Apple Inc. v. Psystar Corporation

Filing 38

AMENDED COMPLAINT FOR COPYRIGHT INFRINGEMENT, INDUCED COPYRIGHT INFRINGEMENT, VIOLATION OF DIGITAL MILLENNIUM COPYRIGHT ACT, BREACH OF CONTRACT, INDUCED BREACH OF CONTRACT, INDUCED BREACH OF CONTRACT, TRADEMARK INFRINGEMENT, TRADE DRESS INFRINGEMENT AND UNFAIR COMPETITION against Apple Inc.. Filed byApple Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Gilliland, James) (Filed on 12/2/2008)

Apple Inc. v. Psystar Corporation

Doc. 38 Att. 1

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Exhibit 2 to Amended Complaint

Dockets.Justia.com

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English
APPLE INt.

SORWARE LICENSE AGREEMENT FOR MAC OS X SERVER

PLEAE READ THIS SORWARE LICENSE AGREEMENT ("LICENSE") CAREFULLY BEFORE USING THE APPLE SORWARE. BY USING THE APPLE SORWARE, YOU ARE AGREEING TO BE BOUND BY THE TEMS OF THIS LICENSE. IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE, DO NOT USE THE SORWARE. IF YOU DO NOT AGREE TO THE TERMS OF THE LICENSE, YOU MAY RETURN THE APPLE SORWARE TO THE PLACE WHERE YOU OBTAINED IT FOR A REFUND. IF THE APPLE SORWARE WAS ACCESSED ELECTONICALLY, CLICK 'DISAGREE/DECLINE". FOR APPLE SOFTARE INCLUDED WITH YOUR PURCHASE OF HARDWARE, YOU MUST RETURN THE ENnRE HARDWARE/SOFTARE PACKAGE IN ORDER TO OBTAIN A REFUND.
IMPORTANT NOTE: This software may be used to reproduce, modify, publish, and distribute materials. licensed to you only for reproduction, Ii Is modification, publication and distribution of non-copyrighted materials, materials In which you own the copyright, or malerlals you are authorized or legally permitted to reproduce, modify, publish or distribute. If you are uncertain about your right to copy, modify, publish or distribute any material, you should contact your legal advisor.

1. Gene..l. The Mac OS X Server software (including Booi ROM code), and any ihird pariy software, disk images, documeniation and any fonts accompanying this License whether pre-installed on Apple-labeled hardware. on disk, in read only memory, on any other media or in any other form (collectively the "Apple Software") are licensed, not sold, to you by Apple Inc. ("Apple") for use only under the lerms of this License, and Apple reserves ali rights not expressly granted

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2. Permitted Ucense Uses and Restricllons, A. Mac: OS X Server Software. This license allo'Ws you to install and use one copy of the Mac OS X Server software (the "Mac OS X Server SoftwareR) on a
single Apple-labeled computer. You may also install and use other copies of Mac OS X Server Software on the same Apple-labeled computer, provided that

you acquire an individual and valid license from Apple for each of these mher copies of Mac OS X Server Software. You agree not to install, use or run the Apple Sorrware on any non-Apple-labeled computer, or to enable others to do so. This license does nol allow the Mac as x Server Software to exist on more
than one computer at a time, and you may not make the Apple Software available over a network where it could be used by multiple computers at the same time. Please note that the Apple Sofrware is supported on IV on Apple-labeled sy~tems that meet the specified system tequirements as indicated on the o!Jtside of the Mac as x Server packaging. If you transfer software from one Apple-labeled computer to another Apple-labeled computer, please remember

that continued use of the original copy of the software may be prohibited once a copy has been transferred to another compurer, unless you already have a licensed copy or such software on both computers. You should check the relevant sohware license agreements for applicable terms and conditions.
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of simulianeous user conneciions using eiiher the Apple Filng Protocol (AFP) and/or Windows 5MBICIFS protocol does not exceed the number specified on ihe

