Submitted by 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.
While by no means am I an Apple fan, it’s their OS. They developed it and they can license it as they see fit.
I hereby hold my nose and very reluctantly agree…to a point. I agree that Apple should be allowed to control how the OS is sold and marketed. (I don’t like the terms under which they sell, so I simply choose not to buy.)
While I agree that Apple should be allowed to control how their software is sold and marketed, I disagree that any copyrights have been violated in the Psystar case. From what I have read, they were selling their computers with copies of OS X that had been legally purchased from Apple. There was no illegally copying of software going on. Maybe I’m missing something here.
The court, however, rightly upheld the right of hobbyists to install OS X on “hackentoshes”, thus reaffirming a person’s right to do whatever the heck (hack?) they want with software once they own a copy of it. This pulls the teeth out of the OS X EULA, which states the user is permitted to “install, use and run one (1) copy of the Apple Software on a single Apple-labeled computer.”
At the end of the day, I’d rather circumvent the above and assert my freedom through the choices I make, rather than rewarding a company that, underneath it all, is as draconian as Micro$oft.
This is a fine line.
A hacker/hobbyist can build his/her own Hackintosh with off-the self components and a purchased copy of OS X. This is not quite abiding to the full EULA but it would be difficult for Apple to enforce the EULA other than by barring the Hackintosh systems from updates/upgrades via hardware checks during their install.
However, what Psystar did was – take such off-the self components, install OS X, and sale the completed package to end-users in the hope of profits. Two key-concepts – a complete package and in the hope of profits – makes it difficult not to side with Apple.
Had Psystar sold hardware which could easily be transformed into a Hackintosh, then they possibly would not (could not) have been stopped from doing so even if a list of OS X versions which could be installed on them (compatibility) was provided as part of a Welcome Manual, along with similar notes for Linux and Windows.
BlueofRainbow,
“Had Psystar sold hardware which could easily be transformed into a Hackintosh, then they possibly would not (could not) have been stopped from doing so…”
At the end, if I recall, this is what psystar was doing. The system was MacOS install-ready, but not pre-installed – that was the user’s responsibility. They were still forced to cease distribution of their MacOS compatibility EFI.
http://news.softpedia.com/news/Psystar-Shifts-Mac-OS-X-Installation…
Has the software been properly bought (instead of copied, stolen, etc.)? If yes, then Apple just lost all its rights to anything happening with that copy.
Copyright only covers the right to copy – not the right to the copy. This is a very important distinction few people seem to understand.
In the United States, at least, your statement is absolutely wrong. Apple sells a license to their software, not a copy of the software. If anything, you’d think this court case would have convinced you of that since the ruling flat out states that.
Psystar was modifying the installed OS X image to boot on non-Apple hardware. Redistributing modified copyrighted works for profit is by the books copyright infringement.
Okay…were they distributing the boot image itself, or just the machine onto which the boot image was used to install the OS? Correct me if I’m wrong, but the computers were being sold with OS X pre-installed. Selling installation media with the modified boot image itself would have been a different story.
Actually, it doesn’t matter. You can’t distribute a modified version of a copyrighted work. Whether it was installed or not is irrelevant. Even providing an automated way to make the change would be contributory copyright infringement, and in fact, Psystar was enjoined from selling software that would do exactly that.
Disagree. As long as I, or anyone else, buys a copy of the software, I can use it whatever way I want. It’s none of Apple’s business how I use the software I bought.
I agree with your disagreement, that end users should be able to use/install the software any way they want.
What about the way in which OS X is sold and marketed, though? That seems to me to be a different stream of activity than the Hackentosh hobbyist, my assertion that it’s not a copyright issue notwithstanding.
Once Apple sells the product, the new owner should have the right to do whatever they want with the item. Apple doesn’t own the copy anymore.
If the new owner wants to sell and advertise the product, he/she has to describe the product in the advertisement. So, in Psystar’s case, the description would read something like, “includes a copy of Apple OSX.” As long as Psystar doesn’t use an Apple logo, then Psystar is doing nothing wrong nor misleading.
Okay…I can feel my needle edging away from “reluctantly agree” to “disagree”…
My sense through all of this is that Apple is engaging in hardware protectionism through misapplication of the term “copyright infringement”.
