Numerous irrelevant issues and feelings about them are ventilated in comments on the case. However, there are only two important issues. One is what the law is, the other is what we think the law should be.
What the issue at law is
We need to take a pure form of the case in order to see this, and in particular, to abstract from the particular method Psystar has used to install OSX. Lets take the case of efi-x, or some similar way of modifying a standard computer to install OSX on it, which does let us see the issue in pure form without being distracted by any difficulties with Psystar’s particular method.
We go into a retail store and buy a copy of OSX on optical media. There is no doubt about the situation or the transaction. This was, just as when I go into a bookstore and buy a book, the purchase of one copy of OSX. This has been explicitly confirmed by the US Courts in Softman, the case being found here among other places.
There are two important points to be found in this judgment. The first is that the transaction of purchase is a sale and not a license. The second is that until installation of the software and click through occurs, the EULA is not binding because the contract has not been entered into.
The Court understands fully why licensing has many advantages for software publishers. However, this preference does not alter the Court’s analysis that the substance of the transaction at issue here is a sale and not a license.(c) EULA Terms
Adobe argues that the EULA requires construction of the transaction as a license rather than a sale. The Court finds that SoftMan is not bound by the EULA because there was no assent to its terms.
Later it is said that
The Court finds that Adobe’s EULA cannot be valid without assent. Therefore, Softman is not bound by the EULA because it has never loaded the software, and therefore never assented to its terms of use.
And later still the following:
In short, the transfer of copies of Adobe software making up the distribution chain from Adobe to SoftMan are sales of the particular copies, but not of Adobe’s intellectual rights in the computer program itself, which is protected by Adobe’s copyright. SoftMan is an “owner” of the copy and is entitled to the use and enjoyment of the software, with the rights that are consistent with copyright law. The Court rejects Adobe’s argument that the EULA gives to purchasers only a license to use the software. The Court finds that SoftMan has not assented to the EULA and therefore cannot be bound by its terms. Therefore, the Court finds that Adobe has not demonstrated a likelihood of success on the merits of its copyright infringement claim.
So, I have gone into the store and bought a copy of the software, not licensed it, and I am not (yet) bound by any clause in any EULA which may accompany that copy.
It is not an upgrade copy
Let us note that I have not bought an upgrade copy. An upgrade copy might exist. It would check for the existence of a previous version of OSX and require it to be used. Or it might be labelled as upgrade only. This particular copy is neither. It is simply labelled as a copy of OSX, it works as one, and that is what it is. Let us also notice that people sometimes argue here that the copy must be an upgrade because all Apple machines come with a preinstalled copy of OSX. This is irrelevant. No facts about other copies of OSX, or machines on which this copy is not installed, can make this particular copy an upgrade. It is what it is in virtue of facts about it. It is simply irrelevant to whether it is an upgrade how Apple chooses to conduct other aspects of its business.
Apple had no obligation to make OSX available at retail or support any particular use of it
We should also note that I have no particular right to buy these kinds of retail copies of OSX, nor does Apple have any obligations to support all of the things I may do with them. Its support obligations are an independent question. It is perfectly entitled to say that it will only support installations of OSX on equipment of certain categories, like, post a certain date or spec. It is also under no obligation to sell retail copies of OSX at all, and it is perfectly entitled to only sell copies that are locked to particular hardware. There is nothing to stop it using the previous method, encrypted ROM, to prevent installation on the ‘wrong’ hardware. I have no right to buy a copy of OSX that is installable on non Apple hardware. That is not at issue. The question is, having sold me the retail copy that is technically installable on non-Apple hardware, what can Apple say about what I then install it on?
Copyright law
It is then a retail copy, and I own it. I now have the right to do with this whatever I have the right to do with other purchased copies of copyrighted documents. What is that? I can use it. I cannot make unauthorized copies of it. In the US I have the further right explicitly guaranteed in law in section 117 of the Copyright Code in connection with computer programs:
Notwithstanding the provisions of section 106, 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 provided:(1) that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner, or
(2) that such new copy or adaptation is for archival purposes only and that all archival copies are destroyed in the event that continued possession of the computer program should cease to be rightful.
