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CS ap­peals copy­right-mis­use claim against Apple to the Ninth Cir­cuit

January 14, 2010

Ca­mara & Sib­ley today filed a no­tice of ap­peal to the United States Court of Ap­peals for the Ninth Cir­cuit. We will ask the Ninth Cir­cuit to join the Fifth, Sixth, and El­ev­enth Cir­cuits in de­clar­ing that an at­tempt to use copy­right pro­tec­tion in an op­er­at­ing sys­tem to en­force con­trac­tu­al re­stric­tions lim­it­ing the op­er­at­ing sys­tem to use with cer­tain hard­ware through an ac­tion for copy­right in­fringe­ment and vi­ol­a­tions of the anti-cir­cum­ven­tion pro­vi­sions of the Di­git­al Mil­leni­um Copy­right Act con­sti­tutes copy­right mis­use.

There is a battle on in the per­son­al-com­put­ing in­dustry between ap­proaches like Apple's, in which the com­pany that designs and sells hard­ware con­trols the op­er­at­ing and ap­plic­a­tions soft­ware that runs on that hard­ware, and Mi­crosoft's, in which the goal is to build a plat­form on which oth­ers can freely build — with the res­ult that the plat­form it­self be­comes in­dis­pens­able. The ques­tion presen­ted by our ap­peal is wheth­er a com­pany that picks Apple's strategy may en­force that strategy by us­ing copy­right law, with its at­tend­ant pun­it­ive stat­utory dam­ages, to en­force the con­tracts in which cus­tom­ers agree to use the com­pany's soft­ware only on com­pany-ap­proved ma­chines.

The copy­right-mis­use doc­trine is one of the com­mon-law doc­trines that po­lices the bound­ar­ies of copy­right. It is copy­right mis­use to at­tempt to use a copy­right to pro­tect rights not gran­ted by the Copy­right Act. For ex­ample, the Sev­enth Cir­cuit held that it was copy­right mis­use for a com­pany that ag­greg­ated pub­lic-do­main real-es­tate data in a data­base to use its copy­right in the data­base to pro­tect the un­der­ly­ing pub­lic-do­main data. Sim­il­arly, the Fifth Cir­cuit held that it was copy­right mis­use for a man­u­fac­turer of tele­phone-switch op­er­at­ing-sys­tem soft­ware to re­strict use of that soft­ware to the man­u­fac­turer's own tele­phone switches. The same is true of Apple's at­tempts to lim­it use of OS X to Apple Macin­toshes: this can be done by con­tract, but not by copy­right.

K.A.D. Ca­mara is lead ap­pel­late coun­sel.