Apple Cease-And-Desists Stupidity Leak

Remember Apple's "free, plus $19.95 shipping" updater CD for Mac OS X 10.1? Turns out it's actually a full version of the operating system (which helps explain why it's so large) but it adds an extra little package called "CheckForOSX." Remove that and you can install 10.1 on any disk -- or at least, that's the secondhand version I got of what used to be at MacFixIt's Nov. 20 report, which yesterday was taken down after a note from Apple's lawyers. Here's the cease-and-desist story. We've included Apple's letter, below.

Apple cites the Lanham Act (see below) and I have no idea what that covers. But Bill Innanen pointed out on a mailing list that the operating system might be said to violate its own access control rights under the DMCA:

...since the possession of the tools to violate a copyright has been criminalized, we have yet another case of circular legal "logic." The only tool necessary to violate this particular copyright is the very operating system that the copyrighted software (the updater/full-installer) installs (or an earlier version of same).

(Just pop open the installer package with the built-in "context sensitive menu" module, find the CheckForOSX module and drag it to the trash can. Voila!)

Is the possession of MacOS X v10.1 or its installer illegal because it can be used to violate its own copyright?

(Well, actually by the letter of the law in 1201(2) I think you'd have to argue that Mac OS X 10.0 was "primarily" designed to circumvent the access controls in the 10.1 update... but it's still pretty funny.)

Bill goes on to point out: "The problem that this converted updater fixed is that there are reported problems with 10.1.1, and with a 10.0.x and the updater you can't backtrack. With the 10.1 full installer you can."

Apple's lawyers write:

We represent Apple Computer, Inc. ("Apple") with respect to its intellectual property matters. Recently, it has come to our attention that you are providing unauthorized instructions concerning the modification of the Mac OS X 10.1 update software (the "Software") on your website. Specifically, it appears that you are providing instructions for converting Mac OS X 10.1 update Software to a full install version of Mac OS X from your web site in violation of the Copyright Act and in violation of your software license agreement with Apple.

You should be aware that Apple has never authorized you modify the Software. Moreover, by providing instructions on how to modify and circumvent restrictions within the Software, you are infringing Apple's copyrights in violation of the Copyright Act and engaging in acts of unfair competition in violation of the Lanham Act. Additionally, Apple's license agreement, which you accepted upon purchasing a copy of the Software, specifically prohibits you from copying, decompiling, reverse engineering, disassembling, modifying or creating derivative works of the Software.

Consequently, on behalf of our client, we demand that you cease and desist from publishing or distributing the above-referenced materials. We believe that this is a very serious matter, thus we ask that we receive confirmation in writing from you that you have removed the infringing material from your web site.

Thank you for your prompt cooperation on this matter.

how many lawyers does it take...

to stuff the genie back into the bottle?

Re:how many lawyers does it take...

>If the US government was in bed with corporate America, why are businesses saddled with excessive regulations and taxes?
Prove it. Corporate welfare is larger than any other form of welfare. The big corporations get more tax breaks than the average American, that's for sure. And where, exactly, would we be without the limited regulations that we currently have?

Don't forget that although Ralp Nader )through organizations like Public Citizen [publiccitizen.org]) pressured car companies into improving their safety under strong opposition, a year later the car companies themselves were trumpeting the safety features that they had been *forced* to implement! Provide some evidence to back up the assertion that we have "excessive regulation" and "high taxes" for corporations. The fact is that government involvement is needed: economists acknowledge that the market does not solve all problems alone. I am in favor of reducing the entitlement complex that corporations seem to have, however.

Re:how many lawyers does it take...

2. The USA (and elsewhere) will become a corporate-financed police state.

• Corporations with more rights than people.
  
• Police able to search and detain citizens at will without cause or oversite. (Current law, Japanese American Internment)
  
• Intelligence agencies that sponsor the overthrow of nations that attempt to control their own natural resources. (Chile, Iran, Nicaragua, Cuba(failed) etc...)
  
