Apple's abuse of DMCA

[R. Bear Helms]

Curious people can read the text and legal interpretation of Apple's shutdown of Win2OSX.net blogsite on Chilling Effect.

 

I think the lawyers examining this case are objective, and generally seem to indicate Apple is pushing the limits of what a copyright holder may ask in protection of their rights. I side with the legal precedent that says linking to sites that may represent a threat to a copyrighted work are not in themselves illegal. The law isn't broken when people follow these links. And there are circumstances (noted as the exceptions to what DMCA may forbid) where even following "circumvention measures" against a copyrighted work can be legal.

 

Think back to when IBM dominated the computer market. They invented some of the most horrific data communications protocols, obfuscated operating systems and hardware functionality - all to make sure nobody else could sell a product that inter-operated with theirs, or could in some cases supplant their products as a lower-cost alternative. We know what happened - the government made several laws in Anti-trust specifically regarding IBM. Some of these laws now apply to Microsoft, and in the case of OS X, apply to Apple Computer, Inc.

 

Please do read each of the points raised about this filing. The more of it you're familiar with, the more Apple will smell like the old IBM to you. And in 1984, Apple painted IBM as "Big Brother" - well, they've become the monolithic totalitarian state now as regards their OS and their hardware.

 

I want to draw special attention to the 7 exceptions in which "copyright circumvention" is legal, or cases where the DMCA (which is the big stick Apple legally brandishes) cannot be enforced: Libraries, archives, and educational institutions for acquisition purposes; Law enforcement and intelligence gathering activities; Reverse engineering in order to develop interoperable programs; Encryption Research; Protecting minors from material on the Internet; Protecting the privacy of personally identifying information; Security Testing.

 

When Maxxuss made Mac OS X work on a regular PC, he decrypted part of it. Therefore, IMHO, he was working on Encryption Research. Apple whines about how damaging it is to decrypt their OS, but nowhere do they acknowledge this is a natural and normal function of "Encryption Research." Already, they are crying foul without checking any possible cases where the wrongdoer actually is working well within their rights. His achievements prove the strength of Apple's Security, therefore by definition he has conducted a Security Test.

 

Remember IBM and their impossible-to-figure-out software and hardware? This is where the exception for "reverse engineering" comes in. Again, Maxxuss as well as most anybody else who has a use for the PC compatible OS X has a valid use case for this software. Every developer will agree that you cannot simply test software against the Open Source Darwin operating system and expect it to run well on a Mac. The only solution Apple approves of is buying their computer(s), using their development tool(s) - some are freely distributed, and testing on various models of their product. Notice how closed this development and testing process is. If I create Windows software, I can use any brand PC, even make my own, and use one of dozens of developer tools, commercial and non, and test it on Windows (even "illegal" unregistered copies of Windows because of the 30-day grace period).

 

In no way has Apple provided alternative means of testing software against OS X short of paying for their expensive computers, and in some cases, enrolling in a very spendy developer program. Therefore, it is natural that there are going to be relatively poor people who cannot afford a Mac, but have a compatible PC they own or can acquire cheaply, and armed with the decryption and reverse-engineering efforts of Maxxuss, see if software they are developing will run, as well as seeing if applications they enjoy on a PPC based Mac perform well.

 

Nowhere in buying an Apple iMac Core Duo do I remember seeing a satisfaction clause. If it doesn't run a given program, your recourse is the same as with Windows. Too bad, bub. Fitness for a particular use is not part of your equipment warranty.

 

Windows users usually can find people who know what programs run better and worse on a PC. There are fewer sources to discover how well, or if at all, certain programs run on an Intel-based Mac. Yes, there's VersionTracker.com - good effort, guys. But does this mean I have no right to find out for myself the proof of the pudding? I think not!

 

I submit to you that reverse engineering of Apple OS X is necessary. Without it, there are few avenues in which to explore inter-operability. Safari is a prime example. Where else but under OS X does this web browser exist?

 

With an encrypted operating system, how can you use the encrypted system to test security? At what stage do you have a definite idea that a security flaw exists in the OS protection itself, OTHER THAN BY CIRCUMVENTING COPYRIGHT? Apple does not make an un-encrypted version of their OS publicly available. Therefore, all research on the OS security must be performed on an unknown quantity to begin with - the TPM inside the Mac. How much "in-the-field" data do we have to draw on for trusting this technology? How can you find its faults without circumventing some or all of its functions? THESE ARE LEGAL PURSUITS.

