Linked by Thom Holwerda on Wed 8th Sep 2010 22:09 UTC
Hardware, Embedded Systems There's this hole here at OSNews, a hole left when Psystar was dealt a devastating blow by Apple's legal team. That whole saga provided a nice steady stream of news articles that's been dried up for a while. However, Psystar was not the only clone maker out there - what happened to Quo Computer, that clone maker with an actual real-world store front? They're still here, and just launched a new product.
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Good news for a change. :)
by Tuishimi on Wed 8th Sep 2010 22:32 UTC
Tuishimi
Member since:
2005-07-06

I wish him well.

Reply Score: 2

There every day
by braddock on Wed 8th Sep 2010 22:47 UTC
braddock
Member since:
2005-07-08

I ride past the Quo shop on my way to the office. Although they still have no outside signage, the shop doors are almost always open with signs of life within.
I went in and met the proprietor once last year and he made a very good impression.

Reply Score: 1

Good luck...
by mrhasbean on Wed 8th Sep 2010 22:51 UTC
mrhasbean
Member since:
2006-04-03

...to them and their customers. If that's what floats your boat go for it. Mac has a (relatively) small market and these guys are a niche part of that market, but undoubtedly they will do well out of those who want the benefits of a Mac but don't believe they should have to pay Apple for it. I dare say if they went the same marketing path as Pystar Apple would get aggressive toward them, but while they're running under the radar they're not worth worrying about.

Reply Score: 3

RE: Good luck...
by atsureki on Wed 8th Sep 2010 22:55 UTC in reply to "Good luck..."
atsureki Member since:
2006-03-12

those who want the benefits of a Mac but don't believe they should have to pay Apple for it.


That really sums it up, doesn't it?

Apple's lawyers couldn't have said it better.

Reply Score: 3

RE[2]: Good luck...
by alcibiades on Thu 9th Sep 2010 15:40 UTC in reply to "RE: Good luck..."
alcibiades Member since:
2005-10-12

Apple's lawyers couldn't have said it better.

Why would they say it at all? And who would care if they did?

Reply Score: 2

RE: Good luck...
by tupp on Thu 9th Sep 2010 01:19 UTC in reply to "Good luck..."
tupp Member since:
2006-11-12

... those who want the benefits of a Mac but don't believe they should have to pay Apple for it.

But the end user is paying Apple full retail for the OS -- that's the only part that is Apple.

Please, fanboys. In such situations, nobody is pirating anything nor doing anything that is wrong. Apple is getting paid fairly at the price it sets, in every instance.

Reply Score: 7

RE[2]: Good luck...
by tylerdurden on Thu 9th Sep 2010 01:33 UTC in reply to "RE: Good luck..."
tylerdurden Member since:
2009-03-17

"... nobody is pirating anything nor doing anything that is wrong..."

Well, they are technically breaking the EULA for a profit. So it is an "iffy" proposition at best.

The main problem IMHO is that these sort of vendors have little value proposition, the prices/configs in their website aren't that exciting ($1K for a configuration with an ATI 3000 series GFX?). So the hardcore geeks seeking a hackintosh can probably get a better deal in the HW elsewhere, and since they can't provide that much support for the OS... neophyte customers will probably go directly to apple.

Alas, best of luck I guess...

Reply Score: 2

RE[3]: Good luck...
by tupp on Thu 9th Sep 2010 04:36 UTC in reply to "RE[2]: Good luck..."
tupp Member since:
2006-11-12

Well, they are technically breaking the EULA for a profit. So it is an "iffy" proposition at best.

Making a profit and going against the EULA are two separate topics.

First of all, where does it say that any manufacturers have marked-up OSX? I'm pretty sure that they are selling OSX at cost. In such a case, the manufacturer is purchasing OSX at the end user's behest.

Even if the manufacture were not buying OSX directly at the user's behest and were marking-up the price and making a profit, that would be their rightful prerogative. Once they've bought a copy of OSX, that copy is theirs to sell at any price they can get. Right of ownership has been a basic principle of western trade for several millennia.

Now, an EULA is merely a declaration by a manufacturer. Just because something is declared in an EULA doesn't make that declaration right nor "legal."

Indeed, the OSX EULA includes some doosies. For instance, one part of the EULA states, "You also agree that you will not use the Apple Software for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons." This clause means that some engineer at Lockheed is prohibited from using his Macbook to compose a memo reminding personnel to use sunscreen before they attend an upcoming flight test in the Mohave. Pretty silly, and definitely not legally binding.

Remember that Psystar lost it's case because Apple convinced a judge that Psystar had violated the very questionable DMCA, by circumventing Apple's "technology" designed to prevent OSX from being installed on non-Apple computers. The EULA had nothing to do with the rulings.

So, Psystar and Quo are not doing anything wrong by buying copies of OSX at the user's and/or buying OSX and marking it up.

Likewise, going against an EULA is neither illegal nor unethical.

Reply Score: 5

RE[4]: Good luck...
by rhavyn on Thu 9th Sep 2010 07:18 UTC in reply to "RE[3]: Good luck..."
rhavyn Member since:
2005-07-06

Even if the manufacture were not buying OSX directly at the user's behest and were marking-up the price and making a profit, that would be their rightful prerogative. Once they've bought a copy of OSX, that copy is theirs to sell at any price they can get. Right of ownership has been a basic principle of western trade for several millennia.


U.S. copyright law (17 USC 109 if you want to look it up) gives you right right to sell a lawfully owned copy of a copyrighted work. As pointed out in the Psystar judgement (page 7 starting around line 14) an unlawfully made copy voids the first sale defense. Further, by installing the software onto a computer and then selling the computer you are actually selling two copies of the software. The limited exception in 17 USC 117a does not make for a lawful copy that can be resold as per 17 USC 109 since 117a only holds if 1. the copy is an essential step in the utilization of the program or 2. it's a backup copy that is destroyed if you sell the original copy. We're not talking about the utilization of anything here since we're selling the computer not using the software and I think everyone can agree backups are irrelevant to the current discussion. The further exception in 17 USC 117b fails because a "further adaptation" (i.e. modification) is necessary in order to make the software work on a generic PC and you're not going to get the copyright owner's permission (Apple) necessary to make the sale legal.

The only way you can do this and potentially not break the law is if you have 3 separate transactions take place, the purchase of a computer, the purchase of OS X and then some kind of consulting contract where the consultant installs the purchased copy of OS X on the purchased computer. Unfortunately, that is simply infeasible for any kind of mass production since each machine would need to be hand processed using the specific disk from the specific copy purchased. Any pre-installation or usage of an imaging machine would run you afoul of the above, and as the Psystar judgement makes clear, you will lose that lawsuit.