Edited 2011-10-03 20:56 UTC
It’s exactly what they are doing. They are a software company which design reasonable good software but instead of selling software make their money by forcing end-users to buy expensive and subpar hardware from them. It’s like MS forcing you to buy their PCs and phones for 5x the real price.
I agree. Some time ago I’ve bought a copy of Os X and installed it on my PC after I labeled it with an Apple sticker to respect their EULA. However, as I don’t use Os X anymore I removed the sticker.
However I think that they still have the right to discourage hackers by using weird chips in their hardware. And the hackers have the right to emulate the chips in software. xD (like TPU and EFI)
Edited 2011-10-03 21:06 UTC
When Amiga choose to sell OS 4, they chose to limit it to Amiga hardware (choosing PPC certainly helped).
I never heard you get too upset about that, but maybe you did…
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.
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.
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?
Yes, that’s what we believe, and it is also what the courts believe. In the article this story was linked to, the Appeals Court said its decision “won’t limit will be hobbyists creating their own hackintoshes at home using their own PCs and OS X installations.”
Legal agreements are just scraps of paper — it’s how effectively they can be enforced that matters. Ergo, that blurb in the OS X EULA about only using the software on Apple-labelled is just so much meaningless noise to be tuned out by the end user who has shelled out their hard-earned money.
If Apple doesn’t want OS X used on non-Apple hardware, they shouldn’t make it available for purchase on its own.
Edited 2011-10-03 23:12 UTC
From the Appeals Court:
“Psystar’s principal argument on appeal is that the district court should have held that the license agreement is an unlawful attempt to extend copyright protection to products that are not copyrightable. The heart of Psystar’s argument is that the Copyright Act affords Apple protection only against unauthorized copying and distribution of the operating software, but not on its use once it is purchased.”
Then later:
“Since Psystar has failed to demonstrate that Apple has misused its copyright in Mac OS X, we affirm the district court’s grant of summary judgment on Psystar’s copyright misuse defense.”
So there you have it, EULA’s are legally enforceable.
No, I never said EULA’s are not legally-enforceable. I said — as you quoted me — that it’s how effectively they can be enforced that matters.
As I mentioned earlier, the decision of the courts doesn’t restrict individual users from putting OS X on non-Apple hardware. (Assuming the author of the arstechnica.com writer has it right.)
So…it is absolutist (or at least over-simplified) to say that EULA’s are legally-enforceable. Dig it: companies are free to write EULAs, users are free to disobey said EULA’s, and companies are then in turn free to test the EULA’s in court.
May the most expensive legal team win.
Edited 2011-10-04 00:02 UTC
jimmy1971,
“As I mentioned earlier, the decision of the courts doesn’t restrict individual users from putting OS X on non-Apple hardware. (Assuming the author of the arstechnica.com writer has it right.)”
I don’t really think the judge made a ruling on end-user rights one way or the other in this case, which was specifically about psystar. Now you could interpret the absence of an official court judgement against end-user installations as meaning the courts have sided with end users. However as far as I can tell this is untested territory, and I’m not convinced that apple couldn’t win a court case against hackintosh users if it wanted to.
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.â€). 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.
Why don’t you go actually read the ruling and count how references to precedent are there. If you read my quote you can already see the reference to the case which created the three prong test for deciding if a copyrighted work was licensed or not. This isnt one ruling, this is all established law in the US. The only people who debate it are geeks on Internet sites. Do you honestly believe tupp is accurate and that an appeals court judge just doesnt know copyright law? Or do you think maybe hes just actually wrong and EULAs are actually valid?
Psystar never had a shot at winning this case and there simply is no US precedent anywhere that indicates that, on their face, EULAs are invalid. If you want to assert otherwise, post a link to an appeals court judgment showing it.
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.
An appeal can only speak to the ruling in a lower court. If EULAs weren’t in the original ruling the appeals court couldn’t possibly rule about them. But, seeing what a legal expert you are knowing more about copyright law then a federal judge and a federal circuit court judge I’m sure you knew that already.
Again, it would be awesome if people actually read rulings instead of articles about rulings. They might actually find themselves informed of what the laws in the US actually say and not what poorly informed armchair geek lawyers think (or more accurately, wish) they say.