 

The fact that a site (Maxxuss) has circumventions for the encryption and hardware-reliance of OS X actually serves the public interest. The censorship of this, based on short-sighted commercial concerns is founded, but not solidly - not even solidly in the letter of the DMCA law. The fact there are VALID use cases for OS X in a decrypted, reverse-engineered form means Apple PRESUMES criminal use for each and every application of the circumvention procedure. This is not the case, nor ever will be. But they allege this is so. And because their allegations are not challenged (yet), they feel they can get away with their iron-boot approach to discussions about OS X for non Apple owners.

[xiberia]

wow... I had no idea win2osx had the takedown order, I thought it was a bandwidth thing. Thats a good page, thanks for that. And I agree with you on your post.

 

Look Apple, our intention isn't to rip you off, to kill your business or anything. We're all big Apple supporters, we love your OS and hardware. We just want to run OSX on our other machines too, thats how much we rate it. If a generic version was for sale in the shops I personally wouldn't go near a cracked/hacked version. But since you've chosen to make it unavailable, we have to dance with the devil somewhat. Is that so wrong? Are we ranked up there wil serial killers and terrorists?

 

 

One thing from the email:

 

These "patched" files overwhelming contain copied code...

 

does that make sense to anyone? I'm no thesaurus, but shouldn't it be overwhelmingly ??

[kday]

That's new news to me.. I thought they just had bandwidth problems, like always. I think that letter was real. I don't think the someone would write something that elaborate just to gain attention.

[R. Bear Helms]

I've been told my logic about security testing and decryption research is faulty. I'm afraid I'm not a great defense lawyer, and I am certifiably mental. I think however in this case, I'm not thinking all that crazy (I wish I could be more objective about my own words or this case - both are too emotional an issue for me). I had this to add to the person who defended (to a degree) the need to censor Maxxuss:

 

There are other clauses which are not use cases that apply to the public, but I feel shutting down Maxxuss presumes that law enforcement, security agencies (especially the NSA), libraries wishing to archive the software in a form that is platform independent, and so forth will never occur. These are a very small subset of who's downloaded his circumventions, but still a valid and legal group who are entitled to access despite DMCA.

 

I do not agree that saying "just run it on our hardware" is a valid use case, when there is no accessible unencypted copy for government use. Just how would the US Government even ALLOW a computer that can block access to files and functions be used in a Military or other secure branch, when they do not have TOTAL, undenyable access to that computer's files? It is tantamount to them trusting IBM to tell them "don't worry, we'll recover your data if your system fails." It just isn't acceptable.

 

Why should ANY business or individual permit final say-so over access to applications and data be given to Apple, or anyone other than themselves? Why is this a valid and worthwhile computing platform, especially since there's no public acknowledgment of Apple's ability to block access to the computer?

 

My ultimatum is this: disclose the risks of using an Apple computer for cases where TPM security is violated (especially by malware), or make the TPM security something that can be disabled, at least for 30 days.

 

People are buying an Apple assuming it has no access blockage built-in. Their protest letter clearly states they admit to encrypting the OS. Apple needs to disclose to the public what happens when TPM checks fail and what recourse people have in those cases where it has failed.

 

Apple is trying to do something very clandestine behind users backs, and sooner or later their poor design decisions are going to cause outrage. At least I'm one outraged just learning what happens when TPM checks fail - Microsoft is lots less heavy handed about Windows authentication failures. Microsoft had access to and means to use a TPM like solution to block piracy of THEIR OS, and piracy of Windows "costs" Microsoft way more than OS X piracy ever will cost Apple.

 

The assumption is that OS X is as generally compatible and useful for a majority of the PC owning public. It is far, far from that. Without complying to many abstruse hardware requirements, there's just no using it on a majority of desktops and laptops in the world.

[domino]

I didn't read the whole article. For that I apologize. My whole take on any Corps abusing the law is because they can and small companies and individuals that have no money to defend itself is basically screwed.

 

Another example is vBulletin. They have relied on the hacker community to edit and add features to the script in order to make it one of the best forum script today. Jelsoft then decided that what ever hacks or modification created by the community is exclusively owned by Jelsoft and the hack creator will need to get approval to distribute them.

 

So revers engineering is crucial and to me, the abusing such laws will only hinder technology from moving forward.

[R. Bear Helms]

So revers engineering is crucial and to me, the abusing such laws will only hinder technology from moving forward.

Well said. I apologize for long-winded rants. I can't edit my speech to concise, most important points when I'm that pissed-off, either.

[OryHara]

AGREED.

 

Ive setup a space on my phorum where you can post all the links you want.

 

http://www.linuxgod.net/messageboard/

 

Why? Because I don't give a f*** about the DMCA.

