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ECT News Community   »   MacNewsWorld Talkback   »   Re: Apple's Odd Double-Talk About Psystar

Re: Apple's Odd Double-Talk About Psystar
Posted by: Scott M. Fulton, III 2009-12-05 07:57:21
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One of the reasons Apple has been the most venerable opponent a courtroom defendant may face is because of a significant trump card the U.S. Supreme Court handed it in 1983. The high court established a unique precedent for determining liability and damages in software copyright cases. It assumed that since any legitimate U.S. company is capable of performing legitimate business, the possible damage a defendant might suffer from an injunction against possibly infringing software is outweighed by the simple declaration that such business is illegitimate.

The spurious logic about knives doesn't work.
Posted by: LouisWheeler 2009-12-06 09:31:58 In reply to: Scott M. Fulton, III
"Scott says that, "Psystar has no legal right to sell software which would allow others to misuse Apple's OS." By that logic, a knife company has no legal right to sell knives because it would allow others to misuse the knife blade, in a stabbing, for example. "

Scott needs to take a class in Business Law. That would keep him from sounding like a fool.

The reason that his argument is illogical is that the seller has no foreknowledge of how a person intends to use a knife for which there are many peaceful uses.

In fact, a seller is enjoined from selling to a person who says that he means to use a product to break the law. A seller, thus, may become a conspirator before the fact. His only excuse is that he did not believe the criminal's braggery.

When a product can only be used in an illegal way, such as with a circumvention device, then possession and use is, in itself, illegal. The creation, itself, of a circumvention device is illegal.

This is why possession of an atomic bomb, without a license under the control of a government, is illegal.

This is despite the fact that an atomic bomb has peaceful uses. One of these could be in heating up underground shale oil and tar sands to make extracting the petroleum easier. The threat of misuse is so great that governments do not tend to license them.

Posted by: mistoffolees 2009-12-06 08:56:47 In reply to: Scott M. Fulton, III
"Scott says that, "Psystar has no legal right to sell software which would allow others to misuse Apple's OS." By that logic, a knife company has no legal right to sell knives because it would allow others to misuse the knife blade, in a stabbing, for example."

That is not correct. Intellectual property rules are somewhat different.

There IS a misinterpretation in the above statement, though. It is not illegal to sell something that can be used for intellectual property infringement. Thus, even though VCRs CAN be used for intellectual property theft, they are perfectly legal because they have legal uses.

In this case, there will be two issues regarding the sale if Rebel EFI:

1. Does it have non-infringing uses. If so, it is legal. As I understand it, Rebel EFI DOES have some legal uses (installing Linux on certain systems, for example), so that's going to be hard to win. However, if they use an illegal method (such as violating DMCA or patents, it would not be legal, even if there are legal uses.

2. Even if the device is legal, it is NOT legal to promote it for infringing uses. Thus, if Psystar advertises it as a way to install Mac OS X on generic hardware, they can be punished for contributory infringement. If, instead, they simply sell the device and advertise only that it allows non-EFI systems to simulate EFI, that may be OK (although I'm not sure whether even that might be illegal - see above).

Thus, Apple has to simply show that either Rebel EFI uses illegal methods to do its thing, OR there are no non-infringing applications, OR Psystar is selling it by promoting its illegal use (installing OS X on generic hardware).

To forestall the mindless objections, yes, installing OS X on generic hardware is illegal - even if you do it on your own personal computer and not for profit. Read Alsup's decision.

Psystar's past actions matter, because they imply intent or malice.
Posted by: LouisWheeler 2009-12-06 10:11:33 In reply to: mistoffolees
The courts can and do look at the intentions of a felon. If a person has shown a repeated attempt to steal or misuse an other person's property then this can prejudice the courts against that person.

Any legitimate of use of Psystar EFI software can be discarded as irrelevant because it is a cover for further illegality.

If Psystar EFI's intent is to install the Linux OS, then the court can make Psystar remove anything in EFI which would make it easy or possible to install Mac OSX. The courts could condition EFI's sale on Psystar making it very difficult to install Mac OSX. If this is technically impossible then the court can forbid sale.

Any communication by Psystar to its buyers on how to circumvent its preventions would be contempt of court.

Posted by: mistoffolees 2009-12-05 13:26:38 In reply to: Scott M. Fulton, III
I agree completely with Louis. There's absolutely nothing contradictory about Apple's position here.

BetaNews should stick to something they know about. Almost all of this rant is completely off base. In addition to Louis' comments:

- BetaNews says that Apple shouldn't be able to shut Psystar down because Franklin wasn't shut down. READ THE FACTS OF THE CASES. Franklin had other, non-infringing businesses. Psystar does not. Furthermore, Apple is not attempting to shut Psystar down in the first place. Apple is asking the court to stop Psystar from further infringing its copyrights. If Psystar has no legitimate businesses and has to close its doors because of that, it's not Apple's fault.

- I love the one where BetaNews objects to the wording Apple uses in its filing. Are you attorneys? Do you have ANY concept of how to present a legal filing? Apple's statements are perfectly reasonable. You rarely file a 'perfunctory' response. You need to cover all your bases and often provide alternative responses - that is, if the court rejects one response, they can accept another.

Please stop trying to second guess legal filings when you clearly don't know what you're talking about.

Scott says that, "Psystar has no legal right to sell software which would allow others to misuse Apple's OS." By that logic, a knife company has no legal right to sell knives because it would allow others to misuse the knife blade, in a stabbing, for example. By that logic, a gun manufacturer has no legal right to sell a 45 handgun because it could be, for example, smuggled into Afgh. by a US soldiers to kill pregnant women. And a publisher has no legal right to sell a Christian Bible because it could be used by others to misuse the Word of God, because it describes how to stone women to death, for example. Not sure that I agree with Scott's logic, nor with this law, if it truly exists. If it does, it needs repeal statim.

You are making no sense.
Posted by: LouisWheeler 2009-12-05 09:05:29 In reply to: Scott M. Fulton, III
It is a long standing legal principle that a person should not profit from a criminal act. If you are convicted of killing a relative, for instance, you are barred from ever receiving money from the estate of the person you killed. This applies to commercial law as well.

You are engaging in double talk to confuse people.

A company which profited from misusing of your intellectual property, not only owes you money for the misuse, but suffers no legitimate loss when told to stop using what does not belong to them.

Psystar sold computers which were constructed to misuse Apple's intellectual property: Mac OSX. Psystar's case would be slightly different if it sold Windows computers, too, because those would be legitimate.

Apple won in court that Psystar's business was illegitimate, so no further proof is needed. Apple wants to enjoin Psystar from manufacturing computers because it has shown a repeated pattern of misusing Apple's property.

Recently, Psystar started selling Psystar EFI software which allowed a PC to run Mac OSX. This is an intervention devise by its definition. Again, Apple seeks to prevent Psystar from profiting from another person's misuse of Apple's intellectual property. Psystar is, thus, a conspirator before the fact in someone else's illegality.

Nor should Psystar be allowed to confuse people into committing an illegal act.

There is no contradiction in Apple's case. Psystar has no legal right to manufacture, or sell computers which use Apple's OS. Psystar has no legal right to sell software which would allow others to misuse Apple's OS. Psystar has no legal right to confuse people into believing that they can legally misuse Apple's property.

Apple is the victim here. Why do you imply the opposite?
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