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[4]: OSNews legal analysis
by rhavyn on Mon 12th Oct 2009 20:36 UTC 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[5]: OSNews legal analysis
by jgagnon on Mon 12th Oct 2009 21:55 in reply to "RE[4]: OSNews legal analysis"
jgagnon Member since:
2008-06-24

That whole exact copy thing is bunk. If I install a driver for a new video card it is no longer an exact copy. If I install a boot loader so I can dual boot to another operating system then it is no longer an exact copy. I could name many more "infringements" of said "exact copy" rule. If what you are saying holds up in court then we will see a flood of pointless lawsuits. Value added resellers (VAR) will suddenly be a dying breed because literally anything could be considered a modification.

Fact is that you HAVE to modify an OS on a regular basis to maintain compatibility with your hardware and other programs. A program installing an updated system file could violate the copyright with what you are suggesting. In the Windows world, for instance, if I were to modify the registry so a program would work and then later sell my computer with that software on it, am I suddenly in violation of copyright law? This all could get very absurd very quickly.

Reply Parent Score: 2

Thom_Holwerda Member since:
2005-06-29

This all could get very absurd very quickly.


Of course, but absurdity is no problem for some people when it comes to defending Apple.

Reply Parent Score: 2

RE[6]: OSNews legal analysis
by rhavyn on Mon 12th Oct 2009 22:13 in reply to "RE[5]: OSNews legal analysis"
rhavyn Member since:
2005-07-06

That whole exact copy thing is bunk. If I install a driver for a new video card it is no longer an exact copy. If I install a boot loader so I can dual boot to another operating system then it is no longer an exact copy. I could name many more "infringements" of said "exact copy" rule. If what you are saying holds up in court then we will see a flood of pointless lawsuits. Value added resellers (VAR) will suddenly be a dying breed because literally anything could be considered a modification.


If what I'm saying holds up in court? I'm not saying anything, I'm copying and pasting from the copyright law of the United States. Go ahead and verify it yourself if you don't believe me. I'm willing to be that black letter law will stand up in court too, by the way.

Fact is that you HAVE to modify an OS on a regular basis to maintain compatibility with your hardware and other programs. A program installing an updated system file could violate the copyright with what you are suggesting. In the Windows world, for instance, if I were to modify the registry so a program would work and then later sell my computer with that software on it, am I suddenly in violation of copyright law? This all could get very absurd very quickly.


Which is all very nice, but the way to change it is to lobby your member of Congress and your Senators.

Reply Parent Score: 2

RE[5]: OSNews legal analysis
by alcibiades on Tue 13th Oct 2009 08:29 in reply to "RE[4]: OSNews legal analysis"
alcibiades Member since:
2005-10-12

rhavyn,

In all your comments on this matter of transfer you fail to address the critical point that Psystar may not have been the lawful owner at the time the installation copies were made. The customer may have been.

They may have transferred everything, hardware and retail copy, to the customer before doing the installation.

If they did this, I don't see how they are in violation of S117, which permits the copies to be made by the owner, or for him to authorize others to make the copies (those essential to use with a machine).

They will not have transferred anything, and so cannot be accused of having transferred copies in an unauthorized way.

Reply Parent Score: 2

RE[5]: OSNews legal analysis
by Soulbender on Tue 13th Oct 2009 09:57 in reply to "RE[4]: OSNews legal analysis"
Soulbender Member since:
2005-08-18

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.


Lets go with for a moment because may need some clarifications.
Lets say I buy a car (ah, that old favourite) and use it for a while. While using it I obviously make some changes to it. Perhaps change the seat covers or even repaint it. This definitely constitutes changing it.
Am I not allowed to sell my now modified car to someone else? I mean, it is modified. Of course not, this is all fair use.
What I think, and correct me if I'm wrong, is the problem is not that modified copies are being sold but that Psystar has made a commercial venture out of reselling modified copies. Commercial reselling does not fall under fair use.
Of course, I'm not a lawyer (although I did study law briefly) so I could be wrong.

Edit: and it was Swedish law, not U.S law but copyright and fair use is relatively similar globally.

Edited 2009-10-13 09:58 UTC

Reply Parent Score: 2