 

HOWEVER:

Microsoft had access to and means to use a TPM like solution to block piracy of THEIR OS, and piracy of Windows "costs" Microsoft way more than OS X piracy ever will cost Apple.

 

It actually costs them nothing. Just a tax write-off.

[jbjonas]

While I personally have no problem with what you are doing, OryHara. I even applaud you for it. I checked out your forum, and there doesn't seem to be anything there (yet) that is in violation of the DMCA. I guess it's because you just created/advertised it . In case you don't know, however, as soon as there are items on your forum that become DMCA violations, I believe that links to your forum on this one, will become just as against policy as linking to Maxxuss himself.

 

Just a heads-up... Expect all links to your forum to be taken off of this one, once it becomes a haven for DMCA violating material (as you seem to want & are openly inviting). No hard feelings here

(in fact I'll probably bookmark your site now... so I can use it later )

[OryHara]

Thats fine. As long as people know where it is in the future. I block all the web scanning terrorists like Cyveillance, and Apples legal dept. The DMCA is a violation of my freedom of speech, and that will NOT be tolerated. When google picks up the changes it should get more traffic.

 

Im also starting http://osx86.linuxgod.net/

 

The problem is that people are scared of the DMCA, and to challenge it. I on the other hand am not.

Thats what Apple fears the most.

[cyrana]

Good luck. I hate the DMCA as well, but all your ISP is going to do is terminate your service with them as soon as anyone complains, unfortunately. Especially since you're in MS.

[OryHara]

Unfortunately for them, they would be sued in that situation for disconnecting 500 website owners, and 1200 email users who are already ready to march on their building. 3.0mbits doesn't come cheap. Im sure they would be hesitant. Besides, ISPs (or hosting providers) like myself are immune from the DMCA. So they can't disconnect the line without having their pants sued off. Not only that be I have backup lines on other providers as well.

 

One more thing. If everyone who doesn't like the DMCA organized, there would not BE a DMCA.

If someone actully started a site and everyone in ths phorum organized, and marched the white house

the DMCA would probably end up down the tubes on the next congressional meeting.

Im sure they would listen with a few thousand people on the white house lawn.

[Hagar]

One more thing. If everyone who doesn't like the DMCA organized, there would not BE a DMCA.

If someone actully started a site and everyone in ths phorum organized, and marched the white house

the DMCA would probably end up down the tubes on the next congressional meeting.

Im sure they would listen with a few thousand people on the white house lawn.

 

I am touched by your belief in the political process.. May your optimism prove truer than my pessimism..

[R. Bear Helms]

You're right - piracy of Windows is something MS writes off. However, when they go before congress and support DMCA and TPM, they will be quick to estimate in the billions how much money they lose from pirated versions of their software.

 

This fact goes unchallenged - I would like them to tell me that if they could push a button and invalidate every pirated Windows OS on the planet, would EVERYBODY pony up the cash and register? HELL NO.

 

I doubt even 10% of the people with pirated MS software would pay even $50 to put themselves on the square with MS. Most, like me, would get the nicest open source OS they could that works with the files they need to take down off the locked out hard disk(s) and carry on, perhaps the "one finger salute to MS" would become a widespread favorite desktop wallpaper then...

 

I'm one who hasn't the stamina for a march on wash... if someone was driving there to protest, I'd come with and help pay for the trip as best I could.

[scousi]

I am touched by your belief in the political process.. May your optimism prove truer than my pessimism..

 

 

The sad reality is that:

 

1) 90% of the people don't even know that it exists (DCMA)

 

2) Most people don't seem to even care about their privacy. When you talk to them about all the powers the government wants to give itself - you get the usual " I don't care since I've got nothing to hide".

[CSMatt]

When Maxxuss made Mac OS X work on a regular PC, he decrypted part of it. Therefore, IMHO, he was working on Encryption Research. Apple whines about how damaging it is to decrypt their OS, but nowhere do they acknowledge this is a natural and normal function of "Encryption Research." Already, they are crying foul without checking any possible cases where the wrongdoer actually is working well within their rights. His achievements prove the strength of Apple's Security, therefore by definition he has conducted a Security Test.

This philosophy is like saying that a thief cracked a safe to prove to the safe company what a defective product they have released onto the market.

 

In no way has Apple provided alternative means of testing software against OS X short of paying for their expensive computers, and in some cases, enrolling in a very spendy developer program. Therefore, it is natural that there are going to be relatively poor people who cannot afford a Mac, but have a compatible PC they own or can acquire cheaply, and armed with the decryption and reverse-engineering efforts of Maxxuss, see if software they are developing will run, as well as seeing if applications they enjoy on a PPC based Mac perform well.

