Linked by Thom Holwerda on Mon 12th Oct 2009 18:25 UTC
Legal Now that all the nastiness of the discovery phase is behind us in the Apple vs. Psystar case, both parties are trying to get the case settled before it goes to court, much like the recent Vernor vs. Autodesk case. Both Apple and Psystar have filed motions asking for a summary judgement.
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Suppose?
by airwedge1 on Mon 12th Oct 2009 18:43 UTC
airwedge1
Member since:
2006-02-22

Suppose Pystar won the case, couldn't Apple just change their selling procedures in future products to clearly indicate they are licensing the product instead of selling the product, and add some more legal blocks?

Then this whole process would just simply restart all over again when they made the changes.

Reply Score: 1

RE: Suppose?
by jasutton on Mon 12th Oct 2009 18:52 UTC in reply to "Suppose?"
jasutton Member since:
2006-03-28

It doesn't really matter, as Apple (and pretty much every other software vendor) already claim this. Luckily for us (the end-users), as long as vendors continue to sell us copies of their software, we still fit into the definition of "owners of a copy" as Title 17 Section 117 of the US Code states.

I think this is one reason we've seen such a push from vendors toward a Software as a Service (SaaS) model. It's like the program manufacturer saying "if you don't own a copy of the software, then we can enforce whatever restrictions we'd like on you."

Reply Score: 2

RE[2]: Suppose?
by Thom_Holwerda on Mon 12th Oct 2009 19:24 UTC in reply to "RE: Suppose?"
Thom_Holwerda Member since:
2005-06-29

The funny part is, software makers are perfectly capable of presenting its customers with a contract they have to explicitly sign, in which it is exactly detailed what the customer may do and what the software maker will do. In fact, contracts like this are signed all over the world, every day.

...in the enterprise world.

Software companies know full well that they can screw over individual customers like us, because we don't have the legal power and financial reserves to take them on. However, large enterprises who sign software support contracts are a different story. Here, software makers need to take all the proper legal precautions to avoid getting sued.

It's a simple case of software companies not needing to act to the letter of the law with mere end users, because we pose no threat to them. However, in the enterprise world, this is different, and all of a sudden, software companies *magically* do it properly.

It's a dirty business.

Reply Score: 1

RE[3]: Suppose?
by boldingd on Mon 12th Oct 2009 19:48 UTC in reply to "RE[2]: Suppose?"
boldingd Member since:
2009-02-19

You, the individual customer, are not the powerless victims of Big Software. If the licensing terms of one vendor are too onerous, you can switch to a different vendor's products, or use Free/Open-Source software (ideally, anyway; sometimes it's more difficult than others, I admit). If the terms of a specific vendor's EULA starts to cost them large numbers of customers, if they are rational, they'll change those terms.

In a capitalist economy, it's you-the-consumer's job to keep large companies honest as much as it's anyone else's.

Edited 2009-10-12 19:50 UTC

Reply Score: 3

RE[3]: Suppose?
by lemur2 on Tue 13th Oct 2009 09:37 UTC in reply to "RE[2]: Suppose?"
lemur2 Member since:
2007-02-17

Software companies know full well that they can screw over individual customers like us, because we don't have the legal power and financial reserves to take them on. However, large enterprises who sign software support contracts are a different story. Here, software makers need to take all the proper legal precautions to avoid getting sued.

It's a simple case of software companies not needing to act to the letter of the law with mere end users, because we pose no threat to them. However, in the enterprise world, this is different, and all of a sudden, software companies *magically* do it properly.

It's a dirty business.


Agreed. Precisely so.

The only thing I could possibly add is that it is perhaps a moral duty for those of us who know these facts to advise other mere end users who may not be as aware that they have an attractive alternative which completely avoids all of this dirty business.

Reply Score: 2

RE: Suppose?
by looncraz on Mon 12th Oct 2009 19:17 UTC in reply to "Suppose?"
looncraz Member since:
2005-07-24

Wouldn't work. We are testing the validity of restrictions in an unsigned contract.

Restrictions being the removal of rights otherwise held.

If Psystar loses because they installed MacOS X on non-Apple hardware, we are all doomed. This would be the first confirmation that U.S. law has become so muddled as to permit restrictive non-signatory terms of use contracts.

If Psystar loses on those grounds, then you will rather quickly start seeing legal disclaimers where non existed prior. McDonald's boxes will have a EULA inside the box that you should read, but to which you agree merely by opening the box ( and it says McDonald's can't be held responsible for making you sick, or for that fried chicken head in your salad ).

Psystar could still lose on other grounds without this effect occurring, but I see little wrongdoing on Psystar's part for that result.

Apple accused Psystar of every wrongdoing possible, regardless of any factual basis for the claims. Apple also included the anonymous John Does ( original hackers ), which indicates that Apple thinks that their patented technology can't be hacked.

We can blame the RIAA for this mess, ultimately. The recording industry's narrow-minded dictation of the DMCA legislation made circumvention of digital media protection mechanisms illegal. Problem is that this has been previously granted as a right the consumer possesses for interoperability - a right the DMCA does NOT implicitly revoke.

