This past August, embattled clonemaker Psystar filed a complaint in the state of Florida seeking a ruling from the court which would allow them to sell copies of copies of Snow Leopard on its own hardware. In addition, Psystar is also seeking an injunction against Apple that would preclude them from tying OS X to Apple hardware on the grounds that Apple has a monopoly in the market for premium computers.
Last week, Psystar amended their complaint to include their recently released Rebel EFI software. Their new complaint also includes a new argument which purports to prove that its actions aren’t in violation of copyright laws because they’re not modifying OS X, but merely bundling OS X with their own proprietary software, much like how you might find a copy of Minesweeper with a retail copy of Windows 7.
Psystar, in essence, is arguing that it’s not tinkering with any OS X source code, but that it merely writes software designed to extend the functionality of OS X, just like a third-party web browser or a word processor.
Psystar’s amended complaint reads:
Psystar’s position with respect to Mac OS X Snow Leopard is analogous to that of a person developing a software application to run on top of Mac OS X Snow Leopard. Just as Microsoft writes Word to run with Mac OS X and Google writes its web browser Chrome to run with Mac OS X, Psystar writes its software to run with Mac OS X Snow Leopard. In fact, the part of Mac OS X Snow Leopard that Psystar interacts with is within the open-source portion of Mac OS X and makes use of features of Mac OS X Snow Leopard designed to allow software developers to extend Mac OS X Snow Leopard to work with different hardware. Admittedly, Apple hopes that this hardware be peripherals such as video cameras or USB memory sticks, but nothing in the technology of Mac OS X Snow Leopard prevents use of the same facilities to extend Mac OS X Snow Leopard for use on non-Apple personal computers.
It’s some crafty legal maneuvering, to be sure, but it’s an argument that ultimately fails for a number of reasons. First, Apple doesn’t prevent Microsoft Word from running on OS X, as opposed to Psytar which has to willfully circumvent Apple security measures in order to get its software and OS X up and running on non-Apple hardware, which is a violation of the DMCA.
Psystar, though, claims that it’s actions constitute fair use under 1201(f) of the DMCA, which reads in part:
a person who has lawfully obtained the right to use a copy of a computer program may circumvent a technological measure that effectively controls access to a particular portion of that program for the sole purpose of identifying and analyzing those elements of the program that are necessary to achieve interoperability of an independently created computer program with other programs, and that have not previously been readily available to the person engaging in the circumvention, to the extent any such acts of identification and analysis do not constitute infringement under this title.
The case law regarding the fair use exception under section 1201(f) assesses whether the “result of the reverse engineering is an independent non-infringing program.” Clearly, Psystar’s resulting version of OS X is an infringing program, as opposed to a scenario where their reverse engineering would have resulted in an application like Microsoft Word. Psystar isn’t selling software that runs on OS X – rather, it’s selling a modified version of OS X itself.
Furthermore, the reverse engineering exception of the copyright act was enacted as a protection for those seeking to learn, not profit. Note the language, “for the sole purpose of identifying and analyzing those elements of the program that are necessary to achieve interoperability.”
As an example, imagine the following hypothetical. An individual tinkers with the iPhone OS in order to figure out how to port it over to a different handset. That in and of itself is kosher. But now imagine that that individual figures out how to get the iPhone OS onto his own phone hardware with the express intent of then selling said hardware as an iPhone. That’s basically what Psystar is doing with OS X, and its actions are clearly outside the bounds of what section 1201(f) was meant to encompass.
Also, it’s quite obvious Psystar is patently arguing out of both sides of its mouth. It first asserts that it’s software runs innocently on top of OS X, just like any other program. But then it admits that it works around Apple’s security measures, as opposed to every other program.
We should also point out that fair use is an affirmative defense, meaning that the burden is on Psystar to prove that it’s actions constitute fair use. Psystar, though, merely states that it’s engaging in fair use activity without providing any evidence to support that claim. It makes no effort to prove that its version of OS X is a non-infringing copy of Apple’s OS because it knows that it can’t and because it isn’t.
Psytar recently raised a similar argument in the ongoing California case when it filed its motion in opposition to Apple’s motion for Summary Judgment. Both Apple’s motions for Summary Judgment will be decided upon on November 12th, and while our legal hawks here at Edible Apple legitimately feel that Psystar’s legal arguments are all fluff and no substance , it’ll be interesting to see what Judge Alsup ultimately decides.