Linked by Thom Holwerda on Sat 13th Jun 2009 11:13 UTC
Legal We've got some news in the Apple vs. Psystar tragedy that's been unfolding before our eyes for months now. We all know the gist: Psystar sells machines with Mac OS X pre-installed, while the EULA states that's not allowed. Apple then took this stuff to court, and in the meantime, Psystar went into Chapter 11 Bankruptcy protection. The news today is that Apple has filed a complaint stating that this Chapter 11 thing is just a shield that allows Psystar to continue its business practices, which Apple deems as illegal.
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Psystar Has Its Own EULA
by Governa on Sat 13th Jun 2009 11:46 UTC
Governa
Member since:
2006-04-09

To be fair, before complaining about Apple's EULA, maybe we should also take a close look at Psystar's own EULA. PJ’s/Groklaw skill at dismantling the “open source freedom fighter” myth that has grown around the very few Psystar supporters is superb. Some of the most interesting bits:

(...) What about trademarks? Psystar keeps those all for itself, revealing themselves as lovers of IP rights in all their forms, so long as Psystar is the beneficiary:

10. Trademarks. This License does not grant any rights to use the trademarks or trade names “Psystar”, “Psystar Corporation”, “Open Computer”, “OpenPro”, “Open Computing”, “OpenServ” or any other trademarks, service marks, logos or trade names belonging to Psystar (collectively “Psystar Marks”) or to any trademark, service mark, logo or trade name belonging to any Contributor. You agree not to use any Psystar Marks in or as part of the name of products derived from the Original Code or to endorse or promote products derived from the Original Code other than as expressly permitted by and in strict compliance at all times with Psystar’s third party trademark usage guidelines which are posted at http://www.psystar.com/legal/guidelinesfor3rdparties.html.

So, let me get this straight. They can sell stuff using Apple’s trademarks, and yours, but woe betide us if we use Psystar’s? Anybody note an imbalance in the universe here? But I saved the best for last:

11. Ownership. Subject to the licenses granted under this License, each Contributor retains all rights, title and interest in and to any Modifications made by such Contributor. Psystar retains all rights, title and interest in and to the Original Code and any Modifications made by or on behalf of Psystar (”Psystar Modifications”), and such Psystar Modifications will not be automatically subject to this License. Psystar may, at its sole discretion, choose to license such Psystar Modifications under this License, or on different terms from those contained in this License or may choose not to license them at all….

Well, well. You gave them rights, but when it’s their turn, it’s maybe they will, and maybe they won’t. They might not license their stuff at all? And *Apple* is a meanie because it has license terms? Puh lease.

And one last cherry on top, Exhibit A, includes this term:


This file contains Original Code and/or Modifications of Original Code as defined in and that are subject to the Psystar Public License Version 1.0 (the ‘License’). You may not use this file except in compliance with the License. Please obtain a copy of the License at http://www.psystar.com/opensource/ppl/ and read it before using this file.

You have to comply with Psystar’s license or you can’t use the code, even if you didn’t say I agree? Well, I declare.

Psystar is promoting Open Source “in every way possible?” That’s what they told us [Google the license by name], before they revamped their web site.

And Psystar is fighting to prove EULAs are from the devil?

I think not, m’lords.

That flushing sound you hear is any last remaining vestige of Psystar’s credibility going down the toilet
(...)

- Groklaw's full article : http://www.groklaw.net/article.php?story=20081204231414746
- Psystar Public Licence : http://psystar.com/opensource/ppl/

Regarding Thom's article, I do agree that Apple's motion makes a whole lot of sense.

Edited 2009-06-13 12:04 UTC

Reply Score: 7

RE: Psystar Has Its Own EULA
by Thom_Holwerda on Sat 13th Jun 2009 12:38 in reply to "Psystar Has Its Own EULA"
Thom_Holwerda Member since:
2005-06-29

Yup, it's too bad that Psystars itself is a mess. Convenient for Apple, of course.