Now, it is up to a judge to determine the meaning of the DMCA clause, which is a dangerous proposition.

Hopefully, the judge sees that the original intent of the DMCA clause is to provide punitive relief in cases of piracy - NOT to prevent interoperability.

Before the DMCA it was perfectly legal to do whatever was needed to make one product work wherever - unless you signed away that right. Sometimes, though, the court would even ignore your contract - making the claim that you, as a person, did not possess the right to sign away your rights... which is all the better!

--The loon

Reply Score: 2

OSNews legal analysis
by rhavyn on Mon 12th Oct 2009 19:40 UTC
rhavyn
Member since:
2005-07-06

"All in all, whereas Psystar's motion is built on the US Copyright Act and some of its exceptions, Apple's motion relies heavily on the Software License Agreement."

This comment is factually incorrect. If anything, Apple's copyright claims regarding first sale in it's motion are extremely compelling. Specifically, the first sale doctrine allows someone to sell the copy they "own." However, Psystar is selling both the copy they own (i.e. the disk they bought from Apple) as well as the copy they installed on the computer. Unless they purchased the copy installed on the computer, which is impossible since Apple did not and would not install that copy, they they are committing copyright infringement every time they sell a preinstalled copy of OS X.

And that is simply one point from Apple's motion. I'd highly recommend anyone intelligent enough to actually care about this stuff (i.e. anyone who is talking about unsigned contracts shouldn't apply) to read the motion and look at groklaw's analysis. Thom's dribble is, as usual, factually inaccurate and an abomination of a legal analysis.

Reply Score: 4

RE: OSNews legal analysis
by strcpy on Mon 12th Oct 2009 19:43 UTC in reply to "OSNews legal analysis"
strcpy Member since:
2009-05-20

[...] look at groklaw's analysis.


You just lost all your credibility.

Reply Score: 2

RE[2]: OSNews legal analysis
by shotsman on Mon 12th Oct 2009 19:50 UTC in reply to "RE: OSNews legal analysis"
shotsman Member since:
2005-07-22

Why have they lost all credibilty?
I'm sure there are quite a few OSNews readers who also read Groklaw.
The level of informed opinion & debate about this and other issues such as Software Patents is very high.

Reply Score: 3

RE[3]: OSNews legal analysis
by rhavyn on Mon 12th Oct 2009 19:55 UTC in reply to "RE[2]: OSNews legal analysis"
rhavyn Member since:
2005-07-06

Why have they lost all credibilty?
I'm sure there are quite a few OSNews readers who also read Groklaw.
The level of informed opinion & debate about this and other issues such as Software Patents is very high.


Because groklaw thinks Psystar is in the wrong and provides actual real legal reasons. This infuriates the people on OSNews who believe that they are correct and anything that disputes that is bad. How else could Thom's "analysis" be taken seriously by anyone who can actually think.

Reply Score: 4

RE[3]: OSNews legal analysis
by Thom_Holwerda on Mon 12th Oct 2009 19:56 UTC in reply to "RE[2]: OSNews legal analysis"
Thom_Holwerda Member since:
2005-06-29

PJ has started writing drivel like this:

"This is what I saw from the beginning, that this is an attack on the GPL and on FOSS, using Apple as a smokescreen [...] I have believed from day one that Psystar's real goal is to undermine or destroy Open Source licenses, particularly the GPL. That was SCO's goal too."

The black helicopters are strong in that one. I'm sorry, but if you write unsubstantiated nonsense like that, then you lose credibility, no matter the good work she's done (and does).

She equates licenses like the GPL to EULAs, and as anyone with a sane mind will tell you, that's utter bullshit. I find it very, very odd that someone like PJ is writing such nonsense - in fact, I first thought her site had been hacked or something.

Reply Score: 0

RE[4]: OSNews legal analysis
by rhavyn on Mon 12th Oct 2009 20:02 UTC in reply to "RE[3]: OSNews legal analysis"
rhavyn Member since:
2005-07-06

PJ has started writing drivel like this:

"This is what I saw from the beginning, that this is an attack on the GPL and on FOSS, using Apple as a smokescreen [...] I have believed from day one that Psystar's real goal is to undermine or destroy Open Source licenses, particularly the GPL. That was SCO's goal too."

The black helicopters are strong in that one. I'm sorry, but if you write unsubstantiated nonsense like that, then you lose credibility, no matter the good work she's done (and does).


I'm sorry but do you know what the word unsubstantiated actually means? You can agree or disagree, but to say that she provides no substantiation is, as per usual for you, factually incorrect.

She equates licenses like the GPL to EULAs, and as anyone with a sane mind will tell you, that's utter bullshit. I find it very, very odd that someone like PJ is writing such nonsense - in fact, I first thought her site had been hacked or something.


