Remember that little legal spat going on between Apple and Psystar? That one’s been more or less wrapped up, with Apple being the sole victor there. The dust from that case has barely had time to settle, and already we see another company quoting it to support its own restrictive, anti-consumer practices. The company in question? Ha, it’s Microsoft.
In October 2009, Microsoft released an update for the Xbox 360 which intentionally blocked 3rd-party (non-Microsoft) memory cards from working with the game console. UK-based Datel Design & Development, maker of 3rd party memory cards for the Xbox 360, then sued Microsoft, claiming it was engaging in anti-competitive practices. Datel sold 2GB memory cards for as low as 40 USD, whereas Microsoft’s own 512MB cards go for about 30 USD, and on top of that, Datel used simple microSD cards, so you could backup data on your PC.
“Microsoft’s purpose in disabling Datel’s memory cards is to prevent consumers from choosing a Datel product that offers far better value for the price,” Datel said November 2009, “There is no benefit to consumers from Microsoft’s decision to target and disable Datel’s memory cards. To the contrary, Microsoft’s actions will leave approximately 50000 consumers with useless memory cards and (without the ability to access their data on the cards), forestall innovation, and deprive future consumers of the benefits of competition.”
In the lawsuit, Datel argues that Microsoft monopolises the market for “Multiplayer Online Dedicated Gaming Systems”, but it only gets there by stating that the Nintendo Wii is not part of that market, which is an arbitrary stretch. In its motion to dismiss, Microsoft correctly argues that not only should the Wii be added to that market, but also the PSP and Nintendo DS.
On top of that, Redmond argues that if Apple is allowed to block clone makers, Microsoft should be allowed to block third party accessories from working with the Xbox 360. They argue that the Xbox 360 comes with a software license that authorises Microsoft to disable unauthorised accessories, much in the same way Mac OS X comes with an SLA which prohibits you from installing it on non-Apple labelled computers.
“Xbox 360 purchasers knowingly and voluntarily gave Microsoft the right to prohibit the use of unauthorized accessories,” Microsoft states, “Each Xbox 360 comes packaged with a software license requiring consumers to agree that the Xbox 360 software can be used only with Microsoft authorized accessories.”
I find it incredibly hilarious that out of all companies in the world, Microsoft is the one to use the Psystar case to defend its own anti-consumer practices. This also happens to be the millionth nail in the coffin of the idiotic myth, propagated by Mac fans and Groklaw, that Microsoft is behind Psystar.
In any case, this is the world many Apple fans advocate. A world wherein your own products, for which you paid good money, get broken arbitrarily by manufacturers because they don’t like competition. Like I said – it’s a snowball effect. It starts with Apple blocking clone makers, but it will end with you not having any control whatsoever over your hard and software.
I would like to point out that these different restrictions are not the same thing by any means.
A) Apple restricts what hardware you can install its software on.
B) Microsoft restricts what hardware you can plug into your hardware.
This is an apples to oranges comparison. If you said Apple restricts what you can plug into your mac, then it would be a fair comparison.
I don’t support either restriction. I would even add that the appstore restrictions and exclusiveness is also something I think should be torn down.
Microsoft is arguing that it IS the same thing – and I must admit, I fail to see the difference.
They’re both about restricting what hardware works with what software. Apple argues you can’t use Mac OS X on non-apple hardware, and Microsoft argues you can’t use the Xbox 360 software with non-Microsoft hardware. The fact that with Apple it’s about the computer, and with MS about peripherals is irrelevant, since the core matter is the same: arbitrary restrictions on what hardware you’re allowed to use.
That’s just nasty and why I stay clear of any hardware like that.
I don’t and will not buy anything from a company that enforces such things. I want to use, what I want to use(as long as it’s not illegal) and the power stays with me.
Wait a minute… IIRC, Psystar was NOT been judged guilty because it was installing Apple software on non-Apple hardware, but because it was circumventing Apple digital protections thanks to some software hacking.
And for any standard user, installing Mac OS X on any Psystar hardware isn’t trivial – it requires several steps in order to circumvent software locks. This falls under DMCA : had they installed some sort of EFI chip so that Mac OS X installs willingly on their hardware, judgement would surely have been different.
