Apple v. Psystar: Installation of Modified Apple Software on Cloned Computers Constituted Copyright Infringement
There has been a lot of recent press touting manufacturers of Mac clones. Clone manufacturers attempt to unlock the tie between Apple software and hardware by selling non-Apple hardware that include copies of Apple's much-loved software. However, because Apple does not sell copies of its software for use on non-Mac hardware, the only way for this business to work economically is for the cloner to modify the Mac software and then create copies of this modified software for use on non-Mac computers. These are actions that necessarily would seem to violate Apple's copyrights over its software. And so found a court in a recent decision in favor of Apple. See Apple, Inc. v. Psystar Corp., N.D. Cal. 3:08-cv-03251, Order re Cross Motions for Summary Judgment (November 13, 2009).
The defendant in the case, Psystar, made a line of computers called Open Computers. Psystar purchased a copy of Mac OS X and modified it by removing the Mac OS X bootloader and kernel extension files and replacing them with files that would permit Mac OS X to run on non-Apple hardware. The modified copy of Mac OS X was used as new master copy for mass reproduction and installation on Psystar computers.
As Judge William Alsup found, Psystar's actions created a target-rich environment for infringement claims. Among Apple's exclusive rights that he found Psystar had violated were: (1) its reproduction rights (by downloading copies of Apple's software onto its clones, and creating copies in the computers' RAM when the computers were turned on); (2) its distribution right (by selling copies of Apple's software to the public), and (3) its right to create derivative versions (by making the modifications noted above to permit the use of Mac OS X on non-Apple hardware).
He also found that Psystar was a contributory infringer. While he provided little explanation, Judge Alsup must have concluded that purchases of Psystar's computers would themselves have been liable for infringement -- perhaps violating Apple's reproduction rights when copies of Apple's software was loaded into their RAM.
Judge Alsup further found that Psystar had violated the anti-circumvention provisions of the Digital Millennium Copyright Act (DMCA). 11 U.S.C. ยง 1201 prohibits the circumvention of a technological feature that controls access to a copyrighted work. Here, the Court found Psystar liable because it had used encryption technology to gain access to Apple's software, and because it had removed Apple's bootloader and kernel extension files. These and other Psystar circumvention technologies permitted access to Apple's software and also permitted the creation of unauthorized copies of Apple software in users' RAM.
The only interesting argument from Psystar was its argument that Apple was guilty of copyright misuse because it had tied the use of its desirable software to the purchase of its hardware. The copyright misuse doctrine, like the patent misuse doctrine, prevents copyright holders from leveraging their limited monopoly to allow them to control areas outside the monopoly. A&M Records v. Napster, Inc., 239 F.3d 1004, 1026 (9th Cir. 2001). For example, it can constitute copyright abuse for a copyright holder to condition use of its materials on a purchaser's agreement not to use any other competing products. Practice Management Info. Corp. v. AMA, 121 F.3d 516, 521 (9th Cir. 1997). It can also constitute copyright abuse to prohibit users from developing competing software or other services. Lasercomb America, Inc. v. Reynolds, 911 F.2d 970 (4th Cir. 1990).
However, Judge Alsup found that this is not what Apple had done: "Apple has not prohibited purchases of Mac OS X from using competitors' products. Rather, Apply has simply prohibited purchasers from using Mac OS X on competitors' products." Apple had also not attempted to prevent all competition in the area covered by its copyright, but merely attempted to control the use of its own software. As such, Apple's restrictions on use of its software did not constitute copyright abuse.
David D. Johnson is a business lawyer whose practice focuses on litigation and other issues relating to digital media and consumer electronics companies. David can be contacted at (310) 785-5371 or DJohnson@jmbm.com.
Notes:
I appreciate the comments I have received from Mac users on this article, and have incorporated a couple of important comments I received from them.
