Username or EmailPassword
Unfortunately for normal people there is now difference between the physical support ( disk, CD, DVD ) they can buy and do whatever they want with it,
And the software which is merely licenced to their use(which they must agree before they can use it). The same thing goes for a Music CD or a DVD (you can still do what you want with the CD and DVD but not with the content of it, my god this is confusing).
There is no communication about this, because people don't want to be stripped of their sense of ownership,
imagine how people would react if they were told at the cash register that they do not own what they just bought for and only the medium.
Music/Film/Software company are in the same basket concerning this issue, So I guess Apple is not so guilty, just doing it the same thing as others (weird for a "think different" company).
being not told is still "quite" ok considering that they askyou to return the media for refund if you don't agree the EULA(which also bothers me anyway), So ok it's illegal with most of non US country ( I don't where clicking on a button constitute a valid agreement, only the EULA says so and most of them don't even consider if you are responsible enough to carry such an agreement ).
But user should be more aware of the EULA, or even GPL for what they are allowed and disallowed to do with the software they are using. But EULA,GPL or any other licence agreement are long and boring to any end user ( an aera where EULA particularly fails).
The quoted parts of the judgment in the article make it perfectly clear that you have bought a copy of the software, at least in the US. You have not just bought optical media. Nor have you just bought a license. The judgment is quite explicit, you really have bought a copy of the software.
This is why Softman was able, despite the EULA, to break up what they had bought and sell the components.
If I buy a book, then except for the rights restricted by the Copyright Act, I own it. I am free to re-sell it. I am free to cut out objectionable passages before I hand it to my children. I am free to use it as raw materials for making paper doilies if I want.
And on June 1, 1908 in Bobbs-Merrill v. Straus, the US Supreme Court has ruled I have these rights (look up "first sale doctrine" in a case, over a century ago).
Electronic publishers want to deny me these rights. The only private property they believe in is their own. They should be condemned as un-American adherents of Old-World mercantilism.
Imaginary property and licensed rights is ok as long as they accept imaginary money from me with the right to withdraw them whenever I want ...
Just last week, on my local Macintosh User Group forum, one of the most knowledgeable about Apple suggested that perhaps the Hackintosh method was the way to go, in a debate about the relative expensiveness of newly launched Apple hardware.
You can argue the toss about the latter point but people generally ain't dumb, especially in these straightened times: over time the Hackintosh will be an increasingly doable, feasible and attractive option, as the community around it and the userbase expand.
When Jobs goes, for whatever reason, and respect to the man in his current condition, there will not be a strategy to deal with this. Not only because he won't be at the helm, flying his particular colours but also because in my view Apple will not be in the personal computer market any longer, and will have no interest in it. It will have become a personal device manufacturer, and OS X will not be available in retail form in its current guise in, I'll be radical, 5 years from now.
So, Apple computer fans and Hackintosh proponents alike - make hay while the sun shines, because the sun will go down on the Apple personal computer business model within half a decade.
So I'm gonna get a bit off topic, but basically, this post is about how Apple is one of the last good workstation producers I could find. If I'm wrong in any of this, happy to hear corrections.
I do not like Apple. I do not particularly like OS X. However, after going through several hours of web surfing to find decent workstations, I essentially came up with 2 viable offerings: HP and Apple. In many ways, the Apple seemed to be better and in some comparable configurations, even cheaper.
I was saddened to see that Sun no longer makes the Ultra 40 line of their x64 systems; their current offering is moderate at best - definitely not a top end workstation. Furthermore, there are *no* more alternative architectures. Sun stopped with SPARC about a year ago and IBM just stopped with PPC intellistations, which ironically, I believe was the last workstation they were producing (no more at all now!). Itanium was practically old news before it started, but, at least you can download nvidia drivers from 2005... And yes, to be considered a workstation, I require: 3d options (not necessarily bleeding edge, but good), good memory capabilities (16GB+), large storage capacity (the Sun U40 supports up to 8 internal hard drives), and an excellent case design. I really believe the first option, 3d hardware acc, is the killer for alternative architectures.
Funny Apple is getting all defensive about this, when all they really needed to do to reduce the number of clones was stick with PPC and uh, be different ... but here I'm stating the obvious.
It seems like the workstation really is dying, which is too bad. Guess I'll hop on the android bandwagon and have fun with mobile devices and remote services, no time at the moment for hacking 3d drivers (which I have 0 experience with) to work with high quality SPARC or POWER servers. I hate building my own comps by now, mainly, not having the warranty.
When Steve Control Freak Jobs finally disappears a lot will change very quickly. I wouldn't even be surprised if limited licensing of OSX clones is considered.
I have a question here.
That's a fair point, but the presence of something "clearly visible prior to purchase" is not what makes an upgrade version and upgrade version. Rather, it's the respective clause in the respective EULA. The sticker is just what helps buyers distinguish between the different versions of the product on the shelf.
The point is that its only valid if the customer can tell that difference prior to purchase. The EULA is usually not shown when you purchase the product.
The outside of the box also says, and I quote:
I find especially the following part of the US law interesting:
I would like to commend the author on a well written and I feel balanced piece. (if you criticise a badly written piece you should also commend those which you feel are well written)
What I paticularly liked was the clear distinction of what were his own views and what was 'fact'
The right question to ask is:
Will the action of installing MacOSX in a non-Apple machine constitute a copyright breach?
