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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RE[2]: OSNews legal analysis
by rhavyn on Mon 12th Oct 2009 20:15 UTC 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[3]: OSNews legal analysis
by jgagnon on Mon 12th Oct 2009 20:31 in reply to "RE[2]: OSNews legal analysis"
jgagnon Member since:
2008-06-24

If I buy a Mac and it comes with the original software on disc, then I choose to sell my Mac to a friend with that disc, am I in violation of copyright law? Short answer is, no. I own the copy I bought from Apple as well as the computer. If I sell it, I'm selling my copy of the software and my computer, not Apple's.

Pystar is buying copies of Mac OSX from Apple and then selling people those copies. Again, no violation of copyright. Installing said copies onto a computer is also not a violation of copyright. Selling the computers with the installed copy and original disks is also not a violation of copyright law. If it were, then anyone that has ever sold a computer with software on it would be in deep doodoo from this case.

Again, I fail to see how Apple could win this.

Reply Parent Score: 2

RE[4]: OSNews legal analysis
by rhavyn on Mon 12th Oct 2009 20:36 in reply to "RE[3]: OSNews legal analysis"
rhavyn Member since:
2005-07-06

If I buy a Mac and it comes with the original software on disc, then I choose to sell my Mac to a friend with that disc, am I in violation of copyright law? Short answer is, no. I own the copy I bought from Apple as well as the computer. If I sell it, I'm selling my copy of the software and my computer, not Apple's.


You bought a copy from the copyright holder and sold it. All perfectly fine as long as you don't keep any copies you made.

Pystar is buying copies of Mac OSX from Apple and then selling people those copies. Again, no violation of copyright. Installing said copies onto a computer is also not a violation of copyright. Selling the computers with the installed copy and original disks is also not a violation of copyright law. If it were, then anyone that has ever sold a computer with software on it would be in deep doodoo from this case.


I quoted the actual laws and gave you two things you needed to prove in order for selling a copy of software you install on a computer to be legal. Unfortunately, you failed to even comment on either of those things, and ignored the entirety of the legal citations. But, in any case, Psystar buying copies of OS X and then selling them is fine. Buying copies and selling the identical copy installed on a computer is also possibly fine (the law specifically requires the installed copy be identical, however I'm not sure how identical is defined in practice since you don't get a bit for bit identical copy when you install software). However, selling modified versions of the installed software is definitely not fine, and Apple claims that is the only way Psystar could be selling OS X. Read the legal citation I provided. Additionally, the Supreme Court has already held that a copyrighted work can be leased (i.e. licensed) and, in that case, the first sale doctrine doesn't apply. So you should also explain how Apple is legally selling a copy, not leasing it per the Supreme Court's ruling. See for example Mirage Edition, 856 F.2d at 1344.

Regarding "anyone that has ever sold a computer," it's impossible to comment since there are presumably many different versions of different software all with different license agreements, etc. But, yes, many of them probably did commit copyright infringement.

Again, I fail to see how Apple could win this.


Again, I fail to see an actual legal analysis.

Edited 2009-10-12 20:49 UTC

Reply Parent Score: 2

RE[4]: OSNews legal analysis
by alcibiades on Tue 13th Oct 2009 08:14 in reply to "RE[3]: OSNews legal analysis"
alcibiades Member since:
2005-10-12

If I buy a Mac and it comes with the original software on disc, then I choose to sell my Mac to a friend with that disc, am I in violation of copyright law? Short answer is, no. I own the copy I bought from Apple as well as the computer. If I sell it, I'm selling my copy of the software and my computer, not Apple's.
are necessary for it to be a "legitimate working copy".



You could lose, in the following way. Suppose you resell your original mac with its original disks. This is perfectly legal and you need no permission from Apple to do this.

Suppose you bought a Mac running Tiger. You then bought a copy of Leopard and installed it, and then resold the system and the copy of Leopard.

It must be doubtful that Apple would deny you the right to do this, but in law, you do need Apple's permission for this sale, in the US. The reason is that you have made copies essential to use, under S117, and are now transferring them. For this the law says you need the copyright holder's consent.

Should you buy your copy of Leopard, resell it with your Tiger system to someone, then, having signed an agreement with him getting his authorization, you install his copy of Leopard on his machine. Now you are perfectly legal under S117, and need no permissions from anyone.

Yes, it is a bit odd and involved, but that is what the law (in this case S117) actually says.

Edited 2009-10-13 08:32 UTC

Reply Parent Score: 3