So I won’t call Apple vs. Psystar a real “legal precedent”. This new Microsoft case will however become one, whatever the judge’s decision.
Actually, that is what the Psystar case *should* have been. A focus on the DMCA, and what Psystar was doing and the legality of it. Instead, it got transformed into a monetary case, i.e. Apple’s claim that they were losing proffits to Psystar with copyright infringement as an afterthought. They were found guilty of the latter, but the judge focused more on the supposed damages instead as no doubt prompted by Apple’s legal team. Had they actually focused, kept the case on the DMCA and fair use where it belonged, Microsoft wouldn’t be able to cite Apple V. Psystar now as the case precedent, even if not the ruling, would have been completely different. Psystar had the ability to do this… and they completely failed or, perhaps more precisely, their lawyers completely blew it. Their conduct didn’t help either, but I can’t help but wonder if these supposed independently wealthy brothers sort of skimped out on highering a good legal team for themselves. Of course, that’s assuming Psystar ever intended to win and that none of the conspiracy theories surrounding them are true…
There isn’t any “software locks”, there is a proprietary apple bios. As long as you aren’t breaking encryption, DMCA doesn’t apply when it comes to reverse engineering.
EFI is an industry standard which anyone can implement rather than the more popular BIOS common today. From what I understand, osX will install on any EFI motherboard. If you pick an EFI motherboard and hardware known to play nice with osX, you should be golden.
I don’t know what method PSystar used for the install but there are a few legal options still out there including an EFI bios dongle for your free USB port.
It’s a little tricky. The court tacitly affirmed Apple’s EULA: they did find that PsyStar had no license to use OS X outside of the EULA, and that PsyStar had no license to use or redistribute OS X because they where in violation of the EULA. They never said, explicitly, “Oh, we agree that Apple’s EULA is binding, and that OS X is licensed, not sold,” I would guess because they didn’t think they needed too, but they did reference the EULA repeatedly, and they operated under the assumption that the EULA was in force.
Edit: actually, I’m completely wrong, in that there’s nothing tacit about it. The second page of the version of the decision I have clearly and unambiguously states that
and that
Notice the significant lack of the caveat “it was Apple’s contention that…” This was stated as fact.
Edited 2010-01-25 18:17 UTC
I think you fail to see the entire point
It is about whether there is a monopoly that is being abused. For that, you need to know about what a “market” is in antitrust terms. You cannot readily tell that in an Osnews forum. Examining this can take ages in complicated cases.
“Each Xbox 360 comes packaged with a software license requiring consumers to agree that the Xbox 360 software can be used only with Microsoft authorized accessories.”
Does that mean it’s illegal to use any standard hardware, say like an usb stick, with the Xbox 360?
That would be hard.
Heh, my XBox 360 came with an Xbox-branded ethernet cable… But I’m using another, non-branded cable.
Am I going to prison?
No, you’re already playing an xbox, that’s punishment enough.
No, but Microsoft reserves the right to re-wire the ethernet port with a firmware patch so it only works with “their” branded hardware. With auto-mdx it would be trivial and they’re claiming they could use the DMCA to stop you wiring your own cord!
No, it would not be illegal. MS might try to argue that you have voided your warranty though.
Edited 2010-01-25 11:35 UTC
Nope, MS cannot void your warranty for attaching a USB Hard Drive or Flash drive as it is a feature to use external storage. But the only thing you can do is music, videos, photos that are stored on those drives. You cannot backup save data, games, etc., like you can with the mem cards plugged into the mem card slot.
That is another reason I prefer the PS3. I can copy all my stuff to an external drive, backup my saves, etc, thanks to Sony’s foresight. I can even upgrade my internal PS3 HD, without voiding the warranty as it is user upgradeable and instructions provided by Sony with the PS3. Try to upgrade your overpriced 360 HD. Can’t be done without hacking and eventually getting your console banned from using on-line.
Sorry but I also disagree with the author of this article in regards to this being the same as what Apple is doing. It is not. Datel is not installing the XBOX360 OS on their own hardware or circumventing any software protection. This is an accessory, just like a controller or a keyboard or one of those Fans that plug into the 360. So if they block the mem cards then they have to block ALL unauthorized accessories like the fans, keyboards and controllers.
