Copyright Misuse in Apple v. Psystar

[Alexander Terekhov]

http://www.groklaw.net/pdf2/Psystar-214.pdf

"Psystar next argues that Apple’s attempt to use copyright to tie Mac
OS X to Apple hardware constituted copyright misuse. Put differently,
Psystar argues that Apple cannot extend its exclusive rights to
control the computers on which Apple’s customers run Mac OS X. ...

Apple has not prohibited purchasers of Mac OS X from /using/
competitor’s products. Rather, Apple has simply prohibited
purchasers from using Mac OS X /on/ competitor’s products."

And hence Apple is not guilty of copyright misuse according to Judge
Alsup.

Uh drunktard....

The copyright misuse doctrine stems from the patent misuse doctrine.
The patent misuse doctrine was first established by the Supreme
Court in its 1942 Morton Salt decision, 314 U.S. 488. In that case,
Morton Salt had a patent on a machine for depositing salt tablets
into canned food (think of Apple OS X product). Licensees of the
machine patent (OS X EULA licensees) were required to use Morton
Salt's (Apple's) salt tablets (x86 hardware). Ruling that public
policy forbids the use of a patent to expand the scope of the
claims beyond the patent granted, the Supreme Court held the
patent unenforceable until "the improper practice has been
abandoned and the consequences of the misuse of the patent have
been dissipated." Id. at 493.

regards,
alexander.

--
http://gng.z505.com/index.htm
(GNG is a derecursive recursive derecursion which pwns GNU since it can
be infinitely looped as GNGNGNGNG...NGNGNG... and can be said backwards
too, whereas GNU cannot.)

[Rjack]

Post by Alexander Terekhov
http://www.groklaw.net/pdf2/Psystar-214.pdf
"Psystar next argues that Apple’s attempt to use copyright to tie
Mac OS X to Apple hardware constituted copyright misuse. Put
differently, Psystar argues that Apple cannot extend its exclusive
rights to control the computers on which Apple’s customers run Mac
OS X. ...
Apple has not prohibited purchasers of Mac OS X from /using/
competitor’s products. Rather, Apple has simply prohibited
purchasers from using Mac OS X /on/ competitor’s products."
And hence Apple is not guilty of copyright misuse according to
Judge Alsup.
Uh drunktard....
The copyright misuse doctrine stems from the patent misuse
doctrine. The patent misuse doctrine was first established by the
Supreme Court in its 1942 Morton Salt decision, 314 U.S. 488. In
that case, Morton Salt had a patent on a machine for depositing
salt tablets into canned food (think of Apple OS X product).
Licensees of the machine patent (OS X EULA licensees) were required
to use Morton Salt's (Apple's) salt tablets (x86 hardware). Ruling
that public policy forbids the use of a patent to expand the scope
of the claims beyond the patent granted, the Supreme Court held
the patent unenforceable until "the improper practice has been
abandoned and the consequences of the misuse of the patent have
been dissipated." Id. at 493.

These kinds of misuse questions present thorny problems in U.S.
Intellectual Property law. There is a subtle but REAL distinction
between the semantics of the verb "to use" in the context of patents
and the verb "to use" in the context of copyrights. A patent owner has
the exclusive right to prevent *any* use his invention:

"35 U.S.C. 271 Infringement of patent.
(a) Except as otherwise provided in this title, whoever without
authority makes, uses, offers to sell, or sells any patented
invention, within the United States, or imports into the United States
any patented invention during the term of the patent therefor,
infringes the patent."

A copyright owner may only restrict the use of those specific
exclusive rights mentioned in Title 17:

"17 USC 106. Exclusive rights in copyrighted works.
Subject to sections 107 through 122, the owner of copyright under this
title has the exclusive rights to do and to authorize any of the
following:
(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;
(3) to distribute copies or phonorecords of the copyrighted work to
the public by sale or other transfer of ownership, or by rental,
lease, or lending;. . .".

This distinction is often glossed over by federal judges. Use of a
copyright that doesn't violate one of the granted exclusive rights may
only be prevented by contractual covenant (doesn't cause infringement).

Sincerely,
Rjack

[Alexander Terekhov]

Rjack wrote:
[...]

Post by Rjack
This distinction is often glossed over by federal judges. Use of a
copyright that doesn't violate one of the granted exclusive rights may
only be prevented by contractual covenant (doesn't cause infringement).

I know. But given that Apple itself is alleging that a breach of its
EULA results in a copyright infringement the court could have accepted
arguendo the allegation as true and then rule that Apple is precluded to
enforce its OS X copyrights *and patents* against anyone due to unlawful
tying restriction until "the improper practice has been abandoned and
the consequences of the misuse of the patent have been dissipated."
Apple would then immediately announce to the world that tying
restriction was a bad joke not to be taken seriously and file a notice
of voluntarily dismissal. That would be justice.

regards,
alexander.

--
http://gng.z505.com/index.htm
(GNG is a derecursive recursive derecursion which pwns GNU since it can
be infinitely looped as GNGNGNGNG...NGNGNG... and can be said backwards
too, whereas GNU cannot.)

[Alexander Terekhov]

http://www.lawyersinagamersworld.com/2009/11/court-rules-apple-software-is-only.html

------
Tuesday, November 17, 2009

Court rules Apple software is only licensed on Apple hardware

As we have been covering, Apple brought a suit asserting copyright
infringement stemming from PsyStar's sales of non-Apple-Labeled
computers with Apple's operating system. This case presents interesting
questions about hardware restrictions placed into EULAs and the
viability of a copyright misuse defense based on those restrictions.

Last Friday, a Northern District of California court put forth its
attempt to answer some of these questions, ruling that Apple could
restrict its license of Apple Software through its EULA to only allow
installation on Apple-Labeled computers. The court believed the EULA
language was a permissible restriction on the use copyrighted software
itself, and not an impermissible tying restriction on a good or service
outside of the monopoly granted by copyright. The court indicated that
Apple could control the use of its copyrighted software through its EULA
as long as consumers were not prohibited from using third-party
operating systems or buying third-party hardware.

In this regard, the court seems to have taken a fairly limited view of
the copyright misuse defense. It is true that the EULA restriction
applies to the Apple Software itself, but the restriction also drives
certain consumers to buy Apple-Labeled computers who may have otherwise
preferred to buy a PsyStar (or another "Hackintosh") in the absence of
such a restriction. So, Apple appears to be exerting some measure of
control on hardware sales, an area outside the copyright.

There are also antitrust considerations and a public policy in favor of
the ability to modify software for purposes of interoperability that
arguably could have been considered by the court, but ended up left on
the table.

Incidentally, this case bolters Apple's argument that jailbreaking an
iPhone results in an infringing act of software copying.

Posted by Gavin George at 8:48 PM Labels: Apple, EULA, iphone,
licensing, litigation, PsyStar
------

regards,
alexander.

--
http://gng.z505.com/index.htm
(GNG is a derecursive recursive derecursion which pwns GNU since it can
be infinitely looped as GNGNGNGNG...NGNGNG... and can be said backwards
too, whereas GNU cannot.)