Linked by Thom Holwerda on Mon 5th Oct 2009 21:45 UTC, submitted by JayDee
Hardware, Embedded Systems Just when you thought you saw it all. So, we all know about Psystar, the two lawsuits between them and Apple, and all the other stuff that's been regurgitated about ten million times on OSNews alone. Well, that little company has taken its business to the next level - by announcing an OEM licensing program.
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RE[5]: Oh no..
by alcibiades on Wed 7th Oct 2009 06:29 UTC in reply to "RE[4]: Oh no.."
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Not if you break other laws in the process. And by bundling OS X you break basic copyright law. Apple made the software and Apple gets to dictate what you can do with it. You can't do what Psystar is doing. Period.

This is a mistake about what US law says. The applicable code is Title 17 Section 117. It provides that the owner of a copy of software may make, or authorize someone else to make, any copies of that software that are essential to using it with a machine.

Then we have the two cases of Vernor vs Autodesk and Softman, in which it has been found that to purchase a retail copy is a purchase transaction, and not a license.

So we start out with the position that for me to make or authorize someone else to make any copies or modifications of my retail copy of OSX is lawful under copyright, as long as those copies or modifications are essential to use with a machine. As long as OSX is not a live CD/DVD, copies made in way of installation on a machine are obviously essential to use with that machine.

Now, the next part of S117 says that I can only sell those copies on as part of the sale of the original retail copy with the permission of the copyright holder. Aha, you cry, Psystar did not have such permission. Die, Psystar, die!

Not so fast Moriarty! The question now turns on whether Psystar was the owner of the retail copy at the time that it did the installation. If it turns out that Psystar had charged the customer's credit card or in some other way transferred ownership of the retail copy of OSX before it did the installation, it was simply acting as the person authorized by the customer to do the installation, and as far as copyright goes, this is perfectly lawful.

You then go on to say

Apple made the software and Apple gets to dictate what you can do with it.

This is hallucination or fantasy. The maker of software, whether its Apple, you, me or Microsoft, does not get to tell buyers of retail copies what they can do with it. The maker of CAD/CAM does not get to tell buyers they are not permitted to do boats. The maker of word processing software does not get to tell people they may not write religious tracts, or porn. In general, the maker of graphics software does not get to tell people what graphics cards they may or may not use. No software maker gets to tell people who and under what terms they may resell their copies to. And so on.

Once you have transferred ownership of a retail copy of software, your rights over what the buyer can do with it are only the rights which the EULA contract give you. Those are limited by the law of contract in your jurisdiction, which determine how contracts may be entered into, as well as by the law governing what terms of contracts are enforceable and valid - for instance, consumer protection and anti-trust law. It is highly likely that in most jurisdictions a EULA term which dictates where you buy the hardware you use with a given piece of software will be found unenforceable.

If you think about this, consider the ridiculous situation it would create were it to be possible. Company A tells you you can only use its software by buying your nVidia graphics cards from it. Company B tells you you must buy them from it. You buy them on the open market, install both bits of software, and both sue you. Does this make any kind of sense to you?

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