Linked by Thom Holwerda on Tue 2nd Dec 2008 22:42 UTC, submitted by anon
Legal The legal back-and-forth between Apple and clone-maker PsyStar continues to develop, with the latest news being a move by Apple - the Cupertino company has invoked something with many already predicted Apple would call upon: the DMCA, or the Digital Millenium Copyright Act. This was done in an amendment to the original suit, filed in July this year.
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Um, reaching a bit?
by darknexus on Tue 2nd Dec 2008 23:40 UTC
darknexus
Member since:
2008-07-15

They're reaching a bit, aren't they?
This is the first I think anyone's heard of Psystar marketing these technologies to third parties. Weren't they basically using projects developed by the OSX86 community in the first place? PC EFI and the like? As far as I'm aware, what Psystar did was build a system that had all OS X compatible hardware in it and install it for you. It was this latter part, I thought, that could be called into question by Apple. I don't believe Psystar was creating the hacks and/or boot loaders that was allowing OS X to be run on their systems. Am I mistaken about this? Do I have it all wrong?

Reply Score: 1

v RE: Um, reaching a bit?
by sultanqasim on Wed 3rd Dec 2008 00:03 UTC in reply to "Um, reaching a bit?"
RE[2]: Um, reaching a bit?
by tupp on Wed 3rd Dec 2008 06:00 UTC in reply to "RE: Um, reaching a bit?"
tupp Member since:
2006-11-12

*Illegal if you count EULAs as law. Some people of the GNU extremist type will dismiss EULAs, contracts, licenses, copyrights, trade secrets, and anything proprietary as invalid.

The term "illegal" describes something that violates a law.

An EULA is definitely not a law -- it is a private contract, usually unsigned.

A civil contract is definitely not a law -- it is a private agreement between one or more parties.

A civil license is definitely not a law -- licenses are private contracts that grant permissions. However, a license from the government (like a driver's license) can be controlled by laws.

Copyright statutes are definitely laws.

Trade secrets and proprietary entities are definitley not laws.

Got it?

Reply Score: 6

RE[3]: Um, reaching a bit?
by joshv on Wed 3rd Dec 2008 14:27 UTC in reply to "RE[2]: Um, reaching a bit?"
joshv Member since:
2006-03-18

"The term "illegal" describes something that violates a law."

So, breach of contract has no legal repercussions? It is indeed "illegal" to violate even a private contract, as the law specifically dictates that we abide by the contracts we enter in to.

Reply Score: 4

RE[4]: Um, reaching a bit?
by Soulbender on Wed 3rd Dec 2008 14:42 UTC in reply to "RE[3]: Um, reaching a bit?"
Soulbender Member since:
2005-08-18

It is indeed "illegal" to violate even a private contract


The terms "legal" and "illegal" are most commonly used with criminal law, not civil law. It's a bit of a split hair though. It is, however, not a crime to violate a contract.

as the law specifically dictates that we abide by the contracts we enter in to.


It also dictates what can go into a contract and what constitutes valid (or legal, if you wish) contract clauses.
It's not "illegal" to violate an "illegal" contract.

Reply Score: 2

RE[5]: Um, reaching a bit?
by DrillSgt on Wed 3rd Dec 2008 16:21 UTC in reply to "RE[4]: Um, reaching a bit?"
DrillSgt Member since:
2005-12-02

"It also dictates what can go into a contract and what constitutes valid (or legal, if you wish) contract clauses.
It's not "illegal" to violate an "illegal" contract."


Finally, someone who has a clue.

That is exactly what this case will determine, the validity and legality of Apple's EULA.

Reply Score: 2

RE[6]: Um, reaching a bit?
by tupp on Wed 3rd Dec 2008 18:04 UTC in reply to "RE[5]: Um, reaching a bit?"
tupp Member since:
2006-11-12

I don't recall any laws that dictate what provisions can and can't be included into a contract. However, provisions in contracts that go against laws have been found invalid in civil courts on countless occasions -- especially dubious provisions in EULAs.

Violating a provision in a private contract (or EULA) is definitely not illegal -- one is not breaking any laws -- but such a violation can be challenged in civil court.

This latest charge by Apple has nothing to do with the validity of the OSX EULA (and Apple would be smart to avoid involving their EULA in this case). It appears that Apple is claiming that Psystar is breaking Copyright (DMCA) law.

I don't see how Apple can get very far with a reasonable judge, since fair trade law is clearly on the side of Psystar, and Pystar really isn't doing anything illegal (nor unethical).

If, for convenience, Psystar is using their single modified copy of OSX to install on many computers, their the judge might rule that they have to open each OSX box and use the disc inside. However, such a ruling would merely force Psystar to do a few more steps with the installation, and, besides, how could such a ruling be practically enforced? -- Apple would have an observer at the Psystar installations?.

Reply Score: 3

RE[4]: Um, reaching a bit?
by StephenBeDoper on Wed 3rd Dec 2008 15:51 UTC in reply to "RE[3]: Um, reaching a bit?"
StephenBeDoper Member since:
2005-07-06

So, breach of contract has no legal repercussions? It is indeed "illegal" to violate even a private contract, as the law specifically dictates that we abide by the contracts we enter in to.


Not if a contract is challenged in court and found to be legally-unenforceable.

Reply Score: 2

RE[2]: Um, reaching a bit?
by Soulbender on Wed 3rd Dec 2008 14:36 UTC in reply to "RE: Um, reaching a bit?"
Soulbender Member since:
2005-08-18

Illegal if you count EULAs as law.


Fortunately an EULA is a contract, not a law. Violating a contract is not a crime.

Some people of the GNU extremist type will dismiss EULAs, contracts, licenses, copyrights, trade secrets, and anything proprietary as invalid.


None of these are "propreitary" and no, GNu extremists arent against licenses. That would be kind of counter-productive considering that the GPL is a license.

Reply Score: 4

RE[2]: Um, reaching a bit?
by Almindor on Wed 3rd Dec 2008 16:58 UTC in reply to "RE: Um, reaching a bit?"
Almindor Member since:
2006-01-16

EULAs are contracts + they are not valid in some countries (depends on civil law specifications of what a "contract" exactly is, and when is it considered valid, e.g: acceptance details for parties etc.).

