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Getting Ready for the Psystar Appeal

· by dizzle · in Apple Legal News, Psystar

This case is about to get moving again with Psystar’s Opening Brief in their Ninth Circuit Appeal due on May 3, 2010.  The last significant event was Apple’s victory in its Motion for Summary Judgment before Judge Alsup in November 2009.  The transcript for that hearing is now public record, and a copy may be read here.  It is helpful at this point to briefly review the arguments of each side as presented orally at the hearing.  Both parties admitted that there were no disputed of issues of material facts as touched the reciprocal motions for summary judgment with regards to the subject matter at issue therein, to wit, allegations of copyright infringement and violations of the DMCA.  That is important as motions for summary judgment are basically a request by a party for the case, or a part of the case, to be determined by the Judge solely on issues of law.  If there are issues of disputed material fact, a Judge cannot decide as it then becomes a matter for the jury.   Many cases in the American court system are disposed of in full or in part in this manner.

Here are some pertinent background filings and Orders for reference:

Entire Case Docket for California Case.

Apple

Apple argued that although its position is firmly that this software is subject to a license and not a sale, it is ultimately irrelevant to the matter at issue before the Court as in either instance Psystar’s conduct would violate the Copyright Act and the DMCA and that neither the Essential Step or the First-Sale (general information on Wikipedia about software copyright and infringement claim defenses) Defenses would inure to Psystar’s benefit.

A brief synopsis of the facts was presented to the Court.  Psystar would obtain on retail DVD of the Mac OS and copies it onto a Mac mini.  So far, this usage is lawful and covered by the Essential Step Defense.  However, a copy is then made from the Mac mini unto a non-Apple machine which Psystar dubbed its imaging station resulting in two copies of the one (purchased, according to Psystar; and licensed, according to Apple) program.  This step of the process fails both the defensive theories of First-Sale and Esesential Step.  After this point, Psystar then removes Apple’s boot-loader and substitutes it with its own boot-loader which allows the program to run on non-Apple labeled hardware in contravention of the original program design.  Once this replacement takes place numerous duplicates (approximately 800 thus far) were created for installation on machines to be sold to Psystar customers.  Apple’s position is that this fails both of Psystar’s critical defenses at all relevant stages other than the first installation unto the Mac mini.  Further, the Court could and should rule in Apple’s favour without ever having to decide whether or not the software is licensed or owned though Apple argues that it would win in either event though it strenuously maintains its position that the software is licensed only.

Psystar

Psystar pointed out that although Apple claimed to address all of Psystar’s defenses, it didn’t deal with the DMCA or copyright misuse.  (Editor’s note:  I disagree that it did not argue the DMCA but agree that it very notably sidestepped copyright misuse).  The parties have an interpretive dispute involving the DMCA with Apple taking the position that mere circumvention triggers the DMCA with Psystar arguing that circumvention with actual infringement is required, and that it is the DMCA that carries the statutory penalties with the penalties for straight copyright infringement being nominal in comparison.  Psystar argues that circumvention plus infringement does not occur during the imaging process or installations but rather only when someone boots up a Psystar computer.  Further, it is Psystar’s position that the circumvention itself is protected as its only purpose is to allow the operating system to run; a use which is protected by Section 117.

Psystar then went on to argue that the real issue is copyright misuse and Apple’s use of the DMCA and the Copyright Act to secure for itself rights that are not granted by the Copyright Act, that is to use the software only on Apple-labeled hardware. Psystar relies heavily, as it has consistently, on the following cases:

Alcatel v. DGI Technologies Incorporated
Practice Management Information Corporation v. The American Medical Association
(as a side note, here is an interesting article discussing the Practice Management case)

Psystar further argued that it appeared that Apple was simply majoring on the minors when it came to their DMCA violation claim by implying that it was simply that Psystar's chosen method of installation was too efficient, and if Psystar chose a more time-intensive method, yet a method with the same end-result, then Psystar's activity would not be an infringement which would seem to be counter-intuitive to the intent and purpose of the law. Lastly, Psystar claims that its process has protection under the theory of a derivative work.

Apple's Rebuttal

Apple was given a brief rebuttal period and fleshed out the following bullet points:

  • Copyright misuse depends upon antitrust and unfair competition which has already been ruled out in this case.
  • Copyright misuse would require that Apple was suppressing creativity for others to create their own competing operating systems which is clearly not the case here.
  • The Alcatel case so heavily relied upon by Psystar is not only distinguishable in critical areas, it comes out of the Fifth Circuit, while this matter would be controlled by the Triad case from the Ninth Circuit.
  • The DMCA is simply a case of circumvention, and there is no fair use defense to the DMCA.

Conclusion

This is just a brief outline of the issues argued at the decisive hearing that led to the present Appeal. The links given above will prove to be useful as we examine the Apellete filings as they become available.

In addition to her position as Assistant Editor at World of Apple, dizzle runs idrankthekoolaid, an Apple fangrl satire blog, and is an Administrator and Hostess at MyAppleSpace and their vidcast MASTv.

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Apple Legal NewsPsystar