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Good post, well stated

Apple's copyright on OS X doesn't give Apple the right to tell people what they can do with it after they buy a copy

I couldn't disagree more. I'm all out for freedom, but by definition of copyright (from the merriam-webster dictionary), Copyright is "the exclusive legal right to reproduce, publish, sell, or distribute the matter and form of something (as a literary, musical, or artistic work)"

So that's basically telling you what you cannot do with that stuff. Don't fall into thinking you're actually buying OSX, you are just licensing it from Apple, and that license intends to forbid what Psystar (or other cloners for that matter) are doing.

Not so sure that's actually accurate or legal. Apple cannot, by law, restrict you from reselling it once you've purchased it. This type of thing has been tested before. We'll see how it turns out, but just writing something in a EULA doesn't make it legal or enforceable.

Really not familiar with the law in this aspect so I have a question. If one sells another something, may the seller ask the buyer always resell, if the buyer wants, it as a whole, and never resell part of it alone?

In my opinion, the buyer can choose to accept the restriction and buying the thing, or he/she can reject the deal. Also, I think nothing in the law to forbid the seller add such restriction to his offering. I think perhaps when Apple has 60% market share there would be law to forbid Apple doing so, but considering it is just 10% right now I don't think anything prevent Apple's freedom to define its deal contact.

Problem is you don't ** purchase it ** , you ** license ** it ...

Apple is not blocking individual from reselling there own copy either , because they consider it a license transfer.

So what? The question is whether or not the license can carry conditions. If I buy a license, who's to say I can't transfer the license? And please don't tell me the EULA... we already know those aren't very enforceable.

Apple's license says you are not allowed to run OS X on non-Apple-labeled machines. To reselling OS X on a PC means you are transferring a already broken license.

Did you even read what I wrote? That is probably not legal. Simply purchasing something doesn't mean you agree to the terms listed within the shrink wrap. This has already been proven in the courts[1].

[1] http://en.wikipedia.org/wiki/Step-Saver_Data_Systems,_Inc._v._Wyse_...

Maybe, probably it is still legal because no explicit case says otherwise. All the past cases are different from Apple vs. Psystar cases. For example, in the Adobe vs. SoftMan case, the software was not installed. EULA is still the base of software commerce and it is risky to think certain kind of restriction in it is invalid just because you don't like it.

It's not as clear cut or defined in the law as you suggested.



That's one way to look at it , the law clearly state that in contract ( license are dealt as contract so far ) both party have to agree to the term and can't change them after the deal is done and signed , most customer think they agree to a purchase of a copy , not licensing , so in effect the contract/licensing is null and void as the demand is put after the fact aka you already bought it , before agreing to the EULA.

The other missing question is to decide if software sold by licensing are legal and are incuring a transfer of property or are just a rental with permission to use. The other missing part is if it's a rental should there not be a clear sign on the box that say rental true licensing , as to diferentiate with other who sale a property ownership aka copy with rights. Also should the Licensing be agreed to by the user BEFORE buying.



The license issuer , the laws (1) and the term of the license , if the license is legal.

(1) Some country are clearly marked as do not sale.



Most EULA are illegal , they are just never removed and most justice system don't take repeating corporate offense as seriously as they should be , it's grand theft and grand fraud that is never dealt with and clog the justice system everywhere.



No , they are illegal , but there as never been someone with enough time and money to go after the government , the corporation and the Justice system , to have those practice be finally completly removed.

Just dealing with one of them is really paifull and the outcome is never guranteed , but it's the ultimate trifecta of judicial hurt.

- The governement treat corporation as having individual rights , tru illegal lobby by the corporations, when they only have privilege.

The difference should be Corporation are guilty until proven innocent. Because the burden of proof is always put on society and corporation don't desevre any rights only privilege.

- The corporation management will push and play with the system limits , even downright crossing the line of legality because it make more profit and because they know the fines and punishment are far below the money made.

- The justice system is supposed to adapt and serve the citizenry and legal population not criminal croporation and not be self serving or corporatism defense , if a person condamned as a criminal come three time before a judge their penalty increase and they are not threated as good , but corporation will come before the court thousand of time , be declared guilty , for the exact same thing a thousand time and the Justice system will not wise up and say your harming the population by doing that and you should stop doing it now. Because corporate fraud and crime are considered lesser crimes and are not physically harming anyone.

