Linked by Thom Holwerda on Wed 8th Sep 2010 22:09 UTC
Hardware, Embedded Systems There's this hole here at OSNews, a hole left when Psystar was dealt a devastating blow by Apple's legal team. That whole saga provided a nice steady stream of news articles that's been dried up for a while. However, Psystar was not the only clone maker out there - what happened to Quo Computer, that clone maker with an actual real-world store front? They're still here, and just launched a new product.
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RE[5]: Good luck...
by tupp on Thu 9th Sep 2010 09:36 UTC in reply to "RE[4]: Good luck..."
tupp
Member since:
2006-11-12

U.S. copyright law (17 USC 109 if you want to look it up) gives you right right to sell a lawfully owned copy of a copyrighted work. As pointed out in the Psystar judgement (page 7 starting around line 14) an unlawfully made copy voids the first sale defense.

Although I can already guess the answer, exactly where is the "unlawfully made copy?"


Further, by installing the software onto a computer and then selling the computer you are actually selling two copies of the software. The limited exception in 17 USC 117a does not make for a lawful copy that can be resold as per 17 USC 109 since 117a only holds if 1. the copy is an essential step in the utilization of the program or 2. it's a backup copy that is destroyed if you sell the original copy.

The original copy and the installed copy are both allowed, because the installed copy "is an essential step in the utilization of the program."


We're not talking about the utilization of anything here since we're selling the computer not using the software and I think everyone can agree backups are irrelevant to the current discussion.

Or, they are selling the computers with the software installed, or they are installing the software at the user's behest.


The further exception in 17 USC 117b fails because a "further adaptation" (i.e. modification) is necessary in order to make the software work on a generic PC and you're not going to get the copyright owner's permission (Apple) necessary to make the sale legal.

Of course 17 USC 117a(1) allows the owner of software to adapt the software to work on his/her machine.

So, it technically depends on who is the owner of the software (although, in principle, it shouldn't). If the end user buys the software and then instructs Psystar to install it, Psystar would not be selling/transferring an adaptation.

Unfortunately, Psystar did not argue this very well, or the judge is an idiot or corrupt.


The only way you can do this and potentially not break the law is if you have 3 separate transactions take place, the purchase of a computer, the purchase of OS X and then some kind of consulting contract where the consultant installs the purchased copy of OS X on the purchased computer.

Since 17 USC 117a(1) permits the adaptation, there could be just a single transaction, with a verifiable request by the end user for Psystar to install the user-purchased OSX on the computer. Of course, Psystar never pursued this avenue.


Unfortunately, that is simply infeasible for any kind of mass production since each machine would need to be hand processed using the specific disk from the specific copy purchased.

Pure conjecture. It could be profitable. Lots of small computer houses use individual discs.


Any pre-installation or usage of an imaging machine would run you afoul of the above, and as the Psystar judgement makes clear, you will lose that lawsuit.

The imaging machine is another point that Psystar didn't fight very well. But it doesn't matter, as they could have just used individual disks, and the point would have been moot.


Please note, none of the above steps outside the realm of simple copyright law.

It is of no consequence, whether or not those topics fall within the realm of copyright law. What is important is whether or not Psystar violated copyright law.


EULAs are not involved or relevant, that would be an entirely separate hurdle for you.

Please tell that to the fanboys.


Psystar lost it's case because they committed straight up copyright infringement. The ruling parts 2 A, B and C are all about normal copyright infringement. You need to get all the way to part 4 on page 13 (of a 16 page document) before the DMCA is discussed.

The ruling in 2A was a technicality, in that Psystar failed to affirm their defense under USC 117a in a timely fashion. A technicality, a bad judge and a travesty of justice.

The ruling in 2B related to Psystar's failure to provide evidence that they included an official OSX DVD with every OSX installation. Even though Apple admitted in it's opening statement that Psystar included the DVD's, Psystar's failure to provide evidence was cited as the reason for this ruling. Another technicality, bad judge and travesty of justice.