Still, that doesn't negate the fact that I hope Psystar win this case (unlikely, though). Apple's Mac OS X EULA - just like many others, including Microsoft's - need proper court treatment.

Reply Parent Score: 3

RE[2]: Psystar Has Its Own EULA
by tyrione on Sat 13th Jun 2009 19:56 in reply to "RE: Psystar Has Its Own EULA"
tyrione Member since:
2005-11-21

Yup, it's too bad that Psystars itself is a mess. Convenient for Apple, of course.

Still, that doesn't negate the fact that I hope Psystar win this case (unlikely, though). Apple's Mac OS X EULA - just like many others, including Microsoft's - need proper court treatment.


Wish in one hand, Crap in the other. See which one fills up faster. Will it be your wish fulfillments or defecation? My money's on the latter.

Reply Parent Score: 1

RE: Psystar Has Its Own EULA
by Vanders on Sat 13th Jun 2009 13:35 in reply to "Psystar Has Its Own EULA"
Vanders Member since:
2005-07-06

That just makes Psystar hypocrites. That doesn't mean that Apples EULA is valid or enforceable. The two are separate issues.

Reply Parent Score: 2

RE[2]: Psystar Has Its Own EULA
by arpan on Sat 13th Jun 2009 13:55 in reply to "RE: Psystar Has Its Own EULA"
arpan Member since:
2006-07-30

But won't this strengthen Apple's case? If Pystar uses similar wording as Apple, and claims similar rights, then .... would a Judge/Jury not consider this evidence in Apple's favor?

Any body with more experience or knowledge care to shed some light.

Reply Parent Score: 2

jabbotts Member since:
2007-09-06

Psystar loosing would help justify EULA from all software vendors. Case law can be very dangerous. Suddenly, this case would be referenced to support further case law and we all get to slide off the slippery cliff together.

Reply Parent Score: 2

RE: Psystar Has Its Own EULA
by alcibiades on Sat 13th Jun 2009 14:07 in reply to "Psystar Has Its Own EULA"
alcibiades Member since:
2005-10-12

I don't think there is any open source freedom fighter myth around Psystar. The issue is not even about Psystar the company, though vilifying and spreading misinformation and allegations about it it is a favorite idiotic pastime of the mac lobby.

There is one issue: whether a company can sell you a retail copy of software and then restrict the environment you install it in solely by contract. That is, it is technically possible to install it in lots of environments, but some of them are forbidden by contract. Are such contractual restrictions enforceable?

The Mac lobby is only interested in cheerleading for Apple and the fact that Apple wants to do this is all the reason it needs to support this general power. But anyone thinking about society, freedom and the software industry will not be very interested in Apple, but will be very concerned about the implications.

Can Another Company, for instance, sell you a retail copy of Office, and forbid you to install it under Wine? Can Another Company stipulate that once you have installed its programme, you may not install another OS to have a dual boot system? Can a CAD/CAM company specify that you may not install some kinds of software that allows you to use their files with competing products? Can they forbid you to install if you have such a package installed when you start?

Lets go further. Can a company dictate what software you install on its machines once it has sold them to you? Can it tell you that you are forbidden to view the Kama Sutra? Or the Anarchist Cookbook? Or the Koran?

This is what is at stake here, and there is nothing so infuriating as the petty obsession with Apple and its wants and its weird secretive culture that the Mac lobby shows in talking about this. To have an intelligent debate about this issue we need to focus on what the law actually says. And what we want the law to be. And not on what is in Apple's interests, nor on what may or may not be in Apple's interests, but is what Apple for some crazed reason wants. No, on what is good for society and the software industry. Which is not the same thing at all.

Reply Parent Score: 10

jabbotts Member since:
2007-09-06

For some of us, it starts even earlier. First, is EULA a legally binding contract. Second, can it dictate the terms you mention.

Some places are a step ahead in finding EULA legally non-binding. Sadly, the US is not one of those places and I don't believe us northern neighbors are either.