Having legally purchased the OS at a shelf, without agreeing to anything, the EULA is simply an agreement with me and Apple. They can deny to support this installation, but they cannot get me to court for copyright reasons. In more than a few countries even EULA means next to nothing: you didn't read it before buying, you did not sign it, there were no witnesses and the event was not recorded anywhere.
It's not about breach of copyright, it's about breach of the terms of the license you purchased form Apple. And, yes, Apple can ask a court of law to force you to stop using their software because you breached the license terms. They won't, because it will cost them significantly less to just let you do whatever the hell you want with the software, but technically they absolutely can get you to court over that.
<Awesome double post> Edited 2009-03-09 13:28 UTC
The EULA is not a contract, per se. It is a document describing the terms under which you are given the license you've purchased.
This is evidently not true in the US, and it is probably not true in other Anglo Saxon jurisdictions. In the case of Softman, the defendant had bought a copy of Adobe software. He then broke up the package and resold it one bit at a time. There was no claim that he had violated copyright by duplicating it unlawfully. He had simply bought a CD with packages A and B on it, then sold package A to one person and package B to another, which was explicitly forbidden in the EULA.
Adobe sued on the grounds that the EULA forbade such behaviour. The EULA was said to be binding for exactly the reasons given above, that the copies were transferred as licenses not sales of copies, so the EULA simply recorded the conditions of license. The court ruled against Adobe on the grounds that Softman had only bought a copy of the software, but not installed it. Not having installed it, Softman had not entered into the contract whose terms are given in the EULA, and was thus not bound by it. He had however bought his copy, and thus had the right to resell it as a bundle or in detail.
There was no breach of the EULA because Softman had not clicked through and entered into that contract.
So in the US the situation is interestingly different from what Thom describes for Holland. There is no doubt that until you click through, you have not entered into the EULA contract and are not bound by it. This is why Softman won.
"selling as individual units the software titles that were purchased from Adobe as a single boxed ***"Collection" ***. The individual titles had their own CDs."
"So does this mean Linux users can break up a hardware/software bundle, keep the hardware to run Linux on and sell the software? Yes, says attorney Wendy Seltzer, Fellow of the Berkman Center for Internet & Society at Harvard Law School. "It makes a strong case that the licenses purporting to restrict resale in this manner are not valid licenses--so the transactions are in fact sales, and the buyers are not subject to the "license" conditions. It helped that Softman hadn't even had to click a clickwrap", Seltzer said in an e-mail interview."
#1 Psystar install the OS and Agree to the term of EULA.
#2 they are not breaking an Apple system/bundle as they buy the OS *upgrade* only and not the hardware
#3 Apple is not suing Psystar over it's EULA.
Charges copyright, trademark infringement, violation of OS X software license ( << not the same as EULA )
"In an order signed on Friday, U.S. District Court Judge William Alsup gave Psystar the go-ahead to amend its lawsuit against Apple. According to Alsup, Psystar may change that countersuit, which originally accused Apple of breaking antitrust laws, to instead ague that Apple has stretched copyright laws by tying the Mac operating system to its hardware."
It's all just an oppinion.
It doesn't bring any new information about the subject.
The big 'issue' is that even if you have an EFI PC or have an EFI dongle, you need to decrypt some core parts of Mac OS X binaries to have it boot and be usable.
This requires binary patching the kernel or a special kernel extension decrypter (dsmos.kext or appledecrypt.kext).
Isn't this covered by the legality of reverse engineering?
This is a great reply, because it is what this analysis (intentionally or unintentionally) leaves out.
I think this case would be different if it was just a guy going and buying a copy of Mac OS X and installing it on his Dell. But it's not. It's on a whole different level.
Psystar is buying copies of Mac OS X and reselling them. (According to copyright law, this is okay.) Psystar is preinstalling Leopard on the machines. (Uh oh - this means there was an EULA.) Psystar is modifying parts of Leopard to get it to load. (Hacking the system, changing the system to point to Psystar servers, etc... Uh oh.) I just don't see how Psystar wins at all.
Sure, if they had just bought copies of Leopard and sent you a Leopard-compatible machine so you can do the work yourself - this might not be an issue. But that is not what is going on here.
Guys, nerds, OSSers - Apple is not trying to shut down people from going and installing Leopard on their netbook or whatever. That is not what is at issue here.
Psystar is going down.
This article is written from a US perspective, but most common law countries (England, Scotland, Canada, Ireland, Australia, etc) will see things from a similar perspective and would also regard the EULA as a second agreement that Apple is attmepting to enforce post-sale. What's not exactly clear to me is how the EULA can be enforced and what remedy would be available to Apple if I should breach it.
Under English law, a legally enforceable contract requires all of the following: offer, acceptance, consideration (something of value) and an intention to create legally binding relations. It's not remotely clear that all of these conditions are met when I click on the EULA acceptance button; in particular, as no consideration has been exchanged between Apple and me, I cannot see how the agreement could be enforced under our contract law.
