virtue of the fact that the copying it permitted fell within the fair use rights of users who made
copies for personal, noncommercial use. First, the court held that the DMCA supersedes Sony to
the extent that the DMCA broadened copyright owners’ rights beyond the Sony holding.
Second, the court ruled that whether consumer copying of a DVD for personal use is a fair use
was not at issue, because while the DMCA provides for a limited fair use exception for certain
end users of copyrighted works, the exception does not apply to manufacturers or traffickers of
the devices prohibited by Section 1201(a)(2).^917 “So while it may well be fair use for an
individual consumer to store a backup copy of a personally-owned DVD on that individual’s
computer, a federal law has nonetheless made it illegal to manufacture or traffic in a device or
tool that permits a consumer to make such copies.”^918
Accordingly, the court granted a preliminary injunction against the distribution of
RealDVD.^919
(xiii) Apple v. PsystarIn Apple, Inc. v. Psystar Corp.^920 Apple contended that Psystar’s distribution of modified
copies of its Mac OS X operating system on non-Apple computers constituted copyright
infringement and illegal trafficking in circumvention devices. Apple distributed Mac OS X
subject to a license agreement that prohibited its use on any non-Apple-labeled computer. Apple
used lock-and-key technological measures to prevent Mac OS X from operating on non-Apple
computers. Specifically, it encrypted the files of Mac OS X and used a kernel extension that
communicated with other kernel extensions to locate a decryption key in the hardware and use
that key to decrypt the encrypted files of Mac OS X. Psystar distributed a line of computers
called Open Computers that contained copies of Mac OS X, modified to run on Psystar’s own
hardware, which was not authorized by Apple.^921
Psystar’s had engaged in the following conduct at issue. It bought a copy of Mac OS X
and installed it on an Apple Mac Mini computer. It then copied Mac OS X from the Mac Mini
onto a non-Apple computer for use as an “imaging station.” Once on the imaging station, Mac
OS X was modified. Psystar then replaced the Mac OS X bootloader (a program that runs when
a computer first powers up and locates and loads portions of the operating system into random
access memory) and disabled and/or removed Mac OS X kernel extension files and replaced
them with its own kernel extension files. Psystar’s modifications enabled Mac OS X to run on
non-Apple computers. The modified copy of Mac OS X became a master copy that was used for
mass reproduction and installation onto Psystar’s Open Computers.^922
(^917) Id. at 941-43.
(^918) Id. at 942.
(^919) Id. at 952.
(^920) 673 F. Supp. 2d 931 (N.D. Cal. 2009), aff’d, 658 F.3d 1150 (9th Cir. 2011), cert. denied, 132 S. Ct. 2374 (2012).
(^921) Id. at 933-34.
(^922) Id. at 934.