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Virtual Asymmetry: The Private Law of Apple

Michelle Rafferty, Publicity Assistant

Douglas E. Phillips is the author of The Software License Unveiled: How Legislation by License Controls Software Access, which reframes the debate between proprietary and free software to ask whether “legislation by license” should control either kind of software access. In the article below he answers the question: Can I legally make my PC think it’s a Mac?  Read other OUPblog articles by Phillips here.

Apple boasts that a new Mac can run Windows natively, just as if the Mac were a PC. But what if you want to run Apple’s operating system on a PC, so the PC thinks it’s a Mac?

If you watch Apple’s “Get a Mac” ads, you might think a Mac-like PC could only be a good thing, because it would work better than a PC. And if you watch Microsoft’s “I’m a PC” commercials (which reportedly were created on a Mac), you might also think a Mac-like PC would be a good thing, because it would be cheaper than a Mac.

But if you do manage to run the Apple OS X operating system on a PC, the people you meet won’t be John Hodgman and Justin Long. They’ll be Apple’s legal team, and it’s possible they will sue you.

The software license agreement for OS X Leopard declares: “You agree not to install, use or run the Apple Software on any non-Apple-labeled computer or enable another to do so.” You can be sure that, when Snow Leopard debuts this fall, the same language, or something a lot like it, will bar you from using the new latest and greatest Mac OS on anything that isn’t adorned with the Apple logo.

Does Apple mean what the license says? Ask Psystar, a Florida company that makes and sells computers with OS X preinstalled. Apple has sued Psystar for violating the OS X license agreement and for infringing Apple copyrights and trademarks. Psystar filed for bankruptcy, but last month, the bankruptcy court ruled that Apple’s case could go forward. (Psystar then moved to withdraw its bankruptcy petition.) If Apple prevails on the merits, watch for more litigation in which not just public copyright law, but also the private law of Apple’s software license, plays a key role.

According to Apple’s lawyers, Psystar managed to make its hackintosh only by using a modified version of OS X. With or without the Apple-only hardware requirement in Apple’s license, modifying copyrighted software without permission is clear copyright infringement. On the horizon, though, is a new method that apparently doesn’t involve changing the Apple software at all. An Apple legal effort to block this method could place the software license front-and-center.

Apple uses Intel’s Extensible Firmware Interface (EFI) in Intel Macs. EFI replaces the older Basic Input/Output System (BIOS). Early IBM PC clone makers of the 1980s had to reverse engineer the IBM BIOS, using clean room methods to avoid infringement. EFI, in contrast, is a publicly-available industry-wide specification. The EFI layer, sandwiched between the PC’s firmware and the operating system, includes a boot manager that loads the operating system. With the EFI layer, you can boot an Intel Mac in OS X.

A new device, the EFi-X, implements the EFI specification – making it possible to boot an unmodified retail copy of Apple OS on a PC – with a $189 dongle. (“Dongle” is a hardware device needed to run a piece of software, originally used to fight piracy. Ironically, this dongle opens the door to doing what Apple’s software license seeks to stop.)

If person buys a PC, an EFi-X, and a retail copy of OS X, running the software might not involve any copyright infringement. If that’s the case, then to block the practice, Apple would have to enforce the software license agreement. Making clear that the license legally binds may be one reason Apple is so vigorously pursuing Psystar, which on its own seems like a pin-prick.

After all, it’s hard to believe that Psystar is making even a dent in Apple’s sales or its reputation. According to Apple’s complaint, commentators have said “that Psystar’s Open Computer is ‘missing stuff like iLife, Bluetooth, an IR receiver, DVD burning and the ability to update your computer,’ is ‘LOUD, Crazy Loud,’ it ‘breaks the OS’s automatic updates, and that ‘video was DOA right out of the box.’” These comments don’t exactly make the machine sound like a computer “for the rest of us.”

If the allegations about Psystar in Apple’s complaint are even partly true, the competitive cost to Apple must be well below the cost of its legal fees. But Psystar may be the ideal defendant, from Apple’s perspective, for making clear that Apple can enforce the Apple-only hardware clause in its license. No one wants a crazy loud machine, but what if devices like EFi-X or built-in EFI hardware make it possible to run OS X on a stylish Sony that costs hundreds less than a comparable Apple-branded machine?