It would only be the same if Pystar was making some 3rd party hardware that used the internal airport connector, or something like that.
And so it starts. It’s not surprising, it’s called a legal precedent, and anyone who didn’t see this situation coming once the Apple V. Psystar case was closed was willingly turning their head away. I almost don’t want to know where this is going to lead, but I can’t help but watch in morbid fascination. We’ll all be paying the price for Psystar’s idiocy now. If they’d actually been intelligent about that case, the ruling could’ve easily gone a different way and the case itself might’ve had a different focus. Instead they not only got their collective behinds handed to them on a platter, but other companies now have a precedent served up and ready for them to use. Wonderful.
That brings up an interesting point.
There are some conspiracy theories that Apple was behind Psystar – that Apple created Psystar specifically to be sued, and set precedent.
Of course, who ever seriously thought MICROSOFT was behind Psystar? The only reason I could see MS being behind Psystar is if they wanted to strengthen EULAs as well – first sale being nullified has some pretty interesting positive consequences for MS. Psystar winning would’ve hurt EULAs, which MS doesn’t want.
BLACK HELICOPTERS!!!
They’re killing the last unicorn. CODE RED CODE RED. The wallflowers are starting Chilton. SAVE THE UNICORNS.
I say that this is further evidence. Microsoft funded Psystar in order to set a legal precedent that they can use to block third party memory cards.
Joking aside, I’ve never heard anyone say that Microsoft was behind Psystar. The only theory I’ve heard is that it’s some hardware company behind Psystar, so that they can eventually sell PCs with OS X, without the bad PR that would result from a legal battle. (I don’t believe that either; just saying).
I love how so many people don’t realize that they are shooting themselves in the foot every time they buy any product from Microsoft or Apple ( among others ).
Here again we have an argument, in essence, over the definition of a word: market.
What constitutes a market? Can a single product constitute a market?
In my opinion, YES. When another product is marketed for another product, that other product has spawned a market.
The argument here will be that Microsoft intended to prevent exactly that.
I would argue that there is no right Microsoft possesses that permits such actions.
In the case of Apple, we have the Macintosh market. And, due to retail sales, we had the OS X market. Apple cannot restrict you from installing Windows on a Macintosh, but they argued that they could prevent you from using OS X elsewhere.
The argument is that OS X doesn’t constitute a market, but it clearly did as companies and individuals were purchasing it at retail without precondition ( prior to the Psystar case failure, precondition was 100% required for restriction of rights ).
Now, Microsoft is arguing that the only market in existence is the Gaming Console market, whereas it can be argued that the XBox itself constitutes a market especially considering Microsoft treats it as such ( you know, those accessories… ).
The law really needs to be fixed here. In much of the world this kind of domineering is not permitted.
It is simple: You were never required to AGREE TO SUBMIT to the TERMS of any LICENSE CONTRACT.
And, no, clicking an “I Agree” button means NOTHING. Legally speaking, anyway.
Oh.. right.. that was BEFORE the DMCA…
So, now we are back to where a few music companies thought they were losing money to pirates ( though their profit earnings suggest otherwise – “try before you buy” has made me buy HUNDREDS of movies I would have never considered buying – for instance [ I like hard copies – VHS, no less 😉 ] )
Now, since it is illegal to do anything to get around any digital media protections ( regardless of how ineffective they might be ), it is also illegal to utilize your enumerated rights. Namely, your right to make an archival copy of anything you own.
Microsoft had to change the wording on their discs from: “Do Not Make Copies of this Disc” to “DO NOT MAKE ILLEGAL COPIES OF THIS DISC” [i](my emphasis)[/i} simply to properly display that they were not trying to prevent the consumer from exercising h/is/er rights.
Oh well, Microsoft will win. The only thing that matters in this legal system is money. And Microsoft has plenty.
–The loon
I say we should find every moron who supported the DMCA and other such legislation, and ensure that they, themselves, are fully compliant.
And for each offense we discover, we shall kill them.
This situation was predicted by many when the xbox was first released.
Microsoft using Apple as defense for building a complete package with no competitors hardware or software allowed to touch it.
Luckily at the moment consoles can suddenly change leaders with market share very volatile the Microsoft could be irrelevant next year.
