Linked by Nescio on Mon 9th Mar 2009 08:05 UTC
Numerous irrelevant issues and feelings about them are ventilated in comments on the case. However, there are only two important issues. One is what the law is, the other is what we think the law should be.
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Member since:2006-01-27
That's an inaccurate comparison. Try this:
If you buy 30 Mercury boat engines, you can absolutely install them into any hulls you wish and resell them as 30 complete boats. You can even modify the engines to get them to fit properly. Mercury doesn't have the right to force you to install their engines only on certain brands of hulls...
Ditto if Psystar buys 5,000 copies of OSX, they have every legal right to install it on 5,000 computers and resell those computers.
Member since:2005-07-11
That's an inaccurate comparison. Try this: If you buy 30 Mercury boat engines, you can absolutely install them into any hulls you wish and resell them as 30 complete boats. You can even modify the engines to get them to fit properly. Mercury doesn't have the right to force you to install their engines only on certain brands of hulls... Ditto if Psystar buys 5,000 copies of OSX, they have every legal right to install it on 5,000 computers and resell those computers.
But what about if you modify and possibly compromise the Mercury engines the way you want and them resell them as Mercury engines? Is it your right to be able to do that? What happens when the modified Mercury engine blows up... who's responsible??
Member since:2009-03-11
If I build an operating system for $386 million and I sell it to my neighbor for $386 million, he has a right to use it on any machine he wants to. If he pays me $120 for the right to run it on his own computer, I will agree that he can use it on his own computer.
...
It's that simple.
...
It's that simple.
no, no, no
Too many of you have yourselves utterly confused -
which is exactly what Apple wants and needs to win this case.
Psystar purchases each and every copy of OS X from Apple - they just happen to re-sell those copies of the OS. Which is why all who purchase Psystar PC's with OS X installed receive physical media(discs) of the OS and its original retail packaging.
So, to really make your analogy accurate, what if you spent $386 million developing your OS and decided that the fair price for which to sell it at anonymous retail was $129. Then, Psystar comes along and pays you full retail price for 4 million copies of your OS. You have now re-couped your entire development investment from one, single customer along with a handsome profit. Now then, how schizophrenic of a businessman would you have to be to attempt to sue this customer of yours out of existence??
Schizophrenic - that's exactly what Apple is now. They are banning Software from the iPhone App Store left and right - meanwhile the iTunes Store has all manner of explicit content available.
Moving on to other issues -
that comment about "a EULA" vs. "the GPL" is equally ludicrous.
A EULA is just what it says it is: an alleged agreement between a producer and a consumer, the end user. Said consumer is always free to re-sell, as a whole or in parts, anything they have previously purchased.
Furthermore, the act of re-selling does not constitute any sort of "distribution" or "licensing" - it is simply the selling of used goods, not even subject to sales taxes - not even when it is a corporate entity that is doing the re-selling - its just that simple. (Note that the use of the term "used" goods is a legal distinction solely for the purpose of determining which transfers of goods are taxable and in no way implies that the goods have been "used" in the common sense - i.e. "put to use.") And as established above, this is the nature of the relationship between Apple and Psystar - producer(Apple) and consumer - OS Maker(Apple) and its customer. It just so happens that Psystar is re-selling the OS as used merchandise whilst selling its own custom-built PC's as new merchandise. But, this re-selling of the OS is a relationship between Psystar and its customers - a 2-party relationship that Apple has no part in - a relationship that Apple has no jurisdiction over whatsoever - it's just that simple.
The GPL is just what it says it is: a legally binding software license between software distributors and others with intent to re-distribute the software. If no re-distribution is going to take place, the GPL basically has no effect.