The fact is most people give up going after corporation who harm them financially , beause they have to put out thousands if not hundred of thousands before even having there case properly heard. For something that cost them a few hundred dollars , it's the magitude of the number of people who are wronged and give up that is the problem 100$ X 1 million = 100 million.

-----

Personnaly , I know Apple don't even own the code , it's just illegally relicensing Open Source code ( mostly BSD ) other owns and the owner are not really protecting there code.

But that's not all they try to sugest that somehow Psystar systems and service are harming it's brand and it's good name.

Who would really confuse Apple system with Psystar systems ?

I know most of you probably already saw this http://xkcd.com/501/ comic, but that would be the kind of power EULAs would have if Apple wins.

Notice how that definition doesn't make any mention of post-sale restrictions?



And since that's a post-sale term that goes above and beyond copyright, the proper way to enforce it would be to require customers to sign a contract when they purchase a copy of OS X. But that would make the sales process much more complicated for Apple, which would cost them more money - and they might lose sales of OS X to boot, so of course Apple doesn't do that.

What it boils down to is that Apple wants to have their cake and eat it too. Or, in this case, sell their cake and eat it too.

So by your definition it would be illegal to sell a used Mac. Or a used anything that had a copyright. Lookout eBay and craigslist... you're next!

It's not duplicating the osX disk then selling the duplicate. What they are doing is purchasing the osX disk and transfering ownership along with the original media. This is perfectly legal under copyright.

There may be an issue if they charge a markup for the osX media in and of itself. Transferring the ownership of the media along with the media at the original cost while gaining profit from the hardware and services shouldn't break anything within copyright.

(Shame I don't work with copyright lawyers anymore, I'd buy one a cup of coffee and have an interesting discussion on the topic.)

This is categorically false in the US. The applicable decision is Softman, from which I quote:

The Court understands fully why licensing has many advantages for software publishers. However, this preference does not alter the Court's analysis that the substance of the transaction at issue here is a sale and not a license.

The whole opinion is worth reading carefully. The above quotation is simply a summary of the conclusions of a several page examination of precedents and authorities.

The case can be found here:

http://www.linuxjournal.com/files/linuxjournal.com/linuxjournal/art...

There is no doubt whatsoever, after the Softman decision, that when one buys a retail copy of software, at least in the US, the transaction is a purchase and not a license. None.

And the terms in which the evidence is examined and weighed make it almost certain that the same will apply to any Anglo Saxon Common Law jurisdiction.

Result: Apple will cancel all purchases for third party entities, or individuals posing for third parties.

Apple will require all purchases through the Apple Store Only with every new Mac piece of hardware and a proof of hardware purchase to buy a full copy.

Apple will make it clear that purchasing a copy of OS X without a proof of purchase agreement from Apple that certifies you bought Apple hardware will subsequently dissolve any right of legal responsibility by Apple on the quality of purchase, eliminate any warranty for said product, so on and so forth.

In short, outside of getting a copy on Ebay, through a friend or what not Psystar and all the other "clone" vendors will have no means to purchase copies of the operating system.

Future upgrades to OS X will include the hardware having an EFI firmware identification lock being required to even run the Operating System and/or upgrade any of the software.

Of course, this assumes that Psystar has even a prayer of winning on their end.

I think Apple could also go further and simply require a hardware serial number be used when installing. How else could Pystar or anyone install the OS without hardware? Could they legally create their own serial number generator? Apple could also follow Tivo's path and use a hardware type cookie that the OS would need in order to install/operate.

I don't see any valid path where Pystar can remain selling OSX without Apple not introducing more restrictions. So even if Pystar could win the case, it may just all be for moot anyways. I think most will agree that Apple is obsessive about control of their products. So is there any doubt should Apple lose they would just simply accept it?

Yeah... that sounds good. I bet it would take the better half of a day before that is circumvented.

Psystar could ship the computers the installation files on the hard drive so when it boots up you're in OSX's setup. Its up to the user to do an "I'm Feeling Lucky" google search to find a key that will work.

At least the Apple response you outline would put it back into the realm of consumer choice rather than court room antics. Even some sort of hardware identifier during the install process would be more valid than sending the suites to jump up and down in-front of a judge.