Does copyright limit the right to install? Let us now look at the situation in the light of the above, when I return to my office and prepare to use the bought copy of OSX. It is clear that as far as copyright law is concerned, I have the right to do whatever is necessary to install the software on one machine. Nothing in copyright law gives the copyright owner the right to restrict what machine that is.
But does the copyright owner have the ability to impose restrictions over and above those of copyright law? Yes, he potentially does, by an additional contract, which you do not have to assent to. He cannot sell it to you, and then by copyright say that you cannot use it. But he can, in consideration of selling his copy, which he has copyright in, ask you to enter into agreements of various sorts. You do not have to enter into them, you do not have to buy the copy, and if you decline imposed contracts subsequent to purchase, he must give you a refund. But if you do enter into them, you really have entered into a contract. Whether it is to bow in the direction of Cupertino, bless the holy name, or wear a black turtleneck while using the software, you really will have entered into such a contract.
The question will be whether the courts will enforce these terms.
Is my hardware an illegal clone?
I have, let us suppose, a standard Intel machine which happens to support EFI. It may be that I have adapted it to support EFI by use of the efi-x dongle. Is this legal? It must be. EFI is an international industry standard, there can be nothing in the least questionable about owning a machine which supports it, or adapting a machine to support it.
My machine also consists of only components for which OSX ships drivers. Is this legal? It must be. These are standard off-the-shelf components, and anyone has the right to buy them and assemble them. The fact that Apple uses these components in a Mac does not give them any right to stop anyone else using them, singly or in combination.
Let us imagine that I have two computers on the desk, and that I have bought two copies of OSX in the retail store. These machines have pretty much the same components, however one was bought from Apple, though I have replaced the hard drive, and the other was self assembled.
Moving to installation
I boot from the bought copy on each machine, and now comes the interesting part. The copies will install in the same way on both machines. On both machines I am presented with a EULA. This EULA is a second agreement. The first agreement I entered into was with the store, and it was a purchase agreement for a copy of OSX. Now I am being asked to enter into a new and different agreement, independently of the first, with Apple. This agreement will among other things restrict what I install the copy on.
Notice that there are two machines in front of us on which it is equally possible to do the installation. Apple is saying that it has the right to permit me to install on one, and not on the other. It happens to intend restricting me by brand of machine, and to restrict the brand to Apple. But this is a detail of implementation. The principle would be the same was the agreement to say that I could only install on Apple and Asus labelled machines. Or on machines of any brand, as long as they did not then or subsequently contain hardware from particular vendors. Or if they then or subsequently did not contain particular software. Examples of this sort of thing come from Microsoft. The EULA for retail copies of Office forbids the installation of Office on any machine not running Windows. Installation on Wine on Linux or OSX is thus forbidden. Similarly, it is forbidden in the EULA to install Vista Home Basic on a virtual machine.
The basic legal question
We can now see what the root question is. It is technically possible to install a purchased retail copy of OSX or some other software on a number of different machines. Will the courts uphold a click through agreement in which, in order to perform the installation, we agree not to install it on some categories of them as listed in the EULA?
We will all have views on this, and we will have views on what differences different jurisdictions will make to what the courts rule. Let us leave that interesting subject and ask:
What do we think the law ought to be?
My view is that suppliers should in general not be able to restrict the use buyers make of their products except in cases where the public interest in terms of health and safety is a significant factor. It may be reasonable, for example, for a vendor of gas tanks to be able to forbid, by a contract entered into at the time of sale, anyone but an authorized agent from recharging the tank. It may be reasonable for a vendor of disposable medical equipment to enter into enforceable agreements that the buyer will not re-use it. It may be reasonable for a chain saw vendor to oblige users to sign an agreement agreeing to only use the equipment subsequent to attending a training course.
What we should not want the law to allow is for vendors to restrict our ability to use the products in ways which have no such justification, but perhaps benefit only them. We should not, for instance, want the vendor of an attractive software package to be able to use its attractiveness to force people who want to use it to buy hardware they do not need, as a condition of its use. We should not want Black and Decker to be able to supply two identical lines of drill. One might be labelled ‘Professional’, the other DIY. The first would be permitted to be used in way of trade, the other not. We should be free to use either in way of trade, or not, as long as there are no health and safety issues. We should not want Sony to be able to say that a particular CD or DVD was only permitted to be played on some and not other brands of audio visual equipment. It should be up to us what we play it on, regardless of what we assent to on opening the package.
