. If you give people a choice then many adventurous souls will run out, simply buy OSX and slap it on cheaper, more powerful hardware and there goes a chunk of that Apple.
And Fox may be correct. I've done a bit of research and read numerous articles that go both ways (all current and as of at least June 2008) which claim that OSX and current Apple computers have enabled TPM chips and software which matches them to authenticated Apple hardware. Some claim that this isn't the case and that the TPM can be turned on and off and has nothing to do with OS/hardware interaction but more so to make sure rogue code doesn't get executed in the system.
There are also a few cases of these psystar pcs and homebrew 'hackintosh' systems with very similar to identical specs to Apple computers, locking/freezing and kernel panicing, and people suspect that it's because of said TPM protection.
Without getting into the thick of it.... there has got to be something to be said for a company in this day and age locking their OS to their hardware. I'm sure Apple would have something to say if MS some how found a way to lock Vista, or rather, prevent it from working on Mac hardware.
But ah well. I wish Psystar GL.
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|I don't see it happening either.
I'd *like* it to happen, but the reality is that they're placed exactly where jobs wants them. Jobs has stated before that he was never after the "big" chunk of market share. They're making a good chunk of money, with little risk. Why take a chance on something like that?
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|Maybe, they got SCO/Caldera's lawyers to help them but it looks a bit like they're using misdirection to make their case.
If they don't feel that Mac OS X is so original; perhaps, they should create their own to see how it's done.
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|I wish Paystar the best in breaking the Apple monopoly. Only then will the rest of us have a choice.
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|LOL ROFL.. "apple monopoly".. You actually have to monopolize something... unless your talking about the picture of an apple.
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|I think I finally understand GMC's problem.
They are only having financial roblems because of so many unwilling to subject themselves to a Chevy and perpetuate GMC's "monopoly".
Does ANYONE here know what a monopoly is????? Apple doesn't have a "monopoly" in anything.
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|What monopoly would that be? Apple has about 6% of the market, if that much....that's NOT a monopoly.
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|"Apple Monopoly"?
Really?
I'd laugh, but it's just so sad as this person represents the vast majority of people nowadays. People who couldn't tell a monopoly from a board game...
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|But there is choice! We can always by a computer running vista or xp! How can you say there is no choice!
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|Other than the EULA, Apple hasn't done anything to prevent Mac OS X Leopard from running on off the shelf PC's. The only requirement is that your computer must support EFI instead of the traditional BIOS. So far, there are two solutions for running an unhacked copy of Mac OS X on non Apple hardware. The first is at this website: http://www.efixusa.com/. The second solution is to use a motherboard such as the Intel DP35DP motherboard that has 64-bit UEFI firmware built in.
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|Partially correct.
Apple also uses the TPM (the Trusted Platform Module) to authenticate the Hardware and OS.
AppleTPMACPI.kext is the code that manages this function.
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|The USB device that Efix sells does NOT use any sort of TPM. It is a bios chip that plugs into an internal USB header (that uses EFI in place of a traditional BIOS). Using the Efix device to run Mac OS X is no different than using a motherboard such as the Intel DP35DP that has built in 64-bit UEFI support.
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|It circumvents it!
And no, it is NOT simply a USB device! It is NOT a dongle! If it were simply a "USB device", they could deploy it on a laptop - they cannot! And they have no plans for a laptop version because of the restrictions!
And you can also check their list of compatible motherboards!
Try actually calling them up and discussing it rather than simply guessing.
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|I've already contacted them. They said theoretically it's possible to run Mac OS X on any off the shelf PC that uses EFI instead of a BIOS. They also said they are in the process of testing Mac OS X on newer Intel motherboards that support 64-bit UEFI.
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|^I thought this to be true^
I seem to remember reading that it's theoretically possible to use it on any system, however the designers have limited it so that only good quality hardware can use it.
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|"EFI instead of a BIOS", huh?
The Extensible Firmware Interface IS a BIOS! Its the Intel native 64 bit BIOS developed for Itanium!
You talk like EFI is the ONLY thing that enables OSX! If only!
If that were the case we could simply get an Itanium and load it!
Apple is also using the TPM to authenicate the OS!
And you are incorrect. You cannot simply use any off the shelf MoBo with EFI! You might want to check their compliant list of MoBos a bit more closely!
And their chip cannot be utilized in a laptop (which have USB headers/ports!), for the precise reason that it must be seated onto the MoBo in order to circumvent the TPM! If the EFI BIOS was only factor, laptops would be easily accomodated.
You need to do a bit more digging into how OSX and the TPM authenitcate themselves...and you might want to do a bit more checking into the routine mentioned above...
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|Are they trying to claim that because Mac OSX is based on Mach, it's not an original work?
They need to take a better look at the licensing, or as has been suggested previously by our resident blow-hard (no disrespect), just sell the OS and PC separately.
Problem solved.
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|Good Luck to Psystar. I'm glad to see them put up a fight. It would be interesting to see the aftermath if they come out victorious.
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|sounds like there pulling a bill gates move
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|...and as usual, the only winners will be the snake lawyers.
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|Amen
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|Heh, well at least they're attempting to fight. Should provide some more comedy gold.
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