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Re: Copyright Misuse in Apple v. Psystar

From: Alexander Terekhov
Subject: Re: Copyright Misuse in Apple v. Psystar
Date: Wed, 18 Nov 2009 12:16:10 +0100

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 


(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.)

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