The ruling in 2C involves whether or not Psystar's installation of OSX is a modified "derivative" of OSX that violates 17 U.S.C. 101. Again, 17 USC 117a(1) clearly allows modifications to make a program run on a machine, which is directly at odds with 17 U.S.C. 101. This is a gray area that Psystar didn't argue very well. However, the ruling should have favored Psystar, because the modification merely made OSX run on the machines -- it didn't change the form nor essence of the copyrighted material.

In addition, it is difficult to imagine how the judge could've missed this point.

Thus, parts 2 A, B and C of the ruling were made, due to two technicalities and an obviously bad job by Psystar's lawyer and the judge. Not one of these parts of the ruling was the "clincher."

The real clincher was the ruling concerring the DMCA anti-circumvention provision. However, this DMCA provision also contradicts 17 USC 117a(1), relative to this case. Furthermore, the spirit of the DMCA anti-circumvention provision was to deter pirating, and there is no pirating in this case, as retail DVD copies of OSX were purchased for each installation.

It is curious that Psystar never mentioned these points.


So, Psystar and Quo are not doing anything wrong by buying copies of OSX at the user's and/or buying OSX and marking it up.

US copyright law would tend to disagree with your assertion.

Copyright law does not prohibit reselling of software nor does it set a price at which software should be resold.


Also, too, as per usual the quality of the legal information provided on OSNews is generally worse than useless,...

I bow to your superiority in legal matters.

Edited 2010-09-09 09:43 UTC

Reply Parent Score: 5

RE[6]: Good luck...
by rhavyn on Thu 9th Sep 2010 16:11 in reply to "RE[5]: Good luck..."
rhavyn Member since:
2005-07-06

The original copy and the installed copy are both allowed, because the installed copy "is an essential step in the utilization of the program."


Except, as already stated 17 USC 117a doesn't apply to 17 USC 109, so the essential step is irrelevant because you aren't running the software.

Or, they are selling the computers with the software installed, or they are installing the software at the user's behest.


Except, as stated below and in the original post, if the software is already installed on the computer then it isn't at the user's behest and 17 USC 117b doesn't apply without the original copyright owner's permission.

Which is the entire reason that Psystar lost, it's black letter law.

Of course 17 USC 117a(1) allows the owner of software to adapt the software to work on his/her machine.

So, it technically depends on who is the owner of the software (although, in principle, it shouldn't). If the end user buys the software and then instructs Psystar to install it, Psystar would not be selling/transferring an adaptation.

Unfortunately, Psystar did not argue this very well, or the judge is an idiot or corrupt.


Technically. In principle. There are no technicalities or principles here, it's black letter law. Just read the statutes, they're quite clear. And, you're making up hypotheticals about something that isn't hypothetical. Psystar didn't install the software on behalf of a user, they used an imaging station to image machines before they were purchased. They were selling/transferring an adaptation. Claiming a judge is biased because he read the law as written, applied binding precedent and came up with the ruling that was ridiculously obvious to anyone who actually understands copyright law is pretty idiotic itself, IMHO.


Since 17 USC 117a(1) permits the adaptation, there could be just a single transaction, with a verifiable request by the end user for Psystar to install the user-purchased OSX on the computer. Of course, Psystar never pursued this avenue.


No, there couldn't be a single transaction. The person making the adaptation needs to be doing it at the behest of the owner of a lawful copy. The transaction to make the user the lawful owner must take place before the transaction to make the copy.

"Unfortunately, that is simply infeasible for any kind of mass production since each machine would need to be hand processed using the specific disk from the specific copy purchased.

Pure conjecture. It could be profitable. Lots of small computer houses use individual discs.
"

I didn't say it couldn't be profitable, I said it's infeasible for mass production. Since you are even specifically said "small computer houses" I'm going to assume you actually agree with me. Nobody is going to build a national or international hardware business installing modified versions of OS X 1 machine at a time, by hand, from original media.

