The court first ruled that Psystar had violated Apple’s exclusive right to copy Mac OS X
by making copies of the modified version of OS X and installing them on non-Apple computers,
and by making copies of such software in random access memory when turning on its computers
running Mac OS X. The court refused to allow Psystar to assert a defense to such copying under
Section 117 of the copyright statute, ruling that Psystar had waived such a defense by failing to
plead it.^923 The court also held that distribution of Psystar’s computers infringed Apple’s
exclusive distribution rights with respect to Mac OS X. The court rejected Psystar’s defense
under the first sale doctrine, based on the fact that it allegedly included a legitimately purchased
Mac OS X DVD with every Psystar computer. The court held that the first sale defense under
Section 109 provides immunity only when copies are lawfully made, and the master copy of the
modified Mac OS X residing on Psystar’s imaging station was unauthorized, as were all the
many unauthorized copies that were made from such master copy.^924 The court also concluded
that Psystar had violated Apple’s exclusive right to create derivative works by replacing the Mac
OS X bootloader with a different bootloader to enable an unauthorized copy of Mac OS X to run
on Psystar’s computers, by disabling and removing Apple kernel extension files, and by adding
non-Apple kernel extension files. The court rejected Psystar’s contention that these
modifications did not amount to creation of a derivative work because Apple’s source code,
object code and kernel extensions had not been modified. The court held that the replacement of
entire files within the software while copying other portions resulted in a substantial variation
from the underlying copyrighted work and therefore an infringing derivative work.^925
Turning to Apple’s trafficking claim, the court noted that Apple’s encryption of the Mac
OS X operating system files, although aimed primarily at controlling access, also effectively
protected its right to copy, at least for copies made in RAM. Accordingly, the encryption
scheme constituted both an access control measure and a copy control measure. Psystar’s
distribution of “decryption software” (apparently referring to Psystar’s substituted kernel
extension files that obtained Apple’s decryption key from the hardware and then used that key to
decrypt the Mac OS X modules) violated both Section 1201(a)(1)(A) and Section 1201(b)(1)
because it enabled obtaining unauthorized access to Mac OS X and resulted in an unauthorized
copy of Mac OS X being loaded into RAM.^926
The court rejected Psystar’s argument that Apple’s technological protection measure was
not effective because the decryption key for circumvention was publicly available on the
Internet. “The fact that circumvention devices may be widely available does not mean that a
technological measure is not, as the DMCA provides, effectively protecting the rights of
(^923) Id. at 935. Without giving any reasons why, the court also observed that “the assertion of Section 117 is so
frivolous in the true context of how Psystar has used Mac OS X that a belated attempt to amend the pleadings
would not be excused.” Id. at 936.
(^924) Id. at 937.
(^925) Id. at 938.
(^926) Id. at 941.