Please note, none of the above steps outside the realm of simple copyright law. EULAs are not involved or relevant, that would be an entirely separate hurdle for you.

Remember that Psystar lost it's case because Apple convinced a judge that Psystar had violated the very questionable DMCA, by circumventing Apple's "technology" designed to prevent OSX from being installed on non-Apple computers. The EULA had nothing to do with the rulings.


Psystar lost it's case because they committed straight up copyright infringement. The ruling parts 2 A, B and C are all about normal copyright infringement. You need to get all the way to part 4 on page 13 (of a 16 page document) before the DMCA is discussed.

So, Psystar and Quo are not doing anything wrong by buying copies of OSX at the user's and/or buying OSX and marking it up.


US copyright law would tend to disagree with your assertion.

And before anyone wants to quote some other countries laws, can we please keep in mind that all the companies in question in the article are based in the US, so US law is all that matters.

Also, too, as per usual the quality of the legal information provided on OSNews is generally worse than useless, please consult an actual attorney before messing around with other people's copyrighted or patented works.

Reply Score: 1

RE[5]: Good luck...
by tupp on Thu 9th Sep 2010 09:36 UTC in reply to "RE[4]: Good luck..."
tupp Member since:
2006-11-12

U.S. copyright law (17 USC 109 if you want to look it up) gives you right right to sell a lawfully owned copy of a copyrighted work. As pointed out in the Psystar judgement (page 7 starting around line 14) an unlawfully made copy voids the first sale defense.

Although I can already guess the answer, exactly where is the "unlawfully made copy?"


Further, by installing the software onto a computer and then selling the computer you are actually selling two copies of the software. The limited exception in 17 USC 117a does not make for a lawful copy that can be resold as per 17 USC 109 since 117a only holds if 1. the copy is an essential step in the utilization of the program or 2. it's a backup copy that is destroyed if you sell the original copy.

The original copy and the installed copy are both allowed, because the installed copy "is an essential step in the utilization of the program."


We're not talking about the utilization of anything here since we're selling the computer not using the software and I think everyone can agree backups are irrelevant to the current discussion.

Or, they are selling the computers with the software installed, or they are installing the software at the user's behest.


The further exception in 17 USC 117b fails because a "further adaptation" (i.e. modification) is necessary in order to make the software work on a generic PC and you're not going to get the copyright owner's permission (Apple) necessary to make the sale legal.

Of course 17 USC 117a(1) allows the owner of software to adapt the software to work on his/her machine.

So, it technically depends on who is the owner of the software (although, in principle, it shouldn't). If the end user buys the software and then instructs Psystar to install it, Psystar would not be selling/transferring an adaptation.

Unfortunately, Psystar did not argue this very well, or the judge is an idiot or corrupt.


The only way you can do this and potentially not break the law is if you have 3 separate transactions take place, the purchase of a computer, the purchase of OS X and then some kind of consulting contract where the consultant installs the purchased copy of OS X on the purchased computer.

Since 17 USC 117a(1) permits the adaptation, there could be just a single transaction, with a verifiable request by the end user for Psystar to install the user-purchased OSX on the computer. Of course, Psystar never pursued this avenue.


Unfortunately, that is simply infeasible for any kind of mass production since each machine would need to be hand processed using the specific disk from the specific copy purchased.

Pure conjecture. It could be profitable. Lots of small computer houses use individual discs.


Any pre-installation or usage of an imaging machine would run you afoul of the above, and as the Psystar judgement makes clear, you will lose that lawsuit.

The imaging machine is another point that Psystar didn't fight very well. But it doesn't matter, as they could have just used individual disks, and the point would have been moot.


Please note, none of the above steps outside the realm of simple copyright law.

It is of no consequence, whether or not those topics fall within the realm of copyright law. What is important is whether or not Psystar violated copyright law.


EULAs are not involved or relevant, that would be an entirely separate hurdle for you.

Please tell that to the fanboys.


Psystar lost it's case because they committed straight up copyright infringement. The ruling parts 2 A, B and C are all about normal copyright infringement. You need to get all the way to part 4 on page 13 (of a 16 page document) before the DMCA is discussed.

The ruling in 2A was a technicality, in that Psystar failed to affirm their defense under USC 117a in a timely fashion. A technicality, a bad judge and a travesty of justice.

The ruling in 2B related to Psystar's failure to provide evidence that they included an official OSX DVD with every OSX installation. Even though Apple admitted in it's opening statement that Psystar included the DVD's, Psystar's failure to provide evidence was cited as the reason for this ruling. Another technicality, bad judge and travesty of justice.

The ruling in 2C involves whether or not Psystar's installation of OSX is a modified "derivative" of OSX that violates 17 U.S.C. 101. Again, 17 USC 117a(1) clearly allows modifications to make a program run on a machine, which is directly at odds with 17 U.S.C. 101. This is a gray area that Psystar didn't argue very well. However, the ruling should have favored Psystar, because the modification merely made OSX run on the machines -- it didn't change the form nor essence of the copyrighted material.

In addition, it is difficult to imagine how the judge could've missed this point.

Thus, parts 2 A, B and C of the ruling were made, due to two technicalities and an obviously bad job by Psystar's lawyer and the judge. Not one of these parts of the ruling was the "clincher."

The real clincher was the ruling concerring the DMCA anti-circumvention provision. However, this DMCA provision also contradicts 17 USC 117a(1), relative to this case. Furthermore, the spirit of the DMCA anti-circumvention provision was to deter pirating, and there is no pirating in this case, as retail DVD copies of OSX were purchased for each installation.

It is curious that Psystar never mentioned these points.


So, Psystar and Quo are not doing anything wrong by buying copies of OSX at the user's and/or buying OSX and marking it up.

US copyright law would tend to disagree with your assertion.

Copyright law does not prohibit reselling of software nor does it set a price at which software should be resold.


Also, too, as per usual the quality of the legal information provided on OSNews is generally worse than useless,...

I bow to your superiority in legal matters.

Edited 2010-09-09 09:43 UTC

Reply Score: 5

RE[6]: Good luck...
by rhavyn on Thu 9th Sep 2010 16:11 UTC in reply to "RE[5]: Good luck..."
rhavyn Member since:
2005-07-06

The original copy and the installed copy are both allowed, because the installed copy "is an essential step in the utilization of the program."


Except, as already stated 17 USC 117a doesn't apply to 17 USC 109, so the essential step is irrelevant because you aren't running the software.