Serial Number Label packaged with the Apple Software. .
Apple has provided, as part of the Apple Softare package, access to certain third party software as a convenience. To the extent that the Apple Software contains third party softare, Apple has no express or implied obligation to provide any technical or other support for such softare. Please contact the appropriate software vendor or manufacturer directly for technical support and customer service related to Its software and products.
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been or may be made available by Apple on its Open Source web siie (hllp:/Iww.opensource.apple.com/) (colleciively the 'Open-Sourced Componenis'. Vou
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t. NetBoot Software. Using a NetBooted Computer (as defined below), you may connect an unlimited number of client computers 10 the Mac OS X Server
Software and have such client computers run any version of Mac OS software supporting the NetBooted Computer; provided that: (i) each such client computer is already licensed 10 run such version of the Mac OS softare; and (Ii) in the cose of connections via ihe Apple File Proiocol (AFP), the limitations sei forth in Secllon 2A shall apply.
As used in this license. a "'Net

Booted Computer" means an Apple-labeled computer that is capable of operating from software stored on a temote NetBoot

server, instead of from softare stored on its local mass storage. by transferring the necessary sohware across a network, storing it in its memory and operating the software on its central processing unit.
D. Netlnstall Software. Vou may use the Netlnstall software included with the Apple Software to; Ii) create multiple customized image files of Apple software
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remole computer's volatile memory (e.g. RAM) to enable Java Client functionality ~orely for communicating with Apple's WebObjects software (hat may be

installed and executed on the same Apple-labeled computer on which you have installed the Mac as x Server Sohware (the RUcensed SystemR); and (ii) both manually and auiomatlcally over a network, components of the WebObjects deployment sohwatl! for installation and use by Java Client End Users on any
remote compuler's non-volatile memory (e.g. ROM) to enable Java Client functionality sOlely for communicating wiih Apple's WebObjects software that may be

installed and executed on the Licensed System; provided that all distributions roJava Client End Users are made under terms that are a\ least as restrictive as,
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reproduction, publication and distribution o( non-copyrighted materials, maierials in which you own the copyright, or materials you are authorized or legallv permitted to reproduce, publish and distribute, and you warrant to Apple that the materials used in your podcasts is owned, or has been appropriately

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licensed, by you.
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H. Sample Code and Workflows. Certain portions of the Apple Software consist of sample code, example code or Podcast Producer workflows provided by Apple and are marked as such ("Sample Code"). Vou may use, reproduce, modify and redistribute such Sample Code In accordance with the licensing terms
accompanying such Sample Code or related proJectls).

I. Other Restrictions. Vou may make one copy of ,he Apple Software (excluding the Boot ROM code and other Apple firmware that is embedded or otherwise contained In Apple-labeled hardware) In machine-readable form for backup purposes only; provided that the backup copy must include all copyright or other
proprietary notices contained on the original. Apple Boot ROM code and firmware is provided only for use on Apple-labeled hardware and you may not copy,

applicable modify or redistribute the Apple Boot ROM code or firmware, Dr any portions thereof. Except as and only to the extent permitted in this license. by
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or create derivative works of the Apple Software. THE APPLE SOFTARE IS NOT INTENDED FOR USE IN THE OPERATION OF NUCLEAR FACILmES, AIRCRAFT NAVIGATION OR COMMUNICATION SVSTEMS, AIR TRAFFIC CONTROL SYSTEMS, LIFE SUPPORT MACHINES OR OTHER EQUIPMENT IN WHICH THE FAILURE OF THE APPLE SOFTARE COULD LEAD TO DEATH, PERSONAL I/oURV, OR SEVERE PHYSICAL OR ENVIRONMENAL DAMAGE.

