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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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

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