So somewhere, it might be completely "legal" (as explained above my post, none of what you say is "illegal") to actually do what EULAs forbid (thank God, because I hate being restricted AFTER buying something).

Reply Score: 2

RE: Um, reaching a bit?
by RRepster on Fri 5th Dec 2008 03:17 UTC in reply to "Um, reaching a bit?"
RRepster Member since:
2008-06-18

glad it's going to court. Maybe a sensible judge will be assigned that says "now wait a minute, what gives you the right to tell others what can and can't be done with what they buy?" With Psystar it's kind of shaky since they stand to profit off Apple's OS but the end-user stuff like MSFT claiming end users can't modify their xbox's and other crazy actions under DMCA I think has gone too far.

Reply Score: 1

dmca... maybe
by TechGeek on Wed 3rd Dec 2008 00:41 UTC
TechGeek
Member since:
2006-01-14

Depends on what Psystar did. If all they did was modify the hardware to run OS X then I don't think Apple has a case. Other case law supports Psystar reselling OS X however they wish. Even if they modified the software, I think Psystar is ok. No law says I can't sell Windows computers with Stardock preinstalled, which is basically what this covers. So I guess the real question comes down to what is someone allowed to do with the software they purchased.

Reply Score: 2

I don't see any black helicopters
by Wes Felter on Wed 3rd Dec 2008 00:44 UTC
Wes Felter
Member since:
2005-11-15

The "persons other than Psystar" are clearly "netkas" and other pseudonymous OSx86 hackers who created the hacks like pc_efi that Psystar uses. I'm not at all surprised that Apple would sue these people.

Reply Score: 3

Comment by Darkmage
by Darkmage on Wed 3rd Dec 2008 01:04 UTC
Darkmage
Member since:
2006-10-20

Sort of pirated my ass. For every psystar box being used there is a paid to apple for copy of Mac Osx being used. The judge SHOULD throw this out as a case of the product has been paid for, it's none of Apple's business what it's used for. If I buy a car can the manufacturer sue me for putting it on the roof of my house? or for selling that car to someone who wants to use it in his garage? No I think not. Why the hell should PC software be different to a car?

Reply Score: 12

RE: Comment by Darkmage
by sultanqasim on Wed 3rd Dec 2008 01:17 UTC in reply to "Comment by Darkmage"
sultanqasim Member since:
2006-10-28

Calm down now, lets not flame. Lets be friend and not refer to our rear ends...

Reply Score: 1

RE[2]: Comment by Darkmage
by UltraZelda64 on Wed 3rd Dec 2008 08:49 UTC in reply to "RE: Comment by Darkmage"
UltraZelda64 Member since:
2006-12-05

Calm down now, lets not flame. Lets be friend and not refer to our rear ends...

Why the hell not? I see nothing wrong with that. Ever hear of a figure of speech? Oh wait, now I'm going to be blasted for saying "hell." Oops.

Reply Score: 1

RE: Comment by Darkmage
by darknexus on Wed 3rd Dec 2008 01:19 UTC in reply to "Comment by Darkmage"
darknexus Member since:
2008-07-15

Because of that boat-load of crap that was passed into law known as the DMCA. That's what allows them to even try this angle, obviously.

Reply Score: 2

v RE: Comment by Darkmage
by tyrione on Wed 3rd Dec 2008 01:22 UTC in reply to "Comment by Darkmage"
RE[2]: Comment by Darkmage
by Darkmage on Wed 3rd Dec 2008 01:36 UTC in reply to "RE: Comment by Darkmage"
Darkmage Member since:
2006-10-20

If I take my ford falcon and upgrade the engine, do I go crying to ford when I break the thing? do I go crying to the guy who sold me the ford falcon secondhand? no of course not. You take it to a repairer someone who knows something about fixing it. If the car is extremely custom you make the parts yourself. Same idea applies here. Psystar is essentially selling an extremely modded car with custom bits, and are saying this works how we've modded it, if you make new mods you're on your own.

Legal liability for second hand goods sold as-is is pretty clear.

Edited 2008-12-03 01:38 UTC

Reply Score: 8

v RE[3]: Comment by Darkmage
by tyrione on Thu 4th Dec 2008 02:48 UTC in reply to "RE[2]: Comment by Darkmage"
RE[4]: Comment by Darkmage
by Hussein on Thu 4th Dec 2008 07:43 UTC in reply to "RE[3]: Comment by Darkmage"
Hussein Member since:
2008-11-22

Exactly. Car analogies don't work with software. The two are fundamentally different, from the way they are designed to the way they are distributed.
You can't upload your car and have people downloading their copies of it, once that's possible, then people can start making car analogies.

Reply Score: 1

RE[2]: Comment by Darkmage
by darknexus on Wed 3rd Dec 2008 01:37 UTC in reply to "RE: Comment by Darkmage"
darknexus Member since:
2008-07-15

That has absolutely nothing to do with OS X being pirated. OS X was not pirated by Psystar, they buy OS X retail disks for each machine on which they install it. The issue you're speaking of is the modified updater and/or modified updates, and that's another can of worms in and of itself. But that doesn't change the fact that the OS X Psystar installs for you is *not* pirated.
Apple's not going to get away with saying Psystar pirated OS X. The updater and updates are another matter, and if Psystar actually modified any OS X subsystems to make that work then Apple could have a case against them.

Reply Score: 7

RE[3]: Comment by Darkmage
by sultanqasim on Wed 3rd Dec 2008 02:15 UTC in reply to "RE[2]: Comment by Darkmage"
sultanqasim Member since:
2006-10-28

I'm sorry for using the word "pirated" loosely. It's not pirated, in the sense that Psystar did pay real money to apple to buy copies of OS X. What I meant by pirated was that it was on shaky legal ground, violating a contract(s?). Dictionary definition of verb "to pirate"
"to use or reproduce (another's work) for profit, without permission, usually in contravention of patent or copyright"
1. For profit? Yes, they are selling those for profits.
2. Without permission? Yes, obviously.
3. In contravention of patent/copyright? Possibly. This is not necessary to be considered pirated according to the dictionary.
Thus, according to the dictionary, the OS X that is put in their "open computers" is pirated, despite the fact that it is a paid for copy of OS X.