Or, they are selling the computers with the software installed, or they are installing the software at the user's behest.


Except, as stated below and in the original post, if the software is already installed on the computer then it isn't at the user's behest and 17 USC 117b doesn't apply without the original copyright owner's permission.

Which is the entire reason that Psystar lost, it's black letter law.

Of course 17 USC 117a(1) allows the owner of software to adapt the software to work on his/her machine.

So, it technically depends on who is the owner of the software (although, in principle, it shouldn't). If the end user buys the software and then instructs Psystar to install it, Psystar would not be selling/transferring an adaptation.

Unfortunately, Psystar did not argue this very well, or the judge is an idiot or corrupt.


Technically. In principle. There are no technicalities or principles here, it's black letter law. Just read the statutes, they're quite clear. And, you're making up hypotheticals about something that isn't hypothetical. Psystar didn't install the software on behalf of a user, they used an imaging station to image machines before they were purchased. They were selling/transferring an adaptation. Claiming a judge is biased because he read the law as written, applied binding precedent and came up with the ruling that was ridiculously obvious to anyone who actually understands copyright law is pretty idiotic itself, IMHO.


Since 17 USC 117a(1) permits the adaptation, there could be just a single transaction, with a verifiable request by the end user for Psystar to install the user-purchased OSX on the computer. Of course, Psystar never pursued this avenue.


No, there couldn't be a single transaction. The person making the adaptation needs to be doing it at the behest of the owner of a lawful copy. The transaction to make the user the lawful owner must take place before the transaction to make the copy.

"Unfortunately, that is simply infeasible for any kind of mass production since each machine would need to be hand processed using the specific disk from the specific copy purchased.

Pure conjecture. It could be profitable. Lots of small computer houses use individual discs.
"

I didn't say it couldn't be profitable, I said it's infeasible for mass production. Since you are even specifically said "small computer houses" I'm going to assume you actually agree with me. Nobody is going to build a national or international hardware business installing modified versions of OS X 1 machine at a time, by hand, from original media.

The imaging machine is another point that Psystar didn't fight very well. But it doesn't matter, as they could have just used individual disks, and the point would have been moot.


The didn't fight it very well because it's indefensible. Did you read the ruling? Page 6 starting at line 15 explains why and immediately before that is the precedent. Money quote: "[the Ninth Circuit held that this was not fair use..." If they used individual disks their business model would fall apart since they were talking about selling thousands and 10s of thousands of computers, not hundreds. So I guess not only was this judge biased, the 9th circuit was biased in 2006 when it made that ruling.

It is of no consequence, whether or not those topics fall within the realm of copyright law. What is important is whether or not Psystar violated copyright law.


Which they did, conclusively. And, since everything I wrote is simply talking about the exact statues which Psystar ran afoul of, I'm not sure why you're disagreeing with me. Simply disliking the law doesn't make you exempt from it, nor does it change what it says. And wishing or pretending that things aren't how they actually are is a sign of insanity. You'd be much better off learning what these laws say, understanding how they are actually invoked, how judges actually rule and trying to get them changed so that they work the way you'd like them to work.

The ruling in 2A was a technicality, in that Psystar failed to affirm their defense under USC 117a in a timely fashion. A technicality, a bad judge and a travesty of justice.


Again, did you read the ruling? The judge addressed a 117 defense in 2A as though Psystar did plead it and he concluded page 5 line 6 "but the question is whether Psystar can rely on Section 117 to escape liability. It cannot." Additionally "[a]t all events, the assertion of Section 117 is so frivolous in the true context of how Psystar has used Mac OS X that a belated attempt to amend the pleadings would not be excused."

I also find it offensive that you claim a biased and bad judge simply because he ruled differently from how you'd want, even if it's entirely in line with precedent and the law.

The ruling in 2B related to Psystar's failure to provide evidence that they included an official OSX DVD with every OSX installation. Even though Apple admitted in it's opening statement that Psystar included the DVD's, Psystar's failure to provide evidence was cited as the reason for this ruling. Another technicality, bad judge and travesty of justice.


Please, don't misconstrue the ruling with me, I actually read it. They didn't fail to provide evidence that they always shipped the disk they actually failed to ship the disk "[a]ccording to Table 2 in Kelly’s declaration, three of the other nine computers did not include a Mac OS X DVD at all (ibid.)" Additionally, the version of the software on the computer was not the same that was on the disk when it was provided: "He further stated that the Mac OS X software for five of those computers was not the same as the software found on the Mac OS X DVDs shipped with the computers." Instead of making things up, try addressing what actually happened.

The ruling in 2C involves whether or not Psystar's installation of OSX is a modified "derivative" of OSX that violates 17 U.S.C. 101. Again, 17 USC 117a(1) clearly allows modifications to make a program run on a machine, which is directly at odds with 17 U.S.C. 101. This is a gray area that Psystar didn't argue very well. However, the ruling should have favored Psystar, because the modification merely made OSX run on the machines -- it didn't change the form nor essence of the copyrighted material.

In addition, it is difficult to imagine how the judge could've missed this point.


17 USC 117a says "it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program." This is extremely clear, if you lawfully own a copy you can allow someone else to make a copy or adaptation in accordance with 117a1 or 117a2. There is nothing gray about that. Next, 117b says "[a]daptations so prepared may be transferred only with the authorization of the copyright owner." So, as I said above, if Psystar waited until after a user purchased a computer and a copy of the software and then, in a second transaction, they installed the software and/or made an adaptation while installing the software then they would have been fine. But, they didn't do that. I find it difficult to imagine how you can fail to read the laws in question and apply them, they simply don't say what you are implying them to say.

[q]The real clincher was the ruling concerring the DMCA anti-circumvention provision. However, this DMCA provision also contradicts 17 USC 117a(1), relative to this case. Furthermore, the spirit of the DMCA anti-circumvention provision was to deter pirating, and there is no pirating in this case,

Reply Score: 1

RE[3]: Good luck...
by Soulbender on Thu 9th Sep 2010 07:36 UTC in reply to "RE[2]: Good luck..."
Soulbender Member since:
2005-08-18

Just because it's in the UELA doesn't mean it's a legal contract clause.

Reply Score: 5

v RE[2]: Good luck...
by NeoX on Thu 9th Sep 2010 05:35 UTC in reply to "RE: Good luck..."
RE[3]: Good luck...
by tupp on Thu 9th Sep 2010 06:06 UTC in reply to "RE[2]: Good luck..."
tupp Member since:
2006-11-12

Except that Apple sells OS X only for Apple customers that have bought Apple products.