I greatly agree on the scope of this case, but not on the implementation of the logic. Non Free Non OSS SW determines how and where you get to install it. That seems to be the case with anything that has a receipt or serial number. Heck the prime reason that The Mac OS has not required a serial number was because for nearly the first twenty years the OS ran exclusively on Apple Branded HW ( with a brief extension into clones) Apple is the Hardware, and the MacOS is the Software. This is pretty easy. And I think we can all agree on those two points. Last month I saw someone on the train with a Vaio laptop running MacOS hacked, and running xp in VMware. Assuming that he bought his software he is in compliance not by the letter but by the intent of the law. Apple is not looking for him and his type - And I am assuming that he bought the SW. Undoubtably Sony Makes a MacOS compatible device. But that is not what they are trying to do. Sony is just doing the best that it can. Sony is a real company.
Apple is correct in trying to stop Psystar from making unlicensed clones. Because Apple did all of the hard work and all of the engineering and especially all of the marketing and as such they deserve all of the profits on their SW. Now if I decide to buy a Sony or build a Mac compatible unit myself then I deserve to run it but I do not have the right to re sell it as 'My product'. Apple the hardware side is not under any moral obligation to let Psystar ride their engineering. Apple took all of the risk and they deserve all of the profit. Where was Psystar during the PPC days or during the bad old days. If I took the Free Open Source SW quagga and told the world that it was as good as cisco well that could be true. But if I sold Quagga/Zebra software in the cisco router space then I would expect cisco to hire a well paid lawyer to sue me down to a smoking hole in the ground.
There is NOTHING in the MacOS that the F/OSS software movement cannot replicate with some effort. The MacOS is essentially yet another unix. It is not because of the tight integration between HW & SW it is because of the well written abstraction of the HW from the SW. If you are willing to take the steps to make your Debian or Suse or Fedora work as well as a Mac then bring it. Bring it and share it. At that point you might be willing to bundle it as your own distro.
So suppose that you make your very own 'Cortland' distro (a NY State variety of Apple) and it is successful. Some people buy CDs some people download your .ISOs people are writing you checks and grants - on the balance you luckily recoup most of your expenses. Next thing you know someone clones all of your work and calls it 'Empire' (another NY State variety of Apple)
Do you owe them anything because what you built was made from a reference spec? <PERSONALLY> I feel that Psystar should Man Up and make their own distro, Like Shuttleworth/ Ubuntu or write Linux SW that functions like the Mac desktop - iLife apps or whatever. The more that they cloud this with noise about the SW license the dumber it gets. Apple is NOT GNU or F/OSS and neither is Windows or Novell or Lotus or anything that comes shrink wrapped with a EULA
The implications are going to be far reaching
All fine and dandy, but what has "There is NOTHING in the MacOS that the F/OSS software movement cannot replicate with some effort." to do with the case at hand?
Psystar isn't an Open Source company. They even use a proprietary license for their "retail hackintoshes". Although the case is about the validity of after sale license conditions, this doesn't mean it automatically is related to FOSS. If a license is deemed void, the software doesn't automagically become Public Domain or Free Software.
The magic of Apple is limited hardware support on preselected components, with a pretty UI on top of their UNIX. This is also already available in the FOSS world. Get supported hardware and install/get-a-preload-with a nice WM/DE on top of a *Nix. Same result.
Yup I was a windy there. I agree Psystar is not even remotely OSS, I suspect that they are playing the the whole F/OSS sentiment with a fist in a velvet glove. There is very little case to be made for SW transfer after sale. My view (as a developer) is similar to Wil Shipley - of delicious monster. As a matter of fact I prefer F/OSS in the workplace. I Like not having to reinvent the wheel and having the option to learn from someone else's well written code. That is OUR dog in this fight. We can learn and give back - it is a positive feedback loop. Much SW for the Mac is hella overpriced (like photoshop and most of the music apps) and that is a negative feedback. It adds the price of another base model Mac to the cost of a workstation.
If However I was going to sell a copy of SW then I sort of have to give the disk serial number and box. Why would I sell an App or an OS if I planned on still using it?
I disagree that the the magic of Apple is select HW and SW integration the proof of that lies in the ease that Apple has switching the code base from Motorola 68K (in Many Macs even in 1995) to Motorola PPC 1994-2005 and Intel chips -- That seems like a large investment in well written code. Those are some hard dues to pay. That r&d is why I do not like why psystar is playing at.
"Because Apple did all of the hard work and all of the engineering and especially all of the marketing and as such they deserve all of the profits on their SW."
Psystar is buying their copies of OSX. Apple is getting profit from their hard SW work.
What is also happening, is Apple is not making a profit from their crappy (many dead ibooks) hardware because of tying SW to HW.
"It may be reasonable, for example, for a vendor of gas tanks to be able to forbid, by a contract entered into at the time of sale, anyone but an authorized agent from recharging the tank."
I don't like that idea exactly, Ford gas stations? Nope. If there were a open or government standard, that a vendor had to meet then make that a law.
Can I install OSX on an Asus motherboard installed in a Mac pro case? How about an apple motherboard (http://www.dvwarehouse.com/Apple-Motherboard-c-245.html) in a HP case? Does it matter who made the hard drive? Does an "Apple labeld computer" mean the logo when it boots up?