BTW. To those who say that the DMCA is loaded with bull, I'd have to agree :p

Edited 2008-12-03 02:16 UTC

Reply Score: 0

RE[3]: Comment by Darkmage
by looncraz on Wed 3rd Dec 2008 04:56 UTC in reply to "RE[2]: Comment by Darkmage"
looncraz Member since:
2005-07-24

[...] and if Psystar actually modified any OS X subsystems to make that work then Apple could have a case against them.


How exactly?

To continue the most befitting car analogy...

Let's say I'm building my own custom cars to sell for profit. In order to do this, I decide I need an engine. My engine's suck, but Volvo has a great engine, which I can go and buy at the Volvo dealer, even in bulk.

Am I somehow wrong for putting that Volvo engine in my custom car? Is Volvo going to sue me?

Well, the engine isn't an exact fit for my car, so I have to weld up some custom engine mounts, and have to modify the fuel system to make things work correctly, but it works. Will Volvo sue me? Do they have the right?

No. No way is Volvo going to do that. Even if I have to put in a completely new fuel rail, there is no way Volvo would sue me for buying their engines. It just doesn't make any sense - I bought it! I'm not badging my car as being a Volvo - no, I'm saying exactly what it is: a custom car with a Volvo In-line 6.

In the finer print I discuss the efforts that went into this custom car, including the efforts to get the engine installed and working properly. I am also a good guy, and realize many people would like to save money and do it on their own, or use my methods to install the awesome Volvo I6 engine into their own car - provided it can be made to fit - so I create a kit to help those people out. Heck, I even sell it!

Does Volvo sue me in any of this? Are they losing out?

No way, people are buying those engines - if they aren't making money on them, they need to increase the price - that is what supply & demand on a free market is all about.

Back to computerese:

Apple sells software on store shelves. They have no rights once that software leaves their possession, beyond trademark, copyright & patent laws - unless they have you sign a legally binding contract ( which some argue that the EULA is - but it is not, the ONLY cases I have been able to find regarding "rules" in the EULA were those simply restating an existing law - nothing new from an EULA has ever been enforced, that I have found ).

If Psystar made a product and called it iMac or Mac Pro - that would be illegal (the near full extant of trademark law).

If Psystar made copies of one retail CD and used it for all of their installations - that would be illegal ( the near full extant of copyright protection ).

If Psystar violated a patented method in their own product, or violated a patent in a way that was not protected by law... well, there goes patent law.

Apple's digital protections are surely patented, but precedence and U.S. law dictate that patents mean absolutely nothing in the case of "interfaces & interoperability."

Indeed, you can reverse engineer ANYTHING legally in order to become compatible with it. Heck, Microsoft did it for Java. There are even free & legal programs which can play/record MP3s simply because the makers chose to argue the case properly.

Apple is just hoping Psystar gets scared and forfeits - or that they luck out with the judge, being able to confuse the issue by separating computing laws from the rest of the laws. BUT, there are few separate laws governing computing/software ( and not really any beyond the DMCA ).

I pray that Apple fails - not because I hate Apple, but because Apple will be forced to either increase the price of MacOS X or take it from the shelves ( which would be very damaging ).

Increasing the price in line with Windows would be a good start, we need an OS price war! Besides, even a hacked up MacOS X can put Windows to shame. Apple never needs to make it easy for anyone to install their OS, they get more for each disc, and Psystar and the like will have to charge more, making it possible that Apple would need to become competitive.

What is bad with that? Well, Apple isn't an efficient company, so they are unable to compete. They ran into this problem before - and they will do whatever it takes to ensure they don't end up in that position again. ( I wouldn't put it past them to hire some thugs, for instance ).

The final solution, is actually very obvious. Apple needs to require a signed contract.

You see, there are requirements for electronic signatures - and pressing an "I agree" button - or check box, doesn't cut it. There is no validation of identity, nor are there any qualifying requirements - such as a minimum age - as required by law. EULAs are complete jokes, as are most software licenses.

Beyond what is protected by law, there is nothing that can be done. However, one should note that explicit permission may be granted in this manner. I can write a program and add a license which allows "violations" of the law ( such as copyright, trademark, & patent ).

The GPL license is a good example of such a license. That is perfectly fine, because it grants permission in the event a certain event arises ( the re-sharing of the sources ).

Apple's EULA goes beyond the restrictions emplaced by law. It cannot become a matter for the courts unless there is a legally binding contract - with a legally accepted proof of agreement. Apple can't prove Psystar EVER, even ONCE, pressed the "I Agree" button. Nor could they prove that if this had happened that the person doing so had the right to enter the company into a legal contact.

Oh well, I'll be back on this topic at some other point in time.. didn't mean to rant, but this is a more important topic than many realize.

--The loon

Reply Score: 15

RE[4]: Comment by Darkmage
by DrillSgt on Wed 3rd Dec 2008 05:15 UTC in reply to "RE[3]: Comment by Darkmage"
DrillSgt Member since:
2005-12-02

"Let's say I'm building my own custom cars to sell for profit. In order to do this, I decide I need an engine. My engine's suck, but Volvo has a great engine, which I can go and buy at the Volvo dealer, even in bulk."

Actually lets forget all the car analogies. Software works are defined as copyright material. So, let us compare apples to apples, or copyright to copyright.

Under this, Apple is accusing Psystar of modifying software, and distributing it without permission. That would be against the law.

My example for a comparison is a book. Books are copyrighted material. If I buy a copy of a book, I can sell that copy of the book, just as I can sell a copy of software. What I cannot do is re-write a chapter in the book and re-sell the book. That is directly against copyright law. I cannot modify a work and sell it or distribute it without getting proper permission from the author.

So, the book is mine. I bought it. The software is mine, I bought it. With either of them I can sell them, rip them to shreds, use them as coasters, etc. What I cannot do is modify it and distribute it.

Cars do not fall under copyright law, software and books do.

Reply Score: 4

RE[5]: Comment by Darkmage
by tupp on Wed 3rd Dec 2008 06:15 UTC in reply to "RE[4]: Comment by Darkmage"
tupp Member since:
2006-11-12

I can sell that copy of the book, just as I can sell a copy of software. What I cannot do is re-write a chapter in the book and re-sell the book.