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a one-time permanent transfer of all of your license rights to the Apple Software (in its original form as provided by Apple) to another party, provided that: (a) the transfer must include all of the Apple Software, including all ˇis component part (excluding Apple Boot ROM code and firmware), original media, printed materials and this License: (b) you do not retain any copies of the Apple Software, full or partial, Including copies stored on a computer or other storage

device: and (c) the party receiving the Apple Software reads and agrees to accept the terms and conditions of this license. You may not rent, lease. lend.
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technical information about your computer, system and application software. and peripherals. that is gathered periodically to faciltate the provision of
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AppJe may use this information, as long as it is in a form that does not personally identify you, to improve our products or to provide services. or technologies to you.
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comply with any term(s) of this License. Upon the termination of this Ucerrse, you shall cease all use of the Apple Sohware and destroy all copies, full or partial. of the Apple Software.

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Apple or an Apple authorized representaiive with a copy of the receipt. TTIS LlMrrD WARRANT AND ANV IMPLIED WARRANTIES ON TTE MEDIA INCLUDING, BUT NOT LIMITED TO, TTE IMPliED WARRANnES OF MERCHANTABIUT, OF SATISFACTORV QUALIT, AND OF ATNESS FOR A PARTICULA PURPOSE, ARE
lIMrrD IN DURATION TO NINET (90) DAVS FROM TTE DATE OF ORIGINALRETAIL PURCHASE. SOME JURISDICTONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPliED WARRANTY LATS, SO TTE ABOVE LIMITATION MAV NOT APPLV TO VOU. TTE LIMITED WARRANTY SET FORTH HEREIN IS THE ONLV WARRANT MADE TO VOU AND IS PROVIDED IN LIEU OF ANV OTHER WARRANTIES (IF ANY) CREATED BV ANV DOCUMENTATION. PACKAGING OR OTTERWISE. THIS LIMITED WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND VOU MAV ALSO HAVE OTTER RIGHTS WHICH VARV BV JURISDICTION.

7. Disclaimer of Warranties. VOU EXPRESL V ACKNOWLEDGE AND AGREE THAT USE OF THE APPLE SOFTARE 15 AT VOUR SOLE RISK AND THAT TTE ENTRE RISK AS TO SATISFACTORV QUALITY, PERFORMANCE, ACCURACY AND EFFORT 15 WlTT VOU. EXCEPT FOR THE LIMITED WARRANT ON MEDIA SET FORTT ABOVE AND TO THE MAXIMUM EXENT PERMITD BV APPLCABLE LAW, THE APPlE SOFTARE AND ANV SERVICES PERFORMED OR PROVIDED BV THE APPlE SOFTARE ('SERVICES") ARE PROVIDED "AS IS", WIH ALL FAULTS AND WITTOUTWARRANTY OF ANV KIND, AND APPlE AND APPLE'S LICENSORS (COLLECTlVEV REFERRED TO AS "APPLE" FOR TTE PURPOSES OF SECTIONS 7 and B) HEREBV DISCLAIM ALL WARRANTIES AND CONDmONS WITH RESPECT TO THE APPLE SOFTARE AND ANY SERVICES, EITHER EXPRESS, IMPLIED OR STATUTORV, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILIT, OF SATISFACTORV QUALIT, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY. OF QUIET EI'OVMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. APPLE DOES NOT WARRANT AGAINST INTERFERENCE WITH VOUR E/oOVMENT OF THE APPLE SOFTARE, THAT TTE FUNCTONS CONTAINED IN, OR SERVICES PERFORMED OR PROVIDED BV, TTE APPLE SOFTARE WILL MEET VOUR REQUIREMENTS, THAT THE OPERATION OF TTE APPLE SOFTARE OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT THE APPLE SOFTARE OR SERVICES WILL BE COMPATIBLE WITH THIRO PARTY SOFTARE, OR THAT DEFECTS IN TTE APPLE SOFTARE OR SERVICES WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BV APPLE OR AN APPLE AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULO THE APPLE SOFTARE OR SERVICES PROVE DEFECTVE, VOU ASSUME TTE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR VOU. LIMITATIONS ON APPLICABLE STATUTORV RIGHTS OF A CONSUMER, SOTHE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLVTO

