Apple adds DMCA allegations to Psystar suit

Stephen Withers
Tuesday, 02 December 2008 07:34

Opinion and Analysis

At this distance, we have no way of judging the relative legal expertise of O'Melveny & Myers (Apple's lawyers) and von Lohmann. But the provision for reverse engineering for the purposes of interoperability seems clear cut, even to a lay person.

Even if Apple can claim copyright of the file concerned (which sounds doubtful) and the hash really is a technological protection measure (also doubtful), then the reverse engineering exemption would seem to apply.

In a purported copy of the takedown notice appearing on the Bluwiki site, Ian Ramage of O'Melveny & Myers certified "I hereby state, under penalty of perjury, that I have a good faith belief that the activities identified above are not authorized by Apple, that the information in this notification is accurate, and that I am authorized to act on behalf of Apple in this regard."

The first and third statements are plausible, but the second, while it no doubt has been made in good faith, seems to be on shaky ground. Because of the effect of the takedown notice we cannot directly evaluate the assertion that the ipodhash discussion was aimed at circumventing Apple's FairPlay DRM - but from the information available it seems that it was about using software other than iTunes to write files to the iPod.

And that, of course, is a different - and legitimate - activity.

So what of the Psystar case? It will be interesting to learn exactly what technological protection measures built into Mac OS X and covered by the DMCA have been circumvented by Psystar.

Although certain parts of Mac OS X are reportedly encrypted, it is not immediately obvious that using a legitimately-purchased copy of a piece of software would constitute the circumvention of a technological protection measure.