Yes. You can. There are tons of used books, textbooks with notes in the margins that are resold individually and legally every day.

However, you can't take your modified or unmodified copy and make multiple copies and then sell those copies.


I cannot modify a work and sell it or distribute it without getting proper permission from the author.

This is where the analogy breaks down. Psystar is not distributing copies of OSX. They are merely reselling individual, authentic, legally purchased copies of OSX.


So, the book is mine. I bought it. The software is mine, I bought it. With either of them I can sell them, rip them to shreds, use them as coasters, etc. What I cannot do is modify it and distribute it.

Reselling a single used book or a single used piece of software does not constitute "distribution."

Reply Score: 6

RE[6]: Comment by Darkmage
by DrillSgt on Wed 3rd Dec 2008 06:32 UTC in reply to "RE[5]: Comment by Darkmage"
DrillSgt Member since:
2005-12-02

"Yes. You can. There are tons of used books, textbooks with notes in the margins that are resold individually and legally every day."

Notes in the margins does not constitute re-writing a chapter of the book. Completely different from what I stated.

"However, you can't take your modified or unmodified copy and make multiple copies and then sell those copies."

Agreed 100%


"This is where the analogy breaks down. Psystar is not distributing copies of OSX. They are merely reselling individual, authentic, legally purchased copies of OSX."

Actually no. They are selling multiple copies of OS X, not a single copy. They are selling a copy with each machine they sell are they not? That is called distribution.


"Reselling a single used book or a single used piece of software does not constitute "distribution.""

Psystar has sold multiple copies of OS X, or have they only sold one machine along with the software? I am betting they have sold much more than a "single" copy, which would be a total of 1. As well, distribution by definition is the delivery or giving out of an item or items to the intended recipients. So yes, even a single item can be considered distribution by definition.

Anyway, I am just watching to see what the courts decide.

Edited 2008-12-03 06:33 UTC

Reply Score: 2

RE[7]: Comment by Darkmage
by tupp on Wed 3rd Dec 2008 07:29 UTC in reply to "RE[6]: Comment by Darkmage"
tupp Member since:
2006-11-12

Notes in the margins does not constitute re-writing a chapter of the book.

Writing in a printed book is modifying that book. If I cross out a paragraph in a book and rewrite that paragraph in the white space of the book so that it is a completely different paragraph, I can legally resell that single book. I own that book -- I can modify it and then resell that individual copy. Nothing illegal there.


They are selling multiple copies of OS X, not a single copy. They are selling a copy with each machine they sell are they not? That is called distribution.

Nope. As I and others have mentioned a zillion times in this and other forums, Psystar is legally purchasing individual copies and then reselling those copies, individually. They are not making multiple copies of one original and then distributing those copies -- that would violate copyright law.

There is nothing illegal about reselling legally purchased copies of software. Used software is legally bought and sold all the time.


Psystar has sold multiple copies of OS X, or have they only sold one machine along with the software?

Again, nope. It is important to be specific.

Psystar has re-sold individual copies of OSX. There is nothing illegal about reselling copies of software on an individual basis. It doesn't matter if a company resells one copy individually or one billion copies individually. Such "re-sales" are completely legal, and the software maker can not have any say in such transactions.


As well, distribution by definition is the delivery or giving out of an item or items to the intended recipients. So yes, even a single item can be considered distribution by definition.

The term "distribution" in copyright cases usually refers to making and selling multiple copies of one original.

Reply Score: 5

RE[5]: Comment by Darkmage
by Darkmage on Wed 3rd Dec 2008 09:12 UTC in reply to "RE[4]: Comment by Darkmage"
Darkmage Member since:
2006-10-20

dundun dun.... except you CAN sell the book unmodified with a nice little booklet with notes and addendums that contain changes and corrections, and that is EXACTLY what psystar is doing. They're not giving you a copy of osx that's been hacked and patched, they give you a complete osx install disc that's unmodified. What is modified is maybe the kernel and bootloader on the machine itself. I've booted up osx86 many times and the way they normally hack it to boot now is to edit the bios of the machine and not the kernel of the mac os itself. At any rate AFAIK the kernel is not under a do not redistribute license... But that should be irrelevant anyway since you're really messing with the bootloader/bios layer not the OS layer.

Reply Score: 2

RE[6]: Comment by Darkmage
by DrillSgt on Wed 3rd Dec 2008 15:22 UTC in reply to "RE[5]: Comment by Darkmage"
DrillSgt Member since:
2005-12-02

"They're not giving you a copy of osx that's been hacked and patched, they give you a complete osx install disc that's unmodified. What is modified is maybe the kernel and bootloader on the machine itself."

This statement contradicts itself. Yes, they are giving you a complete OS X install disc that is unmodified. The installed OS is also called distribution. It is being distributed on a new PC. If Psystar modified it, then Psystar is distributing changed copies of a work. Now whether or not they modified it is another story. My analogy has beeen proven in court enough times, google it. If they did not modify it, Apple is wrong. I understand you hate "The Man" and want to stick it to them. The thing is none of us have a clue on what Psystar did or did not do, unless we have an employee among us. The charges by Apple may be well off base, or they may be right on target.

Reply Score: 1

RE[6]: Comment by Darkmage
by looncraz on Wed 3rd Dec 2008 17:55 UTC in reply to "RE[5]: Comment by Darkmage"
looncraz Member since:
2005-07-24

Exactly, in fact the Kernel and MANY parts of MacOS X are, IIRC, GPL & the like. Darwin is the project to look at :-)

Anything that is within both Darwin x86 and MacOS X is totally fair game. And that constitutes a great deal - just not Aqua and some other kits in the system. When I first used MacOS X I was astonished how much of the system was still just Darwin. The Finder certainly tries to present it differently - but that doesn't change the hard facts.

Responding to another post, copyright law DOES permit modifying a book and reselling it - but there are certainly limits. You cannot, for example, duplicate the book from scratch, you have to buy the book at retail, modify it, and redistribute it while fully describing your modifications and not trying to fool anyone into believing your work is an authorized one.

Oh well, I gotta work :-)

--The loon

Reply Score: 3

RE[4]: Comment by Darkmage
by alcibiades on Wed 3rd Dec 2008 07:28 UTC in reply to "RE[3]: Comment by Darkmage"
alcibiades Member since:
2005-10-12

The final solution, is actually very obvious. Apple needs to require a signed contract.

