OSNews

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."

rhavyn...if tupp is correct, that the Supreme Court has already overturned EULA's, then it is doubtful that this Appeals Court judge is the final arbiter on EULA's.

In short, it's doubtful to me that one lousy judgement by a man who wears a wig and and a gown for a living can overturn what has already been established in other cases. It can also not be said outright that EULA's rule the universe, as you seem to be saying.

I have no doubt you are accurately quoting the language of the judgement...I think you're just a little too much in awe of this one ruling.

Uh... who said anything about the appeal? I was referring to the primary ruling(s) in the case. Here is one of many articles about that ruling: http://www.pcworld.com/article/182218/apple_wins_court_victory_over...
Do a search in the article for "EULA", "SLA" or "license" -- I couldn't find any reference to those terms.

From the article (which I just linked), it looks like Psystar did something shady with the disks. Evidently, the number of OSX copies purchased were less than the number of OSX installations. Of course, that is wrong and inexcusable, if true.

In regards to Alsup's opinion that Psystar violated Apple's copyright by using an intermediate image and by creating a derivative work with additional files, I really have to disagree with the judge. There is nothing wrong with using that image disk, as long as one copy of OSX is purchased and included with each computer. Apple is getting paid for every installation, which is the main purpose of limiting software copies. Furthermore, the extra files were created merely to allow OSX work on the hardware, which is a procedure protected by copyright law specifically aimed at installing software. Those files didn't "modify" OSX.

Regarding the DMCA violation ... please. Not only is the antipiracy technology provision of the DMCA possibly in direct contradiction to software copyright law, but breaking the anti-piracy measures in OSX doesn't constitute piracy, especially if the number of purchased disks match the number of instalations.

Consumer protection laws and fair trade legislation notwithstanding, I think Alsup must have been playing with his new fishing reel when the defense was making its case. Certainly, most judges have no clue about software and technical matters, and that probably figures into the decision, too (especially the DMCA matter).



Nope. Not a lot of the time. There have been countless cases in which EULAs and their clauses have been declared invalid by the courts.

Arguing that most EULAs are invalid doesn't have affect any specific EULA or contract. In the courts, every EULA case has to be considered individually on its own merits, just as every contract case has to be considered individually.



Indeed. People should actually read a post about a primary decision, before commenting as if the post referred to the appeal.



Again, these sorts of arguments fly in the face of the first-sale doctrine, consumer protection law and fair trade legislation. I can't explain why the judge did not consider other legislation and fair trade principles, but they don't call it the "9th 'Circus' Court" for nothing.

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

No. The judge might have said so in his/her opinion, but such an assertion contradicts long standing legislation (and fair trade principle), namely the first-sale doctrine in the Copyright Act of 1976. There are other federal and state consumer protection laws which also apply.



No. That is the point -- these licensing notions are very recent. Software didn't originally include EULAs. I would wager that the first time a judge has made such a statement (to such a degree) is with this particular case.



Prior to this case, the new owner would need only abide by established copyright law.

Edited 2011-10-05 01:17 UTC