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or any web services performed by the Apple Software In relallon to such slies or Information, Apple, Its offcers, affliaie. and subsidiaries shall not, directly or indirectly. be liable, In any way. to you or any other person for the conient you receive using the Apple Software or for any inaccuracies, errors in or omissions from the content. Financial information displayed by the Apple Software is for general informational purposes Intended to be relied upon as only and is not investment advice. Before executing any securities iransaction based upon information obtained Ihrough the Apple Software, you should consult wiih a
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and do not involve any human intervention or verification, it is not advisable to rely upon such translations where absolute accuracy is required. Backup functions performed by the Apple Softwre are only carried out at cenaln times and are subject to hardware limitations such as drive storage capaci!y. Apple and its licensors reserve the right lO change. suspend, remove, or disable access 10 any Services at any time without notice. In no event wil Apple be liable for the removal of or disabling or access to any such Services. Apple may also impose limrts on the use of or access to certain Services, In any case and without notice or liabilty.
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BUSINESS INTRRUPTION OR ANV OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RElTED TO YOUR USE OR INABIUTY TO USE THE SERVER SOFTARE, HOWEVR CAUSED, REGARDLESS OF THE THEORV OF LIABILIT (CONTRACT, TORT OR OTHERWISE) AND EVEN IF APPLE HAS BEE ADVISED OF THE
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as may be required by applicable law In cases involving personal injury) exceed the amounl of fHty dollars (150.00). The foregoing limitations wil apply even if ihe above stated remedy fails of Its essential purpose.

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Use of Digital Certificates in iChaL The Apple Software allows you to encrypt your iChat communications. This feature uses digital certificates 10 veńry that the ˇChat is coming from the ˇChat screen name that appears in the ˇChat window and to encryt and decrypt the chat. It does not verify the identity of 'he
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of digital certificates or encryption used in an iChat session or otherwise falsify the digital certificate used to validate a screen name; (b) you wil use the
encrypted ˇChat function solely for legal purposes: (c) you are solely responsible for preventing any unauthorized user from having access 10 any ce"Îńcate or

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B. Certain software librarj.s and other third pany software included with the Apple Software are free sof~ware and licensed under the terms of the GNU General Public license (CPL) Dr the GNU library/lesser General Public license (lGPl), as 'he case may be. You may obtain a complete machine-readable or the
source code for such free software under the terms of the GPL or lGPL, as the case may be. without charge excep~ for the COSt or media, shipping. and handling, upon written request to Apple. The GPl/lGPl software is distribuied in the hope that it will be useful, but WITHOUT ANY WARRANTY, without even the Implied warranty of MERCHANTABILITY or FITNESS FOR A PARTICULAR PURPOSE. A copy of the GPL and LGPL is included with the Apple Software.
copy

C. The Apple Sohware includes cenain software licensed under the ISM Public license Version 1.0 UPl) or the Common Public license Version 1.0 (CPL). A copy of the source code lor the IPl and CPllicensed software may be found in Apple's Open Source repository. See Apple's Open Source web site (h1tp:// ww.opensourc..apple.(omf) for information on how to obtain the 'Duree code. THE IPL AND CPL SOFTARE iS PROVIDED ON AN "AS IS" BASIS. WITHOUT
WARRANTIES OR CONDITONS OF ANY KIND, EITHER EXPRESS OR IMPLIED INCLUDING. WITHOUT LIMITATION, ANV WARRANTIES OR CONDITIONS OF TiTlE. NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NEITHER APPLE, IBM NOR ANY OTHER CONTRIBUTOR TO THE IPL AND CPL SOFTARE SHALL HAVE ANV LIABILITY FOR ANV DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY. OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION. LOST PROFIS). HOWEVER CAUSED AND ON ANV THEORY OF LIABILITY, WHETER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANV WAY OUT OF THE USE OR DISTRIBUTION OF THE IPL AND CPL SOFTARE OR THE EXERCISE OF ANV RIGHTS GRANTD HEREUNDER, EVEN If ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

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D. MPEG-2 Notice. To the extent that the Apple Software contains MPEG-2 functionality, the following provision applies: ANV USE OF THIS PRODUCT OTHER
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license Such additional

paid for on a title by title basis and/or (i) data which is paid for on a title by title basis and is transmitted to an end user for permanent storage and/or use. may be obtained from MPEG LA. LLC. See http://ww.mpegla.com for additional details.