• A government that ignores international law and refuses to sign treaties on global warming and chemical weapons.
  
• Citizens that don't agree to fight for corporate interests are jailed and if people protest they are shot. (Vietnam)
  
• A government that sponsors dictators and helps sponsor them by promoting the sale of illegal drugs to its own citizens. (Contra Cia Cocain connection, Cambodia, Afghanistan)
  

Oops! Too late.

Re:how many lawyers does it take...

Looking at Apple's summary of their EULA:

...Apple's license agreement, which you accepted upon purchasing a copy of the Software, specifically prohibits you from copying, decompiling, reverse engineering, disassembling, modifying or creating derivative works of the Software.

And looking at the instructions to make a 10.1 install CD from a 10.1 updater:

1. Using instructions posted on this page, create a disk image of the Update CD.
2. Delete the CheckforOSX file from the Essentials.pkg file in System/Installation/Packages folder of the image file. [You need to use the Open Package Contents contextual menu item to access this file.]
3. Burn the image to a CD using Disk Copy.

One might come to the conclusion that burning the modified files onto a new CD is copying the "Software" and therefore in violation of the EULA. Arguing that making a personal backup copy is permitted might get into some grey area if that backup is altered. But unless you give or sell your modified CD to someone else, I can't see that as being a violation.

Chris Innanen
(Son of Bill Innanen)

Re:how many lawyers does it take...

...Apple's license agreement, which you accepted upon purchasing a copy of the Software, specifically prohibits you from copying,

There may be an argument that they copied the CD, but posting instructions is not copying and so is not a violation of this part of the license

decompiling,

Nope...no decompiling going on here

reverse engineering,

This is not reverse engineering. In order to figure out how to do this, it seems all you have to do is poke around a bit. And Apple gives you the tools directly to do it. It's not like you have to have SoftICE or some-such to step through the thing to figure this out. This is simply using a feature of the software itself.

disassembling,

No disassembly going on here...move along.

modifying

Okay...now they've got 'em. Doing this may very well be legally considered modifying the software. Of course, I still want to know what constitutes modifying. If I simply turn [off|on] a feature using the menuing system or some other built-in facility of the OS, is that modifying? I think an argument may be made that if modifying the OS is illegal, then changing your desktop wallpaper as well as a number of other configuration tasks are rendered illegal as well. Hell, setting your TIME ZONE could be illegal!

or creating derivative works of the Software.

Well, burning it onto a CD after deleting that file may very well be creating a derivative work...but the whole point of this is: describing the actions on a website is not anything the license says you can't do. Putting up these instructions on the web may be a violation of the DMCA, but it is most definitely not a violation of the EULA.

Actually following the instructions probably is.

Re:how many lawyers does it take...

> how many lawyers does it take... to stuff the genie back into the bottle?

Never mind that.

How many genies, at three wishes apiece, will it take to stuff all the lawyers into a bottle?

(keeping in mind that you'll need to save one wish for last - that the bottle, still containing its lawyers, fall past the event horizon of a 14-solar-mass black hole.)

Well, duh.

What they should have done is a package-by-package analysis of the install and tell what each part does. Leave it to the discussion board and newsgroups to establish what taking out a piece does.

You're a little confused though.

remember that Apple has to protect its intellectual property

No, they don't. Copyrights and patentsdo not have to be defended (remember gif, mp3, etc?). It's a good idea to defend them along with patents, or else you can lose out big time (Frauenhoffer and mp3). Trademarks and servicemarks are the only things that need to be defended, lest they be diluted and become generic (kleneex, asperin, etc). Now the law that's being cited, the Lanham Act, is a trademark law so a defense seems reasonable until you realize that they're using a trademark law to prop up a copyright argument. Something about that doesn't seem quite right. Maybe they need to go back to law school.

Re:You're a little confused though.

So what you are saying is that Apple does not need to protect its intellectual property? Are little garden gnomes going to do it for them?

Re:You're a little confused though.

Compared to lawyers, the gnomes would probably be as effective, cheaper, and they wouldn't piss off the customers.

