Linked by David Adams on Mon 3rd Oct 2011 17:33 UTC, submitted by Adurbe
Legal Apple has the right to continue restricting its operating systems to its own hardware thanks to a decision handed down by the Ninth Circuit Court of Appeals on Wednesday. Circuit Judge Mary Schroeder wrote in her opinion that Apple's Mac OS X licensing agreement was indeed enforceable against Psystar, which had sold non-Mac computers with Mac OS X installed.
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RE[2]: It's their OS
by Alfman on Mon 3rd Oct 2011 21:34 UTC in reply to "RE: It's their OS"
Alfman
Member since:
2011-01-28

The problem is, you do not own the software, you've licensed it.

We might be able to agree on basic "moral rights" to do with our copy of the software as we please. Ie, if the original hardware dies or becomes inadequate, we'd be morally entitled to reuse the software on new hardware without being forced to buy a new license (apple, ms, ibm are all guilty here).

However, what's morally right and legally right are two different things. Our license to use software is dependent upon our acceptance of the terms put forward by the companies.

For the sake of argument:
Should publisher license restrictions on software be voided so that software copyright protection has a limited scope similar to books? Ie: short of reproducing the contents of the book, it is understood that I can pretty much do anything I want with it, including loaning it out and even reselling it. The publishers would still hold exclusive rights to tangible reproductions.

Reply Parent Score: 4

RE[3]: It's their OS
by jimmy1971 on Mon 3rd Oct 2011 22:18 in reply to "RE[2]: It's their OS"
jimmy1971 Member since:
2009-08-27

No...I would say you own the copy of the software. Once you have purchased it, the physical software package belongs to you.

If someone were to break into your house and steal your copy, the police would consider you to be the victim, not Apple.

Reply Parent Score: 2

RE[4]: It's their OS
by Alfman on Mon 3rd Oct 2011 22:30 in reply to "RE[3]: It's their OS"
Alfman Member since:
2011-01-28

Just to be clear:

You guys believe right now that license restrictions on software today are not enforceable, and that users can legally use software in violation of the publishers terms and conditions? In the USA?

If this is what you guys think, I'm genuinely interested in any explanation you may have as to why so many software publishers get away with having these restrictive licenses in place and sometimes even enforcing them in court?

Reply Parent Score: 2

RE[3]: It's their OS
by tupp on Tue 4th Oct 2011 19:48 in reply to "RE[2]: It's their OS"
tupp Member since:
2006-11-12

The problem is, you do not own the software, you've licensed it.

No. Not really.

The "first-sale doctrine" included in the Copyright Act of 1976 (17 U.S.C. § 109) clearly defines that the holder of a copyright is not the owner of a copy of a work, once that copy is sold -- the purchaser is the new owner of the copy. The first-sale doctrine was recognized by the U.S. Supreme Court in relation to copyright over 100 years ago.

Furthermore, an EULA is merely a declaration by a manufacturer -- it is not a government law. Just because a manufacturer puts restrictions in an EULA, that doesn't make an EULA nor it's restrictions valid. A manufacturer could declare in an EULA that OSNews users named "Alfman" cannot use the manufacturer's product on Tuesday afternoons, but such a clause probably wouldn't be valid.

Indeed, many EULAs and EULA clauses have been declared invalid by courts. Here is an article on a case in which an entire EULA was unanimously ruled invalid by the Supreme Court of Washington: http://arstechnica.com/business/news/2008/09/washington-court-deals... The EULA in question violated consumer protection laws.

Apple's EULAs undoubtedly contradict consumer protection laws and other fair trade principles and legislation.

However, as I recall the primary ruling against Psystar had nothing to do with EULA issues. This ruling against Psystar was based on Psystar defeating the copy-protection "technology" incorporated in OSX, which is not permitted by the DMCA. The DMCA is recent, controversial legislation. Good luck trying to defend the DMCA on this forum.

Reply Parent Score: 2

RE[4]: It's their OS
by rhavyn on Tue 4th Oct 2011 22:02 in reply to "RE[3]: It's their OS"
rhavyn Member since:
2005-07-06

"The problem is, you do not own the software, you've licensed it.