But whether Microsoft’s consoles become irrelevant doesn’t stop Sony or Nintendo from copying this move. Anyone can cite this case.
“Xbox 360 purchasers knowingly and voluntarily gave Microsoft the right to prohibit the use of unauthorized accessories,” Microsoft states, “Each Xbox 360 comes packaged with a software license requiring consumers to agree that the Xbox 360 software can be used only with Microsoft authorized accessories.”
Sure, they might have given the right to Microsoft, but not necessarily knowingly as the EULAs usually require a degree in freaking astrophysics to decipher. And besides, even if they did that knowingly they probably didn’t expect Microsoft to do it just to shut out any and all 3rd parties. No, they probably rather just expected them to shut out malfunctioning or harmful 3rd parties.
So, how does Microsoft explain this move to its customers then? Have they even bothered with any excuses yet?
I don’t know about astrophysicists, but the two high-energy particle physicists I know well have trouble understanding the average EULA.
That is quite simply because they do something useful with their lives rather than become the bain of modern society, Lawyers. Only lawyers can understand other lawyers. Even then they sometimes have difficulty in understanding 10+ pages of double spaced verbage without a comma, colon, semi-colon or full stop anywhere to be seen.
While I’m no lawyer, I don’t find eula’s that difficult to understand. Just look for the verbs and nouns in each sentence and skip over the excess legalese, typically this means only paying attention to every 4th or 5th word. You’ll get the gist just fine if you do that.
It’s still not a fun read especially once you see some of the crazy things the lawyers have put in there.
Obviously, law has gotten out of hand. Funny thing is, even the lawyers can’t decide what some of our laws mean. It’s really quite sad.
I really can’t see how MS could possible use the Psystar ruling in this case. AFAIR, the ruling against Psystar was on the basis of copyright violation and had nothing to do with Apple’s EULA.
IIRC, Psystar where in violation of the DMCA for using a software hack to get around OSX EFI-only installation restrictions and the question of Apple’s EULA being legal or not never really got a proper airing.
For MS to suddenly use what was arguably the outcome of a DMCA violation case as their defence in an anti-competitive lawsuit strikes me as very strange indeed and not really logical.
If there are any lawyers reading this, could you help me out? Would the ruling in the Psystar case really be admissible (or whatever it’s called) in this situation?
I really can’t fault Microsoft here. People are buying these Xboxes and blindly agreeing to the EULA (i.e., signing away their soul to the devil…) You can’t agree to the agreement on the one hand, enjoy your game play and then gripe when Microsoft holds you to what you agreed!?! While reading a EULA under any circumstances is akin to having you back waxed with a pair of tweezers, I urge computer users to start doing just that. If you truly don’t agree to the terms then don’t use the hardware/software. Repackage whatever hardware/software and promptly return it to the store while firing off a letter to the offending company as to why you don’t agree. Of course too many people can’t be bothered to care and therefore we all suffer the tightening grip of these megalomaniacal tech companies.
My prediction. They won’t; different circumstances. Software is intellectual property, not a peripheral device like a memory card.
software being that it’s an idea, and not a device or something physical. people should be payed for writing good software. but if we force people to pay for software why can’t you also force people to use your software in a specific way? because it’s wrong. that’s why. just like you can’t tell someone they have to worship god in a specific way. or tell people what they can and can not say. you can’t tell someone that they have to use their software in a specific way. this comes into contact directly with the first amendment i think. and i think the courts will eventually find them unconstitutional.
No-one’s forced to buy an XBox. Computers and software are, when you get down to it, luxury articles and it doesn’t bother me that you have to pay for it under certain circumstances. Not like, say, food or any other basic need.
http://www.groklaw.net is an award winning site.
http://en.wikipedia.org/wiki/Groklaw#Awards
It doesn’t make claims unless it has evidence.
In terms of coverage of it’s subject, it is a much better news than this site. This sight is a more specific, but less informed, version of /.
http://www.groklaw.net/staticpages/index.php?page=Psystar
Where is your evidence of your claim against Groklaw?
groklaw is a horribly biased echo chamber where fsf oriented people go to feel good about themselves. about 95% of the theories pj puts out there (she tends to insinuate at least a half dozen per post) don’t pan out or mean anything. But they aren’t supposed to, because the purpose of the site is to make people feel good about themselves.