Re:Once again, Apple has too...

You are confusing trademark law with copyright/patent law. Trademarks must be defended or lost. Copyrights and patents need NEVER be defended. Recall the GIF compression patent fiasco - the patent holder did not enforce their patent for 15 years. Everyone who dealt with GIFs was vioating their patent. For 15 years. And then they started enforcing it.

I hereby sentence both you and your moderators to read "The Intellectual Property FAQ." Search for it on google...

Dear Website Owner

We are dumb. You have pointed this out, and we'd like you to stop doing so.

This, of course, from the same company that used to let you drag the whole OS to the trash bin and delete it...

Re:Dear Website Owner

Drag it to the trash bin? What's wrong with that?

A user tells the computer what to do - a computer does not tell the user what to do.

There are two exceptions:

• You are using Windows
• You are h4x0ring someone elses system

I can ``rm -rf /'' if I want to (and I have root permissions). That's an example of the operating system being done as it is told.

I don't see Apple letting a person (with appropriate permissions) being able to drag the entire operating system to the rubbish bin as being a problem. It's their computer - not OSX's.

Re:Eh?

First of all, I don't suspect most people would consider removing a package from an operating system 'modifying the software' or any of the other list of things stated.

I would agree. Because if I don't like, say, the calculator program and I delete that after installing 'the Software' and install a calculator program that I like better, is that 'modifying the software'? By their logic it sounds like it is. When is 'the Software' no longer 'the Software'? After I install it, am I then permitted to modify it? Would I be in violation of my license agreement if I delete calc.exe after installing 'the Software'?

This sounds like a load of hot air to me.

I couldn't have said it better.

This is great

Large companies covering up for stupid mistakes with threats of litigation truly is the comedy of the new century.

OK, so IANAL, but that seemed almost nice

Take the following:

Consequently, on behalf of our client, we demand that you cease and desist from publishing or distributing the above-referenced materials. We believe that this is a very serious matter, thus we ask that we receive confirmation in writing from you that you have removed the infringing material from your web site.

Seemes like Apple is at least not trying to crush them. I give them points for being nice lawyers.
Same time, they really goofed, so they can afford to drive any more (bad) publicity on this matter.

The Lanham Act

The Lanham Act [bitlaw.com] is actually a trademark / service mark protection law, not really a copyright law. To see Apple's lawyers use it in this context seems a bit out of the ordinary, although Apple is notorious for vigorously defending their trademark and look-and-feel related concepts (remember the OS X themes debate a few months back?). Still, if they're relying on the Lanham Act to do their bullying, they might be on shakey footing. Stick to the (deservedly despised) DMCA for things like that.

Re:The Lanham Act

Prof. Dave Touretzky [cmu.edu] at Carnegie Mellon (you may remember him for the gallery of CSS descramblers he keeps on his page) has an interesting practical reply [cmu.edu] to being threatened with bogus Lanham Act claims (scroll about halfway down for the relevant comments). I'm not sure if the reasoning applies here, but it's worth a read.

A little background on the Lanham Act

The Lanham Act essentially includes all the federal laws governing trademark registration and usage (but not state laws). Apple appears to be seeking protection under Title VIII of the Act, which has to do with misappropriation or misrepresentation of trademarks for use in commerce.

I'm just a college student who's taken a few law classes, but it seems to me this is a fairly weak claim, and Apple could make a much stronger one under other areas of federal law. Can anyone with more legal knowledge comment on the strength of Apple's claim?

Here's a link [bitlaw.com] to the complete text of the Act.

Will Slashdot get a letter as well?

Since slashdot posted this story does that mean that they too will receive a letter from apple?

Re:Apple is still a company

The Mac OS 10.1 update is given away for free. You walk into any Mac-carrying retail outlet and they will hand you this nicely-packaged CD with instructions and send you on your way.

Actually, they won't. They will look at you with a confused expression and go "I don't think we have that", or perhaps a "Sorry, Apple didn't send us any- all we have is the full version."