No. The argument of the party making the appeal doesn’t necessarily involve the same topic inherent in the decision of the lower court. The argument used by the appealing party is entirely up to that party. The second paragraph of the article on the appeal reads:
“Psystar had previously been held in violation of Apple’s copyrights by a District Court, and did not appeal that ruling. Instead, in its appeal, Psystar argued that the OS X licensing agreement was an “unlawful attempt to extend copyright protection to products that are not copyrightable”—an argument that the Ninth Circuit has now dismissed.”
Facts are facts. One doesn’t need to be a federal judge to know basically what is included in the Copyright Act of 1976.
Secondly, who do you think you are fooling (with your personal attack) by putting federal judges on a pedestal? Judges are a lot like politicians — most in such positions have control/power issues, whether or not they are appointed/nominated/elected. Unlike you, I don’t automatically adore people just because they are judges (or have legal standing).
Here are a few winners who I am sure you admire:
“Federal Judge Indicted On Corruption Charges”: http://articles.orlandosentinel.com/1991-02-09/news/9102091128_1_in…
“Federal Judge Charged With Buying Drugs From Stripper”: http://www.ajc.com/news/atlanta/federal-judge-charged-with-658597.h…
“Federal Judge Indicted on Sex Abuse Charges”: http://www.law.com/jsp/article.jsp?id=1202424144042&slreturn=1
“Louisiana [Federal] Judge Convicted on Impeachment Charges”: http://www.cbsnews.com/stories/2010/12/08/politics/main7130087.shtm…
I actually knew one of the judges linked above. He was a huge, arrogant jackass, and he owes money to my brother. Yeah, all those federal judges are “true blue!”
You must be trapped in some sort of legal world reality distortion field.
This entire thread is based on an article, an article which I quoted in this very post. If you disagree with the article, please supply the appropriate links to counter the article.
Look this is ridiculous. Please go do the slightest bit of research about what you’re talking about. An appeals court can only decide whether or not a lower court judge got the law right. Thus, if a lower court judge doesn’t discuss a topic the appeals court judge simply can’t rule on it. All the quote you posted says is that Psystar only appalled part of the ruling. If you can’t get this right there is no hope for you in this discussion.
You’re aware that this is an article about a court ruling? And that there is nothing that is stopping you from reading the actual ruling? Next youre going to e using Thom as your source of legal insights.
That works two ways, my friend. Perhaps you would like to do some research and actually link it.
Yes, and none of that has any bearing on the argument of the appealing party.
Not that we are in a court of law, but perhaps you need to learn the basic difference between an argument and a subsequent ruling, otherwise there is no hope for you. They are two fundamentally different concepts.
My friend, I have already suggested that you to counter (with links) the summarization of the article. Please “put up” or “shut up.”
My, we’re full of personal attacks today, aren’t we. I would sooner have Thom on the bench in lieu of Alsup.
tupp,
“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.”
Please quote exactly what you believe to be the contradiction.
“No. That is the point — these licensing notions are very recent.”
So what? Where does copyright law say that software cannot be licensed and must be sold?
“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.”
That’s not correct, this case built upon existing case law. The judge’s job is to make decisions on legal grounds based on law and precedent. So, what specific evidence do you have that the judgement was in error based on either law or precedent?
“Unlike you, I don’t automatically adore people just because they are judges (or have legal standing).”
You don’t have to adore them any more than you have to adore the laws, you just have to admit that they have legal standing.
The first-sale doctrine in the Copyright Act of 1976 isn’t enough? I’ve seen other consumer protection legislation linked in the Psystar discussions on OSNewsthat contradicts Alsup’s ruling. I’m too tired to find the links right now.
So, it’s not “the norm” (your language) to rule EULA provisions valid that restrict beyond the rules of copyright.
As I have stated before in this thread (and as others have stated here in previous threads), the first-sale doctrine in the Copyright Act of 1976 states that a copy of copyrighted piece belongs to the purchaser.
There are other laws which also have bearing on manufacturer restrictions.
As I have mentioned several times, it contradicts the first-sale doctrine in the Copyright Act of 1976, plus other laws, and also it flies in the face of long standing fair trade principles.
