Linked by Thom Holwerda on Mon 5th Oct 2009 21:45 UTC, submitted by JayDee
Hardware, Embedded Systems Just when you thought you saw it all. So, we all know about Psystar, the two lawsuits between them and Apple, and all the other stuff that's been regurgitated about ten million times on OSNews alone. Well, that little company has taken its business to the next level - by announcing an OEM licensing program.
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RE[5]: Oh no..
by alcibiades on Wed 7th Oct 2009 06:29 UTC in reply to "RE[4]: Oh no.."
alcibiades
Member since:
2005-10-12

Not if you break other laws in the process. And by bundling OS X you break basic copyright law. Apple made the software and Apple gets to dictate what you can do with it. You can't do what Psystar is doing. Period.

This is a mistake about what US law says. The applicable code is Title 17 Section 117. It provides that the owner of a copy of software may make, or authorize someone else to make, any copies of that software that are essential to using it with a machine.

Then we have the two cases of Vernor vs Autodesk and Softman, in which it has been found that to purchase a retail copy is a purchase transaction, and not a license.


So we start out with the position that for me to make or authorize someone else to make any copies or modifications of my retail copy of OSX is lawful under copyright, as long as those copies or modifications are essential to use with a machine. As long as OSX is not a live CD/DVD, copies made in way of installation on a machine are obviously essential to use with that machine.

Now, the next part of S117 says that I can only sell those copies on as part of the sale of the original retail copy with the permission of the copyright holder. Aha, you cry, Psystar did not have such permission. Die, Psystar, die!

Not so fast Moriarty! The question now turns on whether Psystar was the owner of the retail copy at the time that it did the installation. If it turns out that Psystar had charged the customer's credit card or in some other way transferred ownership of the retail copy of OSX before it did the installation, it was simply acting as the person authorized by the customer to do the installation, and as far as copyright goes, this is perfectly lawful.

You then go on to say

Apple made the software and Apple gets to dictate what you can do with it.

This is hallucination or fantasy. The maker of software, whether its Apple, you, me or Microsoft, does not get to tell buyers of retail copies what they can do with it. The maker of CAD/CAM does not get to tell buyers they are not permitted to do boats. The maker of word processing software does not get to tell people they may not write religious tracts, or porn. In general, the maker of graphics software does not get to tell people what graphics cards they may or may not use. No software maker gets to tell people who and under what terms they may resell their copies to. And so on.

Once you have transferred ownership of a retail copy of software, your rights over what the buyer can do with it are only the rights which the EULA contract give you. Those are limited by the law of contract in your jurisdiction, which determine how contracts may be entered into, as well as by the law governing what terms of contracts are enforceable and valid - for instance, consumer protection and anti-trust law. It is highly likely that in most jurisdictions a EULA term which dictates where you buy the hardware you use with a given piece of software will be found unenforceable.

If you think about this, consider the ridiculous situation it would create were it to be possible. Company A tells you you can only use its software by buying your nVidia graphics cards from it. Company B tells you you must buy them from it. You buy them on the open market, install both bits of software, and both sue you. Does this make any kind of sense to you?

Reply Parent Score: 3

RE[6]: Oh no..
by wirespot on Wed 7th Oct 2009 07:42 in reply to "RE[5]: Oh no.."
wirespot Member since:
2006-06-21

Then we have the two cases of Vernor vs Autodesk and Softman, in which it has been found that to purchase a retail copy is a purchase transaction, and not a license.


Verson vs Autodesk is not relevant to Apple vs Psystar. See here why:
http://www.groklaw.net/article.php?story=2009081716312060

So we start out with the position that for me to make or authorize someone else to make any copies or modifications of my retail copy of OSX is lawful under copyright, as long as those copies or modifications are essential to use with a machine.


Whoa there. "Modifications?" Verbatim copy is one thing, modification is another. The law says "adaptations", and if you think that means "modifications" then you have a suprise coming your way.

This is hallucination or fantasy. The maker of software, whether its Apple, you, me or Microsoft, does not get to tell buyers of retail copies what they can do with it.


Yes they can.

You probably read US law, most likely 17 § 106, and thought "here's what the copyright owner can do".

You're wrong. Yeah, that's a set of rights the software maker automatically gets. But the thing is, you, the buyer, GET NOTHING. You don't have ANY rights to that piece of software. You can't do anything at all with it.

The only thing that grants you ANY rights is the copyright license you get from Apple. You don't have to agree to it. If you don't, you're back to square one (no rights at all).

If Apple (or Microsoft, or anybody writing any software) say "you have to stand on your head when you use this piece of software", they can.

Now, it doesn't mean it applies. Taking some of your examples, we see that they infringe on fundamental liberties of the individual, so they won't apply.

But Apple is making provisions that are perfectly sensible and DO apply. Because they have to do with modification and redistribution of the software, and that's very much the realm of copyright law.

Yes, you can make copies for personal use. Yes, you can perform adaptations of hardware and software so you can run OS X (because the law made an exception saying you can). But a company cannot necessarily make a business out of doing this for you. It's alright with, say, Linux or Windows, because their licenses allow it. But the OS X license doesn't.

Edited 2009-10-07 07:45 UTC

Reply Parent Score: 2

RE[7]: Oh no..
by Thom_Holwerda on Wed 7th Oct 2009 10:11 in reply to "RE[6]: Oh no.."
Thom_Holwerda Member since:
2005-06-29

Verson vs Autodesk is not relevant to Apple vs Psystar. See here why:
http://www.groklaw.net/article.php?story=2009081716312060


As much as I respect PJ, I don't trust her one bit when it comes to the Psystar case. She is seeing a major consipriacy here, where she thinks Microsoft is behind it all, and that it's all part of an elaborate attack on the GPL, tied to the SCO case.

I can't take her assessments seriously anymore. She lost a lost of credibility in my book when she started that black helicopter nonsense.

Reply Parent Score: 1

RE[7]: Oh no..
by alcibiades on Wed 7th Oct 2009 19:23 in reply to "RE[6]: Oh no.."
alcibiades Member since:
2005-10-12

You probably read US law, most likely 17 § 106, and thought "here's what the copyright owner can do".

No, I read 17 § 117, and Vernor vs Autodesk, and suggest everyone else does, too.

Reply Parent Score: 2