As Murphy’s Law dictates, this news was destined to come while I’m down and out with the flu, while being miserable on the couch. Dragged my bum to the computer for this one (my iPhone alerted me, oh the irony): Apple has scored a major win in its case against Psystar. Judge William Alsup more or less agreed with just about everything Apple said, granting Apple’s motion for a summary judgement. Instant update: Mind, though, that this ruling only covers Leopard. Snow Leopard will be handled in the Florida case.
As we’ve detailed before, both companies filed motions for a summary judgement, and in its ruling, the court sided with Apple on basically all the major points in this trial. The judge affirmed the legality of the EULA, agreed that Psystar broke the DMCA, and that the clone maker violated Apple’s copyrights. This is what we call an eight-ender in curling.
As said, I’m down with the flu, so I don’t feel like summarising everything in detail. You can download the order and see for yourself – it’s not even that tainted by legalese. The trial itself is not over, however, as there are still a number of issues to work out.
In any case, this is a good example of the slippery slope I wrote about earlier this week. This opens the door for software companies to include – and enforce – all sorts of restrictive clauses in their EULAs, because Alsup’s entire ruling is based on the fact that yes, Apple licensed Mac OS X instead of selling it.
It’s a crazy situation, but I guess Psystar’s own conduct is partially to blame here. In the order, Alsup mentioned sloppy legal conduct by Psystar’s lawyers a few times, and the installation method Psystar used seemed very elaborate and complicated as well (multiple copies, disk images, and so on).
A win for Apple, a loss for consumers (that would be us). That software? It’s not yours. You better step in line with whatever the software company tells you.
Glad I upgraded to Snow Leopard, I’m safe now
(If your sarcasm detector is not flashing, please tap the glass, and if that doesn’t work, try taking the batteries out, and putting them back in again)
how do you reckon? If it’s ruled that software is licensed as opposed to sold, that means you’re bound by the license agreement. The agreement says you can only install on apple hardware.
It says “apple branded”, so you just need to stick an apple sticker to it.
If that works in real life (i.e. a judge actually buys that argument), imagine how pointless contracts will be.
Just say I have a contract with an independent contractor to supply me with, say, a dozen Sony-branded computers. That contractor can go out, buy a bunch of whiteboxes and slap Sony stickets on them – and won’t be in breach of contract.
Thom’s little editorial about loss for consumers aside, this was a huge victory for the first sale doctrine. EULAs, love or not, are binding. Had Apple lost, companies would be free to disregard the GNU GPL or the BSD license. Anything. This case was never about any rights you may or not have, it has all been about the first sale doctrine.
If you want to read legal opinions several degrees more competent in US legal law than Thom, here you go.
Go read groklaw.net. Top story.
Edited 2009-11-14 23:06 UTC
No they wouldn’t be. Neither the GPL nor the BSD license is an EULA. Nothing in this case was in any way relevant to those licenses.
Edited 2009-11-14 23:17 UTC
In fact one could say that the EULA validity may be used to tamper with the GPL, not otherwise.
One company may put an EULA on their linux saying that you must pay them for every single installation. Then someone else would have to “CentOs” them, but that sucks.
I think that if this risk exists the FSF should fight back with a “GPL-noMac”, hoping some big project adopts it.
Uh, not a really good english this morning, probably.
EULAs are not licenses, as has been pointed out umpteen times around here. If you read the articles involved this is all about Apple’s license for OS X. It’s not about the EULA.
You forgot one little detail. Thom doesn’t know what he’s talking about. I don’t like kicking the man while he’s down but that’s how it is.
An EULA is something the vendor asks you to agree to in order to use the software. It can be anything. It can be illegal or it can be legal. It can be based on copyright law, contract law, a mix of them, or other laws. Whether a particular EULA is legally binding, and which parts of it, that’s for a judge to decide.
In this particular case, the judge decided that Apple’s EULA does hold water, because it’s based very much on copyright law.
Do not generalize anymore, please. Stop saying “EULA’s are not licenses”. Stop pointing out legal cases unless you have legal training and are sure that those cases and this one are related.
An EULA indeed is not a license. A license gives you permission to do something. It is not a contract. A fishing permit is a good example – it grants you permission to fish. You go in, pay a sum of money (not always), and you are allowed to fish. That is a license.
A license can, by its very definition, not forbid something you were already allowed to do. If you were allowed (without a permit) to fish in pond A, but not pond B, then the permit for pond B CANNOT state that you are no longer allowed to fish in pond A.
If it did, then it would no longer fit the definition of a license. Look the definition up, and you’ll see.
As such, an EULA can NOT be a license, because they usually FORBID you from doing something YOU WERE ALREADY ALLOWED TO DO IN THE FIRST PLACE. In the case of Apple, it is installing software on whatever hardware you want. As such, it simply cannot be a license. It does not fit the definition.
The GPL, on the other hand, IS a license, as it grants you permission to do something (modify, distribute), while NOT forbidding you from doing something you were already allowed to do.
So, you may claim that I don’t know what I’m talking about, but me thinks you should take your arrogant bum to your local library and grab a few dictionaries.
Edited 2009-11-15 11:16 UTC
But, I’m not allowed to do anything with it in the first place. I may buy the physical CD, but license the software. All rights are reserved by default.
[q]The GPL, on the other hand, IS a license, as it grants ..[q]
The GPL restricts distribution by placing arbitary Stallman-dictated constraints on how an arbitary piece of code can be used. I write closed source code for profit. Somebody writes similar code under the GPL. Think Newton and Leibnitz. Do I sue them, do they sue me? The GPL is an odious license, for all but the connected few.
I personally believe that the intellectual property is not a form of property at all, and should not be enforced. All the IP I produce personally is public domain, because it is the only principled position IMO. Neither Stallman or Apple will agree with that, because both fundementally want to control IP through force i.e. through the courts.
Nobody will be spending 90 days in the stocks for copying a TobyV OSNews post 🙂
Aargh this is getting ridiculous. Did you not READ my comment?
A license ceases being a “license” the moment it tries to restrict something you were allowed to do in the first place. You are NOT allowed to redistribute code IN ANY WAY under default copyright. The GPL grants you the right to redistribute code, and as such, the “Stallman-dictated constraints” are NOT constraints on default copyright, but on the rights granted to you by the GPL. GPL restriction or not, it still is NOT a restriction on something you were allowed to do in the first place.
I am amazed at just how hard it is for people to understand elementary stuff like this. My god.
By default you’re not allowed to do anything with a copy of OS X. The only thing granting you any right is the particular EULA that comes with it. Why then, in your own line of argument, isn’t it a license?
On a side note, congratulations on stooping to a new level: resorting to straight out censorship and deleting a comment of mine which pointed out how horribly wrong you’ve been.
Your ignorance on the subject is astounding.
When it comes to software, copyright law allows you to install and use it on whatever machine you deem fit. Copyright law has a specific exemption for software allowing you to make the necessary copies to get it to work (disk, RAM). This is called the Reproduction Exception (Section 117 of the US Copyright Act). Look it up.
Apple’s EULA restricts this given right to one Apple-labelled machine only. As such, it cannot, BY DEFINITION, be called a license.
It’s all quite elementary. I have no idea why EULA fanatics have so much trouble understanding this.
Your comment was removed because you called me a troll, out of the blue, for no apparent reason.
Edited 2009-11-15 16:25 UTC
Thom, I’d recomend you brush up on the basic concepts behind copyright, before you go on with more of your inane condenscending tirades.
Please explain how a section of the copyright law that allows you to make a copy of software (to the hard drive so it can even run) or to duplicate it for archival purposes, gets morphed into “can install and use it it on any machine you deem fit”?
You are being very selective on how you apply your own standard for what is and isn’t a license. If by default, you are not allowed to use somebody else’s copyrighted work, and the EULA grants you the permission to do so (even if the terms are more restrictive than you want them to be), then the EULA is in fact acting as a license.
Morphed? What are you talking about?
The law makes no distinction or even mentions anything related to brand, computer type, architecture, or whatever. As such, the law is oblivious to whether or not Mac OS X gets installed on an Apple labelled computer, or a non-Apple labelled computer.
Apple’s SLA restricts this, and as such, cannot be a license.
And you, too, do not seem to understand copyright. Copyright is not about use – it’s about reproduction and distribution.
Since you are apparently quite the legal expert, you should know that the law is more than just the words in a statute, particularly in a common law country like the U.S. Even if the words of Title 17 are not specific, if a judge rules that part of the rights of a software copyright holder is specifying to which computers its work may be copied, then that is the law where this court has jurisdiction, until it gets superceded by a newer ruling or statute.
Please explain how you’re able to use a piece of software if you’re not allowed to copy any part of it.
This has already been said a billion million times in this thread alone: the Reproduction Exemption in the Us Copyright Act allows you to make the copies needed to have software working (RAM, HDD). The EULA is not needed for this.
Again, you keep on claiming I don’t know anything about this – yet the level of ignorance you continue to display is astounding.
Only if you’re the owner. And you don’t get to be the owner if you disagree with the license the software is distributed under.
I suspect next you’ll get back to arguing that the EULA is not a license, so let’s just say we’ve come full circle and leave it at that.
It was hard not to laugh reading this. You’re assuming you’re buying a copy of the covered work, and not licensing it. Software, typically, is licensed, not sold. If you buy that, then it follows that you have no rights not granted to you explicitly by the license.
At best, for you, you can claim that that’s not a settled question; at worst, this case has resolved it, and now you’re just demonstrable wrong.
And I’m getting really sick of all this “EULA fanatics” and etc. coming out of you. I’m no happier about any of this than you are — but I’m not going to retreat into fantasy land or ignore chunks of US law that I don’t like. Hell, we can’t fix broken laws until we admit they exist in the first place!
I can’t reply to this.
I find it ironic that people say Stallman’s nuts, yet positions such as your as much more unrealistic than his ever was.
Granted, “intellectual property” is a myth perpetrated by people who want to treat copies of information like potatoes, which is stupid.
But you can’t just erase everything that has to do with information regulation as say “let everything be free”. That’s utopic. Yes, in practice you cannot regulate who makes copies of any piece of information. But this doesn’t mean we should forget about ANY rules.
What about giving credit where credit is due? When a person creates a new piece of information should they not be acknowledged and rewarded?
And what about potentially harmful information? Such as yelling “fire!” in a crowded theater, to give a simplistic example. That’s one piece of information I wouldn’t like to see spreading first-hand.
The realm of information is extremely complicated, ranging from free-speech to censorship, from rightful author reward to greedy intermediaries, from the impossibility of limiting distribution to the necessity of doing so. For better or for worse, copyright is the only thing we have right now that offers a middle ground. It’s not perfect but it’s better than nothing, which is what you propose.
As for Stallman, he had the clarity of mind to use the copyright, not to try to abolish it. If Stallman got up and said “let everything be public domain” then yeah, I’d have dismissed the man as being unreasonable. But instead he played within the reality of the law as it stands, he created a license which plays on the strengths of copyright, in order to grant people strong irrevocable rights where they had none, and thus ensure that certain basic rights (the software freedom rights) cannot be taken away ever again.
Is GPL limiting? Yes. Is it more limiting than the original rights? No, because per copyright law you (if you’re not the author) start as having no rights at all. Is it more limiting than BSD licenses or public domain? Yes, but it gives you something that those do not: the assurance that the code will remain free. BSD/public domain’s freedom only lasts for one step. The freedom granted by the GPL lasts forever.
Feel free to use whichever license you want for your work, but please also recognize others the right to choose what THEY feel is appropriate for THEIR work.
Edited 2009-11-15 14:52 UTC
From here on your point is clouded. I said it should not be enforced. Not “let everything be free”. Enforcement works both ways: preventing works from being distributed (MP3s) or forcing source code to be released (GPL). Both involve going to the courts.
It doesn’t. It limited your code to being used only by other developers that agree to be bound by the GPL.
What is that supposed to mean? Aren’t I supposed to be the utopian? 🙂
I may buy the physical CD, but license the software.
I sure am glad that isn’t true in the Europe!
The GPL restricts distribution by placing arbitary Stallman-dictated constraints on how an arbitary piece of code can be used
Thom already tried to respond to this, but he seemed rather agitated so I’ll try to answer in a bit clearer way.
First, by default you don’t have the right to distribute copies of copyright works, be it music, a painting, software, or some other kind of copyrighted work. This applies to copies though, you are permitted to give or sell forth the original one you’ve obtained.
These are your rights and restrictions by default. Now, GPL does not state any further restrictions. You didn’t have the right to distribute copies even in the beginning so if you don’t agree with the GPL or you make modifications to the source but do not comply with the terms of GPL then nothing has changed and you still do not have the right to distribute the work.
However, if you do comply to the terms stated in the GPL then it _grants_ you the permission to distribute copies of the copyrighted work.
As such GPL doesn’t restrict anything you were allowed to do in the first place, it only grants you a right you didn’t have in the beginning if you follow the terms.
Also worth noting is that all these restrictions and rules fall under the copyright law, no other law, and they are very clearly stated in there, too. If there was no license provided with the copyrighted work then you wouldn’t be allowed to distribute any kinds of copies of it at all. Many people here in this topic confuse copyright law with contract law, but the fact remains that GPL is a copyright license and as such any kinds of judgements and decisions regarding contract laws don’t apply to it.
It is true in the US, UK, Australia and New Zealand. 🙁
I take this response to be your own, not Thom’s.
With strict conditions, such as providing the source code.
Exactly! I have tried in vain to make this point before.
This is an matter of perspective. From a ‘public domain’ mindset, the GPL is very restrictive. I can distribute binaries, only when providing source.
PD has worked for me: I give the client binaries, they can do whatever with them and I can keep the source. Of course this lacks the high drama and politics of the GPL and it’s freedom preambles and manifestos. But it is closer to real freedom IMHO than the FSF mindset will ever be.
