Linked by Thom Holwerda on Tue 2nd Dec 2008 22:42 UTC, submitted by anon
Legal The legal back-and-forth between Apple and clone-maker PsyStar continues to develop, with the latest news being a move by Apple - the Cupertino company has invoked something with many already predicted Apple would call upon: the DMCA, or the Digital Millenium Copyright Act. This was done in an amendment to the original suit, filed in July this year.
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RE[3]: Comment by Darkmage
by looncraz on Wed 3rd Dec 2008 04:56 UTC in reply to "RE[2]: Comment by Darkmage"
looncraz
Member since:
2005-07-24

[...] and if Psystar actually modified any OS X subsystems to make that work then Apple could have a case against them.


How exactly?

To continue the most befitting car analogy...

Let's say I'm building my own custom cars to sell for profit. In order to do this, I decide I need an engine. My engine's suck, but Volvo has a great engine, which I can go and buy at the Volvo dealer, even in bulk.

Am I somehow wrong for putting that Volvo engine in my custom car? Is Volvo going to sue me?

Well, the engine isn't an exact fit for my car, so I have to weld up some custom engine mounts, and have to modify the fuel system to make things work correctly, but it works. Will Volvo sue me? Do they have the right?

No. No way is Volvo going to do that. Even if I have to put in a completely new fuel rail, there is no way Volvo would sue me for buying their engines. It just doesn't make any sense - I bought it! I'm not badging my car as being a Volvo - no, I'm saying exactly what it is: a custom car with a Volvo In-line 6.

In the finer print I discuss the efforts that went into this custom car, including the efforts to get the engine installed and working properly. I am also a good guy, and realize many people would like to save money and do it on their own, or use my methods to install the awesome Volvo I6 engine into their own car - provided it can be made to fit - so I create a kit to help those people out. Heck, I even sell it!

Does Volvo sue me in any of this? Are they losing out?

No way, people are buying those engines - if they aren't making money on them, they need to increase the price - that is what supply & demand on a free market is all about.

Back to computerese:

Apple sells software on store shelves. They have no rights once that software leaves their possession, beyond trademark, copyright & patent laws - unless they have you sign a legally binding contract ( which some argue that the EULA is - but it is not, the ONLY cases I have been able to find regarding "rules" in the EULA were those simply restating an existing law - nothing new from an EULA has ever been enforced, that I have found ).

If Psystar made a product and called it iMac or Mac Pro - that would be illegal (the near full extant of trademark law).

If Psystar made copies of one retail CD and used it for all of their installations - that would be illegal ( the near full extant of copyright protection ).

If Psystar violated a patented method in their own product, or violated a patent in a way that was not protected by law... well, there goes patent law.

Apple's digital protections are surely patented, but precedence and U.S. law dictate that patents mean absolutely nothing in the case of "interfaces & interoperability."

Indeed, you can reverse engineer ANYTHING legally in order to become compatible with it. Heck, Microsoft did it for Java. There are even free & legal programs which can play/record MP3s simply because the makers chose to argue the case properly.

Apple is just hoping Psystar gets scared and forfeits - or that they luck out with the judge, being able to confuse the issue by separating computing laws from the rest of the laws. BUT, there are few separate laws governing computing/software ( and not really any beyond the DMCA ).

I pray that Apple fails - not because I hate Apple, but because Apple will be forced to either increase the price of MacOS X or take it from the shelves ( which would be very damaging ).

Increasing the price in line with Windows would be a good start, we need an OS price war! Besides, even a hacked up MacOS X can put Windows to shame. Apple never needs to make it easy for anyone to install their OS, they get more for each disc, and Psystar and the like will have to charge more, making it possible that Apple would need to become competitive.

What is bad with that? Well, Apple isn't an efficient company, so they are unable to compete. They ran into this problem before - and they will do whatever it takes to ensure they don't end up in that position again. ( I wouldn't put it past them to hire some thugs, for instance ).

The final solution, is actually very obvious. Apple needs to require a signed contract.

You see, there are requirements for electronic signatures - and pressing an "I agree" button - or check box, doesn't cut it. There is no validation of identity, nor are there any qualifying requirements - such as a minimum age - as required by law. EULAs are complete jokes, as are most software licenses.

Beyond what is protected by law, there is nothing that can be done. However, one should note that explicit permission may be granted in this manner. I can write a program and add a license which allows "violations" of the law ( such as copyright, trademark, & patent ).

The GPL license is a good example of such a license. That is perfectly fine, because it grants permission in the event a certain event arises ( the re-sharing of the sources ).

Apple's EULA goes beyond the restrictions emplaced by law. It cannot become a matter for the courts unless there is a legally binding contract - with a legally accepted proof of agreement. Apple can't prove Psystar EVER, even ONCE, pressed the "I Agree" button. Nor could they prove that if this had happened that the person doing so had the right to enter the company into a legal contact.

Oh well, I'll be back on this topic at some other point in time.. didn't mean to rant, but this is a more important topic than many realize.

--The loon

Reply Parent Score: 15

RE[4]: Comment by Darkmage
by DrillSgt on Wed 3rd Dec 2008 05:15 in reply to "RE[3]: Comment by Darkmage"
DrillSgt Member since:
2005-12-02

"Let's say I'm building my own custom cars to sell for profit. In order to do this, I decide I need an engine. My engine's suck, but Volvo has a great engine, which I can go and buy at the Volvo dealer, even in bulk."