All kinds of scary in the possible outcomes of this case.

Reply Parent Score: 2

RE[2]: Psystar Has Its Own EULA
by kaiwai on Sun 14th Jun 2009 04:01 in reply to "RE: Psystar Has Its Own EULA"
kaiwai Member since:
2005-07-06

This is what is at stake here, and there is nothing so infuriating as the petty obsession with Apple and its wants and its weird secretive culture that the Mac lobby shows in talking about this. To have an intelligent debate about this issue we need to focus on what the law actually says. And what we want the law to be. And not on what is in Apple's interests, nor on what may or may not be in Apple's interests, but is what Apple for some crazed reason wants. No, on what is good for society and the software industry. Which is not the same thing at all.


I support what you're saying but what about per-seat licences that many vendors use for their software licensing. That is restricting the use - should that be up for question. How about use as a business versus a non-commercial user - both are just as restricting as the question as to what hardware one can install Mac OS X onto.

If you question one restriction - then all restrictions are up to question; how is the restriction on what it can be installed onto any different than restricting my right to use a legally obtained non-commercial version of Office in my commercial environment? I've bought it fair and square; what gives Microsoft the right to tell me where, when and how I use a piece of software I legally obtained?

I'm don't support restrictions on where, when and how software is to be used (as long as it doesn't violate copyright) - but there are some issues that I think that need addressing; not just what we're talking about but actually the legal viability of EULA and which parts are actually legally enforceable, which are there to 'scare' the end user into submission, and which are there for nothing other than to fill space.

If they did get rid of large sways of the typical EULA; I've always maintained that software should be 'free' and the support; that is, updates, technical support and so forth can be paid for. In other words, you pick up a copy of Windows Vista for $10 (the cost of the media) and then you pay for a 1-2 or 3 year contract, depending on how long you want to keep it for. You might want to pay for a 5 year contract, whilst another user might get a 3 year contract because they intend to update to the next one as soon as it comes out.

New technology will need to be developed so that to ensure that only who pay get the support - but if it means more choice, then I think it is a good thing (tm).

Edited 2009-06-14 04:03 UTC

Reply Parent Score: 2

mrhasbean Member since:
2006-04-03

Can Another Company, for instance, sell you a retail copy of Office, and forbid you to install it under Wine? Can Another Company stipulate that once you have installed its programme, you may not install another OS to have a dual boot system? Can a CAD/CAM company specify that you may not install some kinds of software that allows you to use their files with competing products? Can they forbid you to install if you have such a package installed when you start?


Can any company sell you a product and then tell you it can't be installed on a computer if that computer is going to be used in XYZ country? Oh wait...

Reply Parent Score: 1

RE: Psystar Has Its Own EULA
by looncraz on Sat 13th Jun 2009 15:12 in reply to "Psystar Has Its Own EULA"
looncraz Member since:
2005-07-24

Hrm...

(...) What about trademarks? Psystar keeps those all for itself, revealing themselves as lovers of IP rights in all their forms, so long as Psystar is the beneficiary:

10. Trademarks. This License does not grant any rights to use the trademarks or trade names “Psystar”, “Psystar Corporation”, “Open Computer”, “OpenPro”, “Open Computing”, “OpenServ” or any other trademarks, service marks, logos or trade names belonging to Psystar (collectively “Psystar Marks”) or to any trademark, service mark, logo or trade name belonging to any Contributor. You agree not to use any Psystar Marks in or as part of the name of products derived from the Original Code or to endorse or promote products derived from the Original Code other than as expressly permitted by and in strict compliance at all times with Psystar’s third party trademark usage guidelines which are posted at http://www.psystar.com/legal/guidelinesfor3rdparties.html.


Did you read it? This is talking about a trademarked name - not any products - just their names. This is a standard clause in almost ANY contract which deals with trademarks directly or otherwise.