No it doesn’t. Copyright law places restrictions on how code can be used. The GPL merely grants some permissions that copyright law otherwise forbids. The GPL grants permissions only for the particular piece of code that is GPL licensed (and not to any arbitrary piece of code).
If the two pieces of code are not word-for-word copies, then neither party sues the other. Jules Verne would have obtained the copyrights for his particular story in his novel “From the Earth to the Moon”, but not for all possible stories about a trip to the Moon. I’m sure that Verne’s Estate didn’t sue anyone for the making of the movie “Apollo 13”, even though that too was a story about “From the Earth to the Moon”.
Opera is a web browser, and so is Firefox. They both perform very similar functions, but in no way are they copies of one another. Opera Software does not sue Mozilla, nor does Mozilla sue Opera Software. Understand?
You are going to have to try to explain this somehow. The GPL allows for collaboration. It is responsible for the creation of billions of dollars worth of software that everyone on the planet can use for no cost.
http://en.wikipedia.org/wiki/Open_source_software
How can that be odious?
This post is one of the very few I have ever voted down on OSNews.
I voted it down because it was inaccurate. Utterly wrong, in fact.
Edited 2009-11-16 04:47 UTC
If I have code that becomes part of an open source project, that code is bound by the GPL. The reuse of that code is encumbered by the GPL, unlike with public domain code.
[/q]If the two pieces of code are not word-for-word copies, then neither party sues the other.
Unlike, for example, the BSD licenses?
I wasn’t talking about open source software but the GPL! And I wasn’t talking about consumers saving money! I was talking about the GPL!
It is odious because as a small contractor a largish company that wants to undermine my business could easily do so by accusing me of a GPL violation, force my code ‘open’ and take it for their own ends.
But my main beef with the GPL is that it politicizes software development. I want to focus on the software when working with software. I don’t want to be told that it has to be GPL for a free world etc etc.
Because I did not agree with Thom.
No. If you “have” code because you wrote it, it won’t become part of a GPL project unless you make it so, by yourself releasing it under the GPL.
If you “have” GPL code that you didn’t write, then you don’t own it. It isn’t yours. You don’t get any cotrol of it just because you are in possession of a copy of it.
No, it is encumbered by copyright law, because it is copyrighted code.
True. Public domain code has copyrights waived by the original author, and GPL code doesn’t.
Yes it is. Name one case where a proprietary product has successfully sued a GPL project of similar function but different code. There is a challenge for you.
If that proves to hard (as of course it will), then alternatively try to name one case where a GPL project has sued a proprietary product that had similar functionality but different code.
You will find that that hasn’t happened either.
Copyright cases are cases about directly copying code, and not about code that merely works alike to other code.
You cannot take the code, period. It isn’t yours if you didn’t write it. This is no different to proprietary code. This happens to be the law of the land that you cannot steal someone else’s code.
No, the BSD license also allows for collaboration. I don’t see any claim anywhere that it doesn’t. Why do you bring up this strawman argument?
So? There has been a HUGE amount of software written under the GPL license, by collaboration. It has saved people billions of dollars. Once again, how can that be odious?
You are guilty of a GPL violation ONLY if you copy and paste someone else’s GPL code into your own project. If you write your own code, you cannot be accused of a GPL violation, because your code is not a copy of the GPL’d code.
No one is telling you that. If you write your own code, you and you alone decide what to do with it, and how to license it. If it is your code, fill your boots. Do your own thing. Encrypt it, DRM it, charge a zillion bucks per copy. Enjoy yourself.
No. Because your post was inaccurate. Utterly inaccurate.
BTW, Thom and I disagree on many things.
Edited 2009-11-16 08:47 UTC
It is worth going over this again because it is just so utterly wrong.
The base assumptions made here are:
(1) That a small company has produced a software product, and
(2) a large company accuses the smaller one of violating the GPL.
OK, there are basically two possibilities here:
(a) the small company wrote their own original code, or
(b) the small company did include someone else’s GPL’d code into their product.
In situation (a), the small company is guilty of nothing. The small company’s code is original, it doesn’t match any GPL’d code. The large company wins nothing, and would have to pay court costs and damages for making a false accusation.
In situation (b) the small company has committed a GPL violation. All that the small company needs to do to rectify this is publish the GPL’d code as they used it in their product. Since the GPL’d code is public anyway, this doesn’t hurt the small company. The large company doesn’t gain anything either, since the GPL’d code was public anyway.
In neither case does the large company get to force my code ‘open’ and take it for their own ends. If the code is ‘opened’, this happens only in situation (b) above, where the code was open already anyway. The large company cannot take the code for their own ends in any event because the code is already GPL’d.
Large companies that want to accuse a smaller competitor of a GPL violation have a huge pool of GPL’d code from which to compare a competitors’ product. If a part of the product is found to be ‘non-compliant’ with the GPL, then what would stop them for requiring that the entire source tree be released?
Potentially any open source project can be a GPL violation, and with that a potential lawsuit and leverage over a competitor.
Uhhh… the fact that they are not the copyright holder? Only a copyright holder can assert its/his rights as a copyright holder. Unless you mean to imply that “Big Evil Corporation X” has slyly released and contributed to a vast pool of GPL’d code.
Shame on them! How dare they contribute vast amounts of GPL code and then assert their rights when they find someone violating them! Is such foul and degenerate behavior really possible in the enlightened 21st Century?
If part of the code was truly GPL code, then the small company that used that GPL code that wasn’t theirs is at fault. The small company has written what is called in legal parlance a “derivative work”. Ownership of the copyrights to the derivative work is split between the small company and the original authors of the GPL code. Those two parties must come to an agreement. The large company has no say in this at all.
The possibilities are these:
(1) The small company pays a separate commercial license to the original GPL code authors. This practice is know as “dual licensing”, where the same code can be either commercial or GPL, depending on how it is being used.
(2) The small company removes the GPL code from its product and re-writes that bit as its own original code.
(3) The small company withdraws the product.
(4) The small company decides to release the whole product under the GPL.
The choices are all with the small company (and to some extent with the original authors, who may not want to provide a dual license for the use of their code). The choices basically come down to how much of the derivative work’s code belongs to the small company, and how much of it is GPL’d code.
The large compnay has no say at all. The code doesn’t belong to the large company.
New situation.
No, your conclusions are again incorrect.
If a company can show the history of the code (as it should be able to with development change history), then it can show that it wrote the original code. The fact that at disgruntled employee copied that code and released it as GPL later is the misdeed of the ex-employee, and not of the original authors (the small company).
The original author is the copyright holder (unless copyrights are sold, in which case the purcahser of copyrights becomes the copyright holder). If the company originally wrote the code, it is still the bona fide copyright holder, and the GPL project must remove that code from their project and re-write it. The ex-employee is in a lot of trouble.
Original authors are the copyright holders, under law. Period. They, and they alone, decide how their code is licensed.
No-one can “force” your code to “become” GPL if you wrote that code. Even if someone stole a copy of your code and tried to release it as GPL, they are the lawbreakers and not you. If you don’t want it to be, your code is not GPL, it is licensed however YOU say it is … as long as you can show that you wrote it in the first place.
Edited 2009-11-16 22:40 UTC
But you shoot your own argument down here. At what point were you ever allowed to install OSX on whatever hardware you like? Unless you somehow magically installed it at some point without agreeing to the license. This is a circular argument, you claim that by definition you are allowed to install software on whatever hardware you like, we say that right is governed by the license. It does not fit YOUR definition…
Every point. Copyright law in both NL and the US allows you to install software on whatever machine you like – the law makes no distinction between Apple labelled and non-Apple labelled.
You clearly don’t get it.
Without EULAs, copyright law treats software like any other copyrighted work, with the exemption that you are allowed to make the copies needed to get the software to work (HDD, RAM). This is the baseline.
The EULA, then, places additional restrictions which you normally would not encounter, It’s a step-by-step process. You are making it seem as if copyright comes after the EULA, whereas in reality, the EULA comes after copyright. It is not the EULA which is the baseline – copyright is.
Thom, you are wrong, as the previous poster pointed out. I wouldn’t go as far as saying you cannot have an opinion on these matters, everybody can. But maybe you should try to understand why you are wrong, because people will pick up your wrong assertions if you keep holding on to them.
OK, so your little pond/fishing example shows me that you did some googling and came across Moglen’s explantion (if he came up with it 1st).
See, he was trying to make a point as to the nature of the GPL – that does not mean an EULA is not a licence. It is called a licence for a reason.
And EULA is a contract, another word for AGREEMENT (that’s the “A” in EULA), and the contract between the parties tells us about the nature and extent of the licence (that’s the “L” in EULA) granted by that contract.
You know, people sit down all the time and sign contracts granting rights, i.e. LICENSING these rights.
While a licence need not come in the shape of a contract, as may be the case with the GPL, this does not mean that therefore anything in the shape of a contract cannot be a licence.
An EULA is what it says on the tin, a licensing-agreement, a contract.
How the scope, validity, enforcement, etc are assessed very much depends on what the EULA actually says, the jurisdiction, etc. But saying an EULA is not a licence is generally wrong.
NO he did not. If you actually do some reading you will find this is all about copyright law and all about Psystar’s modifications and Apple’s rights as the only organisation who can make those changes and who can distribute them. This backs up other cases involving licenses like the GPL. Nothing has been said at all about the applicability of the EULA in this case or about the clauses stating that the software must be run on Applle equipment. It isn’t relevant, and quite frankly Apple was going to have no joy going down that route.
I’m afraid you can’t read, which is generally a pre-requisite for any legal training. I don’t know what morons are modding you up for this inaccuracy, but no, it has been pointed out umpteen times that licenses like the GPL are not EULAs and the applicability of licenses is squarely down to copyright law.
You might think that they have something do do with it but EULAs have absolutely nothing to do with binding copyright law in any way. The fact that the EULA might repeat some of those applicable rights is coincidental and unecessary. The GPL manages to achieve what Apple has proved with their license without an EULA. Copyright law rules all here. Contract law is still a messy area.
Edited 2009-11-15 12:33 UTC
There’s not such thing as “the EULA”. An EULA is an agreement, a generic thing. It’s like saying “the applicability of things written on paper”. What things? What paper? What do they say? We don’t know, yet you keep on talking about EULA’s in general. Each EULA is different. You can only take it on a case by case basis. In this case, this particular EULA was found enforceable. That’s all. It has not relation to most other cases where an EULA was involved, unless those cases are similar for other reasons.
Edited 2009-11-15 14:59 UTC
What do you mean by ‘the EULA’? I never meant that as a generic term, rather the EULA in question in Apple’s case. If you can’t understand that then you cannot discern anything meaningful from a piece of English and need to practice more.
Because you keep talking about how this has somehow proved that EULAs, and Apple’s EULA in particular, have been legally proven. That is absolute total and utter nonsense because this judgement says nothing about EULAs.
No it wasn’t you moron. The judgement said nothing about Apple’s EULA in any way shape or form. This was firmly about Apple’s license and its applicability under existing copyright law as with other licenses such as the GPL. That’s what has been enforced.
Segundum, yes, but there is the awkward case of Blizzard in the US.
If the Blizzard ruling stands then any violation of a EULA clause is a copyright breach. The argument went like this: you have a license, you are not the owner in the sense of S117. Therefore you can only run it, which involves making copies into memory, with permission. This permission is given in the EULA with all its various clauses. Break one of them, the EULA usually says that the license is automatically revoked. Then you are making unauthorized copies by running it.
Obviously for this to work in the present instance one would have to prove that the hardware restriction is valid and enforceable. If the EULA demanded I renounce some or all of my rights under consumer protection legislation, and I failed to do it, but ran the software anyway, this could not constitute a copyright breach.
Blizzard is still going up through appeal, but it is a very important one. It is in direct contradiction with Vernor, so one way or the other, this is going to get resolved in a year or two. But its a counter example to your (and generally my) argument.
I would strongly recommend you follow your own advice and read more about the difference between Contract and Copyright so as not to get confused about the two again.
The difference is razor thin. Contract law and copyright law intertwine a LOT in software licenses.
Intertwined?! What does that even mean? As in a judge saying: “Well, we are not sure which law applies here, so we’ll just have to pick arbitrary bits of each law to make a ruling on that?” No, that’s not how it works.
These are two different sets of laws. One is Copyright law, the other is Contract law. One is unilateral, the other is an exchange of obligations.
Two very different matters and there’s no reason to mix them up.
http://dictionary.reference.com/browse/intertwined
http://dictionary.reference.com/browse/twine
Of course not. He’s saying “more than one law applies, so let’s see which takes precedence and on what issues”. As you can imagine, it’s not easy, which is one reason why lawsuits last so long. There’s room for a lot of interpretation.
But you can’t not mix them. Things fall under more than one law all the time.
If an employee of a bookstore steals books and resells them, which law should apply? There’s straight out theft, there’s breach of copyright, and there’s breach of contract as an employee. Each with different penalties.
A judge’s work is very hard for exactly this reason. Often they have to slice and dice all things involved incredibly thin to take all aspects into account.
Edited 2009-11-15 15:11 UTC
Uhm, what? In this example, there is no breach of copyright at all. There’s theft, selling of stolen goods, and possibly, depending on the employee contract, breach of contract. The first two fall under criminal law, the third under civil law.
You continuously say I don’t know what I’m talking about, yet it is you who continuously show a total lack of understanding about copyright law.
Edited 2009-11-15 15:27 UTC
Ha ha.
OK, Thom. Yeah, redistributing books without the right to do so has nothing to do with copyright. 
Keep up the good work.
First sale. Look it up. You are allowed to resell any copyrighted work you own. Do you honestly think you are not allowed to do so?
Dear lord, the RIAA/MPAA must be so proud.
