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Nov 16

Mac Cloner Psystar Guilty of Violating Apple’s Copyright

Posted in: Apple, Hacks, Hacks, Mods and DIY, Mac, Today's Chili

Apple has won an important round of its legal battle against Psystar, a Florida-based startup that has been selling Mac clones for over a year.

U.S. District Judge William Alsup ruled late last Friday that by selling PCs hacked to run Mac OS X, Psystar has violated Apple’s copyrights. Alsup also ruled that Psystar violated anti-circumvention provisions in the Digital Millenium Copyright act.

Psystar in April 2008 opened its business selling non-Apple PCs hacked to run Mac OS X. Its first offering was a desktop system called the “OpenMac,” which cost $400 — about $2,400 cheaper than Apple’s Mac Pro. Apple filed suit in July 2008, alleging that Psystar was committing copyright, trademark and shrink-wrap license infringement.

“Psystar’s use of Mac OS X has been in excess and has violated Apple’s copyrights,” the judge wrote in his 16-page order.

Apple’s end-user agreement for Mac OS X reads, “You agree not to install, use or run the Apple Software on any non-Apple-labeled computer, or to enable others to do so.” In his Friday, Alsup noted that Psystar did not modify Mac OS X, but instead installed the software used to circumvent settings on non-Apple PCs to install Mac OS X. Alsup said this action constituted “facilitation of circumvention” and was a violation of Section 1201(a)(2) of the DMCA, which states the following:

(2) No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that –
(A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title;
(B) has only limited commercially significant purpose or use other than to circumvent a technological measure that effectively controls access to a work protected under this title; or
(C) is marketed by that person or another acting in concert with that person with that person’s knowledge for use in circumventing a technological measure that effectively controls access to a work protected under this title.

Though Apple has won this portion of the case so far, the Cupertino, California company still has a long road ahead if it wishes to destroy the entire “Hackintosh” industry. In an article summarizing Apple’s battle with Psystar, ArsTechnica’s Jacqui Cheng cites Fred von Lohmann of Electronic Frontier Foundation, who said there are plenty of workarounds still available to hack OS X, which are not repeating Psystar’s offenses.

“While the ruling is a serious setback for Psystar, I don’t see it having much impact beyond the facts of that case,” von Lohmann told Ars. “On a number of important points, the outcome was driven by Psystar-specific factors, such as Psystar forfeiting one of their strongest defenses by failing to plead it in time. Moreover, my understanding is that the commercial ‘hackintosh’ industry has moved on to selling software that enables the user to bring their own PC and OS X DVD, rather than selling a pre-installed solution like the one at issue in the ruling.”

An example of a Hackintosh solution is a dongle with the Mac OS loaded, which ships with PCs, effectively turning them into sort-of Mac clones, which Wired.com reported in November. A lawyer told Wired.com such a device would face legality issues with regard to copyright, because the device would copy the Mac BIOS and put it in a chip. However, it would likely require another long legal battle with Apple, since the circumstances are different.

Meanwhile, plenty of open-source DIY solutions for consumers to install Mac OS X on non-Apple hardware are still available on the web. Thus, it’s unlikely Apple will put an end to the Hackintosh era anytime soon.

Apple and Psystar are scheduled for a final briefing on Dec. 14 to declare any monetary relief Apple may receive as a result of the hearing.

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