That point is irrelevant. Anyone buying a boxed version of OSX is an Apple customer.

Furthermore, Apple sells OSX openly, and Apple sets its price.


It was never intended for clone makers to buy and users installing it on a clone are breaking the EULA.

Again, two irrelevant points.

The manufacturer's intentions are meaningless the moment the product is sold. Chevrolet never intended for it's pick-up trucks to be modified, but, nonetheless, Chevrolet can do nothing to prevent this: http://www.4x4truckstrailers.com/wp-content/uploads/2009/04/jacked-... The person who bought the truck is free to do with it as he/she sees fit.

Also, an EULA is just a declaration by the manufacturer. No part of an EULA is law, and, often, provisions in EULAs are ruled invalid.


I know, I know, big whoop right? Some people do obey laws I guess...

Please name the government statute that one is violating by installing OSX on a non-Apple computer.


And even if Apple gets the money for the OS X disc they are still possibly losing money on the sell of an actual Apple Mac.

Apple sets the price for the retail box. If Apples sets it too low, who's fault is that?

Secondly, How could Apple be losing money by selling extra copies of OSX?

Reply Score: 5

RE[4]: Good luck...
by NeoX on Thu 9th Sep 2010 19:49 UTC in reply to "RE[3]: Good luck..."
NeoX Member since:
2006-02-19


That point is irrelevant. Anyone buying a boxed version of OSX is an Apple customer.

Furthermore, Apple sells OSX openly, and Apple sets its price.


No it is not irrelevant. Sorry for not being clearer, but I meant that Apple sells OS X for APPLE MAC CUSTOMERS. It is in the EULA that you are only to install it on a genuine Apple Macintosh Computer.


The manufacturer's intentions are meaningless the moment the product is sold. Chevrolet never intended for it's pick-up trucks to be modified, but, nonetheless, Chevrolet can do nothing to prevent this: http://www.4x4truckstrailers.com/wp-content/uploads/2009/04/jacked-... The person who bought the truck is free to do with it as he/she sees fit.

Also, an EULA is just a declaration by the manufacturer. No part of an EULA is law, and, often, provisions in EULAs are ruled invalid.

No your example is totally irrelevant. You are comparing a vehicle to a computer and or software. Hardly the same thing. Apple has a right to say who can and cannot use their software and on what hardware they can install it on. If you don't like it you don't have to buy it.


Please name the government statute that one is violating by installing OSX on a non-Apple computer.


Sorry, LAW was the wrong word. More like contract. An EULA is a contract between parties and as much as I think they suck, that does not make it invalid.


Apple sets the price for the retail box. If Apples sets it too low, who's fault is that?

Secondly, How could Apple be losing money by selling extra copies of OSX?


You missed my point entirely. By selling only the OS X disc to someone that is buying a clone, they are POSSIBLY losing the sale of a Mac to go with it. Without clones you would have to buy a Mac if you wanted to run OS X.

Reply Score: 1

RE[5]: Good luck...
by Thom_Holwerda on Thu 9th Sep 2010 19:59 UTC in reply to "RE[4]: Good luck..."
Thom_Holwerda Member since:
2005-06-29

If you don't like it you don't have to buy it.


Wrong. If they don't want me installing it on a non-Apple labelled PC, then THEY should not sell it to me.

Reply Score: 3

RE[6]: Good luck...
by NeoX on Thu 9th Sep 2010 22:36 UTC in reply to "RE[5]: Good luck..."
NeoX Member since:
2006-02-19

"If you don't like it you don't have to buy it.


Wrong. If they don't want me installing it on a non-Apple labelled PC, then THEY should not sell it to me.
"

So by that logic outdoor stores should not sell guns to someone that can use it to murder someone?

You have take responsibility for your own actions.

Reply Score: 0

RE[5]: Good luck...
by pbassjunk on Fri 10th Sep 2010 19:20 UTC in reply to "RE[4]: Good luck..."
pbassjunk Member since:
2009-09-20

No, the example is completely sound. Whether you are buying a truck or a piece of software/hardware, you are entering into a financial transaction between 2 or more parties which has any number government-backed guarantees (and any derivative transactions): resale, reasonable expectation of performance/usage, minimal warranty, etc.

When you purchase a copy of OSX (I've personally purchased 4 - all for the same computer.. long story), whether or not Apple could possibly lose a hardware sale is irrelevant. Sure, they could be 'missing out' on a sale of an iMac/Pro to someone who would buy a Quo/Psystar, but that doesn't invalidate my transaction buying OSX, nor does it validate a lost sale to Apple.

I own a PC. I also own a Hyundai Tucson. I prefer OSX to Windows. I also prefer the sound I get from a Ford car CD player. I buy OSX from the local comp shop. I also buy a Ford CD player from a local car shop...

Hyundai can't stop me from installing that Ford player in my Hyundai car. Ford can't stop me from installing it in my non-Ford car. The same goes for OSX. Just because it's not a physical product doesn't diminish the rights of the purchaser.

Additionally, buying only a Ford CD player doesn't mean Ford lost a sale of a car. The only thing you can assert is that Ford sold a CD player. Suppose I prefer an Apple wireless keyboard (another readily available Apple product to anyone who wants to $$$ it) over Logitech or Microsoft and want to use it with Windows.. this also doesn't mean Apple missed out on a sale of a Mac.

*lost revenue from a lost sale is simple accounting CYA hyperbole to explain away almost anything a shareholder or board wouldn't like hearing. Buying a Hyundai after test driving a Ford doesn't mean Ford lost that sale, even though accounting would want you to believe it. No transaction ever occurred. The only way Ford does lose a sale is 1) after the transaction, and 2) the transaction is nullified. Again, the same situation applies to Apple*


**obviously none of this applies if you stole the car radio, you pirated OSX, or bought a GM :-) **

Reply Score: 1

RE[3]: Good luck...
by Neolander on Thu 9th Sep 2010 06:16 UTC in reply to "RE[2]: Good luck..."
Neolander Member since:
2010-03-08

Except that Apple sells OS X only for Apple customers that have bought Apple products. It was never intended for clone makers to buy and users installing it on a clone are breaking the EULA. I know, I know, big whoop right? Some people do obey laws I guess... And even if Apple gets the money for the OS X disc they are still possibly losing money on the sell of an actual Apple Mac.

At least here in France, it is illegal to sell two distinct products in a linked fashion. OSX and the Mac are distinct products, since OSX is sold separately from the Mac. So Apple can't force someone to buy a Mac along with OSX, if I'm not wrong. And in that case, this EULA clause is just invalid.