Oh. The rulings have legal standing, but they are at odds with other laws and previous rulings.
Or, more accurately, the links are devestating to your argument. From the actual ruling (again to be found at http://www.groklaw.net/pdf2/Psystar-214.pdf) Judge Alsup looks at first sale rights:
“But Psystar responds that its conduct is protected by the Section 109 first-sale doctrine. 6 Section 109 provides that “the owner of a particular copy or phonorecord lawfully made under 7 this title, or any person authorized by such owner, is entitled, without the authority of the 8 copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord.†9 17 U.S.C. 109.”
Then continues:
“Even assuming arguendo that Psystar 13 was the owner of a copy, the first-sale defense fails here. Section 109 provides immunity only 14 when copies are “lawfully made.†The copies at issue here were not lawfully manufactured 15 with the authorization of the copyright owner. As stated, Psystar made an unauthorized copy of 16 Mac OS X from a Mac mini that was placed onto an “imaging station†and then used a “master 17 copy†to make many more unauthorized copies that were installed on individual Psystar 18 computers. The first-sale defense does not apply to those unauthorized copies. See Microsoft 19 Corp. v. Software Wholesale Club, Inc., 129 F. Supp. 2d 995, 1006 (S.D. Tex. 2000) (“the 20 first-sale doctrine does not apply to an admittedly counterfeit unitâ€); see also 2-8 NIMMER ON 21 COPYRIGHT § 8.12 (“if the manufacture of a copy or phonorecord constitutes an infringement of 22 the reproduction or adaptation right, its distribution will infringe the distribution right, even if 23 this is done by the owner of such copy or phonorecordâ€).”
So no, the first sale doctrine isn’t enough. Further, the Appeals court specifically ruled that Apple didn’t even sell a copy of the work, they sold a license to the work so first sale doctrine wouldn’t have applied even if you could make an argument that the copies Psystar were legitimate:
“The statute specifically excludes the doctrine’s application, however, when the copy is transferred through “rental, lease, loan, or otherwise, without acquiring ownership of it.†17 U.S.C. at § 109(d). Thus, the first sale doctrine does not apply to a licensee. See Vernor v. Autodesk, Inc., 621 F.3d 1102, 1107-08 (9th Cir. 2010) (“The first sale doctrine does not apply to a person who possesses a copy of the copyrighted work without owning it, such as a licensee.â€), petition for cert. filed, 79 U.S.L.W. 3674 (U.S. May 18, 2011) (No. 10- 1421). Our court’s application of § 109(d) in Vernor not only reconciled our prior cases and avoided a possible disagree- ment with the Federal Circuit, but also constituted a signifi- cant validation of license restrictions on transfer and use of software. See Marcelo Halpern, Yury Kapgan, & Kathy Yu, Vernor v. Autodesk: Software and the First Sale Doctrine Under Copyright Law, 23 No. 3 INTELL. PROP. & TECH. L.J. 7, 10 (2011) (arguing that Vernor suggests that such restrictions “are likely to be more prevalent and powerful.â€).”
and:
“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 pur- chased the disc. They knew, however, they were not buying the software. Apple’s SLA clearly explained this.”
You’re going to have to point out some of these other laws since first sale doctrine, as explained above, is inapplicable for multiple reasons.
tupp,
“I was just defending myself against personal attacks, while demonstrating that just because someone is a federal judge, it does not mean that they are qualified to be a federal judge.”
Unless you have a reason to suspect that this judge is unqualified, then I can you no reason for you to have brought it up.
“The first-sale doctrine in the Copyright Act of 1976 isn’t enough?”
No, it’s not, your claiming that there is a contradiction, but you haven’t quoted any.
“So, it’s not ‘the norm’ (your language) to rule EULA provisions valid that restrict beyond the rules of copyright.”
Where does copyright rule out EULA? I take you at your word that EULA are recent, but that’s because I don’t have any older software in my possession. I can see that the GPL goes back to 1989, so I suspect commercial license agreements similarly go back at least that far.
“There are other laws which also have bearing on manufacturer restrictions.”
Please quote them specifically.
“As I have mentioned several times, it contradicts the first-sale doctrine in the Copyright Act of 1976, plus other laws, and also it flies in the face of long standing fair trade principles.”