The issue that has confused so many people here is that there are hundreds of Open-Source Software Vendors who are, legally speaking, both the 2nd party("licensee") in a GPL relationship with some poeple and the 1st party("distributor") in a GPL relationship with others, all whilst they are simultaneously the 1st party("producer") in a EULA-type relationship with their customers. Being stuck in the middle like this is an odd situation for the Vendor. Their "licensee" status in the GPL creates steep limits on just exactly what restrictions they can impose as a "producer" in their own EULA. This brings us to the reason why we "freetards" champion the GPL so much - these "limits on restrictions" to the "producer" translate to "guarantees of freedom" to the end user. So, almost all Vendors in this situation choose to automatically elevate all of their customers to the status of "software developers" and simply pass along the full GPL license as their EULA. The consumer has an intrinsic right to give up their "developer" status and to be just "a consumer" - in which case the GPL is only their EULA - imposing no restrictions on them at all as "a consumer" - and they are free to do anything to or with the software. But keep in mind that the moment they distribute, sell, rent, license, sublicense, transmit, or even give away the software to 3rd parties they are effectively "re-elevating" themselves to the status of "developer" and are again bound by the terms of the GPL as their license.
(Note which action was left out of the list: re-sell!! That's right - the exact same loophole that Apple or oranges alike must abide by applies in the "GPL as a EULA" situation too.)
The end user is always free to re-sell the software, and is no longer bound to any EULA or license agreements of any kind - it's just that simple. Note here that "giving away" your copy of the software of the software once and only once while keeping no copies for yourself legally constitutes the act of "re-selling," but simply for $0 or at no charge. In this way we are also assured that no such kind deed is punishable in any way.
How many of you would feel comfortable purchasing and driving a new car off of the lot if it came with some "legally binding" EULA that stated you could never ever re-sell it and you would only use 93 octane gasoline in it. Of course you wouldn't feel comfortable with that but you needn't even worry about it because the most basic of consumer laws guarantee you the right to re-sell anything no matter what. This case demonstrates a EULA that denied you basic rights and in so doing the EULA cannot possibly masquerade itself as "legally binding." Some will say that comparing a software product to vehicle product is not valid and those who say that are flat out wrong. The only real difference is that most software is easily copied so if and when you re-sell it, you cannot retain copies of said software for you own personal use.
Which brings us to the total and utter insanity inherent in the comment about rights to copy software to disk or in RAM.
Those persons who make such overreaching statements about [lack of] consumer rights never cease to astonish me. I believe they are victims of the misconception that going around talking like anti-consumerist billionaire's will help them to earn that first billion dollars in this life - it won't.
It only serves to alienate you from your humanity.
That quoted bit from law about rights to make any such copies necessary to make proper use the software is right on the mark and can scarcely be worded in any other way. For you see, just to use any software you copy those little bits quite a lot. If the software came to you on a disc, you copy most or all of those bits to your hard drive by simply installing it. When you go to run that software, your Operating System must copy those bits up into RAM. But wait, RAM just isn't good enough for modern performance requirements, so those bits will be copied again into the L2 cache of your CPU - and copied yet again to L1 cache - and some of those lucky bits will be even be copied even more and will be briefly stored in physical registers on your CPU. For those of you keeping score, that's 6(six) copies of those little bits you have there just to get to run the software.
But I digress...
Apple's win here would be our loss, All of Us.
P.S. Psystar isn't just a maker of "Mac clones." Their product line includes Windows and Linux PC's and at the time when the publicity started rolling in, you actually had to choose an Ubuntu PC where the OS was provided "at no cost" and add Mac OS X - for an extra $129 - to cover the full retail price, of course - to arrive at the now infamous "OpenBox Mac."
Edited 2009-03-11 06:14 UTC
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Member since:
2009-03-09
If I build a boat ad sell it to my neighbor for the $5000 I spent on materials, plus $1000 for labor, he has a right to use it on any pond he wants to.
If I build an operating system for $386 million and I sell it to my neighbor for $386 million, he has a right to use it on any machine he wants to. If he pays me $120 for the right to run it on his own computer, I will agree that he can use it on his own computer.
But he does not have the right to run it on thousands of computers to help sell those computers in competition with me until he pays me the $386 million for the whole shebang.
It's that simple.