A product, even one that is distributed free of charge, should generate some sort of money which will pay for these and future expenses.

 

Nowhere in buying an Apple iMac Core Duo do I remember seeing a satisfaction clause. If it doesn't run a given program, your recourse is the same as with Windows. Too bad, bub. Fitness for a particular use is not part of your equipment warranty.

Nowhere in buying a PC do I see such a clause either. In fact, almost everything I buy has no "satisfaction clause." If you don't like it, sell it or give it away.

 

I submit to you that reverse engineering of Apple OS X is necessary. Without it, there are few avenues in which to explore inter-operability. Safari is a prime example. Where else but under OS X does this web browser exist?

Safari is based off of Konquerer. If a web page renders properly in Konquerer, chances are that it will render just fine in Safari as well.

 

With an encrypted operating system, how can you use the encrypted system to test security? At what stage do you have a definite idea that a security flaw exists in the OS protection itself, OTHER THAN BY CIRCUMVENTING COPYRIGHT? Apple does not make an un-encrypted version of their OS publicly available. Therefore, all research on the OS security must be performed on an unknown quantity to begin with - the TPM inside the Mac. How much "in-the-field" data do we have to draw on for trusting this technology? How can you find its faults without circumventing some or all of its functions? THESE ARE LEGAL PURSUITS.

Again, this is just like saying that something needs to be broken into in order to see how secure it is. It's a proved fact that nothing is 100% secure, from software to banks to government facilities. Somebody managing to circumvent these security implementations isn't necessarily able to do so because of faulty lockout policies.

 

The fact that a site (Maxxuss) has circumventions for the encryption and hardware-reliance of OS X actually serves the public interest. The censorship of this, based on short-sighted commercial concerns is founded, but not solidly - not even solidly in the letter of the DMCA law. The fact there are VALID use cases for OS X in a decrypted, reverse-engineered form means Apple PRESUMES criminal use for each and every application of the circumvention procedure. This is not the case, nor ever will be. But they allege this is so. And because their allegations are not challenged (yet), they feel they can get away with their iron-boot approach to discussions about OS X for non Apple owners.

Regardless of whether or not there are valid reasons for cracking the security of an operating system, it certainly was not a wise idea to post it to the public for anybody to see. Because Maxxuss is basically telling anybody who wants to know how to crack the TPM, regardless of that person's reason or "need" to do so, Apple had to interfere before word spread that OS X could be obtained for free.

 

Apple is not Microsoft. Pirated copies of Mac OS X affect Apple Computer a lot more than pirated copies of Windows affect Microsoft. Apple may have high prices, but they are still only marketing to less then 10% of potential buyers. Indeed, Apple would have most likely gone bankrupt if not for the iPod/iTunes Music Store and Mac OS X, and would be a far less influential company if they didn't make exclusive hardware for their software. PCs in the last 20 years, despite exponential technical advances, haven't become more affordable because of higher demand, but because of cheaper hardware. If people are willing to spend more than $2,000 on a PC, why are you not willing to spend at least $500 on a Mac, even if only for development purposes?

[domino]

It's been said a thousand fold. There is nothing to loose if a person wasn't going to buy the application in the first place. You can counter that, but in the end and I think we both agree it is still stealing. But let me ask you this, how many groups in the private and government sectors will you see a hacked OS X running on all levels of a building. I have inspected and contracted many private and government institution that run Windows without the proper license. I tell you this, those same businesses I see will never run OS X on a PC in the the state it is in. Nor you will see Jane Blow having a chioce to install Windows or OS X on his next computer. It will not happen as long as the way maxxuss' how-to stays the same format.

 

You are right, Apple isn't MS, and it will never be MS. You argue that an infinite amount of people are actually pirating Apple's product. I counter your argument by say that even technical people in the IT business will not have the time, energy, or money to research on how to pirate/crack an OS to be able to run it on 300 computers in there building. You are talking about a very small group of individuals that have enough time and energy to learn and run something where it isn't suppose to. If you post an argument here, you might as well post this same argument at the other forums where they are running Windows on an MacIntel. They are not stealing if they own a Windows license. But when MS does create such clause to be able to run on "Mac Machines", do you think Mac users will comply to it? I say yes, but there will be a small amount who walk the same lines we do.

[CSMatt]

I'm not saying that I necessarily agree with the law in these cases. While I am against piracy in almost all cases, I myself am not at all a fan of digital "rights" management and have suspicions that the TPM will be used to the same extent that DRM is already being used. However, I think that Apple is justified in this situation.