Please quote the exact passage which is being contradicted.
http://en.wikipedia.org/wiki/Court_of_Appeals
“The authority of appellate courts to review decisions of lower courts varies widely from one jurisdiction to another. In some places, the appellate court has limited powers of review. For example, in the United States, both state and federal appellate courts are usually restricted to examining whether the court below made the correct legal determinations, rather than hearing direct evidence and determining what the facts of the case were.”
Or, if you’re actually up to reading the law, you could just look at the Federal Rules of Appellate Procedure which specify in Rule 3(c)(1)(B) (http://www.law.cornell.edu/rules/frap/rules.html#Rule3 – Contents of the Notice of Appeal)
“designate the judgment, order, or part thereof being appealed; and”
You can further read Rule 5(b)(1) for the form of an appeal petition.
Finally, you can read http://www.uscourts.gov/FederalCourts/UnderstandingtheFederalCourts… which states:
“A litigant who files an appeal, known as an “appellant,” must show that the trial court or administrative agency made a legal error that affected the decision in the case. The court of appeals makes its decision based on the record of the case established by the trial court or agency. It does not receive additional evidence or hear witnesses. The court of appeals also may review the factual findings of the trial court or agency, but typically may only overturn a decision on factual grounds if the findings were “clearly erroneous.””
You simply don’t get to make new arguments, all you get to do is explain why the judge got the law wrong. No new evidence, no new witnesses, no new arguments. It’s really that simple, I don’t know why you are insisting on pushing something when you clearly don’t know what you’re talking about.
OK, I believe you are talking about the PC World article not mentioning EULAs and asserting that the original trial judge never ruled on EULAs or whether Apple’s EULA is valid and legal. From the actual Apple v Psystar judgement (http://www.groklaw.net/pdf2/Psystar-214.pdf)
“Mac OS X on both Mac computers and the DVD are covered by software license agreements that provided that the software is “licensed, not sold to [the user] by Apple Inc. (“Appleâ€) for use only under the terms of this License†(Chung Exh. 26 at ¶ 1).”
and
“Psystar cites In re Napster, Inc., Copyright Litigation, 191 F. Supp. 2d 1087, 1105 (N.D. 9 Cal. 2004) (Patel, J.), for the proposition that “unduly restrictive copyright licensing agreements†can constitute misuse. But even Judge Patel acknowledged that “no court has thus far articulated the boundaries of ‘unduly restrictive licensing’ or when licensing or other conduct would violate the amorphous concept of public policy.†Ibid. As explained above, Apple’s licensing agreement is not unduly restrictive. Indeed, the egregious examples of copyright misuse in the decisions cited by Psystar provide further support for this order’s determination that Apple has not engaged in copyright misuse.”
That, also, being the part of the ruling Psystar appealed and lost on (because, lo and behold, EULAs are valid in the United States). There’s more, and it is quite readable, again, if you’re interested in becoming educated.
Is there any other factually incorrect information you’d like make so I can correct it for you?
Thanks for providing links/quotes.
Nothing in this passage contradicts the fact that the appellant determines his/her own argument.
Secondly, the interpretation can be broad of the sentence: “… appellate courts are usually restricted to examining whether the court below made the correct legal determinations,…”
Furthermore, this explanation of the appellate courts system is open-ended as to what the court can consider — note the term “usually.”
There is nothing in these passages which you quote and reference that limit the topic of the appealing parties argument nor that limit what the topic that the court can consider.
One has to make new arguments in an appeal. Why have an appeal just to make the same argument? Explaining why the court got the law wrong is a new argument. The reason that the court got the law wrong could be that they didn’t consider an important law/precedent, in which case the appellant might make such an argument.
Additionally, Pystar arguing EULA issues does not contradict your quoted passage. In doing so, Psystar is not submitting additional evidence/witnesses.
And again, note the phrase “typically may only overturn a decision” — what an appeals court can consider is actually open-ended.
I was referring to the artilcle on which this thread is based. However, since you went to the trouble to link/quote, I will respond.
So, the original court considered the OSX EULA. Okay.