Apple probably doesn’t have to worry too much. It might have to stop supplying those cool logo stickers with every copy of OS X, in case a user slaps one of them on a Dell to show that it’s really an “Apple-labeled” computer after all. (If you only put it on your own machine, you can’t really be infringing Apple’s trademark.) But with a little rewording, Apple could make clear that the license allows you to use OS X only on a machine that has been given its Apple label by Apple itself. The courts have left little doubt in recent years that such a license term will be enforced. Whether it should be – so that running Windows in a virtual machine on a Mac is a one-way privilege – is another question.

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3 Responses to “Virtual Asymmetry: The Private Law of Apple”
  1. Robert Armstrong says:

    The issue is really the encrypted binaries. Significant parts of OS X — the dock, the finder, the login screen, Rosetta, and so forth are encrypted, just like the content on a DVD is encrypted. You need a key to run them. Some speculate this is to prevent people from running OS X on a PC, some speculate this is to prevent competitors like Microsoft from decompiling and reverse engineering the binaries. Either could be true, and it’s doubtful Apple will ever shed any kind of light on that one – so it’s speculation either way.

    Nevertheless, the encrypted binaries are there. You need a key to run them. Apple hides the key on the motherboard. So in other words, whenever you want to run the finder, or, essentially “get going” with your computer session (you probably need the dock and the login screen for that even with automatic login), the OS X software needs to check with the motherboard to get the key.

    What you have to do to run OS X on a PC is to get a software driver to spit out that key instead. This is theoretically a violation of the DMCA. That’s the issue. Now — does the DMCA trump your fair use rights? I doubt that one will ever go to court. It probably should go to court, but I doubt it will. Does the EULA trump fair use rights? Same deal.

    Basically, you should pay for it. You bought it, fair use says you can use it. That you have to potentially violate the DMCA as well as the fine print on an adhesion contract to exercise your fair use rights under US Copyright law is strange – which is it? Do they believe in a strong copyright law or a weak copyright law? Or do they just want to pick and choose which parts of the copyright law suit their purposes?

    The problem here is not that Apple is monopoly-like (although it does have 91% of the market of PC’s over $1000), it’s that the consumer suffers lack of choice. Apple’s basically saying — use Windows. The consumer loses here. You’ve got OS X, you’ve got Windows, and you’ve got a marketplace. There are reasons we have the UCC. There are reasons we look out for lead in toys, there are reasons the FDA tries to make sure that drugs are safe. It’s the consumer. Apple operates inside a marketplace, a marketplace where competition is almost entirely absent with Microsoft having near 90% market share. Having OS X available on a wider variety of hardware across a broader spectrum of price points, and as an option to install yourself on existing hardware would be of significant benefit to the consumer, and with OS X’s technically superior object-oriented driver system, would actually not be all that hard to do.

    Apple needs to do this — it’s a win-win-win-win situation any way you look at it. The consumer should have choice and value.

  2. Doug Phillips says:

    Great comment.

    I don’t have an EFi-X, but it reportedly works pretty well, so perhaps it includes a driver that unlocks the encrypted binaries.

    It’s not clear that such a driver infringes copyright or violates DMCA on its own. But it is clear that Apple’s software license agreement prohibits running OS X on a non-Apple-labeled machine. The EULA also conditions its license grant on compliance with its terms. So the EULA quite possibly transforms an otherwise lawful act into infringement.

    Without the EULA, fair use might well apply. In the Ninth Circuit Sega case, a game developer decompiled some of the code in Sega’s game cartridges so it could make its own cartridges run on a Sega console. This was held to be fair use. Likewise, if it weren’t for the EULA, it seems as though the interoperability exclusion in DMCA could allow circumventing an encryption key to achieve interoperability of an independently-created program (the replacement driver) with other programs (OS X).

    What the software license agreement does, in effect, is to override both the fair use privilege and the interoperability exception. Courts in the past decade or so have been fairly uniform in holding that a privately-written EULA can do just that. Under the principle of freedom of contract, the assumption is that consumers make a meaningful choice when they agree to the EULA. Here, as your comment suggests, it seems that the EULA instead limits consumer choice.

  3. Dave Bissett says:

    You forgot to mention the boot 132 method of getting an unaltered version of Leopard installed on a PC. Boot 132 is completely written new and is a clone of the EFI allowing a legitimately purchased Apple Leopard to install on a PC.

    People are writing more drivers for PC compatibility. I just wonder if Apple will start offering its snow leopard to every PC and do like Microsoft does, making its $$$ from many installs.

    Included in the box of every Leopard are apple stickers, ready to be placed on your machine to qualify it as an apple branded machine.

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