Anything Apple can do, Microsoft should be able to do? I await the days of the Microsoft PC which only works on "Microsoft labeld computers." Ask yourself, why limit this to software. Maybe your next dictionary will only be legal to read under Merriam-Webster lights.
Well that is odd because I do not seem to be suggesting anything remotely extreme or unreasonable. The Mac OS comes at a deep subsidy without a lot of hassles about what you can install it on. I do not think that it phones home invades my privacy or even requires a serial number. Heck I _could_ install it on every Mac and PC in the house for the same $129. I do not even want to think what Microsoft would give me for the same 129 U.S.Dollars.
Software is vastly different than a book. When I have a book I generally have one copy - I cannot give one away (or sell or transfer it) and then go to the library grab one of the shelf and say 'see-ya' I own this.
I am speaking more to the lines of Apple HW. YOU can install whatever you buy on whatever you want. That if I was a lawyer (my dad is) I know that I would not even send a paralegal or even a legal secretary to think about telling you what to do with a copy that you bought.
HOWEVER when a company starts a business model on the back of the RD that comes from another company, well that is just bad ethics. No Apple does not own the x86 reference instruction set but they do own the OS you buy a license.
This is real simple a company or a copyright holder has the right to protect their copyright or trademark. McD could sell a whopper and BK can sell a big mac, but I cannot open a McG and sell both the Whopper and the Big Mac. Well I could but it is not a sustainable business model. Psystar can do what they want but Apple likely has better paid lawyers and also has the law on their side. What would you do if it was your copyright.
Its not really about Apple or Psystar. The particular case is, but the fundamental issue is not. The issue comes up, as Thom says, in clear form in the question: should MS, having decided to sell retail copies of Office, be able to stop you installing them under Wine?
As to making money from Apple's efforts, objections to this are pure nonsense. Every Mac retailer, every Mac software developer does this. It is true that Jobs always had problems with this, always felt that there was something not quite right about Mac developers. But this was pure nuttery on his part.
Apple is not obliged to sell OSX at all, or for any particular price, or adopt any particular method of distribution, or release developer SDKs. It makes a commercial choice on what to do in all these respects, so do others in the surrounding parts of the industry. If it doesn't like the opportunities it is creating for them, it can always change how it sells. As an example, it does not sell Filemaker for Linux. No-one thinks it has to.
The issue is solely this: having decided to sell OSX at retail, for reasons best known to itself, what limits can it place, and what limits should we want it to be able to place, on what we install it on?
For me, when there are viable alternatives, I always vote with my wallet when a vendor tries to put ridiculous restrictions on my usage of the product I purchased (fair and square) from them - restrictions that only benefit the vendor, and have nothing to with public health and safety (as Thom pointed out).
I go to their competitors who do not put those restrictions on me.
For instance, like so many other people, I have an iPod. At first, I did plenty of purchases from iTunes (along with ripping a bunch of stuff from my extensive CD collection). But once I discovered that many of the tunes purchased from iTunes could not be played in anything but iTunes or my iPod, I stopped all purchases from iTunes.
If not playing music on my iPod, I generally prefer playing the music on programs like Songbird, aTunes, Banshee, and others, over iTunes (the program), because I find iTunes to be bulkly, slow, and ugly.
So now any MP3 downloads I purchase are entirely from either Amazon or eMusic (both have zero DRM and will play on anything).
I do realize that Apple recently signed an agreement with the big 4 record companies where they do not have to have DRM. But I've seen nothing when perusing iTunes that indicates the downloads don't have the previous restrictions.
Until Apple makes it crystal clear that downloads from iTunes come with no restrictions for what the tunes are played on or with what software, I will never purchase anything from iTunes.
It's that simple.
I have one question for all the Apple people in here:
Why on EARTH are you guys defending Apple? Would you do the same for Microsoft Office and its EULA that says it may only be installed on Windows? would you support Microsoft if they sued a retailer who sells Linux machines with legal copies of Office pre-installed through WINE?
Seriously, I have no idea why you would defend a company that is trying to limit your rights in such an unreasonable manner. It's truly beyond me.
I see you don't understand open source. Let me make it simple.
Open source licenses: grants rights on a copyrighted work that you would not have under copyright law.
EULAs: take rights away on a copyrighted work that you would have under copyright law.
That's an enormous difference. By law, consumers are granted rights. Apple takes these rights away for the sole purpose of harming consumers by limiting choice and advancing lock-in.
This is in NO WAY comparable to GPL lawsuits.
As I understand it, the GPL and the EULA rely on the same fundamental premise - in the absence of a licensing agreement of some kind, you have no rights to do anything with the software.
You have no right to use it, no right to modify it, and no right to distribute it. In some jurisdictions you have the right to reverse engineer the software, but since this implies use, this 'right' may have been practically legislated away - see the Blizzard Glider bot lawsuit.
The GPL grants you the right to use, modify and distribute the software subject to its terms, and the EULA grants you limited rights to use the software, subject to its terms.
I think the fundamental issue here is whether there is an implicit 'right to use' attached to software products.
When you buy a software product, do you automatically receive the right to use it as you see fit? I don't think copyright law provides for this at all - especially where 'usage' involves making one or more copies, whether in system RAM or on disk.