This is not right. The clause in the Eula is not enforceable, since it conflicts with competition and consumer protection legislation in most if not all OECD countries. It makes no difference how it is presented. Even if signed in blood under oath in the presence of a notary public, it will still not be enforceable. This is the whole point of consumer protection legislation: you cannot sign away your rights. This is the whole point of competition law: you cannot be bound by contract to terms and conditions which violate it.

Its not about how it is presented or entered into. The problem is the terms of the contract themselves.

Apple has one choice: whether to sell OSX at retail, or not. If it does, it is not going to be able to prevent installation on non-Apple branded machines. At least, not on the merits of the case. It may be able to bully Psystar into stopping. That's a different matter.

As to the DMCA, it is a mystery how Apple thinks this one will fly on its merits, since all modifications are made solely to permit interworking - that is, to allow installation on a competitive platform, and the DMCA explicitly permits that.

On a related subject, it continues to amaze that people keep referring to Psystar machines as clones. This is simply nuts, it is Apple's machines that are clones of the standard x86 PC. Psystar, like Apple, is just supplying a few of the 200 million plus of these machines which ship every year. You might as well refer to all CD players, or Sony's, as Cambridge Audio clones. Like Apple with x86 computers, Cambridge Audio is a minority supplier of CD players, who entered the market for that product years after it was well established by others.

Reply Score: 5

RE[5]: Comment by Darkmage
by tupp on Thu 4th Dec 2008 09:19 UTC in reply to "RE[4]: Comment by Darkmage"
tupp Member since:
2006-11-12

Thank you for bringing clarity to the discussion and for reminding us what the core issues actually are.

I hope that Psystar's council and the judge see the points so clearly.

Reply Score: 2

RE[5]: Comment by Darkmage
by looncraz on Sat 6th Dec 2008 05:56 UTC in reply to "RE[4]: Comment by Darkmage"
looncraz Member since:
2005-07-24

Yeah, I was just speaking on how it would become a matter of the courts in the possible favor of Apple.

Sadly, any given law and how that law is enforced are two different beasts. Some things which are not law can be enforced in court via contractual obligations, such as non-disclosure clauses.

The limits imposed deal mostly with the fact that no one can contractually be required to violate any law, beyond certain rights that can never be signed away (that few know about).

Of course, I'm not a lawyer, and my understanding is rather "street," but I think I have better handle on it than the average. As usual, I am always grateful for any and all proper clarifications / corrections, so thanks!

--The loon

Reply Score: 2

RE: Comment by Darkmage
by RRepster on Fri 5th Dec 2008 03:19 UTC in reply to "Comment by Darkmage"
RRepster Member since:
2008-06-18

exactly! This business of telling us what we can and can't do with what we purchase has gotten out of hand.

Reply Score: 1

v Why are people so oblivious to the fact...
by Hussein on Wed 3rd Dec 2008 02:46 UTC
Bobthearch Member since:
2006-01-27

Do you really believe the true cost of OS X is $129?
Yes I do, and with ~plenty~ of profit too.

That's the same price as, or more than, all major competing operating systems.

Reply Score: 8

leech Member since:
2006-01-10

[quote]No that's not it! Not even close! Psystar aren't selling modded Macs. They are selling illegal clones (fake Macs).[/quote]

That's a load of horse crap. They are selling regular PCs that have hardware that is picked to work with Mac OS X along with a legally purchased copy of it.

Sadly, not only Apple wants them to go away, but I bet Microsoft would love to see them go away as well.

Come on, when Steve Jobs thought it through to port the Mac OS to x86 hardware, he should have known that this very thing would eventually happen.

The 'Clone' was what really made Windows successful in the first place. Remember the days when they weren't called 'PC' but called "IBM PC Compatible'? If IBM hadn't allowed the cloning of it's x86 hardware back then, we'd have a lot more choices in our platform than we do now. Whether that would be a good thing or bad thing, is debatable. I think it would be a good thing (competition feeds innovation and all that jazz.)

I say bring on the clones!

Reply Score: 7

Hussein Member since:
2008-11-22

Remember what happened to the IBM PC, it was killed by its own clones.

Reply Score: 0

unclefester Member since:
2007-01-13

No IBM clones happened because Compaq legally reverse engineered the BIOS. So clones became totally IBM compatible. .

Reply Score: 2

tyrnight Member since:
2006-10-05

Look where it got IBM. They no longer make pc's or lappies. Lenovo took over. But it's many years after the fact ;)

Reply Score: 1

leech Member since:
2006-01-10

I still see no problem to that... they were overpriced and underpowered compared to the clones.... oh wait, isn't that the same thing as Apple? Where is IBM now? Oh wait, they're still around and still doing major things in the industry.

The consumers were the ones who benefited from the IBM clones. We are the ones who will benefit from Apple Clones as well. Especially since they're all on the same hardware now.

Reply Score: 4

Hussein Member since:
2008-11-22

No one will benefit of this. Apple will do all it can to make its OS uninstallable on commodity hardware. This not like the IBM PC and clones, back then IBM didn't control the OS, and Microsoft was more than willing to allow the clones to install its OS.
If something similar to what happned to the IBM PC happens to Apple, the Mac will be no more.

Edited 2008-12-03 22:30 UTC

Reply Score: 1

NeoX Member since:
2006-02-19

I still see no problem to that... they were overpriced and underpowered compared to the clones.... oh wait, isn't that the same thing as Apple? Where is IBM now? Oh wait, they're still around and still doing major things in the industry.

Oh not another Apple is way more expensive excuse? Sorry but that no longer holds up. Blah, blah, blah, we all know we can get a PC that is dirt cheap. But you get what you pay for. Show me a comparable laptop to the MacBook, just released, for the same or cheaper money. What? can't find one that looks as cool, and has the same specs, not to mention the bright LED display? Sorry but I'll save you the trip, it doesn't exist as I have tried. Sure you can get close, but it won't be an Apple and will not have the fit and finish and all the other things that make a Mac a Mac and not some wannabe PC.

Reply Score: 0

NeoX Member since:
2006-02-19

Yeah that worked great for IBM, since it practically killed them off. Besides, they did not "allow the clones" at all, they had no choice, because of the way the BIOS was "copied".