The GPL (and other open source license) and EULAs rely on many of the same legal principles. Which, if you knew anything about contract law, you'd understand. Now, go do some actual research on how the Autodesk ruling and first sale rights with respect to software will effect redistribution licenses like the GPL.

Reply Score: 0

RE[5]: OSNews legal analysis
by Thom_Holwerda on Mon 12th Oct 2009 20:06 UTC in reply to "RE[4]: OSNews legal analysis"
Thom_Holwerda Member since:
2005-06-29

The GPL (and other open source license) and EULAs rely on many of the same legal principles. Which, if you knew anything about contract law, you'd understand. Now, go do some actual research on how the Autodesk ruling and first sale rights with respect to software will effect redistribution licenses like the GPL.


Oh, you mean like this?

http://www.osnews.com/story/22233/The_Difference_Between_EULAs_and_...

The GPL is NOT, I repeat NOT, in ANY WAY like an EULA.

Reply Score: 1

RE[6]: OSNews legal analysis
by boldingd on Mon 12th Oct 2009 20:12 UTC in reply to "RE[5]: OSNews legal analysis"
boldingd Member since:
2009-02-19

The point continued to be contested, and obviously, continues to be contested. The fact that you wrote and published an article supporting your own point of view does not in any way constitute a proof of your position.

Reply Score: 2

RE[7]: OSNews legal analysis
by Thom_Holwerda on Mon 12th Oct 2009 20:13 UTC in reply to "RE[6]: OSNews legal analysis"
Thom_Holwerda Member since:
2005-06-29

I know, but he asked me to do research. I did. For that article.

Reply Score: 1

RE[6]: OSNews legal analysis
by sbergman27 on Mon 12th Oct 2009 20:14 UTC in reply to "RE[5]: OSNews legal analysis"
sbergman27 Member since:
2005-07-24

The GPL is NOT, I repeat NOT, in ANY WAY like an EULA.

I beg to differ. They are both written using letters which form words. Last I looked, that qualified as "any way".

Reply Score: 2

RE[6]: OSNews legal analysis
by rhavyn on Mon 12th Oct 2009 20:23 UTC in reply to "RE[5]: OSNews legal analysis"
rhavyn Member since:
2005-07-06

"The GPL (and other open source license) and EULAs rely on many of the same legal principles. Which, if you knew anything about contract law, you'd understand. Now, go do some actual research on how the Autodesk ruling and first sale rights with respect to software will effect redistribution licenses like the GPL.


Oh, you mean like this?

http://www.osnews.com/story/22233/The_Difference_Between_EULAs_and_...

The GPL is NOT, I repeat NOT, in ANY WAY like an EULA.
"

Wow, you posted an article you wrote to prove your point. Now, lets look at the actual analysis on the article, we'll start with legal citations. Oh, wait, there aren't any. Let's look at a language analysis between the different types of contracts. Oh, no quotes from any of them. Well, there are some charts.

Thom, look, I know that you have an opinion on this. Unfortunately, you are utterly incapable of backing up your opinion in a way that would pass the smell test of even a first year legal student. Your article lives in a fantasy world that pretends that who you distribute your software to or whether it is providing additional rights or removing rights matters. It simply doesn't. The EULA and the GPL are contracts and need to be analyzed as contracts. If you'd like to actually do some real research and cite real laws and real court cases and real contract language and then compare how a SLA will be effected by the first sale doctrine versus something like the GPL, I'd be happy to read it. But if you're just going to repeat the asinine drivel you normally post, then it's a waste of everyone's time.

Reply Score: 3

RE[7]: OSNews legal analysis
by boldingd on Mon 12th Oct 2009 20:25 UTC in reply to "RE[6]: OSNews legal analysis"
boldingd Member since:
2009-02-19

\golf_clap{}

Reply Score: 1

RE[7]: OSNews legal analysis
by Thom_Holwerda on Mon 12th Oct 2009 20:39 UTC in reply to "RE[6]: OSNews legal analysis"
Thom_Holwerda Member since:
2005-06-29

The differences between the GPL and an EULA are very important in this matter. Stating that both of them look like contracts does not make them the same from a legal standpoint.

The difference between an EULA and the GPL is that a GPL violation is automatically a *copyright* violation, whereas a violation of an EULA *could* be a copyright violation, but it could also be a mere *breach of contract*.

Breach of contract is not illegal. Copyright violation is illegal.

I can cite you every case in which the GPL has been tested in any court in any country in the world. Because the GPL *grants* rights you would not have under default copyright, violation of it means you are violating copyright. This core notion of the GPL has been upheld by courts all over the world, and it. Has. Never. Failed.

When it comes to cases in which the EULA has been involved, you'll see numerous cases going against the EULA, numerous cases going for the EULA; in general, it's all very muddy and nobody really knows what it all means.

On top of that comes the fact that the manner in which you agree to an EULA is very questionable, whereas agreement with the GPL is an unimportant point; mere users do not need to agree to the GPL (as it does not restrict usage in any way), and developers/distributors can not disregard it because that would mean they would violate copyright.

This is not an analysis, this is pure and simple fact, proven time and time again in all those GPL court cases.