Edited 2010-09-09 06:17 UTC

Reply Score: 5

RE[3]: Good luck...
by Soulbender on Thu 9th Sep 2010 07:47 UTC in reply to "RE[2]: Good luck..."
Soulbender Member since:
2005-08-18

Except that Apple sells OS X only for Apple customers that have bought Apple products.


If I have purchased a copy of OSX then I am obviously an Apple customer who has purchased an Apple product.

Some people do obey laws I guess...


What law? A EULA is not law. Apple does not make laws, they sell products. Whatever the consumer do with the products after they're purchased is none of Apple's business. Apple can not dictate what a consumer do with their produts after purchase. In fact, if there's any law to be broken here it is broken by Apple trying to dictate post-sale restrictions.

And even if Apple gets the money for the OS X disc they are still possibly losing money on the sell of an actual Apple Mac.


Who cares? It's not illegal to not buy a Mac.

Reply Score: 4

RE[4]: Good luck...
by NeoX on Thu 9th Sep 2010 19:58 UTC in reply to "RE[3]: Good luck..."
NeoX Member since:
2006-02-19



If I have purchased a copy of OSX then I am obviously an Apple customer who has purchased an Apple product.

Sorry not what I meant. I meant that it is intended to be sold to Apple Mac Hardware customers. People that bought an Apple Mac, not a clone.



What law? A EULA is not law. Apple does not make laws, they sell products. Whatever the consumer do with the products after they're purchased is none of Apple's business. Apple can not dictate what a consumer do with their produts after purchase. In fact, if there's any law to be broken here it is broken by Apple trying to dictate post-sale restrictions.


Again, my poor choice of words. Contract is the right word.

I really don't understand all the Anti-Apple people. If someone makes a computer and an OS specifically for that computer, why should they not be able to protect said OS from being essentially stolen by competitors to run on unofficial hardware. Even if they are paying retail they are still not being ethical at the least. Apple is a computer/Hardware company after all.

Reply Score: 1

RE[5]: Good luck...
by Soulbender on Fri 10th Sep 2010 06:10 UTC in reply to "RE[4]: Good luck..."
Soulbender Member since:
2005-08-18

If someone makes a computer and an OS specifically for that computer, why should they not be able to protect said OS from being essentially stolen by competitors to run on unofficial hardware.


Nobody says they cant try to protect it, what they can't do is forbid you to do what you want with it after purchase. Legally it doesn't matter if Apple is a hardware or software company or a company selling apple pie. Once the product is sold they can't tell you shit what you can do with it. Sure, they can void your warranty if you do something that goes against the contract (EULA in this case) or sue you if you break copyright law etc but that's it.
There's nothing illegal about purchasing OSX and installing it on unsupported hardware.

Even if they are paying retail they are still not being ethical at the least


If there's anything unethical going on it's Apple trying to force you to use a purchased product in a certain way that goes against your rights as a consumer.

Reply Score: 2

RE[5]: Good luck...
by Soulbender on Fri 10th Sep 2010 06:12 UTC in reply to "RE[4]: Good luck..."
Soulbender Member since:
2005-08-18

If someone makes a computer and an OS specifically for that computer, why should they not be able to protect said OS from being essentially stolen by competitors to run on unofficial hardware.


Nobody says they cant try to protect it, what they can't do is forbid you to do what you want with it after purchase. Legally it doesn't matter if Apple is a hardware or software company or a company selling apple pie. Once the product is sold they can't tell you shit what you can do with it. Sure, they can void your warranty if you do something that goes against the contract (EULA in this case) or sue you if you break copyright law etc but that's it.
There's nothing illegal about purchasing OSX and installing it on unsupported hardware.

Even if they are paying retail they are still not being ethical at the least


If there's anything unethical going on it's Apple trying to force you to use a purchased product in a certain way that goes against your rights as a consumer.

Reply Score: 2

RE[3]: Good luck...
by BallmerKnowsBest on Fri 10th Sep 2010 01:14 UTC in reply to "RE[2]: Good luck..."
BallmerKnowsBest Member since:
2008-06-02

Except that Apple sells OS X only for Apple customers that have bought Apple products.


Ah, so Apple requires you to provide some sort of proof-of-purchase for other Apple products before they'll sell you a retail copy of OS X?

Oh, wait, they don't? So much for that idea.

Reply Score: 3

RE[4]: Good luck...
by NeoX on Fri 10th Sep 2010 04:12 UTC in reply to "RE[3]: Good luck..."
NeoX Member since:
2006-02-19

"Except that Apple sells OS X only for Apple customers that have bought Apple products.


Ah, so Apple requires you to provide some sort of proof-of-purchase for other Apple products before they'll sell you a retail copy of OS X?

Oh, wait, they don't? So much for that idea.
"

Did I say they required that? NO I did not. Like I said they are not enforcing it. But that is what OS X is INTENDED for, not for clone makers. If you do not believe me ask Apple.

Reply Score: 1

RE[5]: Good luck...
by BallmerKnowsBest on Fri 10th Sep 2010 18:26 UTC in reply to "RE[4]: Good luck..."
BallmerKnowsBest Member since:
2008-06-02

"[q]Except that Apple sells OS X only for Apple customers that have bought Apple products.


Ah, so Apple requires you to provide some sort of proof-of-purchase for other Apple products before they'll sell you a retail copy of OS X?

Oh, wait, they don't? So much for that idea.
"

Did I say they required that? NO I did not. [/q]

Congratulations, you've countered a claim I never actually made. Allow me to spell out the point that you evidently missed: if Apple can't even be bothered to undertake the trivial effort required to enforce their "intention" by technical means, then they deserve no sympathy whatsoever.

Like I said they are not enforcing it.


And since enforcing that "intention" would be trivially-easy, that makes them either morons or inexcusably lazy (or both?).

But that is what OS X is INTENDED for, not for clone makers.


And...? Apple seriously believes we'll all just conform to their intentions out of the goodness of our hearts? Or maybe they're depending on the honor system?

Anyone that stupid should not be allowed to run a lemonade stand, much less a multi-billion dollar multi-national corporation.

Reply Score: 3

RE[2]: Good luck...
by henderson101 on Thu 9th Sep 2010 11:46 UTC in reply to "RE: Good luck..."
henderson101 Member since:
2006-05-30

But the end user is paying Apple full retail for the OS -- that's the only part that is Apple.