Edited 2009-11-15 15:36 UTC
Is a bookstore employee the owner of the books in the store?
The bookstore owner isn’t the copyright holder either. If you sell a stolen book then you are breaching the contract and criminal laws, you’re still not breaching the copyright law.
And if the employee stole the books to begin with they didn’t own them, and therefore first sale doesn’t apply, so they have indeed breached copyright. By your very own definition. Open mouth, change feet…
Uhm, unless he/she duplicated those books and sold those copies, then yeah it is a violation of copyright. Else, it is still just theft. The book distributor and neither the bookshop needs a special license from the publisher to resell the books and neither does the employee who stole it.
If you still insist what you say is true, then please explain what kind licenses do used bookstores need to operate?
Eat crow now?
Perhaps you are not aware that a distribution license is not the same as an end user license agreement? EULAs are invalid in the EU, yet the GPL and countless other licenses have been uphold as pr the copyright laws? perhaps you are also unaware that IF somehow they get legal grounds to dismiss the GPL, all the previously GPL-covered works fall under copyright still, and allows you to do NOTHING…
A particular kind of EULA, not all EULA’s. Please stop generalizing! It’s like saying “contracts are invalid in the EU”, because one particular contract was found to be invalid.
A particular kind of EULA, not all EULA’s. Please stop generalizing! It’s like saying “contracts are invalid in the EU”, because one particular contract was found to be invalid.
Well, to be honest, you both are correct and incorrect. Most clauses in almost all EULAs are indeed invalid in most European countries, but not all of the clauses. As such the whole EULA isn’t invalid even though most of its contents are.
Have you read and analysed fully all the clauses in all the EULA’s being used in the entire EU? I suspect not. Then how can you state the above?
Quite easily actually. EU law states that no one can force additional arbitrary restrictions on you after you have signed a contract. As you haven’t signed any contract when buying software, and clicking on “I Agree” at a screen prompt during an installation does not constitute a signature, any further restrictions that are not already covered by copyright or any other law are null and void.
What I don’t get is how someone like you who is obviously an intelligent person cannot grasp that. It’s not like this very matter has not been done to death on this very site.
First of all, please bear in mind that we’re speculating. Until this very issue comes up in an European court of law, we’re just guessing.
That being said; there’s two possible explanations here.
One, electronic contracts are valid in the EU. If the software is connecting to the issuer and is ready to transmit your acceptance, and if the issuer is ready to refund you fully should you not accept, then it may work. It’s happened in the US. I’m not sure if it has in the EU. Having a law in that respect is all fine and beautiful, but it also has to pass the lawsuit test.
Another possibility is that this is not playing on contract law but on copyright. So you buy the software, get home, and it tells you “Hey, by the way, here’s the license that covers this piece of software. You don’t HAVE to agree to it, but there’s nothing else that grants you certain rights unless you agree.”
To be fair, the discussion on this site has been driven into a lot of side issues by Thom’s ill-informed rants. Take the point we’re discussing above, for instance; it has nothing to do with Psystar vs Apple. We’re talking about personal use because Thom turned this into a personal use issue. What Psystar did had nothing to do with personal use.
I’m afraid we are not just guessing. Most European countries have strong consumer protection laws, soon to be enacted in the whole of Europe due to the Lisbon treaty granting more power to the European institutions.
Until Apple puts in place any such scheme, there is absolutely no point in us speculating about it. Currently Apple’s EULA has a clause stating that I’m not allowed to installed MacOSX on anything other than an Apple branded computer. This is in direct violation of my rights as a consumer to install said software anywhere I please as long as I abide by copyright law, which brings us to your next point.
But it doesn’t play on copyright law. Copyright law is very strait forward about what I can and can’t do. Requiring me to give up even more rights falls directly into contract law. I must agree with the loss of rights in a signed statement before the contract becomes valid. Until that has occurred, any arbitrary clause forbidding me to exercise my rights as a consumer are null and void.
I strongly disagree! First off, this very much is about personal use. I’ll grant you that a judge in the US has ruled that Psystar is in violation of copyright law but the overall point still stands. If companies like Apple are allowed to take our rights away simply by requiring us to click on an “I Agree” button than I for one am not going to sit here and let that happen.
I would love to see Apple try to sued a European clone maker.
First of all, please bear in mind that we’re speculating. Until this very issue comes up in an European court of law, we’re just guessing.
That being said; there’s two possible explanations here.
One, electronic contracts are valid in the EU. If the software is connecting to the issuer and is ready to transmit your acceptance, and if the issuer is ready to refund you fully should you not accept, then it may work. It’s happened in the US. I’m not sure if it has in the EU. Having a law in that respect is all fine and beautiful, but it also has to pass the lawsuit test.
Just for the sake of discussion, these things have already been in the court a few times here in Finland. Clicking “Yes” or ticking “I agree” doesn’t constitute a legally binding contract here. Thankfully. Of course, agreeing or disagreeing with the EULA doesn’t change the fact that you’re still bound by copyright and consumer laws, it just means that EULA can’t specify arcane restrictions on us unless those restrictions fall under any of those laws.
Another possibility is that this is not playing on contract law but on copyright. So you buy the software, get home, and it tells you “Hey, by the way, here’s the license that covers this piece of software. You don’t HAVE to agree to it, but there’s nothing else that grants you certain rights unless you agree.”
As you’ve paid for the product you are free to do with it as you please as long as you don’t distribute any parts of it or copies of the whole product. It’s the same as with paintings: you don’t get any license with them and you’re free to use them in your home as you please. You can draw on them, you can sit on them and use them to wipe your butt, you can sing to them, you may even hang them to the wall! That’s all fine by the copyright law, even without any license attached. But as soon as you scan it and hand out prints of those scans you’re committing copyright violations.
It is similar (here in Finland, still don’t know about any other countries) in that whether or not you agree to the license with the software you are allowed to use it in your own privacy. You just must not breach the copyright law.
I’d grant the National Enquirer somewhat higher credibility in this particular matter. Pamela Jones lost what remaining credibility she might have had when she latched onto that bizarre conspiracy theory about Psystar, backed by the phantom of Microsoft, doing all this as an attack on the GPL. One can only expect the next attack to be directly upon our precious bodily fluids.
As much as I love PJ for doing what she’s done over the years I did find that bizarre and rather illogical. Quite frankly, I would have thought Microsoft would have been secretly terrified at the thought of a credible competitive desktop operating system being picked up by OEMs and installed on regular PCs in direct competition to Windows. Microsoft would want Apple to win! That’s what matters to them and not some third-hand way of undermining the GPL.
The bad thing is that people place credibility in PJ’s words, so despite the fact she’s obviously lost it on this one, her words are propagated as fact all over the web. It’s maddening.
If I were a black helicopter lunatic, I’d say she’s getting paid by someone to write her drivel. I don’t have any proof, nor do I have common sense on my side on that one, but hey – isn’t stopping her, now, is it!
No. If you’d pay more attention to PJ’s articles instead of dismissing her, you’d find she actually always explains her suspicions and brings in facts to support them.
First, we have Psystar’s mysterious abundance of funds and ability to pay top lawyers. I mean, come on, a random small company picking on Apple and their legal team? You have any idea what these lawsuits cost? Quote PJ:
“If so, that raises a serious question: who is behind this litigation? Who is funding it? How odd that they overnight have products to sell at the higher end, just in time for legal needs in Florida. At least I find it very odd.”
http://www.groklaw.net/articlebasic.php?story=20090829201948789
Second, Psystar’s argument is very sly. It seeks to prove that only Apple’s EULA is unenforceable, not Microsoft’s. Quote PJ again:
“All proprietary EULAs add on restrictions beyond copyright law. It’s what they are designed to do, unlike the GPL, which gives you *more* rights. It would utterly put Microsoft out of business if any court granted such a declaration as Psystar seeks, I guess. Who would that benefit? Some foreign government that wants the US economy to tank, I suppose. But wait, there is a loophole for distinguishing EULAs from EULAs:
[…skip Psystar legalese…]
“See? Psystar has no intention of claiming *all* EULAs are unenforceable, so those of you dreaming that this was their goal need to stop this exact minute. The lack of privity and lack of consideration are also claims antiGPL netkooks have been claiming make the GPL unenforceable, by the way, for years. What a coincidence. But Microsoft EULA’s can continue, I gather, as far as Psystar is concerned; only Apple has no rights against Psystar’s violations. How convenient.”
http://www.groklaw.net/articlebasic.php?story=20090829201948789
This is a very good question, actually, and should not be dismissed. Who funded Psystar, if anyone did? Of course, according to a recent article about Psystar that was linked from osnews, the owners’ father was a drug dealer. Drug dealers tend to make a very large amount of money. It could be something as simple as the brothers having some of their father’s stash of cash to burn up.
It’s certainly suspicious, but just because it’s suspicious doesn’t automatically mean some evil corporation is behind it. Nevertheless it’s something I would eventually like to have answered, it’s been a point of curiosity for me ever since this whole case began.
That’s great and all, but it doesn’t explain why Microsoft would want an extremely credible desktop OS maker seriously encroaching on their OEM monopoly and opening the floodgates, because that’s exactly what would happen.
It is indeed suspicious, but in the absense of any serious evidence on PJ’s part all we have is cicumstantial evidence meeting circumstantial evidence. It does not mean that Microsoft was involved which is what is implied.
If I were into conspiracies, I would say Apple themselves were Psystar’s backer and they did this whole thing for show, knowing full well the outcome in their favor. Now they have precedence and can sue without impunity. But i’m not into conspiracies so take that whichever way you want.
Actually, Apple going OEM would benefit Microsoft a lot, because it would destroy Apple’s business model and drive them into the ground very fast.
Apple’s entire business model is based around selling high-priced premium products. OS X is an important part of the appeal of those products. Once OS X was available on any kind of hardware, not controlled by Apple, it would severely dillute the attractivity of their offer.
As is is, if you find OS X attractive you have to buy an expensive Apple-made piece of hardware to go with it. This has enabled Apple to establish a very lucrative niche at the top end of the market. The moment people can obtain OS X in large numbers on cheap commodity hardware, their niche breaks and leaks and the entire thing is over.
Considering that Apple is Microsoft’s most dangerous competitor in the desktop market and that they keep eating the best of the cash it has to offer, yes, I’d say they have every reason to try to hurt them.
Besides, it would be very much like Microsoft to react this way. Look at how they react at anything that threatens them. Linux becoming well known? “Get the facts” smear campaign, covert attacks on copyright grounds (SCO), software patent attacks (the recent attempt to sell to patent trolls foiled by Allied Security and OIN). OpenOffice threatening their Office monopoly by pushing an open document format (ODF)? Let’s push a bogus alternative “standard” (OOXML) through ISO and get everybody confused. Apple starting to crowd us on the desktop? Let’s cut at the core of their business model. And so on and so forth. I won’t even mention the ancient history (Netscape, Java, office competitors, Apple again etc.)
Or of having EULAs weakened in any way. It would make far more sense to theorize that Microsoft paid off the judge to rule as he did than to suggest that it funded Psystar.
Jones going off the deep end (again) doesn’t surprise me all that much. But that so many other people have been so willing to go there with her is truly frightening, in a sort of (Stanley) Milgram-esque sort of way. May the $DIETIES that be save us from charismatic lunatics!
Edited 2009-11-16 05:15 UTC
Here’s a funny fact. There are no ads on groklaw.net, just a donate link and the hosting credit.
But there’s lots of ads on OSNews. And lots of inflamatory opinion pieces, which take an otherwise straightforward matter (lawsuit troll gets ass handed to them in court) and turn it into a personal use non-issue and anti-Apple flames, all in order to produce lots and lots of page views.
I wonder which of the two sites resembles the National Enquirer more.
And lots of inflamatory opinion pieces, which take an otherwise straightforward matter (lawsuit troll gets ass handed to them in court) and turn it into a personal use non-issue and anti-Apple flames, all in order to produce lots and lots of page views.
Well, you might not value it but those opinion pieces usually generate lots of discussion, both disagreeing opinions and agreeing opinions, and tend to also gather lots of comments surrounding the actual topic itself. I personally find that just a good thing. There’s never too much discussion of important topics, only too little or enough.
Yes, but that is not what this case is about. It’s about specific clauses in the license.
No they wouldnt. Having clauses in one EULA rendered invalid does not render all EULA’s invalid.
I agree with sbergman27, I’d rather read News of the World or National Enquirer.
“Go read Groklaw…” Yes indeed. And read the venomous ravings of a cultist.
She may be right about the implications of the case for Psystar. But what she is wrong about is the public policy implications of a result whereby the makers of software are empowered to dictate what hardware it is installed on. That result is a public policy disaster.
Well, I was accused of being sarcastic or snarky or both in the last thread, but very sincerely, I really do now hope some large software supplier puts out their stuff with a EULA which forbids installation on Apple labeled computers, and only on those labeled Apple.
If we are going to have software suppliers with the power to dictate what hardware their software is and is not installed on, what we need is to make sure that it gets used in a non-discriminatory way. Folks, this is not and never has been about Apple and Psystar. This is about power. This about whether companies have the power to tell you what to do with what you have bought.
And if Apple has the power to tell you what to do, so does MS, so does everyone. And if Apple has the power to tell you to only install on Apple branded machines, everyone else has the power to tell you not to.
This is mad. The reason it is mad is it is unnecessary. Apple could perfectly well defend its business model in other ways. But it prefers that at huge and totally unnecessary cost to intellectual freedom and personal liberty it should go on selling its software in a form which permits installation on all kinds of machine, while telling people which brands are OK.
I do very sincerely hope it comes back to haunt it. It confirms one in the view that this is the most abusive company in the industry – far worse than MS has ever been.