Edited 2009-10-12 20:40 UTC

Reply Score: 1

RE[4]: OSNews legal analysis
by lemur2 on Tue 13th Oct 2009 09:49 UTC in reply to "RE[3]: OSNews legal analysis"
lemur2 Member since:
2007-02-17

PJ has started writing drivel like this:

"This is what I saw from the beginning, that this is an attack on the GPL and on FOSS, using Apple as a smokescreen [...] I have believed from day one that Psystar's real goal is to undermine or destroy Open Source licenses, particularly the GPL. That was SCO's goal too."

The black helicopters are strong in that one. I'm sorry, but if you write unsubstantiated nonsense like that, then you lose credibility, no matter the good work she's done (and does).

She equates licenses like the GPL to EULAs, and as anyone with a sane mind will tell you, that's utter bullshit. I find it very, very odd that someone like PJ is writing such nonsense - in fact, I first thought her site had been hacked or something.


Well, PJ wasn't wrong about SCO. SCO's various cases amounted to nothing but an insane and utterly groundless continuing attempted attack on the GPL license, funded somehow under the table from external parties.

However, I think PJ has missed the main thrust of Pystar's argument. Pystar claims it has a right to re-sell a single physical Apple software CD (one individual copy) that Pystar had earlier purchased legally, via the first sale doctrine. Pystar is possibly correct in that claim ... but this first-sale claim of Pystar's clearly has nothing whatsoever to do with the GPL and its claims and provisions as a software license.

Reply Score: 2

RE[2]: OSNews legal analysis
by sbergman27 on Mon 12th Oct 2009 19:57 UTC in reply to "RE: OSNews legal analysis"
sbergman27 Member since:
2005-07-24

You just lost all your credibility.

imnotalawyerbutanunbelievablybiasedparalegalwholovestograndstand.com was unavailable back when groklaw went live.

Edited 2009-10-12 19:59 UTC

Reply Score: 5

RE[2]: OSNews legal analysis
by lemur2 on Tue 13th Oct 2009 09:39 UTC in reply to "RE: OSNews legal analysis"
lemur2 Member since:
2007-02-17

"[...] look at groklaw's analysis.


You just lost all your credibility.
"

http://en.wikipedia.org/wiki/Proof_by_assertion

http://en.wikipedia.org/wiki/Appeal_to_belief

Reply Score: 2

RE: OSNews legal analysis
by boldingd on Mon 12th Oct 2009 19:57 UTC in reply to "OSNews legal analysis"
boldingd Member since:
2009-02-19

Agreed; Tom's legal analysis usually has lot more to do with 1) how things are in Europe and 2) how he thinks things should be than what actual US law says.

Reply Score: 2

v RE: OSNews legal analysis
by jgagnon on Mon 12th Oct 2009 20:03 UTC in reply to "OSNews legal analysis"
RE[2]: OSNews legal analysis
by rhavyn on Mon 12th Oct 2009 20:15 UTC in reply to "RE: OSNews legal analysis"
rhavyn Member since:
2005-07-06

I believe you are incorrect about the argument of them using two copies. The copy on the computer is necessary to get the copy they bought from Apple (the disks) to work (this is called installing software, not copying software). Reselling the disks with the software on the computer is the same argument. Both are necessary for it to be a "legitimate working copy".


Installing software is copying software, and congress specifically amended 17 U.S.C. § 117 in 1980 to allow the owner of a copyrighted work to make a copy as long as "such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner." (17 U.S.C § 117 (a)(1)). However, it also says that "[a]ny exact copies prepared in accordance with the provisions of this section may be leased, sold, or otherwise transferred, along with the copy from which such copies were prepared, only as part of the lease, sale, or other transfer of all rights in the program. Adaptations so prepared may be transferred only with the authorization of the copyright owner." (17 U.S.C § 117 (b)). But you'll find it mighty difficult to prove that

a) What is on the computer is an exact copy of the original copyrighted work
b) That Psystar made no modifications in order to ensure that OS X ran on their computers.

If Apple wins this round then this will surely go to the Supreme Court (likely headed there anyway). But, I don't see how they could possibly win this under the circumstances.


I don't see how Apple could possibly lose, and unfortunately, it doesn't appear that anyone on this site is capable of actually performing and presenting legal analysis in support of Psystar.

Reply Score: 2

RE[3]: OSNews legal analysis
by jgagnon on Mon 12th Oct 2009 20:31 UTC in reply to "RE[2]: OSNews legal analysis"
jgagnon Member since:
2008-06-24

If I buy a Mac and it comes with the original software on disc, then I choose to sell my Mac to a friend with that disc, am I in violation of copyright law? Short answer is, no. I own the copy I bought from Apple as well as the computer. If I sell it, I'm selling my copy of the software and my computer, not Apple's.

Pystar is buying copies of Mac OSX from Apple and then selling people those copies. Again, no violation of copyright. Installing said copies onto a computer is also not a violation of copyright. Selling the computers with the installed copy and original disks is also not a violation of copyright law. If it were, then anyone that has ever sold a computer with software on it would be in deep doodoo from this case.