Sorry, but that just hurts existing and loyal Apple customers who bought their hardware and who Apple rely on. It will also be a counterproductive, bureaucratic nightmare for Apple to administer as well as something customers just cannot be bothered with (who faffs about with purchase orders for a computer?) and subsequent OS X sales will sharply decline.

It's amazing what happens when you throw impediments at your customers. You get less money. It sounds a bit like when the Soviet Union tried to register every single fax machine in the country. In short, not successful. Apple have as miniscule a share of the personal computer market as it is, although it has increased slightly in recent years, and hurting their existing core customer base in the process is not a terribly wise decision.

I see a lot of Apple die-hards who are absolutely steadfast in their belief that Apple can do something about this and coming up with stupid scare stories about how we'll all have to go to some shady eBay dealer, but they can't unless they want to badly hurt the very thing that keeps their Mac business afloat.


Sorry, but that's absolute crap. Apple wanted to move to generic Intel hardware because they needed the performance and they wanted to reap the benefits of lower costs from ecomomies of scale from generic hardware. If they start making their hardware less generic they start losing all of that as well as jumping through a lot of technical hoops on their own. That's expensive. They certainly haven't managed to achieve that thus far and they likely never will. They're playing on someone else's turf.

I can tell you that Intel is not going to give them one iota of help. They would have to be stir fry crazy to turn down a new, potentially large market that increases the demand for their hardware and makes them and OEMs less reliant on Wintel. It's also very, very expensive to maintain and support special case hardware and they have zero incentive to help anyone to do it.


If you can point me to a cast iron case that tells us that everything in an EULA is legally enforceable then I'm all ears. Given that it's dragged on for so long then that situation has less and less of a chance of changing. Apple needed to get that nailed down quickly. They haven't.

Edited 2009-07-29 22:47 UTC

"Microsoft forbids such use is to ensure it will work the way it is meant to work"

do you see anything wrong with that premise?

let's apply that same logic to Apple in this case.

"Apple forbids such use to ensure it will work the way it is meant to work"

... That being said, I purchased an Apple branded computer specifically because I knew I was buying an experience, that apple tries to ensure.

Exactly... which is why they shouldn't concern themselves with Psystar, other than to deny any support to their customers.

They don't forbid such use at all. Microsoft actually seems to know what an EULA is for. All that it means is that they intend their software to be installed on Windows. You can install it in WINE if you want, but if it doesn't work and you start complaining then they will point to the EULA. It's not a method for enforcing anything but a set of butt covering clauses.

I am not pro Apple and I firmly believe what Apple is doing is wrong. My post above was aimed at MS only.

Edited 2009-07-29 09:18 UTC

You'd still need a real operating system to load the "cloud OS X" (which would at most be not an OS at all, but a pile of Javascript), so that view doesn't really make any sense.

You'd still need a real operating system to load the "cloud OS X" (which would at most be not an OS at all, but a pile of Javascript), so that view doesn't really make any sense. "

No, just a boot loader that understands DHCP to get an IP, DNS to translate "os.apple.com" into an IP, and to download the kernel. Once the kernel is downloaded and running, it then mounts the root directory via NFS (or some other remote filesystem). Once that's done, it runs just like any other OS ... with a bit more latency when initially loading apps, as they have to be "downloaded" via the remote filesystem.

This isn't all that new. It just requires more download throughput than most home Internet connections. People with 100 Mbps connections, though, can easily do this.

Just search the web for "diskless linux" or "diskless freebsd" or similar terms, and you'll find lots of information on how to do this over a LAN. All that would be needed is for better network transports to handle the WAN/Internet speeds.

Well diskless linux works well because it's typically done on a private network. The administrator has full control over DNS and with bootp, they can tell the bootloader what to do next...

Most people don't administer their own DHCP server except for the little router that hands out an IP Address and set the DNS server and gateway.

What Apple could do is do more with their Airport product, that is their gateway to diskless OS X machines. Hard code a DNS server in the firmware so that it knows os.apple.com or whatever. OpenFirmware already does network booting. It could work.

If you think it is moral and reasonable to say you owning a copy of a software, can you say you "own" a copy a music or a movie? Do you also think the law should be changed to allow you play a music or a movie to the public freely because you "own" that copy?