Personally, I think the law is broken in this regard, but AFAIK existing case law in various western countries pretty much supports this interpretation.
CDs and software require making 'ephemeral copies' in device buffers, RAM etc. in order to support most 'use' models.
Rightsholder groups maintain that this copying requires a license. Preventing such use is considered to be unenforceable, but it is actually one of the key supports for this interpretation of the law - i.e. 'You need a license to use software and digital media products.'
I'm not saying that this is a good thing - in fact its pretty egregiously overreaching and stupid - but this is the situation that is being codified into laws around the world.
Better yet , let reality and the judge repsond :
"In an order signed on Friday, U.S. District Court Judge William Alsup gave Psystar the go-ahead to amend its lawsuit against Apple. According to Alsup, Psystar may change that countersuit, which originally accused Apple of breaking antitrust laws, to instead ague that Apple has stretched copyright laws by tying the Mac operating system to its hardware."
Although I'm on Apple's side on this issue, your facts are wrong: Palm OS was not only on many devices, legally, Palm spun it off into a separate company and that company sold it to other Palm OS device makers.
Remember the Sony Clie, the Handspring Visor, and numerous other PDAs that used the Palm OS? (You don't? That's because you're a whippersnapper. ;-) ) The only reason why you only see Palm making them now is because the PDA market dried up, making everyone leave except Palm in the Palm OS PDA market, and nobody else was interested in making phones with it. (Though the first PalmOS phones were also not made by Palm, but a small company that no longer makes such phones to my knowledge.)
I guess I can qualify as Apple person so I'll respond.
I'm defending Apple's position much more because it's the rules of the game than because it's Apple's position. Using a piece of software is not an inalienable right. It's up to the author (or rather the owner of the copyright) of the software to decide who they grant the privilege (yes, I know, all of you will jump on this particular word and tear me a new one, but if you think about it for every piece of software in one way or another you have to qualify to use it - whether it is people having certain hardware, or people having certain software, or people willing to pay x amount of money, or people willing to put x amount of work, or any number of those) to use it.
I'm a dedicated Apple user (one who's been following the rules, well, most of the time) and if schmucks like Psystar manage to erode Apple's ownership of Mac OS X, I'll either have to put up with a WGA lookalike or I'll be forced to use an inferior OS, because Apple had abandoned their PC business (yeah, I know, that las one is not all that likely, but still).
And lastly, I defend Apple's position because it's against people who are making money off of the work of others. Neither me, nor Apple give a flying f--k that pimply nerd in their mom's basements use arcane hacks to get Mac OS X to work on their fancy netbook (or whatever). So it's not about persecuting individuals and crushing their rights, as everyone seems to see this, but instead it's about stopping and punishing a bunch of crooks, who, as I said, are profiting off of other people's work.
Why are *you* defending those crooks is equally beyond me.
"Why are *you* defending those crooks is equally beyond me."
Psystar crooks? They legally purchased the copies of Mac OS X. They did not steal them. Then they installed those copies on their Mac-like hardware, and sold the hardware and the installation (as a service).
Pystar did not steal anything. Apple got paid for each copy of Mac OSX. And the mac compatible hardware has nothing to do with Apple - again, nothing was stolen from Apple.
Now, Pystar might have violated a restriction put on OSX via the EULA. Now it's in court, and the court will decide whether Pystar violated the EULA, or even if the EULA is even enforceable. That last bit is particularly relevant to everyone else. EULAs essentially remove consumer rights that are already protected by the law.
It can be well argued that those who attach EULAs to their product are the ones who are crooks, because they are violating consumer rights protected by the law.
But again, the courts will decide these issues. Until then, nobody in this case are crooks. Even if the courts rule against Pystar, Pystar are still not crooks, because this is a civil case, not a criminal one. If the court rules against Pystar, they will have been deemed to have violated Apple's EULA (which by necessity, will have been ruled to be enforceable. If not, the case is irrelevant), they will not have been deemed to have broken the law (which is what makes one a crook).
And, once more, EULA often run contradictory to consumer rights, and the law. Edited 2009-03-09 20:18 UTC
They are, some of them, at least being consistent. They really do think that any software manufacturer should be allowed to place any restrictions he wants to in the EULA and have the courts enforce them. It is difficult to see their reasoning. Its not clear that such a provision is necessary to the health of the industry, in the way that copyright arguably is. And its not clear that there would be any social benefits to it, though there might be many to a supplier by reduction of competition.
We do in consumer protection law commonly restrict what agreements companies can make with their customers. In the UK, for instance, no agreement which limits the consumer rights you have in law will be valid.
There is no evidence that the ability to restrict what we do with software in way of installation of one authorized and purchased copy is either a necessary or desirable power for companies to have.
