Rjack wrote: [...] > http://www.groklaw.net/article.php?story=20091114101637997
I think that Judge Alsup drunktardly erred by failing to apply 17 USC 117/109 in Psystar case. The crux of his opinion is this: "Psystar waived any Section 117 essential step defense when it failed to plead it. ... As such, Psystar has waived the defense. At all events, the assertion of Section 117 is so frivolous in the true context of how Psystar has used Mac OS X that a belated attempt to amend the pleadings would not be excused.2 2 Trying to have it both ways, Psystar successfully opposed Apples earlier attempt to reopen discovery and extend deadlines to add an additional product Snow Leopard to this action. Psystar now seeks to add a very late affirmative defense. This would not be fair." And thus Psystar must be guilty of copyright infringement in spite of the governing Ninth Circuit's precedent clearly stating that "Section 117 defines a narrow category of copying that is lawful per se" and "Section 107, by contrast, establishes a defense to an otherwise valid claim of copyright infringement." Sega Enters. v. Accolade, Inc., 977 F.2d 1510, 1521 (9th Cir. 1992). BTW, regarding distribution right Judge Alsup contended: "Psystar made an unauthorized copy of Mac OS X from a Mac mini that was placed onto an imaging station and then used a master copy to make many more unauthorized copies that were installed on individual Psystar computers. The first-sale defense does not apply to those unauthorized copies." Uh drunktard... The distribution of additional (installation copies) is explicitly covered by 117. >From http://digital-law-online.info/CONTU/contu6.html "This is in accord with the intent of that portion of the law which provides that owners of authorized copies of a copyrighted work may sell those copies without leave of the copyright proprietor.50 50 17 U.S.C. § 109(a)." regards, alexander. -- http://gng.z505.com/index.htm (GNG is a derecursive recursive derecursion which pwns GNU since it can be infinitely looped as GNGNGNGNG...NGNGNG... and can be said backwards too, whereas GNU cannot.) _______________________________________________ gnu-misc-discuss mailing list [email protected] http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