Again, I fail to see how Apple could win this.

Reply Score: 2

RE[4]: OSNews legal analysis
by rhavyn on Mon 12th Oct 2009 20:36 UTC in reply to "RE[3]: OSNews legal analysis"
rhavyn Member since:
2005-07-06

If I buy a Mac and it comes with the original software on disc, then I choose to sell my Mac to a friend with that disc, am I in violation of copyright law? Short answer is, no. I own the copy I bought from Apple as well as the computer. If I sell it, I'm selling my copy of the software and my computer, not Apple's.


You bought a copy from the copyright holder and sold it. All perfectly fine as long as you don't keep any copies you made.

Pystar is buying copies of Mac OSX from Apple and then selling people those copies. Again, no violation of copyright. Installing said copies onto a computer is also not a violation of copyright. Selling the computers with the installed copy and original disks is also not a violation of copyright law. If it were, then anyone that has ever sold a computer with software on it would be in deep doodoo from this case.


I quoted the actual laws and gave you two things you needed to prove in order for selling a copy of software you install on a computer to be legal. Unfortunately, you failed to even comment on either of those things, and ignored the entirety of the legal citations. But, in any case, Psystar buying copies of OS X and then selling them is fine. Buying copies and selling the identical copy installed on a computer is also possibly fine (the law specifically requires the installed copy be identical, however I'm not sure how identical is defined in practice since you don't get a bit for bit identical copy when you install software). However, selling modified versions of the installed software is definitely not fine, and Apple claims that is the only way Psystar could be selling OS X. Read the legal citation I provided. Additionally, the Supreme Court has already held that a copyrighted work can be leased (i.e. licensed) and, in that case, the first sale doctrine doesn't apply. So you should also explain how Apple is legally selling a copy, not leasing it per the Supreme Court's ruling. See for example Mirage Edition, 856 F.2d at 1344.

Regarding "anyone that has ever sold a computer," it's impossible to comment since there are presumably many different versions of different software all with different license agreements, etc. But, yes, many of them probably did commit copyright infringement.

Again, I fail to see how Apple could win this.


Again, I fail to see an actual legal analysis.

Edited 2009-10-12 20:49 UTC

Reply Score: 2

RE[5]: OSNews legal analysis
by jgagnon on Mon 12th Oct 2009 21:55 UTC in reply to "RE[4]: OSNews legal analysis"
jgagnon Member since:
2008-06-24

That whole exact copy thing is bunk. If I install a driver for a new video card it is no longer an exact copy. If I install a boot loader so I can dual boot to another operating system then it is no longer an exact copy. I could name many more "infringements" of said "exact copy" rule. If what you are saying holds up in court then we will see a flood of pointless lawsuits. Value added resellers (VAR) will suddenly be a dying breed because literally anything could be considered a modification.

Fact is that you HAVE to modify an OS on a regular basis to maintain compatibility with your hardware and other programs. A program installing an updated system file could violate the copyright with what you are suggesting. In the Windows world, for instance, if I were to modify the registry so a program would work and then later sell my computer with that software on it, am I suddenly in violation of copyright law? This all could get very absurd very quickly.

Reply Score: 2

RE[6]: OSNews legal analysis
by Thom_Holwerda on Mon 12th Oct 2009 22:00 UTC in reply to "RE[5]: OSNews legal analysis"
Thom_Holwerda Member since:
2005-06-29

This all could get very absurd very quickly.


Of course, but absurdity is no problem for some people when it comes to defending Apple.

Reply Score: 2

RE[7]: OSNews legal analysis
by rhavyn on Mon 12th Oct 2009 22:25 UTC in reply to "RE[6]: OSNews legal analysis"
rhavyn Member since:
2005-07-06

"This all could get very absurd very quickly.


Of course, but absurdity is no problem for some people when it comes to defending Apple.
"

Thom, if you want to write articles about absurdities of copyright law in the United States I might even agree with you (I'd saw I would agree with you because much of US copyright law is absurd, but you'd likely get so many things wrong that I couldn't agree in the end anyways). But, you really need to differentiate between people defending Apple and people trying to bring a sense of reality to your fantasy land of rainbows and unicorns. It's not defending Apple to point out that much of your commentary on lawsuits is factually incorrect and most of your commentary is legally incorrect.

What's sad is that I've lost count of how many stories you've posted where myself and others have pointed out the legal inaccuracies and pointed you at case law and statute. Yet you have yet to a single time write something that even made an attempt to be factually accurate and based on real legal understanding.

So, you may find people "defending Apple" to be absurd, but I can assure you that nothing is absurd as watching you attempt to write something that even tangentially relates to the law.