Well, if they are buying the box set (Leo, Snow Leo etc in one box) they are not in the wrong. Doing so, is breaking the EULA, but that is down to interpretation. However, if they are buying Snow Leo upgrade discs without purchasing Leopard (which is technically no longer available from Apple outside of the Box set, but I guess might still be available through other channels) THAT is not on, not at all. The upgrade disc is sold as an upgrade, not a full install.

Reply Score: 1

RE[3]: Good luck...
by Thom_Holwerda on Thu 9th Sep 2010 12:01 UTC in reply to "RE[2]: Good luck..."
Thom_Holwerda Member since:
2005-06-29

The upgrade disc is sold as an upgrade, not a full install.


This is a lie. It's simply not true. Grab any retail box of Snow Leopard, and you'll see it doesn't say ANYWHERE that it's an upgrade. Apple fanatics might think it is, but wishful thinking does not make it so.

I've bought more Mac OS X boxes than you can count, and not one of them has the word "upgrade" on it, and ALL of them install just fine on their own. Nor has any shop assistant ever informed me that it is, in fact, an upgrade. As such, I'm buying a normal piece of software, and I can do whatever the hell I want with it.

Reply Score: 3

RE[4]: Good luck...
by Soulbender on Thu 9th Sep 2010 13:34 UTC in reply to "RE[3]: Good luck..."
Soulbender Member since:
2005-08-18

Grab any retail box of Snow Leopard, and you'll see it doesn't say ANYWHERE that it's an upgrade.


It doesn't matter if it says upgrade or not anyway. Once purchased it is no longer Apple's concern how it is used. If I can somehow make an "upgrade" set work without already owning OSX then that's Apple's problem for not designing it properly, not mine.
Funny how the IT industry always think they don't have to play by the same rules as all other industries that provide consumer products.

Reply Score: 4

RE[4]: Good luck...
by NeoX on Thu 9th Sep 2010 20:03 UTC in reply to "RE[3]: Good luck..."
NeoX Member since:
2006-02-19

"The upgrade disc is sold as an upgrade, not a full install.


This is a lie. It's simply not true. Grab any retail box of Snow Leopard, and you'll see it doesn't say ANYWHERE that it's an upgrade. Apple fanatics might think it is, but wishful thinking does not make it so.

I've bought more Mac OS X boxes than you can count, and not one of them has the word "upgrade" on it, and ALL of them install just fine on their own. Nor has any shop assistant ever informed me that it is, in fact, an upgrade. As such, I'm buying a normal piece of software, and I can do whatever the hell I want with it.
"

That is not a lie. The box does not say upgrade and it indeed does not force you to have 10.5 to install as a typical upgrade would have. I also realize that it does not say Upgrade on the package.

This is the point that took me a while to agree with but the fact of the matter is that ALL OS X RETAIL sets are upgrades as you are expected to have a Mac with some previous version of the OS that came with your Mac, even if the installer itself does not check for a previous version.

Further the order page on Apple's Site states:

"Snow Leopard is an upgrade for Leopard users and requires a Mac with an Intel processor."

Reply Score: 1

RE[5]: Good luck...
by Thom_Holwerda on Thu 9th Sep 2010 21:26 UTC in reply to "RE[4]: Good luck..."
Thom_Holwerda Member since:
2005-06-29

This is the point that took me a while to agree with but the fact of the matter is that ALL OS X RETAIL sets are upgrades as you are expected to have a Mac with some previous version of the OS that came with your Mac, even if the installer itself does not check for a previous version.


And how am I supposed to know that? You seem to think that just because you say it's an upgrade, everybody should magically know and accept that. I'm sorry, but the law doesn't work that way. Nor the box, nor salesmen say it's an upgrade, and to make matters even more clear, it works as a full retail copy.

As such, wishful thinking or no, it's a full copy. End of story.

Reply Score: 2

RE[6]: Good luck...
by NeoX on Thu 9th Sep 2010 22:51 UTC in reply to "RE[5]: Good luck..."
NeoX Member since:
2006-02-19


And how am I supposed to know that? You seem to think that just because you say it's an upgrade, everybody should magically know and accept that. I'm sorry, but the law doesn't work that way. Nor the box, nor salesmen say it's an upgrade, and to make matters even more clear, it works as a full retail copy.

As such, wishful thinking or no, it's a full copy. End of story.


Apple publicly announced (http://www.apple.com/pr/library/2009/08/24macosx.html) that it was an upgrade for 10.5 leopard users, hence the $29 upgrade price. When I bought it the salesman at the Apple store was quite clear that it was an upgrade. I was told that if I did not have 10.5 I was not eligible for the upgrade price and that I would have to by the Box set if I was on 10.4. It even states that on their store site. While I'll agree that because it does not check for previous versions I don't know how they could enforce that.

End of Story: Upgrade

Reply Score: 1

RE[7]: Good luck...
by henderson101 on Mon 13th Sep 2010 10:04 UTC in reply to "RE[6]: Good luck..."
henderson101 Member since:
2006-05-30

What he said - Upgrade.

Thom, we already had this little battle when SL was released. I too was told at point of purchase, with no doubt in the eyes of the sales operative, "This is an upgrade disc, you must own a copy of 10.5 to be eligible to install this software." You claim this doesn't get conveyed by the Apple dealers in Holland - well, this is their poor training and lack of detail. If you buy directly from Apple, you are told this by the staff. If you buy from the Apple website, it says this. As I said at the time, if your Dutch re-sellers are not telling you this fact, *they* are in the wrong.

Reply Score: 1

*knock on wood*
by poundsmack on Wed 8th Sep 2010 22:53 UTC
poundsmack
Member since:
2005-07-13

careful there thom, don't want to jinx them. Turns out companies read the posts here at OSnews.com, as was evident with the Amiga article that CEO liked so much ;) .

So if your reading this Apple, it was a joke, there is no other clone makers, ...these are not the droids your looking for.

Reply Score: 6

Blessings to them...
by Jedd on Wed 8th Sep 2010 23:17 UTC
Jedd
Member since:
2005-07-06

Blessings of Heaven to them! I really mean it. I hope that these guys do well and can completely avoid any BS with Apple. If you ask me Apple should than Quo, after all is not Apple's saying "Think Different" Looks like Quo was thinking different, and being someone who delivers an awesome product. Competition is healthy, especially for the consumer.

And from a geek standpoint of view, I think that it's nice to see other computers clonesd, not just one type in many forms. ;)

/2 cents/

Reply Score: 2

RE: Blessings to them...
by Morgan on Thu 9th Sep 2010 00:15 UTC in reply to "Blessings to them..."
Morgan Member since:
2005-06-29

Apple's slogan used to be "think different", back when they really meant it. Nowadays they want everyone to toe the line and do only as they say with their products, hardware and software.

