Linked by Thom Holwerda on Mon 12th Oct 2009 18:25 UTC
Legal Now that all the nastiness of the discovery phase is behind us in the Apple vs. Psystar case, both parties are trying to get the case settled before it goes to court, much like the recent Vernor vs. Autodesk case. Both Apple and Psystar have filed motions asking for a summary judgement.
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OSNews legal analysis
by rhavyn on Mon 12th Oct 2009 19:40 UTC
rhavyn
Member since:
2005-07-06

"All in all, whereas Psystar's motion is built on the US Copyright Act and some of its exceptions, Apple's motion relies heavily on the Software License Agreement."

This comment is factually incorrect. If anything, Apple's copyright claims regarding first sale in it's motion are extremely compelling. Specifically, the first sale doctrine allows someone to sell the copy they "own." However, Psystar is selling both the copy they own (i.e. the disk they bought from Apple) as well as the copy they installed on the computer. Unless they purchased the copy installed on the computer, which is impossible since Apple did not and would not install that copy, they they are committing copyright infringement every time they sell a preinstalled copy of OS X.

And that is simply one point from Apple's motion. I'd highly recommend anyone intelligent enough to actually care about this stuff (i.e. anyone who is talking about unsigned contracts shouldn't apply) to read the motion and look at groklaw's analysis. Thom's dribble is, as usual, factually inaccurate and an abomination of a legal analysis.

Reply Score: 4

RE: OSNews legal analysis
by strcpy on Mon 12th Oct 2009 19:43 in reply to "OSNews legal analysis"
strcpy Member since:
2009-05-20

[...] look at groklaw's analysis.


You just lost all your credibility.

Reply Parent Score: 2

RE[2]: OSNews legal analysis
by shotsman on Mon 12th Oct 2009 19:50 in reply to "RE: OSNews legal analysis"
shotsman Member since:
2005-07-22

Why have they lost all credibilty?
I'm sure there are quite a few OSNews readers who also read Groklaw.
The level of informed opinion & debate about this and other issues such as Software Patents is very high.

Reply Parent Score: 3

RE[2]: OSNews legal analysis
by sbergman27 on Mon 12th Oct 2009 19:57 in reply to "RE: OSNews legal analysis"
sbergman27 Member since:
2005-07-24

You just lost all your credibility.

imnotalawyerbutanunbelievablybiasedparalegalwholovestograndstand.com was unavailable back when groklaw went live.

Edited 2009-10-12 19:59 UTC

Reply Parent Score: 5

RE[2]: OSNews legal analysis
by lemur2 on Tue 13th Oct 2009 09:39 in reply to "RE: OSNews legal analysis"
lemur2 Member since:
2007-02-17

"[...] look at groklaw's analysis.


You just lost all your credibility.
"

http://en.wikipedia.org/wiki/Proof_by_assertion

http://en.wikipedia.org/wiki/Appeal_to_belief

Reply Parent Score: 2

RE: OSNews legal analysis
by boldingd on Mon 12th Oct 2009 19:57 in reply to "OSNews legal analysis"
boldingd Member since:
2009-02-19

Agreed; Tom's legal analysis usually has lot more to do with 1) how things are in Europe and 2) how he thinks things should be than what actual US law says.

Reply Parent Score: 2

RE: OSNews legal analysis
by jgagnon on Mon 12th Oct 2009 20:03 in reply to "OSNews legal analysis"
jgagnon Member since:
2008-06-24

I believe you are incorrect about the argument of them using two copies. The copy on the computer is necessary to get the copy they bought from Apple (the disks) to work (this is called installing software, not copying software). Reselling the disks with the software on the computer is the same argument. Both are necessary for it to be a "legitimate working copy".

If Apple wins this round then this will surely go to the Supreme Court (likely headed there anyway). But, I don't see how they could possibly win this under the circumstances.

Reply Parent Score: -1

RE[2]: OSNews legal analysis
by rhavyn on Mon 12th Oct 2009 20:15 in reply to "RE: OSNews legal analysis"
rhavyn Member since:
2005-07-06

I believe you are incorrect about the argument of them using two copies. The copy on the computer is necessary to get the copy they bought from Apple (the disks) to work (this is called installing software, not copying software). Reselling the disks with the software on the computer is the same argument. Both are necessary for it to be a "legitimate working copy".


Installing software is copying software, and congress specifically amended 17 U.S.C. § 117 in 1980 to allow the owner of a copyrighted work to make a copy as long as "such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner." (17 U.S.C § 117 (a)(1)). However, it also says that "[a]ny exact copies prepared in accordance with the provisions of this section may be leased, sold, or otherwise transferred, along with the copy from which such copies were prepared, only as part of the lease, sale, or other transfer of all rights in the program. Adaptations so prepared may be transferred only with the authorization of the copyright owner." (17 U.S.C § 117 (b)). But you'll find it mighty difficult to prove that

a) What is on the computer is an exact copy of the original copyrighted work
b) That Psystar made no modifications in order to ensure that OS X ran on their computers.

If Apple wins this round then this will surely go to the Supreme Court (likely headed there anyway). But, I don't see how they could possibly win this under the circumstances.


I don't see how Apple could possibly lose, and unfortunately, it doesn't appear that anyone on this site is capable of actually performing and presenting legal analysis in support of Psystar.

Reply Parent Score: 2

RE: OSNews legal analysis
by alcibiades on Tue 13th Oct 2009 08:06 in reply to "OSNews legal analysis"
alcibiades Member since:
2005-10-12

"However, Psystar is selling both the copy they own (i.e. the disk they bought from Apple) as well as the copy they installed on the computer. Unless they purchased the copy installed on the computer, which is impossible since Apple did not and would not install that copy, they they are committing copyright infringement every time they sell a preinstalled copy of OS X.


Not necessarily. It could be that Psystar will argue that it transferred the copies of OSX that it had bought to the end customer, along with the hardware it was about to install as. It could be that Psystar will then show that in its contracts with the customer it only acted as the customer's authorized agent.

In that case, no transfers of anything will have taken place, except for the transfers of the original retail copy and the Psystar hardware. There will have been no transfers of the copies made in way of installation, since they will always have been the customer's and created only by someone acting as his agent in the way that S117 explicitly allows.

I don't know if that is how Psystar did business, though I assume that if it is relying on S117, this is how it now does it.

Your point about the Blizzard case (leaving aside the rhetoric which is completely unhelpful) is a substantive one, and I agree that Blizzard is relevant though am finding it a little hard to decide just how it applies.

Reply Parent Score: 2