What you miss here is that the big money comes from the iPhone/iPod/iTunes combo. Macs figures are peanuts compared with these.What are we talking here? This would hurt Apple in which way forbidding installing other OS on their HW? Apple went to defend what they thought rightfully theirs. And so far they were successful. Time will tell.
Firmly agreed. I would love for Microsoft to offer a special version of Windows for Boot Camp and Mac virtualisation solutions, that costs more than the regular version of Windows.
Regular versions of Windows would be cheaper, and would contain a clause in the EULA that they may not be used on Macs, virtualised or otherwise. The reasoning between the price difference is that Microsoft works together with OEMs to ensure better integration, but that it does not do that work with Apple.
Let’s see how the EULA fanatics on Apple’s side take that one.
I might be wrong, and I’m sure someone else here might have already mentioned this…
Apple walked down this road of licensing the OS to other 3rd party only to find it was eating into their business. When Jobs came back he saw this. Apple don’t make cheap h/w (their choice), so can’t compete against makers that do. Why do so many people here wish to see Apple go back to a model that didn’t work for them? Apple is not only surviving, they are threatening to become more valuable than MS.
MS (and Linux) work to a different tune. The business model they went after gave then serious market penetration, but also means they don’t control h/w. If MS (or Linux) put into their EULA’s that you cannot install this OS onto a Apple branded machine (which they do have the right to do if they so wished), it would mean they potentially lose 5 – 10% of the machines out there.
Remember, Apple is all about selling iMacs and MacBooks and so on…
If Apple change their business model one day to be more like MS, then I’m sure the EULA will change.
I’m not arguing the “legalities” of all this, just abiding by what the company has asked.
If MS was the only “Windows PC” maker out there, you know they would have the exact same restriction on Windows too.
Amiga is pretty much doing the exact same thing too (well, they were last time I checked)… Like it or not, it helps Apple stay alive. I can guarantee the iPhone OS is restricted to iPhones too 🙂
Your post makes several incorrect assumptions.
First, you assume that we argue that Apple should facilitate cloning. Stop assuming that. What we argue is that Apple (or any other company) should not have the power to dictate how we, consumers, use our legally purchased products.
If they want to restrict the usage of their products, then they should start offering these restrictions DURING the sales process, and not after, when we’ve already torn the shrinkwrap.
Second, you falsely assume that we, as consumers, should give a rat’s ass about Apple’s (or any other company’s) fortune. Apple is not something that needs to be protected, they’re not an invaluable cultural asset. Apple is not The Mona Lisa or the Decleration of Independence or the masters of Full Metal Jacket – no, they are a company. They don’t care about you, and you shouldn’t care about them.
All I’m interested in is making sure that companies do not gain too many rights. We as consumers need to be portected against companies, not cheer them on whenever they try to limit our rights.
Companies like Appe are dangerous because their profit model is based on restricting consumer rights (as evixencex by Apple’s fear of cloning). Cheering them on is close-mindex.
Edited 2009-11-15 08:18 UTC
So you mean something like the sales person asking for your Mac serial number before selling it to you – which will come up whether you’re authorised to purchase and install it? I could see that possibly working – it would put them in the situation where the software is sold as a piece of firmware since many companies that offer firmware upgrades generally require registration before getting access. In the case of Mac OS X sales, if they don’t have a valid registered serial number, they can’t purchase the software.
Would that make Mr Holwerda happy?
That depends. If I have a Mac (and I do, several) and I buy Snow Leopard using the serial number, than said copy is still mine, and I will still do with it as I please – even installing it on a non-Apple labelled machine. Serial or no.
The real issue here is that they need to properly inform consumers about and let them agree to the restrictions placed upon using Mac OS X. In other words, they’ll have to shove a document under my face that I need to agree to as part of the purchase.
Cumbersome for software companies? Will it cost them money?
I don’t give a rat’s ass. It’s not my job, nor that of the law, to accommodate the needs of software companies.
Edited 2009-11-15 10:48 UTC
They could easily do it; get you to sign an electronic document and on completion of the purchase the document is then sent to Apple. Btw, have you read the the requirements on the back of the box, it clearly states that you need a Mac running an Intel processor (in the case of Snow Leopard). What part of those requirements are you confused about? or are you going to say, “well, it only says Mac, so it oculd be my home made computer I call Macinrosh! ROFLAOBBQ!”.
In all seriousness, you’re grasping at straws. If you don’t like the restrictions, as clearly stated on the outside of the box – purchase something else; go for Windows 7 – apparently it is pretty damn good. Go and download Fedora 12 when it comes out. My God, exercise your damn right as a consumer by using your wallet instead of pussy whipping yourself into the corner whining about the fact that Apple won’t give you what you want!
Edited 2009-11-15 11:36 UTC
kawai, surely the issue is this. We do not think it socially desirable for ANY software supplier to have the power to restrict, by EULA clause, on what brand of hardware you install some software that you have bought.
I don’t think this is a power they should have. I don’t care if they present it at point of sale, and you agree to it, or how it is presented. Not if you sign a notarized agreement in the presence of three witnesses. Not if you swear an oath to adhere to it.
This should be treated in the same way as if you are presented with an agreement in which you renounce your rights under consumer protection legislation as a condition of opening the package. It should be void and unenforceable by any court. Go a step further: not only should it be void, it should also be actionable under sale of goods legislation to assert or imply in your sales literature that it is enforceable.
This is only about the power of the software company to restrict where the hardware is bought that the retail copy runs on.
Now, they don’t want you to install on some bits of hardware, perhaps they are the wrong color, made by a company they do not like, whatever. Find some means to make it impossible. Who cares what it is? It could be encryption and ROMs or dongles or whatever. It could be not selling at retail Its completely immaterial. Anything they want. They should have the power to do any of this, or develop their product any way they want.
What they should not have, none of them, and that includes MS and Adobe and Wolfram, is the power to sell something that is installaable on machines from many suppliers, but restrict you, solely by contract of sale or use conditions, from installing it on machines from some of them.
Even those whose vision is almost totally occupied by Apple and its doings should be able to see this. For the longest time, MS crippled Office for the Mac by not supporting Exchange or Access on it. So, you could, if you really wanted to use Macs in a company, and have a mixed environment, get around this by using Wine. Or by running Windows in a virtual machine for the sake of Exchange or Access.
MS at some point decides that Apple is getting too rich in the enterprise market, and so it simply puts it into its EULA that you cannot install Exchange or Office in a VM or using Wine as long as they are running on Macs. And also that you cannot install Windows as a dual boot on a Mac. On a Dell it is just fine. And it discontinues Office for the Mac also.
What the Mac fraternity are arguing for is for MS to have those sort of powers. No additional development work, just a statement to the effect that you don’t get to do this any more. Of course, they cannot see it, because their heads are almost totally full of the idea that Apple must be able to do whatever it wants. But this is the implication.
Its even more open to abuse because it solely has to do with the brand. It is not that the company is objecting to your installing on particular kinds of equipment. It is solely the brand, where you buy it. Can you not imagine circumstances in which large suppliers with this sort of power have the ability to distort markets and competitions very dramatically?
The thing that always baffles me about these discussions is how the Mac people can only see ‘I want this for Apple’ without seeing that you cannot give this only to Apple. Its about the structure of the industry and who has what powers.
What baffles me is that you think the average user gives a shit about any of this.
They like Macs ’cause they work and they are shiny.
If they don’t work, or are dull, they’ll buy something else.
End of story.
Thom writes that, since he’s not asked to agree to any restrictions before his purchase, nobody can force him to abide by them. This is obvious to me, because I’m European and live in Italy, but it may not be equally easily understood by you and others: perhaps there are different laws with you and you have different rights as consumers in your country. Nonetheless, what Thom writes makes perfect sense: he’s not asked to sign any contract with Apple. And if he were he’d have to renounce his rights as a consumer in order to accept Apple’s restrictions on the use of Apple software.
You write: have you read the the requirements on the back of the box, it clearly states that you need a Mac running an Intel processor (in the case of Snow Leopard).
My short and unsatisfactory experience has shown me an AMD processor (Athlon 5600+) can do just as well. Some Darwin-based OS was made to work on VIA mobos. In short, what may not work is the rest of the hardware, regardless of whether it’s Apple, Intel or anything else. What eventually matters is who the heck cares about what’s printed on a box if its content is good for what the buyer intends to use it? Suggestions and instructions aren’t binding.
If you don’t like the restrictions, as clearly stated on the outside of the box – purchase something else;
From Italy I can say that it’s not a matter of being unable to understand what’s written on the box: there’s no agreement between Apple and the buyer on how to use the software as long as the buyer doesn’t sign a contract. That’s all. But there’s more: if the restriction is an unreasonable clause in a contract, the Italian law is very clear about the fact that also the clause in the contract has to be signed or it will be void. Even in that case, I very much doubt that a judge will order you to go out and buy a Mac in order to use the copy of MacOS you’ve purchased.
The argument according to which I shouldn’t buy a product that someone makes and expects me to use in a certain way or a for a certain purpose is nonsensical: I have the right to buy anything offered for sale and the reseller cannot prevent me from getting it if I’m ready to pay for it in currency. What I buy and what I buy it for is my business.
I can’t predict what Apple will do to protect its software, but I’m fully certain they can’t start a legal battle in every country in order to force their policy everywhere. I also doubt they’re considering asking their potential customers to sign a contract: suppose I want to buy a copy of MacOS as a present for a friend, why on earth would I have to sign anything? And frankly, I don’t think Apple has enough money to pay a huge legal staff to draw up contracts for each country and to keep them upadated on every minute change in legislation.
Producers have rights too and the rights of the consumers do not necessarily precede them. And does apple try to limit the rights of the consumers or are they just trying to make it harder for other companies to try and steal revenue?
Producers have rights too and the rights of the consumers do not necessarily precede them. And does apple try to limit the rights of the consumers or are they just trying to make it harder for other companies to try and steal revenue?
I’d say both
The problem is that US law presently gives them that power. EULAs are binding in the states — I was hoping that’d be obvious, at this point — and they can put any enforceable terms they want in there.
You need no protection from Apple. If you don’t trust Apple or don’t think their terms are reasonable, then don’t buy their products and don’t enter into agreements with them. If you do that, they’ll have no power over you, and you will have no obligation to them.
The solution is to deny them your funds, and maybe to immigrate to the states and then write your Congressman. Apple are within the letter of the law at present in the states. If you don’t like it… try and change the law, don’t ignore it because you don’t like it. And don’t buy Apple.
Edit: SP
Edited 2009-11-16 21:36 UTC
The issue is not whether they license OEMs. The issue is, do they get to dictate what brand of hardware you install your bought copy of software on? Not even, do they. Does everyone, including them? Does MS? Does Adobe?
Its a very narrow issue, but the implications of a judgment which says yes, all corporations in the software business get to tell you where you buy the hardware you use, are enormous.
This is inane. So a developer is going to spend money creating a Mac application and then explicitly forbid it from being installed on Apple computers? That makes a lot of sense.
Secondly, if said developer would to do this, it would go against the very argument that you hold so dear to your heart. And you would be required by the party line to abhor said developer as well.
Thirdly, developers do this every time they choose not to develop for the Mac platform, or web developers choose to develop IE only.
Fourthly, this is a win for individual hackintosh users, because Apple will continue to distribute without registration and serials. They will still legally be able to hack their personal copy to run on their personal hardware.
Engage your brain for a second or two and it should be obvious that he’s talking about cross-platform, open source applications.
Sure, if you’ve never heard of poetic justice.
Of course, the OP’s point (which you seem to have missed) was that Apple’s supporters would also have to support any company that used post-sales restrictions to prohibit their software from running on Macs.
Why do you Mac fanboys have such a hard time understanding the difference between real, fundamental incompatibilities – and the sort of artificial, arbitrary/intentional incompatibilities that Apple uses with OS X?
Oh, give me a break. Once they’re done with Psystar, how long do you think it will take before Apple starts trying to shut down osx86project.org or insanelymac? This is a company with a history of suing random bloggers, FFS.
They won’t do that if they have one ounce of common sense left. An InsanelyMac user declared he spent thousands of Euros on Apple products thanks to InsanelyMac.
Peanuts compared to what Psystar spent buying Mac software…
Not sure about that. Psystar bought just copies of OS X.
InsanelyMac users buy Apple computers,iPods, iPhones…
Not to forget they are the real geeks which actually know a thing or two about how macs and os x works and so on. Rather the opposit against your regular mac owner.
Given that apple makes most of their money in HW, and a lot of hackingtoshers end up buying apple products by the truckload.
A hackintosher at the end of the day is not costing apple anything, in fact… if anything, it presents apple an opportunity for a future sale.
However, a Pysstar sale is costing apple an actual sale on HW (where they make a bulk of their money).
What part of copyright ownership don’t you understand. If I have a right to not sell it at all. The world does not have a right to my IP just because I created it.
There are unnecessary technical restrictions keeping you from reading every piece of email I write and distributing it (or selling it) to the world.
The real rub is simply that you don’t like how Apple does business. Well you don’t have to. No one needs to use an Apple product You just think you should be able to use Apple’s stuff any way you want because it exists. But where is that line drawn. What if I want to use your writing, work, creations? Hell, it’s just an arbitrary restriction that keeps me from using your PIN number to access your bank account.
How hard can it be to not use the OS of a 5% share vendor?
Ah yes, the standard Maclot lazy debate tactic: “If you disagree with me, then it must be due to ignorance on your behalf.” Yawn.
A point as painfully-obvious as it is irrelevant.
So you sell a shrink-wrapped archive of all your EMail at retail and allow anyone to purchase it – as Apple does with OS X? If you are dumb enough to do that, then the results are no one’s fault but your own (as is the case with Apple). And if not, your analogy is utterly useless and irrelevant.
You heard him, folks: don’t buy or use Apple products.
Only if by “any way you want,” you actually meant “in ways that are implicitly allowed by the methods that Apple has chosen to distribute OS X.”