Trust me, I don't think the current copyright system is anywhere to perfect. But I don't think you can make any lawmaker to believe the concept of "owning" a software copy works. If you had that concept, you would not have prevent others to apply that concept to movies, scripts, theaters, books, music, etc. And the whole copyright system would become just a mess. Even one considering the copyright system is defective does not think making such a revolution is workable.

I do agree with open source software, especially GPLv2 ones. And open source software should work within the framework of copyright. Actually GPL exactly let you know you don't fully "own" your copy of source code because it explicitly prevent you from closing it. So the whole system is just against the concept of "owning a copy". You don't! You are licensed with a copy.

You are confusing things, as usual on the web.

According to copyright law, yes you DO own that album you just bought. I'm currently listening to A Camp's "Colonia", and that spinning disc inside my CD player (yes, I'm old-fashioned) is most certainly mine according to copyright law. I'm allowed to do a number of things with said copy - such as making a number of personal copies.

At the same time, copyright - rightfully so - restricts me from doing a number of things as well. No public performance, no distributing, no altering and distributing, and so on.

The only person who may do those things is the copyright owner. While I own my copy of Colonia, I do not own the rights to Colonia (those are owned by Wigpowder). It's all in the name: copyright.

When it comes to software, the exact same distinction and rules apply. I own the copy of Mac OS X I bought, in the same way that I own my copy of Colonia. This means that I can do whatever I want with my copy of Mac OS X - including reselling it, making personal copies, and installing it wherever I want. As long as I remain within the rights granted to me as a consumer within copyright law.

So, what about the EULA, you say? Isn't that a contract? Technically, yes, it is a contract - in the same way that if I were to write on a piece of paper right now that by commenting on OSNews, you become my slave, and you must hand over your women to me (TO HELP WITH WORLD PEACE, YOU DIRTY BOY).

An EULA is NOT, I repeat, NOT part of the sales agreement between the vendor and I, and as such, it classifies as a post-sale restriction, which are illegal in many countries. The only way for an EULA to be valid is to have it presented and agreed upon AS PART OF THE SALE.

Someone brought up open source licenses - completely irrelevant for this case, and I'm surprised people STILL bring it up. The GPL is distribution license that grants you additional rights on top of what copyright law provides, but these rights only come into play when you want to modify and/or distribute software.

An EULA, by contrast, limits not the distribution, but the use of software. The GPL does no such thing.

I hope this clarifies everything a bit. I thought people knew this by now.

Edited 2009-07-29 11:10 UTC

You are really confusing. When you said "restricts me from doing a number of things," I don't know where the rationale of the "do whatever I want" comes from. And why you think preventing you from reselling it in part (notice Apple don't prevent you sell it with a Mac, as OS X always shipped with a Mac or considered an upgrade pack for a Mac) is so different from preventing you from public performance or distributing. I don't see so big difference you saw. I only see different things restricted by different licenses, but both are valid.

Correction for my comment:

...do whatever I want as long as it falls within copyright law.

And no, Mac OS X is not sold only as an upgrade or only as part of a Mac - I think you should take a good look at your retail copies of Mac OS X - of which I own several. They are full retail copies, with nothing indicating they are upgrade copies - except for the word of Apple fans.

You don't see a difference between reselling and public performances and copying/distributing?

Maybe, but that make no different that Apple may restrict how you resell it, just like GPL restricting how you redistribute something.



No, I don't. Actually it is not the resell forbidden by Apple. It's where you run OS X is restricted. Apple doesn't allow you run it on non-Apple-labeled machine. By selling it on a PC, you are and make your customer in a illegal status immediately. Actually restricting how to run a software is even more alike to the question of whether public performance is allowed than that of how to sell a software is.

Like Thom said, that's a post-sale restriction, and yet to be proven legal.

You are technically wrong. A EULA is a license, not a contract. Of the most important distinctions:
1. A contract requires reciprocation (i.e. a signature).
2. A contract implies damages as a result of breach of contract. A license implies no such thing and merely discontinues the exercise of any permissions granted in the license.