That doesn't change the fact that I'll probably end up with a MacBook in the near future, but I also still have my trusty Hackintosh-able C2D desktop, itching for a fresh install of Leopard. I may even opt for a Dell Mini 10v for a more portable (and cheaper) OS X notebook.

I've always been more impressed by Apple's software than their hardware; though it's solidly built gear I prefer a more industrial/edgy half-finished feel. The smooth lifeless aluminum-and-glass look of their current line is kind of "blah".

Reply Score: 5

OSNews is good for business
by Eddyspeeder on Wed 8th Sep 2010 23:56 UTC
Eddyspeeder
Member since:
2006-05-10

Cool, this article shows up as second on Google when searching for "quo computer", right after Quo's own site.

I think there is a practical lesson for Commodore USA in all of this: look, the people posting before me actually wish Quo and their customers well!

Reply Score: 4

Why?
by kaelodest on Thu 9th Sep 2010 00:05 UTC
kaelodest
Member since:
2006-02-12

Well. - -- --- Whatever get's Thom Page Hits. But my real question is Why can't Linux capture any mindshare. I mean for real. I have used it off and on since 1998 and I generally keep a debian server running headless in the house. But that is just because I might need to run an esoteric lab test or some security testing, and I do it all from a terminal. So it isn't like I am some GUI bound designer or a simple Mac head. So my question (aside from Thom's odd fascination with Mac Clones) is: Why Can't a Linux Reseller make web headlines.

Reply Score: 2

RE: Why?
by tylerdurden on Thu 9th Sep 2010 01:37 UTC in reply to "Why?"
tylerdurden Member since:
2009-03-17

Well, if you count android as linux... it seems linux has plenty of mindshare. Alas, it is just not on the desktop. And that is probably not going to change (ever?).

Reply Score: 1

RE[2]: Why?
by kaelodest on Thu 9th Sep 2010 05:02 UTC in reply to "RE: Why?"
kaelodest Member since:
2006-02-12

I guess there is a point, where we as the thinking 5 maybe 10 percent of the technology centric users have to ask. Am I a consumer or a producer. I like the Mac as a producer, but it is unashamedly a consumer platform. But then I return to the question - even with Mandrake and Ubuntu why can I not get other people to like linux. This sunday I was talking it over with a very good technician (or so I thought) and all she knew was helpdesk and not in a sensible or practical way. (Mostly Windows and PC and Luck) so I gave her a Ubuntu 10 server disk. She called the next day and was confused that the install didn't have a GUI. Well as long as the answer is based on what I can Google and not based on practical knowledge and experience then we (knowledge workers) are doomed to be replaced.

And No I do not count Android as Unix any more than I count iOS as unix - (Or 3.5 10^6 ATMs as Valid Vista Installs)

Reply Score: 1

RE[3]: Why?
by stooovie on Thu 9th Sep 2010 08:25 UTC in reply to "RE[2]: Why?"
stooovie Member since:
2006-01-25

Yet, at least in media production, almost all content is created using Macs.

Reply Score: 2

RE[2]: Why?
by pandronic on Thu 9th Sep 2010 06:46 UTC in reply to "RE: Why?"
pandronic Member since:
2006-05-18

My take on this is that Desktop Linux needs some polish and stability. Sometimes I try to give some distro an honest chance. I install it as my main OS and start using it full time. So far the best lasted about 3 days. Every time I need to do something I hit a show stopper. Then for hours at a time I try to find a solution. What I usually end up with is a hack or a pathetic workaround that kind of works. Also the UI is not very well thought out and not very consistent across applications. Everything looks patched and put together.

Desktop Linux lacks vision, it lacks a direction, it needs a leader (a person or a company) with deep pockets that knows where to take it. In fact, I believe that this is why Android, as a Linux flavor, took off.

Reply Score: 2

RE[3]: Why?
by Moredhas on Thu 9th Sep 2010 12:16 UTC in reply to "RE[2]: Why?"
Moredhas Member since:
2008-04-10

I agree the Linux desktop environments can be a little alien at first, but I find Gnome, and any program that pays the slightest bit of attention to the Gnome HIG to be pretty consistent. Granted, compared to OS X, it is a little messy, but its wonderful compared to the jungle of Windows programs that do all sorts of crazy thing like ignore OS wide window decoration, or use their own, completely incomprehensible icons when perfectly good, stock system ones exist and are easy to implement. I'm more of a year at a time person when it comes to hopping between Windows and Linux, so my opinion is born from getting used to Linux and exploring the differences. Even (especially) the superficial ones for a GUI junkie like me.

Reply Score: 3

RE[4]: Why?
by pandronic on Thu 9th Sep 2010 17:18 UTC in reply to "RE[3]: Why?"
pandronic Member since:
2006-05-18

It agree that there are a lot of widgets and default applications that look remarkably well in Linux, but IMO there are not enough of them yet.

In Windows I try to stick when possible with MS products. In the last years the quality of their GUIs has been really great. Otherwise there are so many applications for Windows that it's impossible not to find a good one. Unfortunately that's not true of Linux and this is a major hurdle.

Reply Score: 2

RE[5]: Why?
by Moredhas on Thu 9th Sep 2010 20:33 UTC in reply to "RE[4]: Why?"
Moredhas Member since:
2008-04-10

Windows certainly has improved in this reegard. A few years back, and Microsoft were the worst for ignoring their own HIG, and for doing the stupid things I listed before. MSN Messenger 7 and onwards on anything but Vista looked out of place, but even on Vista, it was still doing its own window decoration. Then there's all those printer software packages. HP are the worst offenders here, or Canon. A clever person can do without the included software package, but Joe the Plumber is just going to plug his printer in and put in the disc, click next five times, and have a computer loaded with crapware (thpugh given this is the normal behavior, you'd be hard pressed to notice a difference beyond habing a thirtieth program added to Windows startup).

Reply Score: 3

RE[4]: Why?
by nt_jerkface on Thu 9th Sep 2010 22:52 UTC in reply to "RE[3]: Why?"
nt_jerkface Member since:
2009-08-26

You can talk about how much you like the functionality all day but people are superficial when it comes to electronics and Gnome looks more like a competitor for Win98 than OSX or Win7.

KDE is the only modern looking desktop available in the Linux world.

Not only that but KDE has a better development team. The Gnome team isn't sure of where to go as can be seen by the Gnome 3 shell.