Here, let me spell it out for you. Imagine you’re a copyright holder who’s trying to decide whether or not to publicly-distribute a work. You take a look at copyright law and see that it allows you to distribute your work while still retaining certain rights. But you also want to place additional restrictions on the use of the work, and you notice that copyright law doesn’t grant that right to you.
So, you have three choices: if you have an ounce of common sense, you choose option 1 (don’t distribute your work) or option 2 (distribute your work, but only to people who have formally agreed to your terms by signing a legitimate contract).
But, if you’re Apple and want to have your cake while eating it too, you take option 3: distribute your work anyway and try to substitute an EULA for a proper contract. And when someone inevitably ignores the questionably-enforceable EULA? Why, just send in your attack-lawyers!
Then you compensate me for it, as Psystar has compensated Apple (by purchasing copies of OS X). Really, what’s so hard to understand? This isn’t rocket science, these are the basic principles of how commerce works.
Um, no. It’s criminal laws against theft and fraud that prevent your absurd example (assuming you have any sense). Not to mention the fact that most countries have privacy laws that you would need to violate to obtain my PIN in the first place.
Are you really stupid enough to equate criminal fraud/theft with (at WORST) unauthorized re-sale? Or are you just being willfully-obtuse?
So you’re saying that there’s no reason to use any of Apple’s products? I wholeheartedly agree.
Your above statement shows very clearly that you are the one who does not understand copyright ownership. In actual fact, the world does have a right to “your” IP. In fact, anything you, I or Apple create rightfully belongs to everyone. Copyright law allows you exclusive distribution rights for a limited time only.
Look it up. The creators of our modern copyright system were very clear on that.
True. And, iteratively, Congress has placed larger and larger upper bounds on just how large a span of time that limited duration may be. Presently, copyright lasts a long time. In particular, I think books carry a copyright term of something like the author’s life plus 70 years. I think corporate copyright can have a term something like “however long the intellectual property is actively sold for a profit.” IANAL, and I’m not sure about those durations: general take-away, that finite time-span could be very large.
you cant use that hammer that you paid for as a table leg cause we say so waaaaaah
lol
Yes, this is the point. The public policy issue is whether a software supplier should be able to specify on what BRAND of hardware his software may or may not lawfully be intalled.
It is not about what suppliers may WANT to do. It is about what legal powers they should have. It is not about whether the GPL is likely to specify ‘anything but a Mac’. Its about whether, if it did, you would think that is perfectly fine.
It is not about whether MS is likely to specify that you may dual boot on any hardware you want, as long as it is not a Mac. Its about whether you want a market and society in which they and everyone else are perfectly entitled in law to specify that, and have the courts enforce it.
Legally???
Well, they are the developers … And it’s not like they don’t tell you that you actually need a mac before buying it, googled os x system requirements:
“General requirements
Mac computer with an Intel processor
1GB of memory
5GB of available disk space
DVD drive for installation
Some features require a compatible Internet service provider; fees may apply.
Some features require Apple’s MobileMe service; fees and terms apply.”
So, you need a mac to run it. If you don’t have one to install it on then don’t buy the product.
It’s not like you can buy Crysis and then comlain how they suck because they don’t let you run it on your Voodoo2 machine.
Based on your example of Crisis not being expected to run on hardware older than the “minimum requirement” specs, would that mean that the specs on the osX packaging are also minimum specs? After all, if I have hardware that overpowers Crisis, I’m allowed to exceed the specs. If I have hardware that osX will run on then I should covered by your example since I’m simply exceeding the osX minimum requirements.
Well, I guess if we ignore the technological limitation that older hardware does not have the processing power to run Crisis while alternative hardware may run osX just fine.
Copyright is the greatest cost on intellectual liberty. because it makes thoughts something that can be owned and controlled through the courts.
What about Oracle? 🙂
It was entertaining reading your antics.
A company founded on a business plan of attempting to profit off of the work of others where there’s abundant legal precedent that says you can’t do that is the height of foolishness, and then being purely incompetent for keeping track of records, etc. doesn’t exactly help things.
Their youth is no excuse: if they thought somehow that things made the remotest of sense going in, they didn’t even bother trying to do their due diligence homework.
Now, the most interesting thing is this: what will all this mean for companies/individuals attempting to sell Hackintoshes commercially outside the US, since this is a done deal in the US: a large part of the ruling addresses how Psystar clearly violated copyright rights of distribution, and it seems probable countries that are signatory to international copyright law will uphold those rights, as Apple doesn’t attempt to restrain users from reselling the software for use in its original license terms: that of running on other Apple hardware.
Also addressed in the ruling is the accusation by Psystar of copyright misuse, that of antitrust issues: Apple clearly does not attempt to restrict the use of competitor’s software on their own systems, or prevent users from using any other OS at all, but merely wish to restrain the use of their copyrighted works to their own hardware, with no other restrictions.
/me awaits Looncraz, a certified pirate of Dan0 to argue his case
How is buying and reselling OS X profit of the work of others? Apple gets compensated. If $129 per license is not enough for Apple to fund OS X development, they are free to put an appropriate price tag on their OS.
I don’t see how Psystar’s model is making profit of someone else’s work any more how anyone else selling computers bundled with OEM software.
Now, if the authors of any kernel extensions or hacks that Pystar includes without permission were in that lawsuit, then I would agree with your point.
As far as I understand it, this judgement was based on the DMCA, not copyright law. In countries without the DMCA, this is a whole different game. German law for example explicitly allows modification of copyrighted software when it is necessary to allow installing it.
So does the DMCA. The judge just didn’t believe this fell under it.
On top of that, it is certainly seen as copyright infringement by the judge, but this appears to be based on the rather elaborate methods used by Psystar, which involves lots of copying.
did you even read the ruling?
The DMCA actually does not have a Fair Use exception. It does have some exceptions, but they are very narrow in scope (specifically not-for-profit libraries and schools, if memory serves), and circumvention for fair use isn’t one of them. That’s why us Freetards hate the DMCA so much: because it can be used to create an Intellectual Property regime much more restrictive than just copyright, one that, in particular, does not make any provision for fair use.
It wasn’t just that Psystar copied OS X. It’s that they copied it, modified it, and distributed the modified copy. There’s also the fact that they (apparently) frequently failed to provide a physical OS X disk with the machines — which they should’ve done, if they’re going to try to claim that they’re just passing along via First Sale one legitimate copy that they purchased.
If you read the judgement to completion, that’s only one of many things ruled on for the summary judgement, and just adds fuel to the overall fire, but there still remains the copyright rights for choice of distribution. Also, the DMCA by itself, being bypassed, does not change the fact that Psystar, by creating kernel extensions of their own, and removing other Apple-created kernel extensions, violates things on the terms of “derivative works” in copyright law, so while there’s some tying between the two things, that by itself makes a notable copyright infringement issue there, without bringing in the DMCA.
If adding or replacing sytem files constitues a copyright violation, then any PC vendor that installs extra software on drivers on Windows machines would also violate copyright – no?
If there are added files/removed files for a specific PC vendor’s machines, consider this: Microsoft sells special OEM discs with whatever changes are appropriate, precisely for this reason, where they give PC vendors permission to do this. Psystar has no agreement with Apple allowing them to do any such thing, and have no authority to force it out of Apple. For that matter, if you were to take a copy of Windows and add/remove stuff and resell it without Microsoft’s permission to do so, you’d be doing exactly the same thing, even though Microsoft is primarily a software-only company and sells software to support most any PC-related hardware, and Apple is a mostly hardware company that sells software to enhance the value/functionality of their hardware, and not as their main business (for their full-fledged desktop/laptop/server computers).
I’d guess they would have a different license — perhaps the license they have allows them to do what they do.
Your example of German Copyright Law holds true for now until the Trans Atlantic Trade Zone comes into effect in 2012. Most likely it will be highly favourable to the US more so than the EU and all US judgements will be applicable to the whole of the EU.
Happy days – NOT.
Your wait is over.
BTW, I distributed a developmental Dano-derived product after talking to people “on the inside” who made it clear I was safe in doing so.
…I deleted about fifteen paragraphs here…
Enough is enough. Not a pirate in that way.
I only pirate software I feel I have no choice but to use, but do not want. If I want software, or I like it or otherwise support it, I buy it, if I have the money. Which I normally don’t.
I also have hundreds of movies I downloaded from torrents. But I own the VHS versions (I just rip the DVDs). Seriously. I have a wall full of VHS movies I bought dirt-cheap.
Sadly, one of my ex-roommates stole an entire collection of DVDs (I keep them in crates). I just don’t know which one did it…
For example, as a Harry Potter fan, I own every movie on DVD, except the Half-Blood Prince. I just haven’t got around to it…
I don’t buy things I don’t want. That is just stupid.
Granted, I’m technically stealing the movies before I buy them. Often enough I watch the movie once and then just press the delete key, while holding shift. I like the idea of a test-drive.
As do many in my generation, and almost everyone in the younger generations.
It is time the law adapts to the people. Every generation has its revolution. And most of our founding fathers would have it no other way. (Thomas Jefferson comes to mind).
—-
For the remainder, I will assume you have read the following document:
http://www.groklaw.net/pdf2/Psystar-214.pdf
—-
Anyway, onto this idiotic ruling, as a dyslexic would do it:
In this case, the judge ruled Psystar as having pirated OS X ( and thus violating copyright ) for a few reasons:
1[/i]) Psystar made an image of a Mac Mini’s (modified) installation from which they performed numerous installations.
Psystar argued that this was fair use. I largely agree. Psystar stated a rather clear precedence with the Wall Data case. The judge disregarded this, barely without providing any reason at all. The judge simply said that Psystar’s use was in excess and constituted infringement. I have seen no evidence that supports this, beyond some mistakes in the beginning, but nothing to justify the level of disdain the judge shows for Psystar.
Granted, the actions at issue in the Wall Data case constituted piracy (3,663 licenses, 6007 installations), but no such evidence have I seen for Psystar [i]( where, even to Apple admission, Psystar bought a copy of OS X per copy installed )[/i]. But when you calculate copies the way Apple chose to do ( and the law, wrongly, permits), you can pick any number of copies you choose (seriously).
I still say this is fair & protected use, regardless. And I feel most will agree. Apple got paid, and Psystar has since utilized a much more correct method.
2[/i]) The judge agreed with Apple’s assertion that Psystar made an illegal copy of OS X every time a non-Apple machine was powered on and OS X became resident in RAM.
Can you possibly agree with that?
Seriously?
3[/i]) Section 117(a) is something that should not even have a purpose to exist. It is severely limited in scope, but would be on Psystar’s side anyway. The judge was very aggressive in trying to prevent Psystar from using this defense.
The judge says Psystar doesn’t have the right to use this defense because they failed to recognize it as a defense because, essentially, their lawyers didn’t do things exactly the way the judge wanted it done.
Then, when, apparently, Psystar tried to use it as a defense, the judge denies this because Apple was not allowed to add Snow Leopard to the case well after discovery was closed. (I think these are different points).
(I’m missing the play-by-play, just reading into what the judge said…)
Give me a break.
4[/i]) Eh, let me cut to the point…
At the very opening, the judge made the decision to simply view the software as a licensed work.
This should have been the central, and almost exclusive, point which Psystar’s lawyers should have placed their effort. Try and get it through that most people assume they are buying a copy of the software, not a license. That Apple failed to clearly differentiate their product, on the shelves, as being so severely limited in scope. Psystar’s lawyers failed miserably.
They failed to show that the primary point of contention was whether or not the software was ever actually licensed, rather than purchased. The judge obviously did have that figured out, but was safe in side-stepping the issue with double-think.
But, most importantly, they failed to show Psystar as being what it is: a couple of kids who made a couple of mistakes while trying to do things right. They are now doing it right (it seems, anyway, I don’t have time to check out for sure), and the few cases where mistakes were made should be handled gently, and with consideration that the ongoing business practices are different and were a different matter.
Sadly, Snow Leopard, is a losing battle for Psystar. Unless they can find full version DVDs somewhere. Buying the $29 version and using it without buying a copy of Leopard for each machine is outright illegal. Upgrades are upgrades.
I feel Psystar is probably doing the wrong thing here, and is why the lawsuit exists in Florida. I hope I’m wrong. Someone tell me what these people are doing!
See. Psystar, according to this judge, didn’t own a copy. Not one. Even though they purchased many, many, many copies from store shelves, and even Apple directly. Oh wait, those boxed DVDs are actually just licenses, which can be revoked?? Which means Apple can tell you to destroy your MacOS X DVDs?
Here, we get to where Psystar actually messed up a little, legally speaking, though very few would agree that this should even matter (but, it does):
Umm… that argument is kinda stupid… if they were the owner of a copy, it would HAVE to be legal. DUH!
That is what Psystar did before they knew better. I even spoke about this before in a couple of my posts on this topic. Psystar can install an unmodified copy of MacOS X on a machine that has been hacked to run OS X, but they cannot hack OS X entirely freely. The system, itself, however can be designed to run it, legally.
Apple can’t stop you from making a compatible machine.
This is, from my understanding, what Psystar has done now. You buy their machine, and install a copy of OS X they supply. That at least limited their exposure. I think they
Stupid DMCA.
I somehow magically failed to realize that even the current way things are being done has been destroyed by this stupid law.
Even though I just read a summary judgement speaking exactly to that point.
Damn, I’m good.
–The loon
Nope, you’re just another deluded pirate
But, you were very entertaining, bravo!
Don’t lump everyone from “the younger generation” in with yourself. Most aren’t douchebag f–king thieves. Like you.
It didn’t take Miss Cleo to see this one coming. Anyone with an ounce of common sense knew that Psystar was headed to take a big fall in this case. In the U.S., judges tend to side with Goliath (i.e., big business) whenever David faces Goliath in our courts. Oh well. I hope everyone who bought a Psystar Mac enjoys their soon to be rare machine.