What I'm curious about is why Psystar cannot claim copyright misuse and slam dunk the case. From Lasercomb America v. Reynolds:
"Thus, we are persuaded that the rationale of Morton Salt in establishing the misuse defense applies to copyrights. In the passage from Morton Salt quoted above, the phraseology adapts easily to a copyright context:
The grant to the [author] of the special privilege of a [copyright] carries out a public policy adopted by the Constitution and laws of the United States, “to promote the Progress of Science and useful Arts, by securing for limited Times to [Authors] . . . the exclusive Right . . .” to their [“original” works]. United States Constitution, Art. I, §8, cl. 8, [17 U.S.C.A. §102]. But the public policy which includes [original works] within the granted monopoly excludes from it all that is not embraced in the [original expression]. It equally forbids the use of the [copyright] to secure an exclusive right or limited monopoly not granted by the [Copyright] Office and which it is contrary to public policy to grant. Cf. Morton Salt, 314 U.S. at 492 .
Having determined that “misuse of copyright” is a valid defense, analogous to the misuse of patent defense"
To me, it seems obvious that Apple is trying to secure a limited monopoly, by forcing people to only use OS X on their hardware. It's identical to Morton Salt Co. v. G.S. Suppiger, except it applies to copyright, and in Lasercomb v. Reynolds the judge stated that the same restrictions apply to copyright.
the issue is that they put MacOSx instead of Linux/Solaris/BSD/QNX.
Nothing to see here. Move on.
.... should be ruled null and void and unenforceable if the restrictions put in place by the EULA run contradictory to consumer/customer rights that are protected by the law.
Also, the distributor of said EULA should be ruled to be in violation of the law, and subject to applicable penalties, and the EULA removed from circulation/distribution immediately.
But in the meantime, I try to vote with my wallet, and avoid EULAs, DRM, or other restrictions that impede my fair usage of the product.
The article seemed to miss one important point: what the law says is required to create a legal contract in regards to usage rights of a copyrighted material...
Did you by a "Copy of a Copyrighted Material" (CCM) at purchase, or a license? What determines this? By law, the manner of purchase makes the primary determination.
If you bought a CCM you cannot be forced to behave in a certain way regarding your usage of the product ex post facto, making the EULA basically illegal - but there are some finer points, of course.
A license contract must be made before the time of purchase as a condition of usage rights and the license, itself, must be the purchased item, explicitly. You can't be forced to change this later, even if you do have the right to do so.
If the receipt says "Apple MacOS X 10.5.2 DVD," it is implied to be CCM, by law. I have signed nothing that states otherwise. Once the sell is complete the item is governed under the laws which govern all CCMs. Those laws MUST provide a way for the original seller to transfer the material to another set of laws, otherwise I am the only one that can cause such a modification, ex post facto, via my signature, and in contractual agreement with the authorizing party.
You CAN agree to have purchased a license if you purchased CCM, no problem. BUT you CAN NOT be forced into doing so. You own a CCM, you have your rights now! USE THEM OR LOSE THEM!
Think about it:
I can't give you a receipt for "The Great Gatsby - Audio Tape," let you leave with your tape, and then when you play it at home have a little note that says you cannot play with anything other than a Radio Shack branded tape player... even though you just did! I can't do that even if I "allow" you to listen to up to five minutes without an "infraction"... You own your copy!
I can't sell you a normal book and tell you that you MUST use a specific brand of contact lenses, or a G.E. light bulb just by having the requirement written on the first few pages.
So why can I force you to use a program on a specific machine in such a manner??
I can't!! Not ex post facto, in the very least! I CAN certainly require you to sign an agreement of license in ADVANCE, but I must follow the laws governing such licensing.
AND, in so doing, I CAN NOT sue you for copyright infringement when you violate that contract. Nope. Can't do it. You had a license to my copyright!!
Instead, I have to sue you for violating the contract. BUT, I have to PROVE I had a contract with *YOU*. And I have to PROVE that certain REMEDIES were enumerated in the signed contract, AND that such REMEDIES were *LEGAL*.
Who here has ever had to sign a contract?? Probably most of you have had to go through the process.
Generally you have to initial several items, and/or you have to have an uninterested party play as a 'witness.' Not all contracts have the same requirements, naturally, many only require a signature. BUT, they ALL require AT LEAST a signature. Be that in ink, or electronically.
Oh.. electronically means I can just hit "I Agree" and I just signed the contract!?!?
NO!! There are legal requirements regarding electronic signatures!
One requirement is encryption!! YES IT IS **REQUIRED**. No encryption, no signature!
From the "SEAL", U.S. Law
Inasmuch as your comment was painful to read (must you bold every other word), you have a very warped view of contracts.
The reason EULAs have been challenged in the past is because the terms were considered additional terms, whose notice came after the contract was formed. In the SoftMan case, they had no notice of the terms, therefore no contract is formed.
They had not been challenged on the count of the impossibility of knowing acceptance - i.e. the very purpose of a signature.
Contracts never required signatures - offer, acceptance, consideration and intention to enter a legal relationship is all that is needed for a contract. For example, bidding at a auction house - there is a contract when you bid for something and win (multiple, sequential contracts in fact). You *do not* need to sign a contract for it to be valid. Carlill v Carbolic Smoke Ball, for example, there was *NO SIGNATURE* - Carbolic has an open-ended offer to the world, and there wasn't a need to signify acceptance by notice (or signature on that notice, for that matter). See UCC Sec. 2-207(1) - informal acceptance is still acceptance, even without a signature.