Reply Score: 2

RE[6]: OSNews legal analysis
by rhavyn on Mon 12th Oct 2009 22:13 UTC in reply to "RE[5]: OSNews legal analysis"
rhavyn Member since:
2005-07-06

That whole exact copy thing is bunk. If I install a driver for a new video card it is no longer an exact copy. If I install a boot loader so I can dual boot to another operating system then it is no longer an exact copy. I could name many more "infringements" of said "exact copy" rule. If what you are saying holds up in court then we will see a flood of pointless lawsuits. Value added resellers (VAR) will suddenly be a dying breed because literally anything could be considered a modification.


If what I'm saying holds up in court? I'm not saying anything, I'm copying and pasting from the copyright law of the United States. Go ahead and verify it yourself if you don't believe me. I'm willing to be that black letter law will stand up in court too, by the way.

Fact is that you HAVE to modify an OS on a regular basis to maintain compatibility with your hardware and other programs. A program installing an updated system file could violate the copyright with what you are suggesting. In the Windows world, for instance, if I were to modify the registry so a program would work and then later sell my computer with that software on it, am I suddenly in violation of copyright law? This all could get very absurd very quickly.


Which is all very nice, but the way to change it is to lobby your member of Congress and your Senators.

Reply Score: 2

RE[5]: OSNews legal analysis
by alcibiades on Tue 13th Oct 2009 08:29 UTC in reply to "RE[4]: OSNews legal analysis"
alcibiades Member since:
2005-10-12

rhavyn,

In all your comments on this matter of transfer you fail to address the critical point that Psystar may not have been the lawful owner at the time the installation copies were made. The customer may have been.

They may have transferred everything, hardware and retail copy, to the customer before doing the installation.

If they did this, I don't see how they are in violation of S117, which permits the copies to be made by the owner, or for him to authorize others to make the copies (those essential to use with a machine).

They will not have transferred anything, and so cannot be accused of having transferred copies in an unauthorized way.

Reply Score: 2

RE[5]: OSNews legal analysis
by Soulbender on Tue 13th Oct 2009 09:57 UTC in reply to "RE[4]: OSNews legal analysis"
Soulbender Member since:
2005-08-18

However, selling modified versions of the installed software is definitely not fine, and Apple claims that is the only way Psystar could be selling OS X.


Lets go with for a moment because may need some clarifications.
Lets say I buy a car (ah, that old favourite) and use it for a while. While using it I obviously make some changes to it. Perhaps change the seat covers or even repaint it. This definitely constitutes changing it.
Am I not allowed to sell my now modified car to someone else? I mean, it is modified. Of course not, this is all fair use.
What I think, and correct me if I'm wrong, is the problem is not that modified copies are being sold but that Psystar has made a commercial venture out of reselling modified copies. Commercial reselling does not fall under fair use.
Of course, I'm not a lawyer (although I did study law briefly) so I could be wrong.

Edit: and it was Swedish law, not U.S law but copyright and fair use is relatively similar globally.

Edited 2009-10-13 09:58 UTC

Reply Score: 2

RE[4]: OSNews legal analysis
by alcibiades on Tue 13th Oct 2009 08:14 UTC in reply to "RE[3]: OSNews legal analysis"
alcibiades Member since:
2005-10-12

If I buy a Mac and it comes with the original software on disc, then I choose to sell my Mac to a friend with that disc, am I in violation of copyright law? Short answer is, no. I own the copy I bought from Apple as well as the computer. If I sell it, I'm selling my copy of the software and my computer, not Apple's.
are necessary for it to be a "legitimate working copy".



You could lose, in the following way. Suppose you resell your original mac with its original disks. This is perfectly legal and you need no permission from Apple to do this.

Suppose you bought a Mac running Tiger. You then bought a copy of Leopard and installed it, and then resold the system and the copy of Leopard.

It must be doubtful that Apple would deny you the right to do this, but in law, you do need Apple's permission for this sale, in the US. The reason is that you have made copies essential to use, under S117, and are now transferring them. For this the law says you need the copyright holder's consent.

Should you buy your copy of Leopard, resell it with your Tiger system to someone, then, having signed an agreement with him getting his authorization, you install his copy of Leopard on his machine. Now you are perfectly legal under S117, and need no permissions from anyone.

Yes, it is a bit odd and involved, but that is what the law (in this case S117) actually says.

Edited 2009-10-13 08:32 UTC

Reply Score: 3

RE: OSNews legal analysis
by alcibiades on Tue 13th Oct 2009 08:06 UTC in reply to "OSNews legal analysis"
alcibiades Member since:
2005-10-12

"However, Psystar is selling both the copy they own (i.e. the disk they bought from Apple) as well as the copy they installed on the computer. Unless they purchased the copy installed on the computer, which is impossible since Apple did not and would not install that copy, they they are committing copyright infringement every time they sell a preinstalled copy of OS X.


Not necessarily. It could be that Psystar will argue that it transferred the copies of OSX that it had bought to the end customer, along with the hardware it was about to install as. It could be that Psystar will then show that in its contracts with the customer it only acted as the customer's authorized agent.