However, Patel’s and Alsup’s findings are not convincing, considering existing copyright law along with the existence of prior rulings against EULAs (certainly before the Pystar case and probably before the Napster case).
No. Many are not valid. The courts have ruled so.
If you’re interested in making a meaningful point, you are going to have to be more specific.
Yes. You might want to revise your assertion that all EULAs are valid.
One other suggestion, let’s stick a little more closely to the topic of the discussion, instead of trying to show who knows more about legal matters.
tupp,
“Yes. You might want to revise your assertion that all EULAs are valid.”
Oh some license terms may be illegal and therefor voided, however we’re speaking about one particular case here. Can you point out any terms in apple’s license which were illegal such that it lead the court to make the wrong ruling?
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
I’m sure the three prong Vernor test precedent that this judge used was made up on the spot. Oh, wait, you mean this judge used already existing precedent to decide this case and you clearly have no factual knowledge of this stuff?
Read the ruling, become informed. EULAs are valid, have been valid and will continue to be valid. Your assertions are, simply put, wrong.
Perhaps legislation should take priority over precedent.
EULAs are not valid in any of the cases where they (or their provisions) have been ruled invalid.
Unfamiliar with the concept of common law?
So all contracts are invalid because a judge has found one to be invalid? No. EULAs are valid, this isnt some untested legal theory. The only people that don’t seen to be able to accept that are almost exclusively geeks posting on tech forums. There is not a case in the US that invalidates EULAs or the general concept of licensed copyrighted works.
So again, you have an actual appeals court decision, written in a very readable way. It contains numerous references to the case law regarding licensed works and how it is determined if a work has been licensed. Read it. Learn something. Understand the legal theory and precedent. Simply calling judges stupid and refusing to accept reality just makes you and others who continue to do so look stupid.
You don’t need to agree with it, you can even want to change things, but denying reality is a poor way to approach any topic.
Uh… no. I was suggesting that statutory law should take priority over common law. That’s why we make legislation.
So all EULAs are valid just because a judge has found one to be valid?… No.
Some EULAs are valid, some aren’t. That is actually obvious, but I’ve already posted a link earlier in the thread in which the Supreme Court of Washington State ruled invalid an entire EULA. There have been many other rulings against EULAs that have been linked/discussed on this forum in years past.
Of course, there have been rulings in favor of EULAs, too. Most of such valid EULAs simply reiterate established copyright law and fair trade rules. The Apple/Psystar case is different.
Plus, all the courts that have ruled EULAs invalid don’t seem to be able to accept the validity of those EULAs.
Ah-hem…
Again, why don’t you quote passages of the decision to counter my most recent arguments? Perhaps if you read the decision, you might learn something.
Simply posing a legal authority and saying that others looks stupid doesn’t make either notion so.
Furthermore, I didn’t call judges stupid — I provided hard links! Do you deny the reality of the content of the pages that I linked? If so, please counter with some facts/links to the contrary.
The reality is precisely what was contained in the many pages that I linked — federal judges are not special, as you imply. In fact, judges are some of the most arrogant, unreasonable and creepy folks you will encounter. I know first-hand.
Indeed!
tupp,
“Furthermore, I didn’t call judges stupid — I provided hard links! Do you deny the reality of the content of the pages that I linked? If so, please counter with some facts/links to the contrary.”
That’s a very low blow, to associate a judge on this case with the scandalous judges you linked to. Unless you have any evidence to support such an association, it doesn’t help advance your cause in the least, and it doesn’t belong in this discussion.
Chill.
That statement doesn’t mean what you are making it out to mean. And, actually, everything about that statement is factual.
Please read the volley that led up to that statement. I first provided those scandalous fed judge links in response to this personal attack:
“But, seeing what a legal expert you are knowing more about copyright law then a federal judge and a federal circuit court judge I’m sure you knew that already.”
Then I was hit with this personal attack:
“Simply calling judges stupid and refusing to accept reality just makes you and others who continue to do so look stupid.”
Afterward, I simply reiterated that I did not call the judges stupid (a fact) and that provided links of factual content (a fact).
I was just defending myself against personal attacks, while demonstrating that just because someone is a federal judge, it does not mean that they are qualified to be a federal judge.