So, let me get this straight. They can sell stuff using Apple’s trademarks, and yours, but woe betide us if we use Psystar’s? Anybody note an imbalance in the universe here? But I saved the best for last:


They aren't using Apple's trademarks. At least not outside of the legal right of using a trademarked name to reference the proper item ( i.e. using MacOS(tm) X to describe MacOS(tm) X is perfectly legal in every case except when you claim it as your own - which Psystar is not ).


11. Ownership. Subject to the licenses granted under this License, each Contributor retains all rights, title and interest in and to any Modifications made by such Contributor. Psystar retains all rights, title and interest in and to the Original Code and any Modifications made by or on behalf of Psystar (”Psystar Modifications”), and such Psystar Modifications will not be automatically subject to this License. Psystar may, at its sole discretion, choose to license such Psystar Modifications under this License, or on different terms from those contained in this License or may choose not to license them at all….

Well, well. You gave them rights, but when it’s their turn, it’s maybe they will, and maybe they won’t. They might not license their stuff at all? And *Apple* is a meanie because it has license terms? Puh lease.



Umm. DUH! There is NO sense for ANY company to outright give all I.P. away - even before it exists. If they said anything Psystar wrote was public domain or under the GPL that would be a bad move in the event they come up with some truly innovative technology upon which they wish to capitalize.

This section could be more clearly worded, however:

Code not coming from Psystar is not Psystar's, code coming from Psystar may or may not be used freely, please read Psystar's open source license.






And one last cherry on top, Exhibit A, includes this term:

This file contains Original Code and/or Modifications of Original Code as defined in and that are subject to the Psystar Public License Version 1.0 (the ‘License’). You may not use this file except in compliance with the License. Please obtain a copy of the License at http://www.psystar.com/opensource/ppl/ and read it before using this file.

You have to comply with Psystar’s license or you can’t use the code, even if you didn’t say I agree? Well, I declare.



The license in question is an OPEN SOURCE license - maybe not the best - I haven't read it - but it is an access-granting license rather than a RIGHTS-removal license ( such as Apple's EULA ).


Psystar is promoting Open Source “in every way possible?” That’s what they told us [Google the license by name], before they revamped their web site.


If the above is your point in argument, then it is a total charade. In no way has any portion of your argument suggested that Psystar is not open source. You only showed that Psystar says to read the Psystar OpenSource license to understand your usage rights.

Did you know that you can find EULAs like this all over the place that say go look at our source license: GPL vX??



And Psystar is fighting to prove EULAs are from the devil?

I think not, m’lords.

That flushing sound you hear is any last remaining vestige of Psystar’s credibility going down the toilet (...)

Regarding Thom's article, I do agree that Apple's motion makes a whole lot of sense.


Psystar is trying to prove that RESTRICTIVE EULAs are from the Devil.

There are two types of EULAs - one that tries to prevent you from using your rights, and another which gives your more rights.

From the sounds of things Apple has the first type, Psystar the second. Missed the subtlety, eh?

In any event - I also agree with Thom - Apple's claim is completely justified ( even if their lawsuit is not ).

It makes NO sense to allow a company to wiggle away from the lawsuit - but Ch 11 should continue because there is NO sense in punishing a company for what has not yet been proven as illegal.

In the end: Ch 11 continues unabated, the judge will see Apple's lawsuit through regardless.

I'm certain even Psystar knew that one before they filed for Ch 11 - they just had little choice per their stated reasons.

My advice: stop looking through colored lenses, they are distorting your view of the world.

--The loon

Edited 2009-06-13 15:15 UTC

Reply Parent Score: 7

RE[2]: Psystar Has Its Own EULA
by tyrione on Sat 13th Jun 2009 19:57 in reply to "RE: Psystar Has Its Own EULA"
tyrione Member since:
2005-11-21

Spare me the Devil reference. Live in the dark ages if you want, but come up with something better, like Compassionate Conservative.

Reply Parent Score: 1