Actually lets forget all the car analogies. Software works are defined as copyright material. So, let us compare apples to apples, or copyright to copyright.

Under this, Apple is accusing Psystar of modifying software, and distributing it without permission. That would be against the law.

My example for a comparison is a book. Books are copyrighted material. If I buy a copy of a book, I can sell that copy of the book, just as I can sell a copy of software. What I cannot do is re-write a chapter in the book and re-sell the book. That is directly against copyright law. I cannot modify a work and sell it or distribute it without getting proper permission from the author.

So, the book is mine. I bought it. The software is mine, I bought it. With either of them I can sell them, rip them to shreds, use them as coasters, etc. What I cannot do is modify it and distribute it.

Cars do not fall under copyright law, software and books do.

Reply Parent Score: 4

RE[5]: Comment by Darkmage
by tupp on Wed 3rd Dec 2008 06:15 in reply to "RE[4]: Comment by Darkmage"
tupp Member since:
2006-11-12

I can sell that copy of the book, just as I can sell a copy of software. What I cannot do is re-write a chapter in the book and re-sell the book.

Yes. You can. There are tons of used books, textbooks with notes in the margins that are resold individually and legally every day.

However, you can't take your modified or unmodified copy and make multiple copies and then sell those copies.


I cannot modify a work and sell it or distribute it without getting proper permission from the author.

This is where the analogy breaks down. Psystar is not distributing copies of OSX. They are merely reselling individual, authentic, legally purchased copies of OSX.


So, the book is mine. I bought it. The software is mine, I bought it. With either of them I can sell them, rip them to shreds, use them as coasters, etc. What I cannot do is modify it and distribute it.

Reselling a single used book or a single used piece of software does not constitute "distribution."

Reply Parent Score: 6

RE[5]: Comment by Darkmage
by Darkmage on Wed 3rd Dec 2008 09:12 in reply to "RE[4]: Comment by Darkmage"
Darkmage Member since:
2006-10-20

dundun dun.... except you CAN sell the book unmodified with a nice little booklet with notes and addendums that contain changes and corrections, and that is EXACTLY what psystar is doing. They're not giving you a copy of osx that's been hacked and patched, they give you a complete osx install disc that's unmodified. What is modified is maybe the kernel and bootloader on the machine itself. I've booted up osx86 many times and the way they normally hack it to boot now is to edit the bios of the machine and not the kernel of the mac os itself. At any rate AFAIK the kernel is not under a do not redistribute license... But that should be irrelevant anyway since you're really messing with the bootloader/bios layer not the OS layer.

Reply Parent Score: 2

RE[4]: Comment by Darkmage
by alcibiades on Wed 3rd Dec 2008 07:28 in reply to "RE[3]: Comment by Darkmage"
alcibiades Member since:
2005-10-12

The final solution, is actually very obvious. Apple needs to require a signed contract.

This is not right. The clause in the Eula is not enforceable, since it conflicts with competition and consumer protection legislation in most if not all OECD countries. It makes no difference how it is presented. Even if signed in blood under oath in the presence of a notary public, it will still not be enforceable. This is the whole point of consumer protection legislation: you cannot sign away your rights. This is the whole point of competition law: you cannot be bound by contract to terms and conditions which violate it.

Its not about how it is presented or entered into. The problem is the terms of the contract themselves.

Apple has one choice: whether to sell OSX at retail, or not. If it does, it is not going to be able to prevent installation on non-Apple branded machines. At least, not on the merits of the case. It may be able to bully Psystar into stopping. That's a different matter.

As to the DMCA, it is a mystery how Apple thinks this one will fly on its merits, since all modifications are made solely to permit interworking - that is, to allow installation on a competitive platform, and the DMCA explicitly permits that.

On a related subject, it continues to amaze that people keep referring to Psystar machines as clones. This is simply nuts, it is Apple's machines that are clones of the standard x86 PC. Psystar, like Apple, is just supplying a few of the 200 million plus of these machines which ship every year. You might as well refer to all CD players, or Sony's, as Cambridge Audio clones. Like Apple with x86 computers, Cambridge Audio is a minority supplier of CD players, who entered the market for that product years after it was well established by others.

Reply Parent Score: 5

RE[5]: Comment by Darkmage
by tupp on Thu 4th Dec 2008 09:19 in reply to "RE[4]: Comment by Darkmage"
tupp Member since:
2006-11-12

Thank you for bringing clarity to the discussion and for reminding us what the core issues actually are.

I hope that Psystar's council and the judge see the points so clearly.

Reply Parent Score: 2

RE[5]: Comment by Darkmage
by looncraz on Sat 6th Dec 2008 05:56 in reply to "RE[4]: Comment by Darkmage"
looncraz Member since:
2005-07-24

Yeah, I was just speaking on how it would become a matter of the courts in the possible favor of Apple.

Sadly, any given law and how that law is enforced are two different beasts. Some things which are not law can be enforced in court via contractual obligations, such as non-disclosure clauses.

The limits imposed deal mostly with the fact that no one can contractually be required to violate any law, beyond certain rights that can never be signed away (that few know about).

Of course, I'm not a lawyer, and my understanding is rather "street," but I think I have better handle on it than the average. As usual, I am always grateful for any and all proper clarifications / corrections, so thanks!

--The loon

Reply Parent Score: 2