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.
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.