To continue, a publisher should not have the right to forbid me to read my copy of his book in the bath tub. Regardless of what the shrink wrap or click through forces me to assent to when I open it to read it. It is not in the public interest for the prohibition on installing Office under Wine to be enforceable. Nor would it be in the public interest for a prohibition on installing AutoCAD in conjunction with a file format converter to be enforceable. And finally, it is not in the public interest for Apple to be able to restrict, by EULA, on what subset of technically available equipment we install retail copies of OSX.
It is generally not in the public interest for vendors to have the power to impose restrictions on how we can use products we have bought in conjunction with others we have bought, where there are no health and safety issues, and where the law is being adhered to in other respects.
This is the issue in the so called Mac Clone cases, and this is why it is important to all of us, including those of us who have no interest in using OSX, or buying Apple hardware. If the issue of principle is decided in this case, and if the implication of the ruling should be that software vendors can sell their software at retail and then dictate as a condition of sale and use where their software is installed, we will all have lost freedoms we now think we have as a matter of right. We may still retain them, but it will be at the discretion of the vendors, to be withdrawn or modified the moment they see fit.
This matters, and it matters whether or not you are ever going to buy a Mac or run OSX.
Unfortunately for normal people there is now difference between the physical support ( disk, CD, DVD ) they can buy and do whatever they want with it,
And the software which is merely licenced to their use(which they must agree before they can use it). The same thing goes for a Music CD or a DVD (you can still do what you want with the CD and DVD but not with the content of it, my god this is confusing).
There is no communication about this, because people don’t want to be stripped of their sense of ownership,
imagine how people would react if they were told at the cash register that they do not own what they just bought for and only the medium.
Music/Film/Software company are in the same basket concerning this issue, So I guess Apple is not so guilty, just doing it the same thing as others (weird for a “think different” company).
In many (most?) countries it would not be legal if the customer was not told about it prior to purchase.
The fact that others do it does not make them less guilty.
Go look at the box for OS X. It specifically says that there is an EULA associated with the software on it. If you choose not to read the outside of the box that is your problem.
Additionally, all of Apple’s EULAs are available for reading on their website. So not only are you told about the EULA before you purchase OS X, you have the ability to read the EULA before making the purchase.
being not told is still “quite” ok considering that they askyou to return the media for refund if you don’t agree the EULA(which also bothers me anyway), So ok it’s illegal with most of non US country ( I don’t where clicking on a button constitute a valid agreement, only the EULA says so and most of them don’t even consider if you are responsible enough to carry such an agreement ).
But user should be more aware of the EULA, or even GPL for what they are allowed and disallowed to do with the software they are using. But EULA,GPL or any other licence agreement are long and boring to any end user ( an aera where EULA particularly fails).
The quoted parts of the judgment in the article make it perfectly clear that you have bought a copy of the software, at least in the US. You have not just bought optical media. Nor have you just bought a license. The judgment is quite explicit, you really have bought a copy of the software.
This is why Softman was able, despite the EULA, to break up what they had bought and sell the components.
Most people understand what they get, and what they don’t get when they buy a book.
They are allowed to read it, as many times as they want, wherever they want, and lend it to friends. They can quote bits of it in discussion papers and essays. What they cannot do is copy it whole over and over and sell the copies for their own profit.
Why should a CD, a DVD or a Software Application on CD be considered any different to this?
What rights do or should software vendors have that book publishers do not have?
Edited 2009-03-09 12:05 UTC
If I buy a book, then except for the rights restricted by the Copyright Act, I own it. I am free to re-sell it. I am free to cut out objectionable passages before I hand it to my children. I am free to use it as raw materials for making paper doilies if I want.
And on June 1, 1908 in Bobbs-Merrill v. Straus, the US Supreme Court has ruled I have these rights (look up “first sale doctrine” in a case, over a century ago).
Electronic publishers want to deny me these rights. The only private property they believe in is their own. They should be condemned as un-American adherents of Old-World mercantilism.
Oh come on, you know software is different. It’s NEW! It’s amazing! it’s D I G I T A L! It is stored on CD’s! And it’s so much more expensive to create than other products, like books and movies…, so obviously it needs special protection from the evil consumers.
