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Donna Wentworth
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Ernest Miller
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Elizabeth Rader
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Jason Schultz
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Wendy Seltzer
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Alan Wexelblat
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About this weblog
Here we'll explore the nexus of legal rulings, Capitol Hill policy-making, technical standards development, and technological innovation that creates -- and will recreate -- the networked world as we know it. Among the topics we'll touch on: intellectual property conflicts, technical architecture and innovation, the evolution of copyright, private vs. public interests in Net policy-making, lobbying and the law, and more.

Disclaimer: the opinions expressed in this weblog are those of the authors and not of their respective institutions.

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In the Pipeline: Don't miss Derek Lowe's excellent commentary on drug discovery and the pharma industry in general at In the Pipeline

Copyfight

« Could They Outlaw Corporate Stupidity, Too? | Main | Google, Porn Images, Copyright Violations? »

February 22, 2006

Apple's DMCA to the Max[xuss linkers]

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Posted by Wendy Seltzer

Apple's DMCA takedowns to web sites discussing the new Intel operating system -- and ways to get it running on non-Mac hardware -- have been in the news lately. Now, Chilling Effects has the notices sent to two of the sites' ISP, and what they don't say is as interesting as what they do. (Notices sent regarding the OSx86 Project and Win2osx.)

Both letters claim that "Apple uses encryption and other technological measures in Mac OS X ver. 10.4.4 to effectively control access to its copyrighted operating system code and to effectively protect its rights as a copyright owner in that code." Apple says hacks to enable OS X to run on non-Apple hardware "are primarily designed and produced for the purpose of circumventing those technological measures," in violation of the anticircumvention provisions of the DMCA.

Apple claims further that the Win2osx site posted pieces of Apple's copyrighted code -- but it does not make the same claim against OSx86. The most it can claim is that the OSx86 site linked to a third-party site (Maxxuss, hosted in Russia, down as of this posting) offering circumvention code and copied code. The ISP gets a notice as host to a linker, at best a tertiary connection to the claimed infringement or circumvention (but one in the United States and easy to find).

The OSx86 Project is back, minus links to the Maxxuss site. But at bottom, was Maxxuss infringing or circumventing? Clearly it was doing something Apple would prefer not be done, offering users a way to unbundle OS X software from Mac hardware. But isn't that the kind of reverse engineering for interoperability that is fair use under copyright law and was supposed to be preserved in the DMCA? Provided users of the Maxxuss patches had validly licensed copies of the OS, their use should be a matter of their own choice and the terms of their OS X licenses, but not a circumvention. Once again, anticircumvention offers a big hammer for those who want to break interoperability.

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