In that case, no transfers of anything will have taken place, except for the transfers of the original retail copy and the Psystar hardware. There will have been no transfers of the copies made in way of installation, since they will always have been the customer's and created only by someone acting as his agent in the way that S117 explicitly allows.

I don't know if that is how Psystar did business, though I assume that if it is relying on S117, this is how it now does it.

Your point about the Blizzard case (leaving aside the rhetoric which is completely unhelpful) is a substantive one, and I agree that Blizzard is relevant though am finding it a little hard to decide just how it applies.

Reply Score: 2

Higher Priced OSX?
by AndrewDubya on Mon 12th Oct 2009 19:54 UTC
AndrewDubya
Member since:
2006-10-15

So what is believed to be the true motive behind this? I can imagine:
1. Apple wants to make money off of their hardware, and wants to lock users in to that; or
2. Apple truly wants to tailor the experience and demands the hardware to do it.

My guess would be that it's a combination of both of these. If Psystar succeeds (doesn't matter much to me whether they do or not), Apple could easily just increase the price of the software.

I'm sure they'd rather not have to offer rebates (although automatic rebates through the Apple store and maybe other sellers would be easy enough), but they could offer rebates online based on some sort of hardware serial number or something.

I don't care much for Apple's practices, but it almost seems like a reasonable argument to me that the software is cheaper because they make their money off of hardware. Would people be opposed to paying the "real" price for the software if they were using it on non-Apple hardware?

Does this mean that, long term, Apple would end up selling their hardware cheaper and software at a higher price? There are a million ways they can work around "the problem," and it would all depend on whether their goals are to make money or lock down the experience. And whether the "fix" is reasonable would depend on the goal of the end-user to pay a subsidized price for an OS or if they're just having fun with their PC.

I mostly agree that software licenses are a painful joke, but I don't mind admitting that Apple probably has some point. After all, many would argue that OS X is superior to Windows, yet it seems to be sold heavily discounted compared to Windows.

Reply Score: 2

Comment by boldingd
by boldingd on Mon 12th Oct 2009 20:04 UTC
boldingd
Member since:
2009-02-19

Psystar also dismisses Apple's claim that the clone maker is in violation of the Digital Millennium Copyright Act. "Apple cannot assert claims under the DMCA for circumvention of a technological protection measure because such claims can be brought only when the circumvention is for the purpose of and has the effect of infringement," the motion reads, "Circumvention alone is not a violation of the DMCA; only circumvention to gain unauthorized access to that which copyright protects is actionable."

(emphasis mine)

That is simply not correct, and that's the whole problem with the DMCA: it makes any circumvention of a technological protection measure criminal, regardless of the purpose for the circumvention. That's exactly the reason that the DMCA effectively castrates Fair Use: because whether you circumvented the protection measure to infringe or not is irrelevant.

The FSF has made a lot of noise over this situation for a while. I don't think anyone except content distributors likes it, but I think that the present consensus is that that is the way that the DMCA actually reads. I don't know if it's been tested in court or not.

Reply Score: 2

Would attitudes be the same...
by mrhasbean on Mon 12th Oct 2009 23:29 UTC
mrhasbean
Member since:
2006-04-03

...if someone released as a commercial package an "installer" that allowed Windows to install without having to be activated (and therefore circumvent Microsoft's security protection)? I can hear people now screaming "but that would make it easy to pirate it!!!" So my question is this. Doesn't Pystar's software - which they are now going to license (chortle) to others, do exactly that too? Make it easy to pirate Apple's copyright material and install it on as many non-Apple machines as you like? Don't you think maybe the reason Apple haven't gone down the whole activation path is because the license only allows it to be installed on Apple hardware?

I've said this before and I'll say it again, if Pystar "wins" this case, they will not win, and neither will anyone else. To date it's been easy to obtain a copy of OSX and install it on whatever Frankenhackenmonstertosh you want to build, but a "win" for Pystar here will make that proposition a lot more expensive. I guarantee Apple will simplify whatever processes they put in place for legitimate Mac users, but for the rest they will make it a nightmare. They may have their hand forced, but they won't be required to make it easy...

Reply Score: 0

alcibiades Member since:
2005-10-12

...if someone released as a commercial package an "installer" that allowed Windows to install without having to be activated (and therefore circumvent Microsoft's security protection)? I can hear people now screaming "but that would make it easy to pirate it!!!" So my question is this. Doesn't Pystar's software - which they are now going to license (chortle) to others, do exactly that too? Make it easy to pirate Apple's copyright material and install it on as many non-Apple machines as you like? Don't you think maybe the reason Apple haven't gone down the whole activation path is because the license only allows it to be installed on Apple hardware

No this is not correct. You will still be only able to install one retail copy on one machine. Piracy will be no more legally permissible then than it is now. It is irrelevant.

You may be arguing that to restrict the hardware available restricts the number of machines on which pirated copies can be installed, and so helps. True but irrelevant. Sony could argue the same. You may only play Sony CDs on Sony players. If we allow them to play on just any player, why, that would make piracy more attractive.