The imaging machine is another point that Psystar didn't fight very well. But it doesn't matter, as they could have just used individual disks, and the point would have been moot.


The didn't fight it very well because it's indefensible. Did you read the ruling? Page 6 starting at line 15 explains why and immediately before that is the precedent. Money quote: "[the Ninth Circuit held that this was not fair use..." If they used individual disks their business model would fall apart since they were talking about selling thousands and 10s of thousands of computers, not hundreds. So I guess not only was this judge biased, the 9th circuit was biased in 2006 when it made that ruling.

It is of no consequence, whether or not those topics fall within the realm of copyright law. What is important is whether or not Psystar violated copyright law.


Which they did, conclusively. And, since everything I wrote is simply talking about the exact statues which Psystar ran afoul of, I'm not sure why you're disagreeing with me. Simply disliking the law doesn't make you exempt from it, nor does it change what it says. And wishing or pretending that things aren't how they actually are is a sign of insanity. You'd be much better off learning what these laws say, understanding how they are actually invoked, how judges actually rule and trying to get them changed so that they work the way you'd like them to work.

The ruling in 2A was a technicality, in that Psystar failed to affirm their defense under USC 117a in a timely fashion. A technicality, a bad judge and a travesty of justice.


Again, did you read the ruling? The judge addressed a 117 defense in 2A as though Psystar did plead it and he concluded page 5 line 6 "but the question is whether Psystar can rely on Section 117 to escape liability. It cannot." Additionally "[a]t all events, the assertion of Section 117 is so frivolous in the true context of how Psystar has used Mac OS X that a belated attempt to amend the pleadings would not be excused."

I also find it offensive that you claim a biased and bad judge simply because he ruled differently from how you'd want, even if it's entirely in line with precedent and the law.

The ruling in 2B related to Psystar's failure to provide evidence that they included an official OSX DVD with every OSX installation. Even though Apple admitted in it's opening statement that Psystar included the DVD's, Psystar's failure to provide evidence was cited as the reason for this ruling. Another technicality, bad judge and travesty of justice.


Please, don't misconstrue the ruling with me, I actually read it. They didn't fail to provide evidence that they always shipped the disk they actually failed to ship the disk "[a]ccording to Table 2 in Kelly’s declaration, three of the other nine computers did not include a Mac OS X DVD at all (ibid.)" Additionally, the version of the software on the computer was not the same that was on the disk when it was provided: "He further stated that the Mac OS X software for five of those computers was not the same as the software found on the Mac OS X DVDs shipped with the computers." Instead of making things up, try addressing what actually happened.

The ruling in 2C involves whether or not Psystar's installation of OSX is a modified "derivative" of OSX that violates 17 U.S.C. 101. Again, 17 USC 117a(1) clearly allows modifications to make a program run on a machine, which is directly at odds with 17 U.S.C. 101. This is a gray area that Psystar didn't argue very well. However, the ruling should have favored Psystar, because the modification merely made OSX run on the machines -- it didn't change the form nor essence of the copyrighted material.

In addition, it is difficult to imagine how the judge could've missed this point.


17 USC 117a says "it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program." This is extremely clear, if you lawfully own a copy you can allow someone else to make a copy or adaptation in accordance with 117a1 or 117a2. There is nothing gray about that. Next, 117b says "[a]daptations so prepared may be transferred only with the authorization of the copyright owner." So, as I said above, if Psystar waited until after a user purchased a computer and a copy of the software and then, in a second transaction, they installed the software and/or made an adaptation while installing the software then they would have been fine. But, they didn't do that. I find it difficult to imagine how you can fail to read the laws in question and apply them, they simply don't say what you are implying them to say.

[q]The real clincher was the ruling concerring the DMCA anti-circumvention provision. However, this DMCA provision also contradicts 17 USC 117a(1), relative to this case. Furthermore, the spirit of the DMCA anti-circumvention provision was to deter pirating, and there is no pirating in this case,

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