So when is signature necessary? In proving there is acceptance to a contract. If X tells Y he wants 50 widgets, Y says "Yeah, sure" - there is offer and acceptance. But when Y builds and delivers the 50 widgets, X says, "What? When did I order widgets?". The lack of a written contract in this case works against Y. It is not that X and Y didn't have a contract, Y just can't prove the contract exists and the terms are as originally agreed.
In the case of Psystar, it is clear they have seen the EULA - if not at installation, the many statements on their website indicates that they very well know of the terms of the EULA. Whether the EULA is enforceable is a different matter altogether (one that judges disagree themselve), but quite certainly the lack of signatures *isn't*
Sorry, but in the cause of renouncing ones rights, a signed contract or witnessed consent is required in most cases.
Yeah, I went overboard with the bold ( I'm OCD, happens - sorry ).
In any event, I see that I have edited my comment to the point of removing the important factors, hehe... hrm...
That being that the common understanding established upon purchasing a piece of software is that you are purchasing a copy of that software. It is not made evident until too late that it is a license. Failure to satisfactorily establish a license agreement prior to purchase and transfer of a CCM is the fault of the seller.
Also, when the seller accepts payment and transfers a CCM, they have agreed to certain terms of the sell. Mainly that they have not violated any laws in the transfer, but also that they are satisfied in the transfer of the CCM. If they are still requiring further effort on the part of the purchaser, then those requirements are void unless they have been contractually required in advance.
There are legal standards here regarding what is and is not being purchased. If you have a receipt for a copy of a copyrighted product, the law states that you have many rights regarding that ( and software has been given special attention in those laws, by providing compatibility clauses ).
The legal standard for licensing of a copyrighted or patented work is well established, and requires advance negotiation. When a case goes to litigation the burden of proof must be met - the plaintiff must provide proof of a licensing arrangement. This is where signatures are important ( and my entire last post ).
If the U.S. uses the Australian method, they will be overthrowing the very purpose of many laws already made - to protect the rights of the consumer.
Remember, when you pay $120 for MacOS X, you just paid that money to use the software. You have a right to do so, and no one except YOU can take that right away. You are permitted to do whatever you must to use that product HOWEVER you want. You cannot expect Apple to support you - they have no such requirement unless they state they will support any configuration ( they don't ).
Who is Apple to say that I can't install that copy on another machine?? They can't say anything, and this is well accepted as truth. So then, when a company does it, and sells those machines, what laws are they violating?
They made no special contracts with Apple to limit their rights ( and took special steps to avoid this - at the advise of their very intelligent lawyers ).
They made no agreement of any kind that said they were licensing MacOS X from Apple. They purchased COPIES, at retail. The box clearly says "Apple MacOS X [version]." It is not prominently displayed that you are only purchasing a "restricted use license."
In fact, the legal standard is that the actual sell item name must include the word 'license.' I ran into this personally, which is why I know these areas of copyright, anti-trust, and contract law fairly well ( even if I am rather bad at explaining it [ money is well spent on lawyers sometimes ] ).
The lack of the word 'license' on my receipt allowed me to transfer an $11,000 piece of software from one machine to another, against what the EULA said ( I had to hack the program for compatibility ). I didn't think once that it might be a problem when I did it, of course - and I knew nothing of law at that point ( I was 20 ). That company now knows to include license on the receipt AND to require a signature upon selling the software package.
Anyway, I *REALLY* hope Psystar wins this one hands down, they need to. If they lose, we lose too many rights as consumers. Sure, Apple will just make a few adjustments ( such as ensuring that the product name, as sold at retail, includes 'license' ) which will still hurt Psystar - but at least you know where you are standing when you see the product on the shelf.
BTW: I do understand that proof, in these cases, is merely by a preponderance of the evidence.
( Wow, how did I NOT misspell that on the first try?!? ) Edited 2009-03-10 05:04 UTC
SoftMan applies as case law only insofar as cases are similar to SoftMan v Adobe. The author clearly didn't take pains to even describe the case, no less give a more clear link with the present case.
In Softman v Adobe, what happen was that SoftMan took purchased Adobe products, ripped the CD and packaged Adobe software with other software to be resold. This contravened Adobe's EULA prohibition on resales. However, the courts ruled against Adobe because 1) the EULA was only seen when the CD is executed - so because there was no notice, there was no contract, and 2) there was no harm caused to Adobe. Consumers who can't purchase SoftMan's compilations would simply have to purchase individual software titles. There was no violation of copyright, and all the software were purchased legally.
In the Psystar case, there is notice: Psystar installed OS X. They clearly knew the existance of the EULA. They are many cases of shrinkwrap EULAs being enforced (ProCD v Zeidenberg, for example), so it isn't a clearcut case of EULAs being unenforceable.
And contract claims isn't what Apple is gunning for in this case (yes, its there, but not the biggest part of their case against Psystar). Quite simply, the payouts from winning contract cases are low (most likely, recalls of the software titles sold). Instead, Apple is pursuing copyright claims (including DMCA) against Psystar (Psystar modified Apple's software without permission) as well as trademark and trade dress claims. Apple has a solid case on those.
The only way Psystar can win this against Apple is that if they succeed in their copyright misuse (for anti-competitive purposes) case against Apple. But courts tend to act conservatively, especially if any ruling made in Psystar's way would so royally f--k so many business models (not just Apple's), I would mark it as unlikely.