This product is licensed under the MPEG-4 Visual Patent Portfolio License for the personal and non-commercial use of a consumer ror (i) encoding video in compliance with the MPEG-4 Visual Standard ("MPEG-4 Video") and/or M decoding MPEG-4 video that was encoded by a consumer engaged in a personal and non-commercial activity and/or was obtained from a video provider licensed by MPEG LA to provide MPEG-4 video. No license is granted or shall be implied

for any other use.
Additional information including that relating to promotional, internat and commercial uses and licensing may be obtained from MPEG LA. ue. See http; /I ww.mpegla.com~ For answers to frequently asked Questions regarding use fees underthe MPEC LA Visual Patent Portfolio license see ww.apple.com/

mpeg4 or ww.apple.com/quickiime/products/qt/faq.h.ml.
F. H.264/AVC Notice. To the extent that the Apple Software contains AVC encoding and/or decoding functionality, commercial use of H.264/AVC requires
addlilonallicensing and the following provision applies: THE AVC FUNCTIONALJTY IN THIS PRODUCT lS LICENSED HEREIN ONLV FOR THE PERSONAL AND NONCOMMERCIAL USE OF A CONSUMER TO (i) ENCODE VIDEO IN COMPLIANCE WITH THE AVC STANDARD ("AVC VIDEO") AND/OR (Ii) DECODE AVC VIDEO THAT WAS ENCODED BV A CONSUMER ENGAGED IN A PERONAL AND NON-COMMERCIAL ACTIVITY ANO/OR AVe VIDEO THAT WAS OBTAINED FROM A VIDEO PROVIDER UCENSED TO PROVIDE AVC VIOEO. INFORMATION REGARDING OTHER USES AND UCENSES MAV BE OBTAINED FROM MPEG LA L.L.C. SEE HTTP://

WW.MPEGLA.COM.

C. AMR Notice. The Adaptive Multi-Rate ("AMR") encoding and decoding functionality in this product is not licensed to perform cellular voice calls, or for use in any telephony products built on the QuickTime architecture (or the Windows platform. The AMR encoding and decoding functionality in this product is also not

licensed for use in a cellular communications infrastructure including: base stations, base station controllers/radio network cOnnrollers. switching centers, and gateways to and from the public sWÍ(ched network.
H. FAA Notice. Aircraft Situation Display and National Airspace SYSlem Status Information data (collectively "Flight Data") displayed through the Apple Software is generated by the Federal Aviation Administration. You agree not to redistribute Flight Data without the prior written consent of the FAA. The FAA and Apppe disclaim all warranties, expressed or implied (including the implied warranties of merchantabilty and fitness for a particular purpose), regarding the use and

accuracy of the Flight Data. 'You agree that the FAA and Apple shall not be liable, either collectively or individually, for any loss, damage, claim, liability,
expense, or penalty, or for any indirect, special, secondary, incidental, or consequentiaf damages deriving from the use of the Flight Data. The Apple Software is not sponsored or endorsed by the FAA. The FAA is ~Ot ruponsible for technical or system problems, and you should not contact the FAA regarding such

problems or regarding operational traffc flow issues:
I. Use of Adobe Color Profiles. You may use the Adobe (olor Profile software included with the Apple Software pursuant to this license, but Adobe is under no obligation to provide any support for the Color Pr.ofiles pursuant to this license, including upgrades or future versions of the Profiles or other items. In
addition to the provisions of Sections 7 and B above. IN NO EVENT WILL ADOBE BE UABLE TO VOU FOR ANV DAMAGES, CLAIMS OR COSTS WHATSOEVER. The

Adóbe Color Profile software distributed with the Apple Software is also available for download from Adobe at ww.adobe.com.
EA0395
Rev.

7/24/07