The Linux community is going it have to get over its love of Gnome if it wants to compete with OSX and Win7. Gnome is too far behind.

Reply Score: 1

RE: Why?
by jbauer on Thu 9th Sep 2010 09:18 UTC in reply to "Why?"
jbauer Member since:
2005-07-06

Well. - -- --- Whatever get's Thom Page Hits. But my real question is Why can't Linux capture any mindshare. I mean for real. I have used it off and on since 1998 and I generally keep a debian server running headless in the house. But that is just because I might need to run an esoteric lab test or some security testing, and I do it all from a terminal. So it isn't like I am some GUI bound designer or a simple Mac head. So my question (aside from Thom's odd fascination with Mac Clones) is: Why Can't a Linux Reseller make web headlines.


Because the Linux community still can't get the basics right and the user experience is terrible. And the standard answer to the criticisms is and always will be denial.

Reply Score: 1

RE[2]: Why?
by Moredhas on Thu 9th Sep 2010 20:37 UTC in reply to "RE: Why?"
Moredhas Member since:
2008-04-10

There's plenty of denial, but denial isn't always denial. Nobody would know the difference though, what would people tnk if you screamed out that you weren't crazy? Sometimes the denials are just poorly expressed explanations that you do something differently in Linux - or when arguing about functionality, the Linux fan would maintain Linux DOES have whatever you're argung about, but neglect to say how to do it. Some of us aren't the most helpful breed.

Reply Score: 2

RE: Why?
by nt_jerkface on Thu 9th Sep 2010 22:24 UTC in reply to "Why?"
nt_jerkface Member since:
2009-08-26

I'm all for running Linux on the server, I've plugged ClearOS on my blog numerous times. Windows Server 2008 R2 is about $700 plus you have to buy CALs so especially for someone with Nix experience there can be some savings.

But on the desktop it doesn't offer a good value proposition when Windows 7 is only $100.

You still run into compatibility issues with Linux and there isn't a good selection of commercial software. So you are basically forced to use suboptimal open source alternatives that are already available for Windows.

Open source is its own worst enemy in that its best programs inevitably make their way to Windows and OS X. It is impossible for Linux to have a killer app that drives adoption. If an open source program is really useful then it will be ported everywhere.

Linux distros are also unfriendly to commercial software by design. Then you have all sorts of rough edges like updates and sound problems.

But yes when a company takes a liability risk to install OSX on whiteboxes there is clearly something wrong with the Linux desktop. My advice to the Linux community would be to stop following Stallmanology and start working with commercial companies. Accept that not all software can be open source and work at bringing in commercial companies that can add value to the platform.

Reply Score: 2

AMEN!
by kaelodest on Fri 10th Sep 2010 01:15 UTC in reply to "RE: Why?"
kaelodest Member since:
2006-02-12

I like Stallman. I remember when emacs finally clicked for me. But I am tired of people who do not program trying to tell me what to do with my source. I think that the GNU has a lot to offer but the Circus and the Bazaar seems to have turned into The Ivory Tower and the Bazaar. YUP apple is included in that. I am More than willing to release an App as source, and devil may care. But the Idea that something that i do for 'work' should be held to some academic ideal - no - I cannot go for that.

Reply Score: 1

OK Thom...
by fraterf93 on Thu 9th Sep 2010 00:34 UTC
fraterf93
Member since:
2009-04-23

So I really need to know why you continue to support the Mac Clone market, when u blast Commodore USA? I mean really dude, come on.

Reply Score: 0

RE: OK Thom...
by tylerdurden on Thu 9th Sep 2010 01:55 UTC in reply to "OK Thom..."
tylerdurden Member since:
2009-03-17

Apples must taste like oranges to you I guess.

Reply Score: 3

RE: OK Thom...
by Thom_Holwerda on Thu 9th Sep 2010 06:28 UTC in reply to "OK Thom..."
Thom_Holwerda Member since:
2005-06-29

So I really need to know why you continue to support the Mac Clone market, when u blast Commodore USA? I mean really dude, come on.


I fail to see the connection.

Reply Score: 2

rhavyn
Member since:
2005-07-06

The 9th circuit court today overturned the Autodesk ruling saying that the first sale doctrine is "unavailable to those who are only licensed to use their copies of copyrighted works." And that "[w]e hold today that a software user is a licensee rather than an owner of a copy where the copyright owner (1) specifies that the user is granted a license; (2) significantly restricts the user’s ability to transfer the software; and (3) imposes notable use restrictions. Applying our holding to Autodesk’s [software license agreement], we conclude that CTA was a licensee rather than an owner of copies of Release 14 and thus was not entitled to invoke the first sale doctrine or the essential step defense."

Just to make this a little more clear, EULAs are now, by default, valid if you are in the 9th circuit of the United States unless/until the Supreme Court overturns the 9th circuit or Congress amends the law. Seeing that Quo is in California they can now be sued by Apple for copyright infringement, contributory copyright infringement, DMCA and breach of contract and between the Psystar case and Autodesk they will win on all of those counts.

Also, this ruling makes most of what is in my prior two posts above irrelevant since all of 17 USC 117 no longer matters since every commercial software publisher claims they license their software.

You can read the ruling yourself here: http://www.ca9.uscourts.gov/datastore/opinions/2010/09/10/09-35969....

Edited 2010-09-10 21:57 UTC

Reply Score: 2

rhavyn Member since:
2005-07-06

I'm still reading the opinion in detail, but footnote 13 stands out to me with respect to many arguments made here. Specifically the 9th circuit said

"It may seem intuitive that every lawful user of a copyrighted software program, whether they own their copies or are merely licensed to use them, should be entitled to an “essential step defense” that provides that they do not infringe simply by using a computer program that they law- fully acquired. However, the Copyright Act confers this defense only on owners of software copies. See 17 U.S.C. § 117. In contrast, a licensee’s right to use the software, including the right to copy the software into RAM, is conferred by the terms of its license agreement."

In other words, if the software comes with an EULA then you have no right to make any copies of the software without permission in the EULA. That means, you can't install it, you can't run it (because running it copies it into RAM), you basically can just sit and stare at the shiny side of the CD.

The 9th circuit contines by pointing out that the Congressional Record upholds their reading of copyright law (H.R. Rep. No. 94-1476, at 79 (1976), reprinted in 1976 U.S.C.C.A.N. 5659, 5693). The 9th circuit continued by saying:

"The report also asserts that the first sale doctrine does not “apply to someone who merely possesses a copy or phonorecord without having acquired ownership of it.” Id.""

Edited 2010-09-10 22:12 UTC

Reply Score: 2