I am not saying that Alsup nor the appeals judge are scandalous. I just think that there certainly could be more sanity and better judgement in those courts.
At any rate, all of these personal attacks, defensive explanations and disputes over legal minutiae are getting too far off topic.
Do you think Apple has a right not to sell the software to someone? For example, if someone were to make a business installing the software on non-Apple hardware, and Apple decided not to sell the software to them, would that be ok? Would it be OK for Apple to tell resellers that if they were caught reselling to anyone using it on non-Apple hardware they’d cut them off?
Neither of those solutions require legal enforcement, and both allow Apple to have control over the software in their possession, while allowing consumers to do as they please, or businesses to attempt to deceive Apple (with the supply side controlled by Apple). Both those solutions place a burden on Apple.
I know it seems dumb, but there is a big psychological difference between clicking a box and signing your name and getting the signed papers notarized. I feel the way EULAs are presented cheapens the contractual nature so much they can’t be taken seriously.
There has been a big uproar over “robo-signing” of mortgage and foreclosure papers here in the USA by banks. Much of it was done inappropriately. I feel the contract is not respected any more, and things like EULAs, which are so commonly and easily circumvented as to be meaningless, are part of the reason why.
If the user has a right to use the software as he pleases, the producer has a right to sell it as they please, also. Seems a paradox unless the sales contract is real.
Digsbo,
I think you hit the nail on the head with your post.
Speaking of license contracts in general, it seems like alot of the problems about the contracts arise because the balance of power is so one sided, there’s no room for negotiation.
Corporations acting and competing independently, collectively come up with terms which are terribly unfair to the consumer. The free market has failed to make license terms competitive – largely because they’re so complicated and invisible. Contracts have gotten so ridiculously unfair to consumers that the US government had to recently step in and impose law to curtail many of the unethical CC/banking standard practices.
Apple doesn’t sell copies of software, they sell a license to the software. If you’d bothered to read the judgement:
“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 pur- chased 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.â€). The license thus satisfied Vernor’s three factor test for demonstrating the exis- tence of a licensor/licensee relationship.”
Can it be any clearer that EULAs are valid?
Blah, blah, blah.
I don’t use OS X, but if I did PURCHASE the DVD I would use/install it the same manner as I use a book. Just because some judge has sided with the party with drastically-deeper pockets doesn’t mean it’s settled.
Further to the book comparison…if I purchased a book and it came with a scrap of paper saying I could only read it under a light approved by the publisher, I would go ahead and read it under any damn light I wish. If the publisher (or Apple, in this case) wishes to contest one’s use of their product, they’re going to have to take them to court and risk a legal crusade, along with any bad publicity to go with it. The “cool” of the Apple logo has gone unquestioned long enough.
“As we noted in 2009, when Apple won its first round against Psystar, the decision will certainly limit companies that try to make a commercial business out of re-selling Apple’s software with unauthorized hardware. What it won’t limit will be hobbyists creating their own hackintoshes at home using their own PCs and OS X installations. In fact, the commercial industry has largely moved on already by selling tools to those at-home hackers (instead of the software and computers themselves), making enforcement of Apple’s licensing agreement effectively moot for those users.” –Jacqui Cheng, arstechnica.com
“One who breaks an unjust law that conscience tells him is unjust, and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for law.” –Martin Luther King, Jr.
“The difference between a criminal and an outlaw is that while criminals frequently are victims, outlaws never are. Indeed, the first step toward becoming a true outlaw is the refusal to be victimized.
All people who live subject to other people’s laws are victims. People who break laws out of greed, frustration, or vengeance are victims. People who overturn laws in order to replace them with their own laws are victims. (I am speaking here of revolutionaries.) We outlaws, however, live beyond the law. We don’t merely live beyond the letter of the law–many businessmen, most politicians, and all cops do that–we live beyond the spirit of the law. In a sense, then, we live beyond society. Have we a common goal, that goal is to turn the tables on the nature of society. When we succeed, we raise the exhilaration content of the universe. We even raise it a little bit when we fail.” — from Still Life With Woodpecker by Tom Robbins
Edited 2011-10-04 16:30 UTC
Sorry, this isn’t some judge, this is a 9th Circuit Appeals Court judge. That means in the western United States this is the law. Unless someone appeals it to the Supreme Court of the United States, there is no higher judge that can look at this. It doesn’t get much simpler than this, EULAs are valid. The Supreme Court is not going to overturn this ruling. Read the judgement, it explains in detail why EULAs are valid in the Unite States.