So if I understand your point correctly, you’d be of the opinion that the size of a corporation is inverselly proportional to how much they can break basic commercial laws?
No, no. I am just pointing out that in many cases, the big corporations can “bend” the rules if not break a few, and they’re forgiven for it a lot more often then when the little guys try to bend one or two rules once. I point to the Microsoft anti-trust case as one glaring example. In that case, Microsoft pretty much got away with everything.
Yeah, but this is definitively not one of those cases. Pysstar, regardless of the corporate size of Apple, was attempting to profit from a clearly illegal business model. End of story.
So I have no idea why your red herring excursion came to be in this thread.
I hope that there has been a huge jump in Psystar’s sales every time Apple has tried to tighten the screws.
Um, not so much. Remember, they already filed Chapter 11 once, their sales can’t save them.
The other stuff really isn’t as important, this basically shuts down their business.
I don’t really think anyone saw this going any other way.
The writing was on the wall early on for Psystar – just not a feasible business model.
And I don’t think this opens the door for anything – it’s not like this Apple-Psystar case new. Rather, the judge sided quite quickly with precedent out there. The door has already been open.
This whole thing sure ended softly.
Yes, Thom was wrong. He is just a regular person, with a (backwords) opinion you know.
OSX is Apple’s product, Psystar should make their own OS instead of trying to resell a hacked version of someone else’s. The open source parts are all there to clone OSX.
Psystar was doomed anyways, you say that this was a loss for consumers (cough editorial) but I would argue that those consumers at some point would get bricked systems or at least locked out of security updates.
Apple is holding too many cards here. At some point Psystar and their customers would get screwed. There’s just too many legal ways for Apple to do it.
Psystar should make their own OS instead of trying to resell a hacked version of someone else’s.
Great artists steal, remember?
Apple is holding too many cards here.
Yes, like holding all that Apple IP.
Oh cruel, unfair world! 🙂
Agree, I am glad to see that property rights are still protected by laws.
not Sweden
An EULA isn’t a legally binding agreement
Har du någon källa / länk till svensk kontraktslag?
English please!
I write using my poor English skills here to be understood by all of you and I want the same in return.
The judge was quite clear. Psystar lost on the EULA, DCMA, and just plain old copyright violation.
Knock either of those out and Psystar is still infringing.
Specifically, the “purchased a legal copy” was just a fig leaf. Not all computers came with copies and the OSX installed was not the same as the purchased copy when there was one.
Seriously, Psystar was engaged in straight up piracy: taking a copyrighted work, copying it without permission and selling it. For profit.
It’s not even the piracy of music file sharing. It’s the piracy of the guys selling unauthorized DVD copies on the street. Now if you have no concern whatsoever for any sort of IP rights, you might think it’s a good thing. But it’s ridiculously illegal, and clearly all Psystar did was kill a lot of virtual trees and throw a lot of legal bs into the works to draw the thing out.
Read the entire rule and you’ll see. (And sorry about the flu.)
This is a very good analogy actually. If I went and bought a DVD and used some software to crack the copy protection, made an unprotected copy (ie. different to the original) then sold the original and the copy together for a profit, could I be slapped for it? Absolutely I could. Just as Pystar has been…
I’m so sick of hearing about this (obviously hopeless) attempt by Psystar.
good for apple. this just seals their fate as the underdog of computers. and i’m fine with that. because i don’t like their operating system.
Huh? MacOS 9 was great!!!
Except Apple *isn’t* an underdog, as far as OEMs go they do quite respectably. Windows has a greater portion of the OS market but the OS market isn’t Apple’s concern, it’ shipping their hardware.
I wouldn’t worry about replying to graigsmith, in the 3 years he has registered and the 43 posts he has made, not as single post as contributed anything to the discourse on this forum. He is like a walking abyss of ignorance.
Going off the topic of your post for a bit, I’d love someone to explain to me how NZ$1699 can be considered expensive for a laptop when one considers the VAIOCW16 which is slightly more expensive when bought through SonyStyle shop in the CBD of Wellington. If you can’t afford a Mac either stop whining and say, “I can’t afford it, I’ll just have to do with what I can afford” or get a second job and live on a shoe string budget for a few months. I am really confused why some people here seem to think that if they can’t get something that they must abuse those who do have it.
VAIOs sold in the Sony Store are also overpriced.
Just about everything in fact that is sold in the Sony Store is overpriced.
Can we all start dummy apple knockoff companies in order to drain apple’s resources through its lawyers? Or is there effectively a neverending army of them?
Yes, Steve Jobs has created an army of undead zombie lawyers. And like their master, they can only be sustained by consuming the flesh of the living.
Instead of selling non-Apple machines with OS X preinstalled, they should have done the following…
Offer three products …
1. Barebones x86/amd64 computer w/o OS.
2. Installation utility for putting OSX on #1.
3. Retail version of Mac OSX (reseller)
This would have completely done an end-run around Apple. Under the scenario that I’ve outlined, a customer would purchase the three products individually/separately. Psystar would NOT install OSX on the computer. They would simply sell a retail OSX box to the customer, and would appear to be just like any other OS X reseller. It would be up to the customer to install #2 and #3 on the machine. I see little reason why this process couldn’t be completely automated. Yes, there would be a little more effort on the customer’s part, but only a negligible amount. It would be as simple as putting in the disks.
It’s really too bad. Psystar shouldn’t fought Apple head-on. Even if Apple got pissed off at Psystar and pulled their reseller account, they could have still sold #1 and #2, and had the customer buy #3 elsewhere. They could have made inroads into Apple’s hardware business. Critical error.
Part of the rights of copyright include the rights of distribution: the only way Psystar would have a hope of all those steps working is if Psystar never sold OSX to them, because Psystar would never be selling Macintosh computers to go with them.
Then, once you got past the issue of distribution rights, you then (possibly, depending on judgments/details) have the issue of DMCA issues: the case clearly states Apple uses encryption and some sort of method to prevent OSX from running on machines without compatible firmware. Even selling a means to bypass that will run someone afoul of the DMCA. If the installation utility modified a copy of OSX in a way to make it bootable on that generic clone machine, even if it doesn’t modify the DVD, that’d still run afoul of things: look at how the judge has ruled.
Perhaps in countries where the DMCA or comparable laws don’t exist, you could get away with that business model, but definitely not in the US.
I think you got a little confused there, but I think what you tried to say is this:
While copyright enacts a monopoly for the rightsholder, you still have the right of first sale which allows you to resell copyrighted works. However, the judge in this case ruled that Psystar never bought their copies – they were merely “licensed” to them.
That’s what you meant, right?
What I should have said, “Part of the rights of copyright include the rights of distribution: the only way Psystar would have a hope of all those steps working is if Psystar never sold discs with copies OSX to them, because Psystar would never be selling Macintosh computers to go with them. ”
I don’t like you putting words in my mouth, especially when they’re pulled out of your butt! :p
Agreed. And I think that Psystar could have still had a viable business — even if they never sold OSX to customers — because the value of what they’re providing is the means of installing OSX on x86 computers, not OSX. Customers could have obtained OSX elsewhere.
Psystar is based in Miami, which is only a half hour away from the Bahamas by plane. Psystar’s entire operation could have been run out of the Bahamas. Game over.
Government Gives Lip Service to Copyright Laws
http://www.bahamasb2b.com/news/wmview.php?ArtID=8487
The Bahamas don’t recognize DMCA.
What will happen to the remaining clone making companies? I guess Apple will first send them C & D letters and ask them to comply or else….(else as in look what happened to PsyStar)
Edited 2009-11-15 10:17 UTC
You know who is going to be next?
InsanelyMac. Maybe even people like Netkas directly. Apple has shown to be merciless when it comes to press freedom and individual websites, and they will not hesitate to take those down with this new court order in hand. That’s another example of the slippery slope.
Mark my words.
And <strike>if</strike> when that happens, I hope the EULA supports/Apple fanatics are proud of themselves.
Why don’t you take that up with Psystar? They’re the ones who poked the bear knowing full well what will happen.
This is Apple we’re talking about, a company with a history of suing individual bloggers. When have they ever needed any sort of legitimate reason to act like control freaks?
And that’s relevant to the Psystar case because… ah yes, what the hell, since we’re talking about Apple let’s pull out anything remotely inflamatory about them, regardless whether it’s relevant to the discussion or not.
Edited 2009-11-16 18:30 UTC
You have a problem with our looking at Apple, Inc’s strategies and behaviors as a whole? Why are you so set upon preserving isolation regarding observations about Apple, Inc.?
Because I’m best buddies with Steve Jobs, own massive stock in the company, make love to my iPhone every morning and I think everybody who talks bad about Apple should die, obviously.
Or maybe it’s because I can recognize trolling when I see it, and if you apply that logic you could pick on anybody for completely unrelated reasons to the issue at hand.
I have yet to see how Apple going after bloggers for disclosing private information about upcoming Apple products has anything to do with the Psystar case.
Seriously, please explain to me how that is in any way relevant to Psystar. Apple are suing bloggers who publish inside information. This tells us that in the Psystar case… what? What’s the connection? Probably that “Apple will sue anybody just because they can”, or an equally ridiculous blanket statement.
On a second thought no, don’t explain. Well, I know you or ballmer will, because that’s what you do. Go ahead, this isn’t worth my time.
Your candor is refreshing. Many would not admit to such. Especially the fetish bit.
EULA proponents and Apple fanatics often state that Apple will only go after companies, and not after individuals or websites with information about Mac cloning. However, history suggests that Apple WILL go after individuals.
The logical connection with the Psystar case is that yes, Apple WILL take this court order to try and shut down f. ex. InsanelyMac, or it might even go after Netkas & Co. directly.
If I can buy a OSX laptop and install windows on it. Then I can buy a windows laptop and install OSX on it. What now Apples waiting to make Bootcamp win7 compatible , can’t stand the competition. You figure it out.
Reading the sophomoric comments is torture…so I had to add mine.
Thom, YOU can still buy OS X and hackintosh your way to Nirvana; just don’t do it for profit! Apple will not care. I have my hackintosh and you can have yours. I am not going to sell you one, however.
This is my take: I have this product I want to bring to the market. I am a company in a capitalist country and intend to make money for myself and my investors. I will bring this product to the market in such a way that I can make money and release a version that others can use in an open source fashion. I will have my lawyers draw up a legal document to ensure my “for profit” version is used as I envision.
What is wrong with that? Nothing that I can see; except, somebody wanted to take my “for profit” version and use it as a basis for their business in a way that did not comply with my legally binding (thank-you Courts) document and, in doing so, endanger the success of my business. End the hypothetical point here.
Paystar is not a “freetard” endeavor. They are opportunistic individuals trying to make a profit off the work of others. Hackie types, like me, can play all we want. I do it for the challenge; I do not do it for money.
One aside, Apple tried allowing clones and it was nearly a fatal disaster.
Of course I can. I live in a country with consumer protection laws.
Were I to live in the US, than no, I could not do this without breaking the law. What is illegal for Psystar is illegal for any individual. The law makes no distinction between a company like Psystar and an individual like me.
I don’t wish to drill down on this very far but, as a practical matter, you are legally correct. Still, in practice, I am not worried about Apple’s attorneys taking me to court.
Yes, the US laws favor corporations; however, (again, in practice) corporations (outside of the recording industry) will not sue me for legally purchasing a copy of their OS and, in the privacy of my spare bedroom, installing it on a Dell and keeping it in my home. It is not in their interest.
Further, as a business Paystar was not a “consumer” to be protected. I do not wish to slander but Paystar deserves zero sympathy or defense from other than their attorneys.
As a “hacker” (whatever that means) in the US, I find this case does not impact me in the least and, as a consumer and content creator with intellectual properties, I think this ruling is a GOOD thing.
Edited 2009-11-15 16:48 UTC
There is no reason why, as either of those things, it is to your benefit to have Big Software able to tell you where you may buy the machine on which you run their software. That is what this case is about, and the only thing it is about.
If you think Big Software having this right is of any benefit at all to you, either as consumer or content creator, think again.
So if the roles were reversed in this case you would still take the same stand? I would. I’d be backing Pystar 100%.
This case is about rights alright, EVERYONE’s rights. You, Thom and all who hold to your argument believe your rights override the rights of Big Software Company just because they are a big company and you are an individual. They EARNED the right to put licensing restrictions on their software by investing THEIR time, money and other resources in developing it. What did you or Pystar do to EARN the right to tell them otherwise? And now the precedent has been set so that Big Software Company as you call them can’t do this either.
You people also want to make out that Apple is the only ones doing this. If I go to my local PC (clone) maker and buy a generic box I can opt to also purchase an MLK copy of Microsoft Office. I purchase that license, and I only get a piece of paper – no disks or manuals (ie. I’m buying a LICENSE!!!) – and the license is only valid for use on a PC built by that OEM. It appears in their price list as “Microsoft Office Pro 2007 Edition MLK(OEM)”. Although I am strictly only allowed to purchase that with a new machine because they are supposed to install it they allow some leeway – generally up to three months from purchase of the hardware. If I purchase it after the fact however I have to download the installer from Microsoft, but the license still only allows me legally to install it on the machine that OEM built, and I don’t get anything to sign before I purchase it. Now, except for the fact that Apple supply you with an installation disk and allow you to install it yourself, where is the difference???
It’s called consumer protection. In every sane, modern, well-developed democracy individuals INDEED have more rights than companies. That’s because individuals are infinitetly more vulnerable than companies.
So yes, because I’m an individual, my rights are more important than that of a company. That’s only common sense, and it took our grandparents and great-grandparents A LOT of work to make it that way.