Edited 2010-01-25 14:01 UTC
You should not be so fast to dismiss it. Even if it tells stories you don’t want to hear. They properly reference, showing the internal emails they have uncovered, or what ever documents they are going from are.
It is a very thought of site.
http://en.wikipedia.org/wiki/Groklaw#awards
”
Awards
Groklaw has been cited by the attorneys for several firms in law journal articles. It has also won awards:
* 2009 – Top 200 Tech Blogs: The Datamation 2009 List “The famed Groklaw is still going strong, far past the SCO case that first brought the blog to prominence.” [6]
* 2008 The Award for Projects of Social Benefit – The Free Software Foundation (FSF)[7]
* 2007 Knowledge Masters Award for Innovation – Knowledge Trust and the Louis Round Wilson Academy [8]
* 2007 Best FUD Fighter – Google-O’Reilly Open Source Awards[9]
* 2005 Best News Site – ConsortiumInfo*.org – Pamela Jones/Groklaw: Best Community Site or Blog (Non-Profit)
* 2005 Best Blogger of the Year – Dana Blankenhorn, Corante[10]
* 2004 Best Website of 2004 – The Inquirer[11]
* 2004 Best Independent Tech Blog – TechWeb Network: Readers Choice Award
* 2004 Best Nontechnical or Community Website – Linux Journal: Editors’ Choice Award
* 2003 Best News Site – OSDir.com: Editor’s Choice Winner
”
Edited 2010-01-25 15:18 UTC
Past performances are not indicative of future ones.
Yes, PJ did a great job in the whole SCO thing. But with this one, she is simply way off into black helicopter land. She also severely misunderstands the GPL, as she equates it to an EULA – which is truly an uninformed beginner’s mistake. Heck – even Stallman himself explicitly disagrees with that nonsense.
And just to brush up your memory: Stallman wrote the GPL.
And since her entire premise is built on the reasoning that “invalidate Apple’s EULA == invalidate GPL”, you can see how most people with common sense know she’s talking out of her behind – awards or no.
If I were into black helicopters too, I’d say she’s being paid by Apple to write the stuff she does. Heh.
Edited 2010-01-25 15:26 UTC
She also severely misunderstands the GPL, as she equates it to an EULA – which is truly an uninformed beginner’s mistake.
Indeed, GPL and EULA are two completely different things and have very, very different goals. The former one grants you rights you wouldn’t have otherwise, the latter one tries to remove rights you would have otherwise. PJ has done great before, but in this regards she have to do some more thinking and research.
Do GPL’d programs ever move into the public domain the same way copyrighted stuff does?
Yes, they actually do.
Or more accurately, they will, eventually. That’s why Stallman has openly criticised e.g. the Swedish Pirate Party, since they advocate a copyright duration of only five years; that would injure GPLd software, Stallman believes.
I think the quality of past actions is all you have to judge quality of future actions.
It’s not just SCO Groklaw has done well, what about ODF/OOXML, Bilski, etc etc? Groklaw still often is the originator for news.
I see some alignment with the concept of EULA and GPL, but I’m not sure I’ve read PJ thoughts on this. Can you point me to the text your referring to?
And a platypus bears some resemblance to a duck but that doesn’t make it one.
Just read whatever she wrote on Apple v. Psystar.
Popped over to groklaw to check out the latest post
So she is talking about the interoperability initiative that they started last year, and is using a leaked email from 1999 to back it up? Actually reading the memo, they were saying that the only way intel would give windows another shot is if the windows dev environment integrated with their existing scripts and tools around building EDA apps. This has NOTHING to do with the interop initiative that MS is talking about now.
So at best, she is misinformed. At worst, spreading FUD. Moving on….
I am not even disputing her point just the way she is arriving at it. EDA apps (for designing PCBs) is at best a niche industry. You can’t say just because a niche industry used linux in 99 means that it was ready for the enterprise.
She COMPLETELY pulled this one out of her butt. The only thing in that email that even comes close to saying that is intel saying the only way they would consider switching to windows for EDA apps is if the rest of the EDA industry switched. It is a pretty gigantic leap to say that is intel and MS ganging up on anyone.