For starters, I don’t live in the United States, so yes…it’s just some judge to me. But even if I did, I would, on a matter of principle, install OS X on a non-Apple computer and then affix a sticker with “Apple” on it, so as not to violate the EULA. The law is the law, afterall.
2. Permitted License Uses and Restrictions.
A. Single Use. This License allows you to install, use and run one (1) copy of the Apple Software on a single Apple-labeled computer at a time.
jummy1971,
“Further to the book comparison…if I purchased a book and it came with a scrap of paper saying I could only read it under a light approved by the publisher, I would go ahead and read it under any damn light I wish.”
Haha, sounds like you guys are talking over one another. You are not completely denying that they may be enforceable, it’s simply that you don’t care at all whether they are. You’d rather live by your own moral code than by laws set down in favor of wealthy corporate interests. At a moral level, that’s perfectly defensible. Rhavyn is just saying that, as much as it may suck for us, anti-consumer corporate contracts are enforceable. As far as I can tell he hasn’t provided an opinion on whether he believes they should be.
Edited 2011-10-04 17:01 UTC
I am not completely denying that you are wrong.
In practice, I take the Richard Stallman route and steer clear of proprietary software altogether. (I have a moral right to examine source code, as well as modify and redistribute it, and I enforce this moral right through my choice of software.) Now that I’ve spent a few years in the free software “land of Do-As-You-Please”, I have no desire to reside anywhere else. If I suddenly had no choice but to use proprietary software, I would choose to stop using computers.
Having said all that, my point is that the EULAs can only be directly enforced by Apple to the degree to which they have the time and resources to do so, and to the extent they can detect violations. God help us if we ever live in a world where the police patrol our neighborhoods in search of hackentoshes.
(“Forget the hostage situation, Bob…we have a EULA violation!!!”)
But yeah…my sympathy is with those who assert their moral rights over the legal ones that society’s trust fund babies are able to score for themselves with daddy’s money.
Ok, so you agree then by extension that they could license their software in such a way that allows you to use it only on every other Tuesday, but only if that Tuesday falls on an even numbered day of the month, and only if you’re jerking off while in a squatting position when using said software, and humming Kumbaya?
How about if they created a EULA that requires users to worship at the alter of Steve Jobs at least 3 times a day, or stand on one foot for 10 minutes? Nevermind if it’s actually enforceable …
Edited 2011-10-03 21:29 UTC
But PSystar can help PureDarwin. It can become a better OSX than OSX. Time to write some code.
fithisux,
“But PSystar can help PureDarwin. It can become a better OSX than OSX. Time to write some code.”
For psystar, it’s not clear whether there’s anything left after the bankruptcy. It looks like this may have been a high stake game of all or nothing.
If I were the Psystar head honcho, I would start taking pre-orders for their machines loaded with PureDarwin. They would be stupid not to use this legal defeat to position themselves in the market for those who want to see free and open source software succeed in the commercial world.
In this climate of sympathy amongst legions of hackers, they have the opportunity to take a leadership role. I hope they don’t squander it.
[/q]If I were the Psystar head honcho, I would start taking pre-orders for their machines loaded with PureDarwin. They would be stupid not to use this legal defeat to position themselves in the market for those who want to see free and open source software succeed in the commercial world.
In this climate of sympathy amongst legions of hackers, they have the opportunity to take a leadership role. I hope they don’t squander it. [/q]
There…I just blogged my above thoughts:
http://unixnewswire.blogspot.com/2011/10/psystars-legal-defeat-pres…
Edited 2011-10-04 20:06 UTC
Didn’t IBM lose the exact same issue back in the late 60s or 70s with MVS or OS/3×0?
You could then run MacOS on a $250 greybox.
The horror
Even cheaper, you can run it on a sub-100 $ machine. You can run it on any machine which has SSE2 or better. That means Pentium 4 or newer.
What? You mean users would get to decide what kind of hardware they put in their computers? Blasphemy!