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None of that matters one lick.

The ability to recreate or inter-operate is not at issue. The issue is to utilize copies purchased, legally, at retail, in ways already protected by law.

MacOS X is a product existing in the retail market space and is governed by the laws of the jurisdictions in which it is sold. In law, it is NOT the sum of its constituent parts. It is a singularity.

Apple's assertion of exclusive access to MacOS X is without merit should it choose to sell copies on the open market as it has done.

Sure, they can limit MacOS X to only Apple-made machines. But they have to do so correctly. The U.S. does not permit automatic, non-elective, non-signatory restrictive terms of use contracts. Period. And that is a good thing. Seriously.

They have made a move in the right direction by calling the latest iteration of MacOS X an 'upgrade,' but have failed to provide additional value, which will ( well, should, anyway ) lead to some problems for them as they attempt to force restrictions on consumers' rights. The law is often written by the emerging consensus of a market or community, the general definition of 'upgrade' as pertaining to an iteration of a line of computer software will be utilized.

Considering the historical presence of full-fledged versions of MacOS X, pricing and value trends will be determined in order to calculate the value of the 'upgrade' version. In this test new versions of MacOS X will fail - unless Apple were to show an improved value over existing prices.

Which means, Apple, in the end, should create a "full version" at the $289 price point, and keep the upgrade version at the price of the previous version. The upgrade has a ( legal ) caveat: "Part of the price of this copy of MacOS X is included in your Apple-branded computer, usage restrictions apply."

The full version will have no limits of any kind, save for one: "Apple product support is included in the price of a Macintosh computer system, support is not included in the price of MacOS X."

Done.


Honestly, though, in the end, the problem is not what Apple wants to do, but the very fact that they did not start out that way.

If, all along, MacOS X was properly distinguished as a Macintosh software upgrade, then this problem would be a bit easier to sort out. EULA restrictions can, often, be enforced when price subsidies are involved.

Who knows, the courts may even find that Apple was forthcoming enough in the retail marketplace to not misrepresent MacOS X as a full-version operating system, but instead a Macintosh System Software Update.

In which case Psystar is using subsidized software, illegally.

Of course, if you look at the MacOS X retail box, you will find that the courts are not too likely to see things that way. Prominence is of primary importance. If they simply had the words "Macintosh System Software Upgrade" on the front, we would be laughing at Psystar rather than debating the merits of EULAs and how a rather small company can still be a monopoly.

--The loon