This is the sort of thing I am talking about. She is highly biased and will do anything to present things in a way that fits her view of the world.
Errare humanum est. IMHO, the real problem is the black-and-white thinking where, for example, the specialists in some field are categorized into only two camps: the 100% good trustworthy ones or the totally bad – not some errors here and there in someone’s argumentation.
When you write lots and lots of text about complicated matters, it is only natural that some parts of it could be questioned by someone, more or less. That is often the case even with scientific studies. Hopefully the authors notice and correct their errors later, or others will do it for them. If you disagree with someone, you might talk/write to him/her directly and discuss the matter, and you both might learn something in the process.
We should not blindly trust any author and their claims, although some authors can be more trustworthy than some others. But even then, also those more trustworthy authorities may sometimes draw wrong conclusions etc. But that doesn’t mean that they couldn’t still be relatively competent in what they do. Like I said, it is only human, and nobody’s perfect.
In the case of Groklaw, the site can be quite informative, especially as there are not many other sites of its kind, if you just remember to be critical and compare the information to other sources. The same is true with any other source of information.
Edited 2010-01-25 17:03 UTC
It’s always sad to see this kind of measures. It hinders competition and thus hinders progress and innovation.
What if we were to abolish SATA, USB, PCI-E, hdmi, VGA, RJ-45, SD, and while we’re at, why not also ethernet, 802.11, FTP, HTTP and SSH? I know this is not going to happen, because there’s no single company with enough power to pull it off (except maybe(!) MS) in the PC area. The console market on the contrary, is an entirely different thing. There are way too few players on the market to be labeled as a healthy market where competition is flourishing. MS and Sony both have way too much power over the consumers here, and this is where it leads to.
Anyway, what I wanted to illustrate with this is that we need standards! Without them, the market becomes very rigid, inflexible and too prone to power hungry companies. Why else do you think it is that official accessories of any kind for a console are so much more expensive than their PC counterparts?
Yes, there is some comptetition, but that’s mainly on wholesale/retailer level. The problem is that all the retailers have to reap their fruits from only 2 or 3 trees, while it would be far more ideal to have to have very many orchards.
If Microsoft dropped support for HTTP in a time when the Browser is the most important application… That would be “the year of the Linux desktop”…
I’d love to see HTTP die. I’d also love to see the other cleartext protocols die though. HTTPS for HTTP. Pop3s for Pop3. SSH for Telnet/ftp/CIFS. Death to all cleartext protocols tasked with moving user data.
(not that it relates tot he topic.. just my hate for unencrypted protocols)
I never connected an Xbox 360 to a Microsoft-designed and/or Microsoft-branded TV. I seriously doubt that a Microsoft engineer set up the electrical circuitry in this house. I *know* Microsoft never touched the power lines just outside my house. And I know my electrical service is not Microsoft.
In fact, I know of no one who doesn’t meet those conditions. I’m waiting for the next update to brick every 360 on the face of the planet.
Here we go again. If Microsoft have that clause in the Xbox license then I believe they do have the right to block the device. Is it fair? No of course not, just like it isn’t fair that Apple block OSX from being installed on non-Apple hardware, but despite what some have posted about the legal ramifications (or lack thereof) of clicking the “I Agree” button, there is this thing called personal integrity? How can you in all good conscience click “I Agree” if you don’t?! Do you not have one shred of personal integrity in your being?
It’s pretty simple, if you have integrity and you don’t agree with it, don’t use it. That’s the best way to send the message that you don’t like the conditions…
As the Guardian says, the test for Apple (or MS, or anyone else) is in whether they try to control what we read. The test for society is whether we let them.
We should by all means click that we agree and then break the agreement if either it is not a legally enforceable one, in which case we are simply refusing to give up rights which cannot be taken from us, or if the result of conduct of the sort we are assenting to is damaging to the liberal values of a free society.
These companies are trying to dictate how we use products we have bought – our own property. They are doing this purely for reasons of self interest. We should refuse to submit, and if we feel like using the products differently, we should deliberately break any click through agreements we may have signed as a condition of use. In fact, we should do this whether we feel like it or not, because it is a moral imperative that we should not lose those rights.
We will be doing it for the children.