And if you recall, Apple did allow clones back in the late 90's and we know how great that worked.

Reply Score: 1

Bobthearch Member since:
2006-01-27

And if you recall, Apple did allow clones back in the late 90's and we know how great that worked.


The Mac clones worked ~very~ well, IMO. At least until Apple locked them out. Perhaps the clones worked too well to suit Apple?

I happen to own a "Power Computing" Apple clone from the 1990s, and it's a great machine.

Reply Score: 2

RRepster Member since:
2008-06-18

actually from what I recall IBM was against the clones, what the clone makers did was reverse-engineer the hardware and that's what made it legal.

Reply Score: 1

looncraz Member since:
2005-07-24

They are only making fake Macs if they copy the design & call them Macs. Otherwise they are just building PCs capable of running the same software as a Mac, and offering a customized software installation service.

Every step of the way, no law is broken. Indeed, most of what they have done is explicitly protected by law.

Go Psystar - I'd never buy one of your machines, but I'm in your corner on this one - all the way!

--The loon


(stupid commas)

Edited 2008-12-03 05:00 UTC

Reply Score: 7

RRepster Member since:
2008-06-18

exactly right. If the DMCA existed back when the clone makers reverse-engineered the IBM PC we'd all still be using IBM branded machines - or ironically Apple ones.

Reply Score: 1

StephenBeDoper Member since:
2005-07-06

Apple doesn't want its software on anything but its hardware.


Then maybe they shouldn't have ported to a generic commodity hardware platform.

Do you really believe the true cost of OS X is $129? The cost of the upgrade copies is subsidized by the cost of Macs (hardware).


...which is the exact same rationale that Lexmark used a few years back, when they tried to use the DMCA to prevent "illegal" refills of print cartridges.

I'll ask the same question now that I did back then: if a company (be it Lexmark or Apple) chooses to depend on such a fragile and poorly-conceived business model, then why should they be propped-up? That's like giving out awards for lack of foresight and basic business acumen.

Psystar aren't selling modded Macs. They are selling illegal clones (fake Macs).


So in other words, they're selling PC clones? Because that's effectively what Macs are these days.

Reply Score: 6

Soulbender Member since:
2005-08-18

They are selling illegal clones (fake Macs).


No they're not, they're selling commodity hardware with a perfectly kosher copy of OSX pre-installed. It's not the same as a clone.
Just because there's a clause in a EULA saying "you cant do X" that doesn't mean it's a valid contract clause. What if it said that you have to give your first-born child to medical research? This is why we have contract law.
It is also worth noting that violating an EULA is not illegal, it's a contract violation.

Reply Score: 4

Apple stinks!
by jefro on Wed 3rd Dec 2008 04:57 UTC
jefro
Member since:
2007-04-13

"paid to apple for copy of Mac Osx being used."

I agree. They are being paid, nothing is being stolen. What is their beef? Wish I was on the jury.

I doubt they are loosing money on the software so they can sell the hardware scheme.

Apple is a bunch of crooks it looks like to me. Sure the nice kid selling against the Big Bad Microsoft ads on TV. What a crock. Big Bad Apple in fact.

Reply Score: 4

RE: Apple stinks!
by Kroc on Wed 3rd Dec 2008 08:41 UTC in reply to "Apple stinks!"
Kroc Member since:
2005-11-10

No nothing is being stolen. Apple are not saying that, that is not their charge.

Their charge is that their software is being circumvented which, in North America, *is* illegal, as per the DMCA - like it or not.

Reply Score: 3

RE[2]: Apple stinks!
by Thom_Holwerda on Wed 3rd Dec 2008 09:06 UTC in reply to "RE: Apple stinks!"
Thom_Holwerda Member since:
2005-06-29

Except that the DMCA also states that protection mechanisms may be circumvented if for the purpose of interoperability - so no, this case is not as clear-cut as it seems.

Which kind of sums up this case. Lots of people in the comments making absolute statements about something they have absolutely zero knowledge or experience of.

The best you can do - like I did in my article a while back on the legalities of EULAs in The Netherlands - is contact legal experts. And even what they say is just an interpretation - only probably better than the ones in this comment section.

Reply Score: 6

RE[3]: Apple stinks!
by Soulbender on Wed 3rd Dec 2008 09:12 UTC in reply to "RE[2]: Apple stinks!"
Soulbender Member since:
2005-08-18

Dude, talking to legal experts is for sissies. If there's one thing I've learned from OSnews forums it is that people who think they are good with computers are also experts in every other possible field, be it law, finance, marketing or space travel.
That's why I always let the marketing guys fix my computer.

Reply Score: 8

the Rolls Royce lawsuit
by unclefester on Wed 3rd Dec 2008 05:47 UTC
unclefester
Member since:
2007-01-13

In the 1960s Rolls Royce tried to introduce contracts that would prevent purchasers from modifying their cars in a way that would lower the prestige of Rolls Royce. RR even demanded the right to buy back cars sold to 'undesirables' like rock stars. The UK courts threw these contracts out and declared an owner can modify any legally purchased product however they choose.

Reply Score: 2

RE: the Rolls Royce lawsuit
by armbase on Wed 3rd Dec 2008 10:51 UTC in reply to "the Rolls Royce lawsuit"
armbase Member since:
2007-11-27

I think this may have actually been against "The Beatles".

I remember Jogn Lennon had a psychedelic or tartan rolls that they tried to ban.

Cheers
Bob

Reply Score: 1

RE[2]: the Rolls Royce lawsuit
by unclefester on Thu 4th Dec 2008 00:44 UTC in reply to "RE: the Rolls Royce lawsuit"
unclefester Member since:
2007-01-13

It was directed against John Lennon. He bought a Rolls Phantom V limousine and had it painted in psychedelic colours. The irony of course is this car was a great free advertisement for RR.

Reply Score: 2

What can I say?
by UltraZelda64 on Wed 3rd Dec 2008 08:31 UTC
UltraZelda64
Member since:
2006-12-05

F*** the DMCA, and I hope Apple loses for even bringing that BS law into the lawsuit.

I admit, I never owned an Apple. I was considering buying one. This news gives me second thoughts.

Go Psystar. Win this. Then I might just buy one of your computers after all.

