Innocent Questions

Comic Transcript

STEVE: Hallo Old Man.

THE BOSS: Steve. Greetings. Why are you here?

STEVE: The Home Office sent me. Steve is very unhappy with you, you know.

THE BOSS: Is he?

STEVE: Yes, well, you’ve been trying to charge people for two licenses ont he grounds that in order to run an operating system you have to load it from the hard drive into RAM, making two copies, and then telling everyone you got the idea form Apple.

THE BOSS: Have we?

STEVE: Yes, and it’s simply not true. We don’t double-charge our customers. The licensing information you’re referring to is part of a rather complicated legal issue we’re taking up against a former business partner who has more cheek than common sense.

THE BOSS: Is it?

STEVE: It is, and the claims you’re making are twisting the facts of the case and making us look bad in the process.

THE BOSS: Do they?

STEVE: … which you already know, and are apparently exploiting as part of a new diabolical plan to discredit us and increase your profit margins at the same time.

THE BOSS: Am I?

There are times when I look at something going on in the computer industry and I use it as a gag nearly verbatim, because it’s funny and depressing enough on its own merits. There are other times when the computer industry inspires me to try to take something to the next level of ridiculous.

Recently, in a lawsuit against Psystar, Apple inspired me to take an idea to the next level of ridiculous — but I didn’t bother to differentiate between that and what Apple was really doing, so over at Groklaw when yesterday’s comic was featured in their latest news picks column PJ took some time to explain what Apple was really doing compared to my “take the ball and run with it” story idea.

I think it’s fair for PJ to try to point out the difference between my comic and what’s really going on, since I make no attempt to make that distinction myself (as one of my readers pointed out yesterday I don’t even acknowledge that this is inspired by actual events at all). Unfortunately I can’t link directly to PJ’s comment because it’s on the sidebar on the front page, and it will eventually scroll off the page entirely.

For that reason, I hope PJ and Groklaw will forgive me for copying her entire post and re-publishing it here below:

The cartoon is about Apple and its argument that the copy of software in RAM when you boot up is a copy that you need a license for. That is not the argument Apple is actually making. If you are the owner of the copy of the software, you already have the right to make the RAM copy. If you are not the owner, you don’t, unless a license gives you that right, which Apple didn’t. And this is not a novel argument. Courts have already ruled that the RAM copy is a copy for the purposes of copyright infringement. Psystar has already, according to Apple, admitted to making three copies. Apple says five, but the fact is, if you are not the owner of the copy or if you have no license that allows you to make a RAM copy, that one can be enough to be guilty of copyright infringement. If you read Apple’s Opposition to Psystar’s Motion for Summary Judgment, you’ll find all the cases it cites about RAM. This is definitely not an Apple innovation. Just the law as it currently is. If you don’t like it, you should talk to your CongressCritter. Here’s one case, Wall Data on the subject of copying in to RAM:

“The essential step defense attempts to strike a balance between the interests of software users and software developers. See 17 U.S.C. § 117. This section permits the owner of a copy of a copyrighted computer program to make (or authorize the making of) another copy of the program, if the copy is created as an “essential step in the utilization of the computer program in connection with the [computer, and] is used in no other manner.” Id. The “essential step” defense also ensures that a software user does not infringe when the user “copies” the software from the computer’s permanent storage (the hard drive, for example) onto its active memory (the random access memory, for example). Section 117 also allows the owner to make a copy of the computer program if the copy is “for archival purposes only and … all archival copies are destroyed in the event that continued possession of the computer program should cease to be rightful.” Id.

Section 117, by its own terms, applies only to “the owner of a copy of the computer program.” 17 U.S.C. § 117 (emphasis added). In the leading case on ownership under § 117, we considered an agreement in which MAI, the owner of a software copyright, transferred copies of the copyrighted software to Peak under an agreement that imposed severe restrictions on Peak’s rights with respect to those copies. See MAI Sys. Corp. v. Peak Computer, Inc., 991 F.2d 511 (9th Cir.1993). We held that Peak was a licensee and not an owner of the copies of the software for purposes of § 117 and consequently did not enjoy the rights conferred on “owners” under that statute. See id. at 518 n. 5. Thus, under MAI, if a software developer retains ownership of every copy of software, and merely licenses the use of those copies, § 117 does not apply.”

So that is Apple’s position, that it is the owner; and Psystar takes the opposite position. Here’s the MAI case, if you are curious:

“The district court’s grant of summary judgment on MAI’s claims of copyright infringement reflects its conclusion that a “copying” for purposes of copyright law occurs when a computer program is transferred from a permanent storage device to a computer’s RAM. This conclusion is consistent with its finding, in granting the preliminary injunction, that: “the loading of copyrighted computer software from a storage medium (hard disk, floppy disk, or read only memory) into the memory of a central processing unit (“CPU”) causes a copy to be made. In the absence of ownership of the copyright or express permission by license, such acts constitute copyright infringement.” We find that this conclusion is supported by the record and by the law.”

Sorry for the wall of text. Those of you interested in learning more about the case should check out another article on Groklaw’s site that goes into it in more detail.

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