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

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."

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.

For a request that stands a very high likelihood of being granted at this point, Apple's motion could have been perfunctory. Instead, it's surprisingly awkward and circumlocutory, at one point saying, "Money damages alone could never compensate for the irreparable injury that Apple has suffered;" at another saying, "To obtain a permanent injunction, Apple must demonstrate...that it has suffered an irreparable injury;" then at the very next paragraph stating that such a demonstration may be presumed ("Under traditional copyright principles, Apple is entitled to a presumption of irreparable harm because it has prevailed on its infringement claim"); and then finally concluding, "Apple need not show that Psystar's conduct has caused irreparable harm."

The magic device that changes black to white -- that renders it unnecessary for Apple to demonstrate what it's necessary to demonstrate -- is the existence of something Apple's calling a "circumvention device."

"As this Court found, Psystar is trafficking in devices that enable others to circumvent Apple's technological protection measure to gain access to and copy Mac OS X," reads the motion for injunction. "Psystar is continuing to actively market those devices and has announced its intention [to] continue to do so to enable others to infringe Apple's copyrights. If Psystar is not permanently enjoined from marketing unlawful circumvention devices, other parties will be encouraged and enabled to continue infringing Apple's copyrights in Mac OS X."

That may be a bit of a stretch -- perhaps an unnecessary one for Apple to prevail. As the actual court order of November 13 reads, Psystar was found to have included a method on its computers that circumvents Mac OS X's self-protection measures for ensuring it only runs on Macs. That creates a circumstance where, legally speaking, the Psystar computer user becomes the infringer of Apple's copyrights by invoking the circumvention measure that he presumes is there, by having purchased a Psystar computer in the first place.
"Section 1201(a)(1)(A) provides that no person shall circumvent a technological measure that effectively controls access to a work protected under this title," reads the November 13 court order. "Psystar has used decryption software to obtain access to Mac OS X and to circumvent Apple's technological measure when modifying Mac OS X in its production process. This is a violation of the Section 1201 anti-circumvention provision of the DMCA."

Conceivably, Apple could hold Psystar users accountable for circumvention conduct, the way the court has phrased the order. So the logic behind Apple Senior Vice President Phil Schiller's attachment to last week's motion for injunction, seems once again contrary to the aims of a guaranteed march toward home plate: Schiller actually claims, contrary to the court's own findings, that a Psystar customer would not purchase a Psystar computer to infringe Apple's copyright, but instead under a confused notion that Psystar and Apple are perhaps working together -- or even the same company.

"From a marketing perspective, I am deeply troubled by the association consumers are likely to assume exists between Apple and Psystar," Schiller writes. "Having looked at the Psystar Web site several times, I believe that consumers are likely to believe that Apple has authorized Psystar to sell its products. This concerns me because Apple does not control Psystar and therefore cannot ensure that Psystar will provide the high standards of quality and reliability that customers expect from Apple...Indeed, I understand that some confused Psystar customers have called Apple for technical support for Psystar computers that are running Mac OS X...The association of Psystar's poorly designed and poor quality computers with Apple's Mac OS X sullies Apple's image and erodes the confidence which Apple has worked so hard to establish."

Keep in mind that Apple has already won here, but on the theory that Psystar computers obviously cause irreparable harm to Apple by converting possible customers into knowing and willful Apple infringers. Schiller's own letter would actually argue a completely different point, at a time when it's too late to argue it anyway. Although it's unlikely that Apple may yet snatch defeat from the jaws of victory, one can't help but notice that in the absence of the continually guiding hand of Steve Jobs, it seems to be doing a good job of trying.