 

We actually have no real idea (unless somebody were to check the logs of the various torrent trackers) just how many people are pirating OSx86 right now. As I said, Apple is based on a "niche" market, and will be affected more by piracy than software giants like Adobe/Macromedia and Microsoft simply because Apple just doesn't get the same amount of income. While it is highly doubtful that the company itself will suffer, it's employees might. Greedy CEOs who run companies that are "targeted" by piracy are most likely going to make up for lost income by cutting the benefits and/or wages of other company employees. I can imagine that the recording industry is doing this right now. Apple may be a software giant run by rich entrepreneurs, but there are probably ten times as many regular employees who are just trying to make an honest living by working there.

 

I have no objections to the idea of running Windows on a Mac. Indeed, as long as Windows wasn't hacked illegally in order to work properly, I see this as a noble acheivement.

[domino]

I agree with you that piracy will be a profit loss to any company, small or large. It is just hard to debate on how many pirateers would actually buy a product versus a person pirating things from the beginning and hasn't bought a single product. So yes, Apple has an obligation to protect their investments. I just think it is very transparent on what they (Apple and the like) are doing and how far they are trying to push the law without getting slapped on the wrist.

 

You know, American blue collar workers are already suffering whether people pirate or not. I don't have the statistics, but how many job losses do you think there are because of Apple, Microsoft, Ford, Chevy outsourcing support and production? As a business man, I would rather pay a person in another country USD$10 a day as oppose to USD$10 an hour. In some cases, $10/day is already a bloated approximate.

 

I also applaud the work that has been done to get Windows on native Mac. But stating "as long as Windows wasn't hacked" might be too soon to tell. At present state, we have not seen anything illegal with getting it to work on Mac. But, think how easy it is to run Windows on a Mac now. This just give higher possibilities for Jane Blow and Grandma Blow to install Windows she got online, on her MacIntel.

[CSMatt]

Speaking of Windows running on the Mac, did anyone find out if Windows' Product Activation works on the Mac's hardware hash?

[domino]

No one has actually posted anything with regards to activation. Most probably have there own license then download the Corporate vesion and install it that way. No one in there right mind would buy a license just to instll it on a Mac. It's too early and not a very good investment at this point.

[OryHara]

Speaking of Windows running on the Mac, did anyone find out if Windows' Product Activation works on the Mac's hardware hash?

 

Msg me, and ill email it to you.

[aldimeneira]

IMO Apple has opened enough for a corporation. Mac OS X kernel is FOSS and any app that you made with Darwin you can expect it to work on Mac OS X (with the X11 packages installed). Ideally 100% of the Mac OS X code should be FOSS, but Apple won't make that in the near future. They have to protect their interests after investing millions of $$$ in the R&D that went to Mac OS X and its iApps, specially now. They are transitioning for a new architechture and won't license Mac OS X for grey boxes until they can compete (so if I want a 12" laptop I should warez it and install "OSx86" on a generic laptop?! no, that's simply not the right aproach). They may license it in 2007 or later, probably writting in the EULA something like:

 

"you can try to install this software on a non-Apple compatible computer. However Apple won't give any warranty and the concurrent installations should be on not more than one computer."

(optional) "OEMs aren't alowed to sell Mac OS X preinstalled (just boxes with no OSs)"

 

If I was Apple's CEO and decided to license Mac OS X for non-Apple computers, I will not help any OEM to build on the R&D of Apple (and even the FOSS comunity for that matter) and confuse consumers with the false idea that 'the Dells of the world' have any merit more than copy & paste of premanufactured components.

[aldimeneira]

Just some quick notes:

 

1. Mac OS X core (Darwin) is both free and open

2. Safari core (Webkit) is both free and open

3. Apple "didn't make good locks", is not part of the "Trusted" Computing Group and IMO is not making a real effort to lock Mac OS X on Apple-only hardware.

4. The switch to Intel is not finished. Apple will be insane to release Mac OS X now for custom x86 boxes and not being able to compete against anyone in: workstations, servers, some types of laptops. Give it one to three years and Apple may license Mac OS X in one way or the other for custom x86 hardware.

[CSMatt]

1. The [i[core[/i] is open, but Aqua and all of Apple's propriatory software are not.

2. Safari itself is not open, only the core is.

3. Apple put a signifigant amount of time into making sure that Mac OS X could only run on specific hardware; the hacker community just happens to be better at cracking the protection.

4. Even if this does happen (and Apple has done some things in the past that were revolutionary even for them), it still isn't legal now to do so.