At least, that was my experience when I went to upgrade 10.0. The former was 2 separate Circuit City's, the latter a Mac store (Not one of Apple's). I finally asked a guy I knew online to make me an (illegal) copy.

Apple screwed the pooch bigtime on this upgrade. I'm one of the few folks here who will speak of Macs without spitting and they made it close to impossible for a loyal user to upgrade from a slow, buggy, feature incomplete beta version of the OS.

Eric

Further proof that the MacOS is the friendliest ..

You know, when you want to circumvent the existing install checker on the average PC upgrade edition of a product, you usually have to murk around with the registry or apply cracks with non-standard install methods ... things that would confuse the average joe newby pirate. But on the MacOS, you can crack your software with just a single drag of the mouse! Now that's what I call UI innovation.

Re:Further proof that the MacOS is the friendliest

They even succeeded in providing a point & click local root exploit (for details take a look at Bugtraq [securityfocus.com]).

I don't know if they are the first to offer this feature, but it's definitley nice.

Apple isn't in the wrong here...

though I don't think that maxfixit.com is in the wrong either. Providing instructions on how to turn the MacOS 10.1 upgrade into a full installer is no different than providing instructions in how to convert the Macromedia Flash demo into a full working version, or providing a CD crack for Quake. All of the examples exist. You can download the Flash demo and make it a fully functioning copy. You can download a file that disables copy protection.

Depending on how you use any of these instructions and/or pieces of software it may be illegal. It also might be legal, or at least grey. Suppose I've got a legitimate copy of MacOS 10. I've also legitimately purchased the 10.1 installer. My hard drive fails and I want to run 10.1 again. I can install MacOS 10, then install MacOS 10.1 - or - I can defeat the protection on MacOS 10.1 and install it in a single step. In this case the end result is the same, I've legally installed a copy of MacOS 10.1.

If I don't legally have MacOS X and use this trick to get a copy of MacOS 10.1 for 20 bucks then I'm at least doing something immoral, and possibly illegal. Apple has the right to try to prevent this (beyond that, they've got an obligation to as well, an obligation to their stock holders).

That said, it will also be ineffective. The crack will appear on some dyndns.org warez site and on gnutella etc. I had suspected that upgrade CD was a full install but didn't have a chance to verify it. I upgraded my sisters G4 over thanksgiving weekend. The CD seemed pretty full for an upgrade, and you could actually boot from it.

Yes they are.

Apple is in most certainly in the wrong here, in as much as it is wrong to be stupid, lazy, and legally defensive of the first two failings.

Look, ignore for a second that the label on the CD reads "10.0 -> 10.1 upgrade" or somesuch. The fact is that you legally purchased a CD that contains the entire 10.1 operating system. It is the fully functional operating system, and the only requirement for having 10.0 is an artificial one that is easily removed. Does Apple wanting it to just be an upgrade CD change the fact that it is the entire OS + 1 package? Not at all.

It's like overclocking. You might buy a processor that is labeled as 1GHz, but it can run at 1.2 if cooled properly. Does the fact that the vendor would rather you buy the actual 1.2GHz part make a difference? They sold you a device with a capability, and you are using it.

Or it'd be like if Stephen King was doing his online book thing, but his "preview" was actually the entire book, with a note to please not read past page 47.

Or it'd be like a video card upgrade that came in the form of a completely new computer, but you were expected to only take out the video card and leave everything else in your closet.

If Apple really wanted the upgrade CD to be just an upgrade CD, it should have contained only the data necessary to make the change, like every other software upgrade I've ever seen in my entire life. That they didn't do this is a sign of laziness on their part, not moral obligation on mine.

They sold me a CD containing data, and I'm using it. I'm not copying anything they didn't sell me; I'm not giving it to someone who didn't pay; I'm not modifying their code and redistributing it. If it is, well, that wouldn't surprise me, but that doesn't mean Apple isn't wrong.

What _would_ be wrong was if I (probably as a reseller) bought a bunch of the upgrade CD's, and resold them as the full thing