Edited 2008-12-03 08:34 UTC

Reply Score: 7

RE: What can I say?
by h3rman on Wed 3rd Dec 2008 16:23 UTC in reply to "What can I say?"
h3rman Member since:
2006-08-09

Go Psystar. Win this. Then I might just buy one of your computers after all.


I'm afraid you're going to have to buy one right now to help them perhaps even survive the attack of the Apple lawyers' army. :-)

Reply Score: 4

RE[2]: What can I say?
by Darkmage on Wed 3rd Dec 2008 16:45 UTC in reply to "RE: What can I say?"
Darkmage Member since:
2006-10-20

The psystar machines DO come with a boxed copy of mac osx, that's written on their website. So I doubt they're being sued for that. As far as I know an unmodified osx kernel will boot on a pc with a hacked bios. I have not tried this myself but I did hear about it from some people in the osx86 community. If that's true then all Psystar is changing is some ACPI strings in the pc's bios. Else they are emulating the ACPI calls through an EFI emulator. They may also be modifying some device drivers, stuff like nvidia etc. but generally that's just adding some device id's to some text files and adding a few new .kext files to injext/boot the drivers up. they might not even do that if they supply the right GPUs. Audio is basically the same.

Edited 2008-12-03 16:47 UTC

Reply Score: 1

RE[3]: What can I say?
by NeoX on Thu 4th Dec 2008 02:03 UTC in reply to "RE[2]: What can I say?"
NeoX Member since:
2006-02-19

As far as I know an unmodified osx kernel will boot on a pc with a hacked bios. I have not tried this myself but I did hear about it from some people in the osx86 community. If that's true then all Psystar is changing is some ACPI strings in the pc's bios. Else they are emulating the ACPI calls through an EFI emulator. They may also be modifying some device drivers, stuff like nvidia etc. but generally that's just adding some device id's to some text files and adding a few new .kext files to injext/boot the drivers up. they might not even do that if they supply the right GPUs. Audio is basically the same.

Wrong. You cannot simply install OSX retail on a "moded" Pystar Computer. You have to do modifications to the OS, which is the problem.

Reply Score: 1

Throw it out!
by 3rdalbum on Wed 3rd Dec 2008 10:25 UTC
3rdalbum
Member since:
2008-05-26

Apple's complaint is that Psystar has "circumvented OS X's copy protection scheme". In order to make that complaint, Apple would have to prove that Mac OS X has, in fact, ANY copy protection scheme at all.

Checking that the hardware is made by Apple does NOT constitute a copy-protection scheme, as it does not stop discs being pirated between Macintosh owners.

Reply Score: 3

RE: Throw it out!
by Doc Pain on Wed 3rd Dec 2008 14:37 UTC in reply to "Throw it out!"
Doc Pain Member since:
2006-10-08

Apple's complaint is that Psystar has "circumvented OS X's copy protection scheme". In order to make that complaint, Apple would have to prove that Mac OS X has, in fact, ANY copy protection scheme at all.


That's a valid point, I think. In order to make this proof, Apple would have to explain how the copy protection (they claim is present) works exactly so that it's possible to tell if it is a copy protection.

Stupid example: If I take a hardcopy of my program out of the printer and write "YOU CAN NOT COPY THIS!" under the source code, would it be a copy protection? What if Bob from the cubicle next to mine would take this hardcopy to the copier and press the copy key? Would he have circumvented my copy protection?

Checking that the hardware is made by Apple does NOT constitute a copy-protection scheme, as it does not stop discs being pirated between Macintosh owners.


Well, that's a good point. The presence of specific hardware seems to be the reason for Mac OS X to run or not to run. If such hardware characteristica are supplied by hardware that is not made by Apple...

Reply Score: 2

This will never go to trial.
by fuzzywombat on Wed 3rd Dec 2008 14:06 UTC
fuzzywombat
Member since:
2006-11-21

I truly don't believe that this case will ever go to trial. Apple has way too much at stake even if they have a strong case. There is just no way Apple will not take a chance in losing this case. If Psystar prevails by some remote chance, this will set a precedence that will destroy Apple's Mac hardware business. Most likely what will happen is Apple will pay Psystar undisclosed sum of money to make this entire situation go away in a hurry. This DMCA addition to the suit is merely to make Psystar's lawyers nervous.

Reply Score: 1

Hardware?
by tyrnight on Wed 3rd Dec 2008 14:28 UTC
tyrnight
Member since:
2006-10-05

Apple is just pissed off because their hardware isn't sold, which is what makes them the money. I understand, the apple hardware works in harmony with osx better than any hackntosh. I know, I've tried them all. And none of them work perfect, but I've gotten close. But at the end of the day, I go back to my MacBook pro. I only wanted faster hardware without paying the apple premium for a mac pro.

Edited 2008-12-03 14:38 UTC

Reply Score: 1

Updates...
by apoclypse on Wed 3rd Dec 2008 19:47 UTC
apoclypse
Member since:
2007-02-17

Isn't Psystar also circumventing the updater so that they have the chance to modify any updates that would break their systems? Wouldn't that fall under copy right law? Also if they are circumventing Apple's updates how are they doing it? Did hey need to modify Apple's updater to do it? If that is the case wouldn't that also fall under copyright law?

Edited 2008-12-03 19:48 UTC

Reply Score: 1

neoanderthal
Member since:
2008-12-04

is the fact that the end-user license agreement forbids the installation of OS X on anything other than Apple-branded hardware, or enabling others to do so. The analogies of engine swapping, etc. do not apply here, as no auto manufacturer requires that the owner of the car accept an agreement that states that they will only use parts and services from the original manufacturer exclusively, or their ability to use the automobile is revoked. Nor do auto manufacturers make it a violation of a use agreement to make it possible to swap engines from one manufacturer to another. Finally, while you may own your car, you do not own Mac OS X - you are licensed to use it, as long as you follow Apple's rules. If you violate those rules, you are no longer allowed to use it. It's actually pretty simple.