Tough. That does not mean that your attempts to restrict playing to Sony machines has any legal or social merit.

Reply Score: 2

Groklaw and RMS
by Thom_Holwerda on Mon 12th Oct 2009 23:39 UTC
Thom_Holwerda
Member since:
2005-06-29

Heh, even RMS himself disagrees with PJ, as he argues the first sale doctrine is a good thing. If the foremost GPL advocate says first sale is important, then you can see where people like me are coming from when we say PJ's lost it when she argues first sale is dangerous for the GPL.

http://www.gnu.org/philosophy/misinterpreting-copyright.html

The third error: maximizing publishers' power
Once the publishers have obtained assent to the policy goal of maximizing publication output at any cost, their next step is to infer that this requires giving them the maximum possible powers — making copyright cover every imaginable use of a work, or applying some other legal tool such as “shrink wrap” licenses to equivalent effect. This goal, which entails the abolition of “fair use” and the “right of first sale,” is being pressed at every available level of government, from states of the U.S. to international bodies.

This step is erroneous because strict copyright rules obstruct the creation of useful new works. For instance, Shakespeare borrowed the plots of some of his plays from other plays published a few decades before, so if today's copyright law had been in effect, his plays would have been illegal.

Even if we wanted the highest possible rate of publication, regardless of cost to the public, maximizing publishers' power is the wrong way to get it. As a means of promoting progress, it is self-defeating.

Reply Score: 2

RE: Groklaw and RMS
by rhavyn on Tue 13th Oct 2009 01:34 UTC in reply to "Groklaw and RMS"
rhavyn Member since:
2005-07-06

Heh, even RMS himself disagrees with PJ, as he argues the first sale doctrine is a good thing. If the foremost GPL advocate says first sale is important, then you can see where people like me are coming from when we say PJ's lost it when she argues first sale is dangerous for the GPL.

http://www.gnu.org/philosophy/misinterpreting-copyright.html


And lets look at Mr. Stallman's CV ...

Stallman graduated from Harvard in 1974 with a BA in physics. During his college years, he also worked as a staff hacker at the MIT Artificial Intelligence Lab, learning operating system development by doing it. He wrote the first extensible Emacs text editor there in 1975. He also developed the AI technique of dependency-directed backtracking, also known as truth maintenance. In January 1984 he resigned from MIT to start the GNU project.


Nope, no JD there. Now, let's here from Raymond Nimmer

Dean, University of Houston Law Center
Distinguished Chair in Residence, UCP

and
Raymond Nimmer is the Dean and Leonard Childs Professor of Law at the University of Houston Law Center and co-director of the Houston Intellectual Property and Information Law Institute. He is the author of over twenty books and numerous articles, his most recently published books are Modern Licensing Law (2008, West Publishing), The Law of Electronic Commercial Transactions (Pratt & Sons, 2003) and The Law of Computer Technology (4th edition, West 2009).


Who says in his declaration in Vernor v Autodesk (http://www.groklaw.net/pdf/Autodesk-52.pdf)

20. Software licenses apply to billions of dollars of commerce. The entire software industry reflects this, including those parts of the industry that distribute "free" or "open-source" software and rely on terms that limit the licensee's right to redistribute the copyrighted work. Indeed, while a ruling that a delivery of a copy of software is a sale of the copy would seriously injure the software industry, it would also eviscerate open-source software which, for many companies, involves delivery of copies subject to restrictions that allow its redistribution only under stated conditions.


So Thom, let's see an article (hell, a comment would do) showing why Nimmer's analysis is incorrect. Maybe site an authority who actually has a JD while you're at it.

Reply Score: 0

RE[2]: Groklaw and RMS
by alcibiades on Tue 13th Oct 2009 08:25 UTC in reply to "RE: Groklaw and RMS"
alcibiades Member since:
2005-10-12

Yes, but Mr Nimmer was handled very roughly by the judge in the Autodesk case. Not only his opinions as such, but his standing also. A very dry sense of humor there, and Mr Nimmer must be smarting a little from it. Reliance on Mr Nimmer has become a little less secure following that.

Reply Score: 3

GPL in a nutshell:
by lemur2 on Wed 14th Oct 2009 02:13 UTC
lemur2
Member since:
2007-02-17

GPL license allows you to:
Receive the (source and binary) code ... allowed. You have permission.
Read & study the (source and binary) code ... allowed. You have permission.
Copy the (binary) code (install it) to as many of your own machines as you like ... allowed. You have permission.
Run the (binary) code on as many of your own machines as you like ... allowed. You have permission.
Modify the (source and binary) code as you like for use on as many of your own machines as you like ... allowed. You have permission.
Redistribute the (binary AND matching source) code (modified or not) to anyone else (as long as you enable them to do everything listed here as you were allowed) ... allowed. You have permission.

Anything else outside of the above you might want to do ... you have no permission granted you via this GPL document.

Additional permissions may be sought via another license with different terms, otherwise the provisions of copyright law apply.

Edited 2009-10-14 02:21 UTC

Reply Score: 3