Apple invokes DMCA, claims Psystar is 'trafficking in circumvention devices'

[KSoD]

One of the reasons Apple Inc. has been the most venerable opponent a courtroom defendant may face, is because of a significant trump card the US Supreme Court handed it in 1983. In a landmark case that rendered "Apple II clones" effectively illegal, the high court established a unique precedent for determining liability and damages in software copyright cases. It assumed that since any legitimate US 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.

So it was that, with amplification supplied by a citation of the Digital Millennium Copyright Act, Apple invoked its own case law -- citing Apple v. Franklin -- in arguments in recently revealed court papers that Psystar should be permanently enjoined from selling "Mac OS X clones." The specific passage is this: "Where the only hardship that the defendant will suffer is lost profits from an activity which has been shown likely to be infringing, such an argument in defense merits little equitable consideration."
http://adserver.adtechus.com/adlink...0/ADTECH;loc=300;key=key1+key2+key3+key4;grp=In other words, the value of an infringing business, is zero. Or as Apple's attorneys put it in US District Court in San Francisco last week, "A defendant whose entire business is premised on misappropriation of Apple's intellectual property cannot claim it suffers hardship by being forced to stop such infringement."


But wait a second...Isn't that restatement actually a contradiction of case law? Because in the Franklin case, Franklin Computer did carry on a legitimate business, and continues to do so to this day. The argument there was, a company can't really claim to suffer if it can carry on with its legitimate business. Apple's attorneys risk the appearance of reinterpreting the law as long as they claim that Psystar has no other purpose in life but to malign Apple.
Last November 13, the District Court ruled against Psystar, citing it with violations of the Digital Millennium Copyright Act for having apparently used decryption techniques in the engineering of a Mac-compatible computer. Apple is seeking to have the Court issue the coup de grace: an enjoinder preventing Psystar from ever selling Mac clones again.


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[Kharn]

This is going to bite Apple in the rear end, the DMCA has fair use and reverse engineering exceptions, I think Jennifer Granic defended a company trying something similar with CISCO MARS a few months back using both clauses.
Not to mention, anti competition laws, if this was challenged in the EU apple would have it handed to them mainly on the grounds that if you own something you can chose how you use it, if I buy a computer and decide to use it's power cord on a TV or other computer even if the EULA says that I can't I am allowed to as I own it once it is sold they can not control the use of a device or bit of software, once you own it you own it and it's yours. Best example of this is, I could buy the mona lisa and use it for toilet paper or as a target just because some one wants me to keep it in a museum dose not mean I can't cut it up and use it to remove stink nuggets as I own it it is mine to do with as I wish.

Also legal challenges might be brought under the BSD licence agenst apple, as when you look through there EULA they make little to no mention of BSD licensed code or keep the licence intact with any extensions as permitted under the said licence.