Psystar seems to be betting that they will not be held responsible for violating the EULA on Mac OS X. Apple has their software license agreements on the Internet for public accessibility, and of course anyone installing Mac OS X is presented with the EULA before the install writes information to the hard disk. Obviously Psystar knows they cannot claim ignorance in this matter, as they've taken the tact of claiming that Apple is somehow a monopoly. This would be analagous to saying that Atari (when they made computers), Commodore, Radio Shack, Timex-Sinclair, etc. were all monopolies, as their operating systems (however advanced or primitive they may've been) were tied to their hardware as well, or IBM's branded PCs running PC-DOS, OS/2, or their UNIX servers running AIX are monopolies.

I'm not arguing that this is ethical, but this is the legal standpoint on the operating system. In this case, Apple owns the intellectual property rights to Mac OS X, not the people who pay to license it. Whether people should use software with such EULAs is where the discussion should take place - there's no wiggle room in the EULA, and if it's upheld as a legally-binding agreement then Psystar is going to be in big trouble.

If the EULA is not upheld, the software world is going to be turned upside-down, since it's built on the premise of software use, not ownership.

Reply Score: 2

Soulbender Member since:
2005-08-18

Finally, while you may own your car, you do not own Mac OS X - you are licensed to use it, as long as you follow Apple's rules.


This depends on you licensing it though instead of owning it. Is that clearly stated on the box or by the sales person when you purchase OSX? When you buy a music CD you own it, there's no reason for it to be different for software.

Apple owns the intellectual property rights to Mac OS X, not the people who pay to license it.


Again, this is exactly the same as for DVD's or CD's. MGM/Sony/Whatever owns the IP, you own a copy of it.
The interesting part is if Apple can actually claim that you are only licensing OSX when you purchase it.

Reply Score: 2

neoanderthal Member since:
2008-12-04

It is clearly stated in the EULA that you do not own the software:
"The software (including Boot ROM code), documentation and any fonts accompanying this License whether preinstalled 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 terms of this License, and Apple reserves all rights not expressly granted to you."

there's tons more, but it lays everything out pretty clearly.
You do not own the software. You are purchasing a license to use it. There's no grey area - you do NOT own the software. You buy the right to use the software within the limits set by, in this case, Apple. You do not own a copy of anything meaningful.

Seriously. It's simple, and it's cut and dried. I'm not discussing the ethics of the situation, merely what rights you are granted by the company that owns the intellectual property.

http://www.apple.com/legal/sla - all of Apple's legal nonsense is there. Read it for yourself. Psystar is doomed, unless the judge decides to throw out the concept of the EULA.

Reply Score: 1

Soulbender Member since:
2005-08-18

It is clearly stated in the EULA that you do not own the software


You are right, it doesn't matter if it's licensed or not. However...

You do not own the software. You are purchasing a license to use it


Right. So if I buy OSX, go home, unpack the box a few days later, break the seal, put the CD in my drive, get presented with the EULA and disagree with it, I can pack everything back up again, go back to the store and get a full refund? I'd really like for someone to try that and see what happens.

You buy the right to use the software within the limits set by, in this case, Apple.


And that's exactly what this is about, if the terms set forth by Apple in the EULA is reasonable and in accordance with the law (contract law, consumer law etc).

I'm not discussing the ethics of the situation, merely what rights you are granted by the company that owns the intellectual property.


You seem to think that a company can set forth any crazy contracts terms they want and you just have to accept them or not buy the product but that's just not the case.

Read it for yourself. Psystar is doomed, unless the judge decides to throw out the concept of the EULA.


Nonsense. That's like saying one illegal contract invalidates the concept of contracts. The judge only has to state what, if any, terms in the EULA that are not "legal" and then Apple have to remove those. Granted, the legal wheels may turn quite some time before and after that happens but this case is not about the validity of EULA's themselves. It's about the specific terms in one EULA.

Reply Score: 2

neoanderthal Member since:
2008-12-04

You *are* legally entitled to a refund, since you disagree with the terms of the license. In the EULA, it mentions you get your refund from either the retailer, or if they won't do it, from Apple. I suggest you try it, since you're keen to believe that that would not work. Purchase a copy of OS X, take it home, break the seal, and then take it back. Tell the people at the Apple Store or wherever you purchased it that you were unaware you were not allowed to install it on non-Apple hardware.

If the terms of the EULA are not acceptable to you, then you return the software for a refund. That's the legal remedy if you aren't interested in being bound by the terms of the agreement.

This fanciful bull about how the *law* is going to force Apple to let everyone and their brother install the software on any computer is absurd. The *law* will uphold this EULA, as they've done for others in the past, as there is a remedy in place for those who aren't interested in abiding by the terms.

Here's another idea - try to get together a class-action lawsuit against Apple with as many people as you can find who've actually purchased a copy of Mac OS X and were unhappy that they could not install it, by the terms of the license, on a computer of their choosing. I doubt you could even get such a thing into court, but who knows?

Here's the thing with that EULA - it might be the meanest, most restrictive license to use ever created, but if you do not accept the terms, you're entitled to a refund. It says so in the EULA. Therefore, your choices are to use the software on Apple's terms, or get your money back. I don't see how you can think a judge is going to see that as unfair. If Apple denied your refund, that would be another matter, but they're required to refund your money, even if the retailer won't.

As I said, this isn't a defense of the ethics of the EULA - personally I think it's horrible that EULAs have been upheld that strip people of their 'first-sale' rights, among other things. But what I think doesn't matter - this is about the legal enforceability of Apple's license, and since they will refund your money if you do not agree to their terms, it's going to be upheld.

Reply Score: 1

DrillSgt Member since:
2005-12-02

"This depends on you licensing it though instead of owning it. Is that clearly stated on the box or by the sales person when you purchase OSX? When you buy a music CD you own it, there's no reason for it to be different for software."

You own the CD, the physical media. You do not own the music on it, you are licensed to use it. At least that is what it says on at least 5 music CD's I have here. As for OS X, it is very clear that you own the CD, but you only have a license to use the software. The sales person does not say that, however the EULA does. Clicking through has already been upheld for EULA's in the courts. The key is if Apple can restrict how you use that license, in effect testing that specific EULA.

Reply Score: 2

i see that
by Mellin on Thu 4th Dec 2008 22:52 UTC
Mellin
Member since:
2005-07-06

osnews is a apple bashing website where everyone that doesn't hate apple gets modded down

Edited 2008-12-04 22:52 UTC

Reply Score: 1