Re: Copyright Misuse in Apple v. Psystar

[Rjack]

Alexander Terekhov wrote:
> 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