And that’s exactly the crux of the issue. As individuals, the law protects us. The law protects individuals through things like fair-use and first sale, and we are angry because Apple and lots of other companies and institutions are eroding those protections.
Don’t go down that route. A lot of us – including me – have been very clear in pointing out that this is not just about Apple. This is just as much about Microsoft with their limited OEM licenses, or any other software company.
Don’t get all victim on us now.
You mean the same type of “sane, modern, well-developed democracy” that still requires your mark in blood to form a contract?
Consumer protection laws are designed to protect consumers from exploitation and faulty products, not so that you can say you agree to something if you don’t, and certainly not to allow you to exploit the investment made by companies into their products for your (or Pystar’s) own benefit or profit.
And you didn’t answer the initial question – if the roles in this were reversed would you still be holding to your argument?
So is that the 1 post in 50 type of “very clear” or “very clear” in the same way Apple’s license very clearly states you can only install it on Apple branded products yet you still click agree? Oh that’s right, I forgot, you don’t recognise that because you aren’t signing anything and it’s presented after the sale. So tell me this, if it was on paper and you had to sign in agreement before making the purchase would you use the products?
But the law makes a clear distinction between supposed fair use (personal) and profit motive (corporate).
This was not a ruling against hackintoshers runing a copy of OSX on their own time and HW. This ruling was against a private corporation trying to profit by hijacking other vendor’s product.
You are either astoundingly ignorant, if you try to make such a false implication regarding this ruling and personal/customer protection. Or you are being incredibly dishonest in order to support your inane anti-apple bias through thick and thin. In any case, it does not look good for your position.
For a while, I did not really mind as much the fact that from a technical standpoint you have no clue what you talk about most of the time (If anything I get humored by people who couldn’t be bothered to get an actual formation in technology before attepting to express authoritative opinions). But your intellectual dishonesty, makes me question the little journalistic validity that the articles in this site have.
Grow up, seriously.
Please refresh yourself on US Laws. Fair Use applies to individuals, not business entities. Copyright law in the US is very clear on this. Living in the US I can make a hackintosh if I so desire for my own use. Why, because I am a consumer. A consumer by US Copyright law is an entity who purchases goods not for resale. Psystar bought them with the express notion of selling the software, so therefore is not protected by consumer protection laws, because simply stated, they are not a consumer. See the difference? You are smart enough, you should be able to.
What? Of course Fair Use applies to businesses. Otherwise, (E.g.) Fox News could sue Comedy Central into the ground for using clips of their programs on the Daily Show. They can’t because commentary and satire are covered by the fair use provisions of copyright law.
There are only two reasons Apple hasn’t gone after individual Hackintosh users: it’s much more difficult (as Apple’s buddies at the RIAA and MPAA can tell them), and it would be PR suicide. The last one is the most important, Apple doesn’t dare risk losing their perceived “coolness” by going after individual Hackintosh users (which would instead make Apple look like a bully).
In that context yes they are. That is a different context than a purchased product. That is also spelled out clearly.
There is only one reason, and that is that they would lose.
http://www.copyright.gov/
If you were to actually peruse that site and read it, things become clear.
The archaic patronising way Apple treats customers is the reason I do not ever buy anything from Apple and I advise everyone to start boycotting Apple products until they show some respect for their customers.
I’m curious what you mean by this. On the rare occasions I’ve actually had to deal with Apple, I’ve been treated far better than any other OEM I’ve had to deal with. Maybe my experiences are atypical, but I can’t say I’ve seen any patronizing from Apple.
Also, I’m not sure how such patronizing, if it exists, would be archaic. Is this a use of the word I’m not familiar with? It typically means old or primitive, less evolved, or so far back in history as to be obscure. Example: ancient greek would be considered an archaic language. Patronizing customers is certainly not an archaic practice, ever made an airline reservation by phone?
have you ever dealt with Apple as a customer? Do you even know what archaic or patronicing means for that matter?
I have. An Apple salesman laughed in my face, in the middle of the sales floor of an Apple store, for asking if they had a lap-top with a dedicated GPU for $1500 or less. Neither archaic nor patronizing, but extremely rude, and it lost them a sale.
I would, in general, describe most of Apple’s representatives that I’ve dealt with as smug, arrogant and condescending, to some degree. Their public image is kindof that of the trendy, exclusive club, that can do wonderful things for you and make you hip, if only you submit to their wonderful plans for your life… or, at least their plans for a hefty chunk of your funds, and your computer.
This is from the NYT.
Maybe the EULA could forbid people to find ways to turn it off?
Edited 2009-11-15 20:37 UTC
Can you post a link to that article? That’s a nice long excerpt, but I’d like to read the whole thing. You clearly posted something further down in the article without the context surrounding it.
From what you did post, I have a funny feeling that if Apple did go that far consumers would vote with their wallets, and the vote would be against Apple. The PR alone would be awful let alone the consumers’ reactions to something like this. A lot of companies develop concepts they never use, wouldn’t be surprised if Google developed something like this in-house too just as a concept at some point.
http://www.nytimes.com/2009/11/15/business/15digi.html?_r=1
That is certainly crazy. I, for one, don’t think the current management at Apple is dumb enough to do this, but hey who knows. Still, I think two words would describe this: consumer backlash.
On the other hand, if I were Apple and I’d heard a rumor that Google or Microsoft were going to try something like this, filing and hopefully getting a patent would be a strategic way to put a stop to it in the U.S system. At the moment I see two possibilities: it’s a concept and nothing else, or it’s a strategic move. Of course, if Apple’s management has a sudden fit of stupidity, who knows what can happen. They haven’t shown themselves to be stupid so far, at least not since Jobs and his ilk took over and pulled Apple back from the hole they’d dug for themselves.
Pystars BIGGEST mistake was being based in the united states they should have moved overseas. They should have installed rebel efi and put the cd/dvd in the drive bay then have instructions plus offer free step by step phone support. Then it would be the CUSTOMER installing osx on their non apple hardware. The court system here in the us is ignorant and biased the bigger the corporation is the more money they have the more likely they are to get away with something.
To those who think Apple are discriminating against non-Apple hardware users… they are not. They ONLY wish to sell their own hardware. Apple have spent time and resources developing a good OS (some think the best) to support that aim. Apple do not wish to stop anyone else doing the same, they do not buy-up competitors, although they could, hell, Apple do not even wish to be the biggest (only the best) and they include a EULA with their OS to protect what they value.. i.e. their hardware business. Some people seem to be too dumb to understand this. Bottom-line? no-one forces anyone to purchase Apple hardware or software.
I don’t get it. So basically the judge is saying that if you install 3rd party device drivers then your creating a derivative work, and your breaking the law?
Imagine what this means to the non-apple world! No more device drivers! Am I misunderstanding something?
Incoming TLDR.
Going to address a few things in this post, but first I would like to reply to Thom.
First off I agree an EULA is not a License, but is an agreement to the License of the software. I have stated this in prior posts on similar topics. You do not own Mac OSX in of itself you own a license to use the software. Just because software is distributed on a physical medium as to virtual / downloaded does not make the software yours. Yes you may resell the license, but Mac OSX belongs to Apple.
Secondly, by your own admission you have stated you own multiple Apple Macintoshes, As before I have stated that what is called into question is the manner in which the EULA is presented, it should be done prior to the sale, but even still you are familiar with the content, terms and conditions of Apple’s EULA from your first Apple Macinoths unless you blindly click “Accept”. As the saying goes “fool me once shame on you, fool me twice shame on me” so if you felt so strongly against the terms and conditions of the EULA why would you purchase a second Apple Macintosh?
Now lets discuss your only valid point, which is the actual presentation of the EULA, and how does this concern GPL?
GPL code does not present the user with its license either, and in most cases it is only mention in comments at the top of a source file, and usually it is not even the full GPL but just a statement that the code is under GPL and a link to the GPL. So how is that any better then presenting a user with an EULA after they have removed the shrink wrap and open the packaging? Also how would the GPL be valid if I never physically signed a contract or document stating I agree to the terms and conditions of the License?
Or are we just going to keep playing word games and debate semantics?
Its funny how GPL extremists are quick to call people that defend Apple “Zealots”, yet they do the same for the GPL, hypocritical much?
GPL is probably by far the most RESTRICTIVE license associated with Open Source Software, yes they do not limit the platform in which you can use it on, but they do limit how you can use it, so what really is the difference? A restriction is a restriction regardless of how you are restricted.
Besides if the GPL was the best and most wonderful license for Open Source Software why do most prefer Apache’s and/or a BSD derived license instead?
Technology is evolving at such a rapid rate that school’s curriculums can not even really keep up, so the laws & courts which are bogged down with bureaucracy are even further behind. So we’ll just exploit things until they do catch up?
If having to sign a physical document is the only way for any “Agreement” to a License is binding and valid then so be it, but common sense will tell you that is just an unnecessary step imo, and wastes time.
@lemur2
How is something that is free / no cost have profits of billions? Or did you mean the solutions and support that incorporate GPL’d software / code has helped companies and individulas generate billions of dollars in revenue?
http://en.wikipedia.org/wiki/Open_source_software
All Open Source Software is not GPL.
Saving billions by not having to purchase software because there are free / no cost alternatives is not the same as generating billions.
again, hypocritical much?
Edited 2009-11-16 08:24 UTC
IMHO this kind of “journalism” should remain in Twitter, not in a website “Exploring the future of Computing”.
The judgement of a journalist shouldn’t rely on his mood this or the other day.
QNX. SCO UNIX can be sold instead of MacOSX if they want commercially supported binary only systems. Moreover Linux/BSD/OpenSolaris also good. There are many options. I cannot understand why they stick to MacOSX.
I also see it as a major marketing flaw of Apple. They could have a half-price Darwin 9/10 CD (like Fedora) with kernel, drivers, gcc/gdb , BSD userspace and X11 without QUARTZ or GUI configuration tools or XCODE or anything else. Users would take their time to make distros instead of fighting on installing this Hackintosh. I believe users are greedy. Personally, If I had the option I would gibe 60$ to buy this CD instead of the whole thing.
I totally disagree with this practice.
What, and fragment the Darwin os landscape as badly as Linux is? Have yet another X11+KDE/GNOME/DE-of-choice os fragmented into several “distributions” all incompatible at a binary level that no commercial developer would ever want to target as a result? I don’t blame Apple for not wanting this, and I think there’s enough X11+DE-based GUIs around to satisfy anyone’s taste. The wheel doesn’t need re-invented yet again. Further, this was already tried by the Opendarwin project and it went belly-up due to lack of community and developer interest. Darwin is already foss, anyone can build a distro around it if they so choose and Apple couldn’t stop them nor would they want to.
Though I make myself an ass for saying it, I feel particularly vindicated. Look at that, EULAs are perfectly enforceable legal contracts in the US… just like I and others have tried to explain over and over, and just like they where before all this happened. What a shock.
First point, there has never been any doubt that some clauses in some EULAs are valid. There is also no doubt that some are not. The question has always been very specific: whether a clause which dictates where you buy the hardware to run your retail copy on, whether such a clause is valid.
Second point, we still do not know this. The case was not decided on the EULA, which would have been breach of contract. The case was decided on the basis that the particular way in which Psystar did the installation was a copyright breach, and when you read how they did it, this is rather obvious.
Whether it is possible to do installations without breaching copyright is an interesting open question. Whether the EULA clause is valid and enforceable, we still do not know, and don’t seem likely to find out, now.
Tom has, in fact, claimed that EULAs exist in a “legal grey area,” and that they “probably aren’t binding” even in the US. And various other forum-goers have repeated what he’s said.
That’s not entirely accurate. If you read section 2A of the judgement carefully, you’ll find that it’s actually saying that Psystar’s scheme of cloning one drive over and over was [i]not[/t] at issue, since they used that method to install more copies of OS X than they had the legal right to do in any case (which would be 0, since they where in breach of Apple’s EULA). This case was very much decided on the grounds of Apple’s EULA (and its enforceability).
Well, at least in part: other issues mattered too, but it was definitely found that Psystar was in breach of Apple’s EULA, and therefore had no license to OS X, and where therefore infringing Apple’s copyright by selling and distributing it.
That’s pretty much exactly backward. The ruling makes it clear that Apple licensed OS X, and did not sell it, and that the terms of Apple’s EULA are entirely valid. The question of whether or not an EULA is any less valid than any other contract has been more or less settled.
I don’t think it has been decided, or that it is clear, whether the EULA clause is valid, or whether breach of that or any other EULA clause is breach of copyright.
Vernor and Blizzard say different things about whether you are the owner (and so have a S117 defense) of a retail copy you have purchased. We will have to wait for the Blizzard appeal to find out. Meanwhile, it is not clear.
The reason that Psystar was in breach of copyright was not that it broke the EULA. It was in breach of copyright and did not have an S117 defense because it transferred copies made in way of adaptation. For the owner to make the adaptations and copies was lawful under S117(a). For the owner to transfer the resulting installation without permission was unlawful under S117(b).
There are some clauses in EULAs that are valid, and others that are not. There is no difference between a EULA and any other contract. The rules about how you enter into binding ones are the same, the rules about what you may or may not agree to in them are the same. I do not know of any ruling which affirms, either in the EU or the US, that a software maker may stipulate where you buy the hardware that you run his software on.
If anyone knows one, I’d love a reference. I don’t think there are any, and in this business, its specifics that count.
It not about “consumer” rights its about generating traffic to a website that not long ago was asking readers to click on ads to help keep this site afloat.
But i’ll bite again at troll bait, so do we mean consumers as in people that spend money have rights, and people that do not don’t?
If Thom and everyone else rallying behind this excuse to Pirate / Exploit Mac OSX are so concerned about rights of the people, why use any computers at all? Specially considering the vast majority of hardware and their components are manufactured in a nation that has very few if at all human rights and the workers are exploited?