Apple has to argue that:
1. EULAs are valid
2. The specific terms in their EULA are valid
3. That Pystar violated those terms
4. That this therefore violates their license
5. Therefore, Pystar doesn't own their copy of OS X
6. Therefore, Pystar doesn't have the right to resale
7. Therefore, Pystar has committed copyright infringement
8. Therefore, Pystar is liable for damages

It is very clear that #3 is true. Pystar probably concedes this. Pystar is therefore attacking #1 and #2. Namely there argument will be something like, all EULAs (especially since they are post-sale) are invalid. If this fails, they will likely argue that some specific terms in the EULA are unconscionable. If they are successful in either of these arguments, the judge may invalidate the EULA. In that case, the purchase that occurred will revert to standard laws regarding the purchase of any copyrighted item (which Pystar has not violated).

I'm not sure they can win, but that is the logic of their case.

No one is talking about eliminating EULAs completely, only the portions which infringe on end users' rights of fair use and those portions which are contrary to existing laws.

This is incorrect as far as my understanding goes.

The important difference is that EULA place restrictions on end users that have legally acquired the item after they have legally acquired it.

The GPL and other such licenses don't place *any* restrictions on end users at all. GPL restricts the *distribution* of the source code and the restriction is stipulated before it is distributed. That is all. Big big difference.

No, your statement is incorrect. GPL restricts the "REdistribution" of the source code and the "REdistribution" is stipulated AFTER you get your copy of source code from a upstream distributor. Just a special case of the restriction placed by EULA.

So the fact is, Apple places a restriction in its EULA most people dislike. And FSF places a restriction in its GPL and most people like. But all restriction should be valid. You may make things licensed by GPL better to defeat things licensed by Apple. But it does not work to claim Apple's restriction is invalid.

No. Standard copyright restricts redistribution of the source code. The GPL grants you certain additional redistribution rights. If you don't agree with the the GPL, then that's totally cool with everybody, doesn't effect your ability to use the software and you simply have the default rights granted by copyright law. If you want distribution rights beyond that then you can get them by agreeing to the terms of the GPL.

So the GPL is both optional for the user and doesn't add any restrictions to them beyond standard copyright law. The Apple EULA is (in theory) mandatory for the end user and adds additional restrictions to the end user beyond standard copyright laws. That's a pretty big difference.

Section 1 of the GPLv2 ( GPLv3 uses to the same effect different language - e.g. conveying rather than distribution - and covers the whole legalese in much more detail ) makes it clear that you are allowed to make (and even distribute) as many verbatim copies of a GPL licensed work as you please, provided that you keep the license and copyright information intact.

The rights granted this way are a real superset of what you are usually granted by the various implemenations of copyright law per default (e.g. the right to resell your copy/instance, the right to produce (additional) copies for the purpose of backup or installation, the right to cite portions of the work for purposes of review and scholarship, the right to sell parts of the work independently, etc. ). The GPL FAQ explicitly mentions that concepts like "Fair use" trump the GPL[1].

The remainder of the license (and other, OSI conformant open source / free software licenses) grants specific additional rights that go way beyound what copyright usually provides out of the box (e.g. the right to make and distribute modified versions of the work, etc.).

Could you please point out where in your opinion the GPL (or any other OSI conformant F/OSS license) specifically conflicts with guaranteed (end-user) rights ?

Thanks in advance

[1]http://www.gnu.org/licenses/old-licenses/gpl-2.0-faq.html#GPLFairUs...

EDIT: Wording

Edited 2009-07-29 15:45 UTC

Yeah, you're totally wrong there. But good try

I don't see how I'm wrong. The GPL is a license that informs you of what rights you have regarding the licensed software. You must agree to and abide by the GPL or else not use the software. The only difference between a GPL and any other EULA is people think warm fuzzy thoughts when they read the letters "GPL" and cross themselves when they see a EULA.

EDIT: I normally preface my comments with "correct me if I'm wrong", so I guess this once I can let you off for only contradicting without correcting. Please, correct me properly now .

Edited 2009-07-29 04:20 UTC

GPL is a license you must conform to if you wish to re-use or modify a copyrighted work and release it in your own product. It has nothing to do with end users. The end *user* of GPL software is not required to do anything or abide by any contractual agreement. The same applies to other FOSS licenses - they license the copyrighted source code, not the end product.

EULA's are specifically for end-users of a product, it's a completely different contract that happens post-sale.