No. Not really.

The "first-sale doctrine" included in the Copyright Act of 1976 (17 U.S.C. § 109) clearly defines that the holder of a copyright is not the owner of a copy of a work, once that copy is sold -- the purchaser is the new owner of the copy. The first-sale doctrine was recognized by the U.S. Supreme Court in relation to copyright over 100 years ago.

Furthermore, an EULA is merely a declaration by a manufacturer -- it is not a government law. Just because a manufacturer puts restrictions in an EULA, that doesn't make an EULA nor it's restrictions valid. A manufacturer could declare in an EULA that OSNews users named "Alfman" cannot use the manufacturer's product on Tuesday afternoons, but such a clause probably wouldn't be valid.

Indeed, many EULAs and EULA clauses have been declared invalid by courts. Here is an article on a case in which an entire EULA was unanimously ruled invalid by the Supreme Court of Washington: http://arstechnica.com/business/news/2008/09/washington-court-deals... The EULA in question violated consumer protection laws.

Apple's EULAs undoubtedly contradict consumer protection laws and other fair trade principles and legislation.

However, as I recall the primary ruling against Psystar had nothing to do with EULA issues. This ruling against Psystar was based on Psystar defeating the copy-protection "technology" incorporated in OSX, which is not permitted by the DMCA. The DMCA is recent, controversial legislation. Good luck trying to defend the DMCA on this forum.
"

Sorry but that is factually incorrect. The EULA was definitely at issue and the appeals judge specifically talked about it in the ruling. Additionally, EULAs are most definitely legitimate. Arguing otherwise is arguing that contracts are not legal. Specific clauses in a contract may not pass muster, but contracts in general and EULAs specifically are legal and can be enforced (all of this is speaking of the USA of course). As per the judge in the ruling (which, honestly, people should actually read before commenting about it):

"This argument falsely assumes that Apple transferred ownership of Mac OS X when it sold a retail-packaged DVD containing software designed to enable Apple’s existing customers to upgrade to the latest version of the operating system. The buyers of that DVD purchased the disc. They knew, however, they were not buying the software. Apple’s SLA clearly explained this."

And:

"The DVD purchasers were licensees, not owners, of the software. The Mac OS X SLA, states that the software is “li- censed, not sold, to [the customer] by Apple Inc. (Apple) for use only under the terms of this License.” Thus the SLA pro- vides that Apple “retain[s] ownership of the Apple Software itself.” The SLA also imposes significant use and transfer restrictions, providing, inter alia, that a licensee may only run one copy and “may not rent, lease, lend, redistribute or subli- cense the Apple Software.” Cf. Wall Data, 447 F.3d at 785 (“Generally, if the copyright owner makes it clear that she or he is granting only a license to the copy of software and imposes significant restrictions on the purchaser’s ability to redistribute or transfer that copy, the purchaser is considered a licensee, not an owner, of the software.”). The license thus satisfied Vernor’s three factor test for demonstrating the exis- tence of a licensor/licensee relationship."

Reply Parent Score: 2

RE[4]: It's their OS
by Alfman on Tue 4th Oct 2011 22:33 in reply to "RE[3]: It's their OS"
Alfman Member since:
2011-01-28

tupp,

The MacOS software is not sold, only licensed. As rhavyn said, the judge explicitly referred to this fact in the case, which if anything should cast away any doubt there may have been about it's legal legitimacy. This is the norm for software licenses in the USA, I don't know about elsewhere.


Presumably, if the (so called) owner were to resell their system to another party, this other party would have to abide under the same license restrictions as the original owner.


In any case, I agree with the naysayers on at least this point: it would be counterproductive for apple to prosecute individual hackintosh users. Even if they could win in court, I doubt apple would want to engage in Sony-style litigation against end users. So the hackintoshers are probably safe until they become a bigger threat.

Edited 2011-10-04 22:34 UTC

Reply Parent Score: 2