So by your definition anything that applies any kind of term or condition on its use is not a copyright or license?
Copyright only establishes ownership, the License when it pertains to software does not relinquish ownership but grants the purchaser permission to use the product, and in this topic would be software.
Which reinforces my statement that you do not actually own Mac OSX but rather you own a License to use it.
I am not familiar with European laws, but stipulating how a product might be used is not uncommon.
Gas/fuel or any harmful chemical, may only be stored in appropriate containers. Firearms may not be used to murder or harm another person, these terms and conditions of product use happen to also be enforced by laws, or they were promptly addressed due to the fact that improper use and storage of the product might result in harming other people, where as software does not, so it is not, or rather was not a priority.
Won’t be long before Laws catch up with technology, and possibly a solution/resolve will be determined on how to handle this.
Back to EULA, has anyone unwrapped and opened the packaging that a software title was distributed in, get to the EULA read it, then decide that they do not agree with it and attempt to return it and not received a refund for their money? If there are enough people that have experienced this, wouldn’t a class action lawsuit be in the works?
Or are only License Agreements that you must purchase need to be signed on a physical contract/agreement document? So does cost determine wether or not a License Agreement or Terms & Conditions associated with a License is valid or not?
Do we really want the hassle of having to download a License Agreement (if the software is distributed online instead of a hard copy, physical medium) sign it in front of witnesses and have it notarized sent back and wait for processing before we are allowed to download and use software?
So the real topic to discuss is not wether or not it is wrong to dictate the manner in which software is used, but when the License Agreement and/or Terms & Conditions of the use of the software is presented to the potential purchaser.
Do we really want the hassle….
I don’t know why people have so much trouble getting their heads around this. This is not what it is about. Whether you want or don’t want this is irrelevant. Whether the company should or should not take steps to spare you is irrelevant, it is not what the question is about. The question is not about what you want when you buy Apple software. It is not about Apple’s business model either. No-one is arguing for any limits or changes to what they make or sell.
The only question is about what powers any software supplier (not just Apple) should have. Should they, in particular, have the power to set as a condition of purchase and use of their software, where you source the some or all of the hardware you run it on? Should they be able to ban you from using some hardware for no other reason that they do not care for where you bought it?
This is the issue. Think hard and long before you say yes, of course. Think long and hard about who might like to have such powers, and what they might use them for. Hint: its not Apple.
The answer is Yes. If a company requires my agreement to Terms and Conditions that I am not willing to accept in order to use their product, then guess what I don’t purchase their product therefore I do not use their product. This is one of the things I love the most about Capitalism and that is freedom in the sense I am allowed to choose wether or not I want to purchase and/or use any product. I am not forced to use any Company’s product (excluding Utility Companies (gas, electric, etc..), for obvious reasons).
As I have stated before, a restriction is a restriction regardless of the degree/amount in which you are restricted. Spit or swallow, but pick one can’t have both in this case.
Either you want absolutely no restrictions, (and yes this would include being forced to also GPL the code you added to an existing project under the GPL as a restriction) or you are Ok with allowing software developers to place a restriction on how their software / code is used.
No, this is a ridiculous argument. It amounts to the argument that all clauses making any kind of restriction of use are logically linked. It is perfectly possible for some clauses to be enforceable and others not. It could be that the only clause not enforceable in a EULA is a clause stipulating where the hardware must be bought.
You do not believe me? Let me give you an example of a restriction which today is not enforceable, but which has had no bearing on any other restriction. In the UK, regardless of what any EULA says, you cannot renounce your rights under consumer protection and sale of goods legislation. It does not matter if you take an oath on the Bible in the presence of the Archbishop of Canterbury, your renunciation will not be enforceable or binding.
This has been true for 20 or 30 years. It has made no difference whatever to any other clauses in EULAs or elsewhere.
There is no reason whatever to think that if software makers lose the right to specify hardware, any other conditions of use will be affected in any way. It depends on the condition.
I’m sure that this will get a lot of “Corporations have the right to…” type responses. Folks, these days, are conditioned to really thinking of “corporations”, fictitious “people” created to bear the financial and legal liabilities that the real decision makers don’t want to be subject to, should really and truly be treated as people.
Clearly, the authors of the US constitution were more concerned with the General Welfare of We The People of the United States. It’s really hard to imagine Franklin speaking passionately about the Rights of fictitious “people”, to the exclusion of how that impacts the welfare of The People, who in this case can be accurately referred to as Consumers.
This big, huge, powerful Fictitious Person, with more money than God, the ability to purchase Laws, Legislators, which controls a legal department which goes through more money in a second than most of us make in a year, lays down terms that we can either agree to or go somewhere else (to some other Gigantic Fictitious Person) to make our purchases. People will seriously argue that this is a good thing for all of us. Which only goes to show just how well trained, and what good little boys and girls, We the People of the United States have become.
We accept our servitude. We get slapped in the face and dominated. And we say “Thank You, Sir! Can I please have some more, Sir!”
Such is modern America.
I’ve pondered writing a science fiction short story, along the lines of Isaac Asimov’s “The Immortal Bard”, in which the Philedelphia Convention is swept through a time warp during the signing ceremony, and the framers of the Constitution end up in Washington DC in the year 2009, viewing the consequenses of their decisions, the interpretations of their wordings, and the loop-holes which have grown into major facets of the daily lives of We the People.
Suggestions for quotable Ben Franklin one-liners accepted.
Edited 2009-11-16 18:34 UTC
Apple claims this is not a retail product rather a lease. They claim that you agree to a lease term. They sell the product at the retail level and taxes are collected on it’s sale by each State sales tax. Yet Apple has not registered as a leasing company in any State.
No, its not whether its a lease or a sale, its whether it is a license or a sale. There are two contradictory court cases in the US on this. Vernor held that it was a sale not a license, the test being whether the copyright holder and supplier has the right of repossession. Blizzard held that it is not a sale but a license, and that the precedents followed by Vernor were not binding on the Blizzard court.
Blizzard is on the way up to appeal so we may find out more in about a year’s time.
I don’t think it fair to say that the courts are stupid. They are trying to thread their way through a complete minefield, where old laws which originated before computers were thought of are being argued to apply, or not, to the computer world.
This is why we get the initial attempt with Title 17 to literally interpret copying, so that reading into memory becomes copying of a sort that requires permission. Then when the implications of this for competition surface in the MAI case, we have S117 rewritten to give permission to an owner who is making copies or adaptations which are essential to use with a machine.
This is basically how the process goes, the courts do their best with the law as it is, and then the legislators do their best to take account of the results of the old law as applied. Everyone and his brother negotiates, protests, bargains, in the end we get to something that over time more or less works.
But, as one famous remark has it, making laws is like making sausages. It is not something the squeamish want to see being done.
ok.. I was going to write a long rant with pros and cons … but then I saw this from the judgment.
” In addition, when Psystar turns on its computers running Mac OS X, another copy of the software is made to the random access memory. Psystar has thus infringed Apple’s reproduction right.”
Seriously, WTF? … lets just skip to the appeal, this judge is either dumb or drunk. I’d say he was paid off by Apple, but even then he wouldn’t write something so stupid. They must have given him the old razzle dazzle.
That’s what struck me too as a very stupid claim. You can’t run any software whatsoever without copying the executable code to RAM and as such every single time you run absolutely anything you are committing a copyright violation? How does the judge propose to run the code without copying it to RAM then and thus avoiding such violation?
The underlying scary issue is that we have legislators who don’t really understand the technology making laws which are then interpreted by judges who understand law, but don’t really understand the technology. Thus opening up limitless possibilities for specialized attorneys who understand both the technology and the law well enough to game the system on behalf of their clients.
Looks like the judge swallowed this argument, presented by Apple, Inc’s attorneys, hook, line, and sinker.
Edited 2009-11-17 00:23 UTC
Yes, this in fact the law in the US. The judge is just following the MAI ruling. This is why Title 17 was revised in, I think it was 2001, to provide that the owner of a copy of software (owner, copy, take note) has the right to make any copies or modifications that are essential to use.
Before this, a supplier could do what MAI did: it could sell some software and stipulate that only some persons could run it, and if others did, that would be a breach of copyright. The MAI case upheld that running software is copying. Congress then realized that this would lead to large scale anti-competitive abuse, and changed the law.
The reaction of the software industry was then to start arguing that you are not the owner of the software, you just are the licensee. This point has been ruled on in two opposite directions, once in Vernor and once in Blizzard. One of these days it will get resolved once and for all in one direction or the other.
Wasn’t the difference between the two that WOW/Battle.net is a subscription service, and AutoCAD wasn’t? Seems like a rather important difference to me.
Yes, that certainly is an important difference, but if I read the ruling correctly, that was not the issue the case turned on. The argument seems to have gone like this (whether it makes sense is another matter).
1) You do not own the software in the sense of S117, you are the licensee.
2) As the licensee but not the owner, you have no rights to copy other than those granted by permissions.
3) These permissions are given in the EULA. The EULA provides among other things that (i) you shall not run Glider type software in conjunction with WoW (ii) that if you do, your license is immediately annulled.
4) When you use, you read into memory, and this is making a copy (see MAI). You need permission to make this copy.
5) Now, if you carry on using after your license is annulled, you now are making copies without permission, the license having been annulled, and these are illegal copies. You do this by reading into memory.
The effect is that while a EULA breach is not a copyright breach in itself, it leads to a copyright breach, because when you use, you read into memory, thus making a copy, which after the EULA breach is an unlicensed copy.
You notice that in the chain of reasoning, which I think is faithful to the judgment, there is no reliance on the fact that WoW is a service. It is simply about whether continuing use of the software in contravention of EULA term is copyright breach.
It was then argued, successully, that MDY in making and distributing Glider was guilty of contributory copyright infringement. This is what it got nailed for. Although appeal is pending.
Yes, its worse than we had thought!
Of course, it does rely on the clause being enforceable. Its a key aspect that the court had to think that a contractual clause which forbade the use of Glider type software was valid. It could be that clauses which restrict the brand of hardware will be held not valid, in which case, to break them will not be a breach of copyright.
Edited 2009-11-17 12:20 UTC
Well, now we’re back to the rant I was going to make, basically that the way I see it is this revolves around the judge ruling that the OS X box on the shelf is an upgrade, thus voiding everything else.
From the PDF:
” Apple has manufactured an exclusive line of personal computers, including the Mac Pro, iMac, Mac mini, MacBook, MacBook Air, and MacBook Pro. Mac computers have been sold with Mac OS X preinstalled. Mac OS X has also been sold as a DVD so customers can upgrade their Mac computers to another version of the operating system.”
Which is kinda interesting.
http://www.macmall.com/p/Apple-Software-Operating-Systems/product~d…
Snow Lepard doesn’t say upgrade in big letters right after it’s name, but it does say upgrade in multiple other places. Plus it’s like 30$…. obviously an upgrade.
10.5 on the other hand, the one this case is about…
http://www.amazon.com/Mac-OS-Version-10-5-6-Leopard/dp/B000FK88JK
I don’t think it’s clearly an upgrade, but I’m apparently wrong. Not at that price, very close to retail price of windows it’s direct competitor.
He is not ruling its an upgrade. He is giving a statement about why Apple sells it, in the form of background. If it is an upgrade, or is not an upgrade, is not a question the ruling turns on. It is not stated to be breach of copyright because it is using an upgrade for the install, whereas if it ruled a full retail version it would not be. The ruling is that the way they do it is in breach.
I understood that much of the complaint was regarding the regarding the MacMini that Psystar used to reimage their machines. They certainly didn’t have a valid redist license for that – this then leads to the “copying in RAM” issue.
First of all, let me add that I am an Astrophysicist and Computational Mathematician born in the U.S.S.R. Second of all, I would like to add that capitalist practice in industry is holding the development of humanity back, instead of helping. Most of you people could care less about humanity, but when I pull out some greenbacks your eyes light up.
Apple nor anyone should not have a right to tell you which set of 0’s and 1’s one should be able to run on their hardware. If I paid Apple money for some code, ie a unique set of binary code, then I should have the right to do anything I want with it, including reverse engineering it. Knowledge should be free. Capitalists sicken me, for they hold back humanity. I should have every right to emulate EFI in order to boot OSX.
Lastly, the court case mentioned the removing of Apple kexts and introduction of non apple kexts. What are they getting at? That if I bought an actual Macbook or Macpro, or whatever, that I’m not allowed to open up my terminal and type “rm -rf /System/Library/Extentions/ATI*” ? What the hell I should have every right to delete uneeded kexts on my own computer! Also, when you install third party drivers they include third party kexts. No offense, but i’ve been to court. Most of you Americans have idiot Judges and Idiot lawyers, who don’t even understand simple logic, ie truth tables, which is necessary for the proper interpretation and explication (Verbal or Texual) of the “Law”.
This is the definition of the word ubuntu:
http://en.wikipedia.org/wiki/Ubuntu_%28philosophy%29
An attempt at a longer definition has been made by Archbishop Desmond Tutu (1999):
Archbishop Desmond Tutu further explained Ubuntu as follows (2008):
Ubuntu, the desktop system, was named after this concept.
Ubuntu costs nothing.
Ubuntu is the creation of a capitalist:
http://en.wikipedia.org/wiki/Mark_Shuttleworth
http://en.wikipedia.org/wiki/Shuttleworth_Foundation
Ubuntu delivers, for the most part, the four freedoms of Free Software:
* Freedom 0: The freedom to run the program for any purpose.
* Freedom 1: The freedom to study how the program works, and change it to make it do what you wish.
* Freedom 2: The freedom to redistribute copies so you can help your neighbour.
* Freedom 3: The freedom to improve the program, and release your improvements (and modified versions in general) to the public, so that the whole community benefits.
It is indeed a strange world in which we all live.
Edited 2009-11-18 10:49 UTC