I'll clarify this as best I can given my first-hand knowledge of the subject:

In general (in U.S. law, anyway):

What a signature-less contract / license / terms of use may accomplish in regards to a copy of a copyrighted work:

1. Reiterate restrictions created within the law
2. Suggest limited options for remedies and venue
3. Dictate terms for additional privilege, if any

In no way may such a 'contract' create a restriction where a legal right exists, that would negate the purpose of the law. No EULA can require you to do something special to exercise your rights. The law does not distinguish between entities ( a business has the same rights as an individual ).

It is important to realize, naturally, that you have no legal right to the source code to a program, period. In order to gain this privilege, it must be given. Almost any terms placed upon this access is legally enforceable. This access can also be granted without signature - you use this special right, you are bound to the license.

A EULA can give you additional privilege, but it can not restrict you beyond your rights in law ( which are well defined ).

As such, you should know your rights:

* You can do anything you want with YOUR copy of a copyrighted work without ANY interference or restriction from the copyright holder... except:

1. Make illegal copies for redistribution purposes
2. Make more than one backup copy
3. Use any significant portion in your own works
-- a) what constitutes significant is up to the courts

That is pretty much it - no piracy!

You can modify an existing copy and resell, so long as you are truthful about said changes.

There are also, now, interoperability laws. This means any entity can reverse engineer a copyrighted or even patented work in an effort to interface with the technology.

Be that a spark plug, a car's ECU, an intel CPU, a proprietary light bulb socket, or a software program. Almost any effort to accomplish interoperability is legal in the U.S..

This is, obviously, where Psystar and others are get off with thinking they aren't doing anything wrong - because they are simply exercising their rights. Apple, actually, knows this. They have to know this by now anyway... But they know one more thing: judges generally are computer illiterate morons who think that nothing in the I.T. world has parallels in the real world - they will then ignore legal rights concerning "books" and "cars" and "everything else" and make up something that makes sense in the given situation - which, too often, depends on who paid them more money.

We best pray EULAs don't become restrictive contracts, then all McDonald's would need to do to prevent lawsuits is place a small sticker that says "Opening this box means you agree to the license agreement - details inside" (Yes, this is actually how many software companies do it!). When you read the agreement, while eating the crushed worms and chicken beaks they called a hamburger, you see a nice clause: "McDonald's is not responsible for anything, at all, thanks."

--The loon

"I'd like to point out that the various open source licenses like the GPL are EULAs too"

No, they aren't. They're entirely different.

Open source licenses are grants of rights - they grant you more rights than you could expect if there was no explicit license. EULAs are the opposite: they attempt to restrict you in ways you would not be restricted by simple copyright.

This is why you have to actively agree to an EULA for it to be valid, but you don't have to actively agree to the GPL for it to be valid.

You need to realize that invalidating clauses in one EULA does not invalidate all EULA's.

The real question is: Will that money cover the losses from the hardware front? We don't really know the margin profits of each OSX copy sold, they can even be selling it at a loss as a service for their customers. After all, they've already spent a nice amount buying the hardware in the first place. But this is pure speculation of course, and I completely agree that the very same moment I buy something, I'm entitled to use it as I see fit, as long as I don't infringe stuff like copyright for example.

They will raise the price of the OS X retail packages. They will HAVE to to make it less appealing for people to resell or use on non-Apple hardware...

They will implement some sort of special upgrade pricing scheme for all the point releases to make sure customers who are running OS X on Apple hardware don't pay more... but everyone else will be screwed is my guess.

At least that is what I would do.

[note]

We already know they have sucked up chip design/manufacturing companies (or company at least)... probably in anticipation of what is going on now.

Edited 2009-07-29 06:16 UTC

Or Apple will only offer OS X upgrades moving forward. What reason is there to sell a full version of OS X if your intended audience is already running a previous version.

If Apple stopped releasing the full versions for sale, and only started offering upgrade editions, Psystar would not be able to continue its attempt to make a Mac clone.

Just a thought...

The only benchmark we have to go on there is Microsoft and Windows, given the shear size of supply and demand in the generic PC market. They don't seem to have done too badly out of it.


What is known is that software can make a hell of a lot more profit per unit than any hardware/software combination. The expensive part is getting a software product built. Once you have done that then each unit sold is pretty much pure profit.

Edited 2009-07-29 23:11 UTC