As for EULAs, the courts have in the past been very reluctant to rule on the general legality of shrink wrap contracts, if I was one of those pining for the end of EULAs (which, btw, would also include the GPL/LGPL), I would not hold my breath.
Another great reply in this thread.
I don't know why folks keep making this all about - "Apple is telling me what to do with the software I buy." Cause that is not at all the issue. Apple isn't suing any of the OSX86 guys. Nor the maker of EFI-X or whatever.
Thanks for your summary of the real issues at stake.
I think that Apple restricting what systems their software should be run on does not hurt the market so much as Apple's market for their software.
Apple does not care if you run linux, Windows, whatever, on their hardware, but they only want their software run on their hardware.
How this hurts the market, I don't understand. How a company that has such a small share of the hardware and software market could be monopolizing, I also don't follow.
Y'all are crazy.
Posted this before, btw, but here it is again:
You argue that the courts should do what's best for consumers.
I do not agree that forcing Apple to allow OS X to run on any machine is best for consumers. Apple built OS X to make its computers more desirable in the marketplace. The company spent many millions of dollars, far more than it makes on sales of the OS, on development and continuing improvement.
If the law were what you say it should be, Apple would never have built OS X at all. Then where would consumers be? They'd be stuck with Microsoft or Linux or some flavor of Unix. Or perhaps Be OS. Not a very good outcome for consumers.
In addition, there would be no iPod, not iPhone, USB may still not be available on computers, writable disc drives may not have ever happened, we still could be using DOS.
If the court rules as you suggest there two possible outcomes: Apple will stop selling its OS and ship it installed only, meaning intermediate upgrades will cease.
Apple will sell its OS to all comers but raise the price and stop development. Eventually, Apple could fail, meaning no more great new consumer electronics devices from that company. Sony will be the ruling power in that arena.
Protecting intellectual property DOES help consumers.
But Apple's attempts to use their own intellectual property to promote their own sales is not comparable to the music or film industry's attempts to use DRM squeeze the last possible buck out of consumers with daffy protective management that reduces the value of their wares to everyone.
If I build a boat ad sell it to my neighbor for the $5000 I spent on materials, plus $1000 for labor, he has a right to use it on any pond he wants to.
If I build an operating system for $386 million and I sell it to my neighbor for $386 million, he has a right to use it on any machine he wants to. If he pays me $120 for the right to run it on his own computer, I will agree that he can use it on his own computer.
But he does not have the right to run it on thousands of computers to help sell those computers in competition with me until he pays me the $386 million for the whole shebang.
It's that simple.
That's an inaccurate comparison. Try this:
If you buy 30 Mercury boat engines, you can absolutely install them into any hulls you wish and resell them as 30 complete boats. You can even modify the engines to get them to fit properly. Mercury doesn't have the right to force you to install their engines only on certain brands of hulls...
Ditto if Psystar buys 5,000 copies of OSX, they have every legal right to install it on 5,000 computers and resell those computers.
Do have any evidence that consumers are being being physically harmed by Psystar's OSX computers? Even the slightest hint that the products could be dangerous?
Or are you just making stuff up?
What you are missing is that Psystar is installing retail copies of OSX as an agent of the end customer.
Should I be allowed to install Windows XP for someone without permission from MS?
I understand the argument put forward for why Apple should not be able to enforce any restrictions of use from the sale of its stand alone software, in this case OSX. And further more, I agree with your argument. I do not want to be dictated to regarding how I can or should use a product I have legally purchased.
However, your argument does not distinguish between for personal use vs for profit. In the case of Pystar, they are using Apple's software, installed on their hardware, to sell their product and compete directly against Apple.
If Pystar was not using Apple's software in this way, would they still have a legitimate business?
Is it right for a company, like Pystar to use Apple's own software to compete and take further business away from Apple?
I say no, not without proper license from Apple, which it has not given.
Psystar doesn't need a license to install OSX on their computers. You think every single computer maker has an agreement with Microsoft to install Windows? They don't, and they don't need one.
Nor do they need a license with Intel to resell Pentium processors, nor do they need a license with Nvidia to resell graphic cards, nor do they need a license with Kingston to resell RAM...
That's the whole point of the lawsuit, isn't it?
IMO, based on past legal cases and current law, the EULA can not legally dictate which brand of hardware must be used.
It was APPLE that started the predatory heavy-handed legal proceedings, not Psystar.
The thing you're missing is that in the course of acquisition and use of all sorts of computer components, we all make money from each other. We write software - we use IDEs. We assemble parts into proper machines. We install operating systems and software and charge for doing it. We go in and fix malware infected machines, using anti virus software, or disk recovery software. We charge.
You will never get your head around this if you keep thinking it is mainly about Apple. It is not, the issues of principle are about the industry as a whole. The way to think about this is, after you figure out you want Apple to have a given power, figure out what will happen to the industry if everyone has that power, and uses it. Think about MS, think about Adobe, think about hardware vendors, ATI or Intel or nVidia.
Then start thinking about publishers of books, people who make drugs, people who make tools.
Then you'll get a feeling for what really is socially desirable and what's not.