Unlike a piece of software, when you lend a book to friends (or whoever else), you don’t have the original anymore until you get it back. With software, you can ‘loan’ it to a friend, and a million other people in the process, and still keep the original.
I’m not here to say what rights people should or shouldn’t have with digial media, because it’s a pretty complicated issue. I’m just describing the difference between physical objects and digital media. And, in my opinion, it’s a pretty significant difference.
I don’t know what’s going to happen whenever we’re able to duplicate physical objects just like we copy a file. That’s going to be a whole new can of worms.
Software and books are exactly the same. contrary to what you’re saying, it is impossible to duplicate a CD. All you can do is copy its contents to another medium. You can do the exact same thing with a book by using a photocopier or a scanner/printer.
The book is the DVD; the words, sentences, and stories in a book are the movie/program/game on a DVD. There’s a medium, there’s a message.
People have this weird notion that you cannot copy books, which is nonsense. Sure you can, it’s just a lot more cumbersome. However, copyright law doesn’t give a rat’s bum about how easy it is to copy copyrighted material.
True for books, but software still isn’t unique in that regard. For CDs and DVDs, a user can copy them to a computer or portable player, and loan the physical media to someone else. Yet the question of licensing doesn’t come up with those – nobody buys a CD or DVD and has to agree to a EULA before they can listen to or watch it. Where’s the law that says different rules apply to software, distributed on the same media?
I buy a movie on DVD, I have an right to use it. I buy a game on DVD, I don’t? Why’s software different?
Imaginary property and licensed rights is ok as long as they accept imaginary money from me with the right to withdraw them whenever I want …
Just last week, on my local Macintosh User Group forum, one of the most knowledgeable about Apple suggested that perhaps the Hackintosh method was the way to go, in a debate about the relative expensiveness of newly launched Apple hardware.
You can argue the toss about the latter point but people generally ain’t dumb, especially in these straightened times: over time the Hackintosh will be an increasingly doable, feasible and attractive option, as the community around it and the userbase expand.
When Jobs goes, for whatever reason, and respect to the man in his current condition, there will not be a strategy to deal with this. Not only because he won’t be at the helm, flying his particular colours but also because in my view Apple will not be in the personal computer market any longer, and will have no interest in it. It will have become a personal device manufacturer, and OS X will not be available in retail form in its current guise in, I’ll be radical, 5 years from now.
So, Apple computer fans and Hackintosh proponents alike – make hay while the sun shines, because the sun will go down on the Apple personal computer business model within half a decade.
So I’m gonna get a bit off topic, but basically, this post is about how Apple is one of the last good workstation producers I could find. If I’m wrong in any of this, happy to hear corrections.
I do not like Apple. I do not particularly like OS X. However, after going through several hours of web surfing to find decent workstations, I essentially came up with 2 viable offerings: HP and Apple. In many ways, the Apple seemed to be better and in some comparable configurations, even cheaper.
I was saddened to see that Sun no longer makes the Ultra 40 line of their x64 systems; their current offering is moderate at best – definitely not a top end workstation. Furthermore, there are *no* more alternative architectures. Sun stopped with SPARC about a year ago and IBM just stopped with PPC intellistations, which ironically, I believe was the last workstation they were producing (no more at all now!). Itanium was practically old news before it started, but, at least you can download nvidia drivers from 2005… And yes, to be considered a workstation, I require: 3d options (not necessarily bleeding edge, but good), good memory capabilities (16GB+), large storage capacity (the Sun U40 supports up to 8 internal hard drives), and an excellent case design. I really believe the first option, 3d hardware acc, is the killer for alternative architectures.
Funny Apple is getting all defensive about this, when all they really needed to do to reduce the number of clones was stick with PPC and uh, be different … but here I’m stating the obvious.
It seems like the workstation really is dying, which is too bad. Guess I’ll hop on the android bandwagon and have fun with mobile devices and remote services, no time at the moment for hacking 3d drivers (which I have 0 experience with) to work with high quality SPARC or POWER servers. I hate building my own comps by now, mainly, not having the warranty.
When it comes to computers, most people are.
As harsh as it sounds, it’s not meant as an insult to peoples intellegence though. It’s just most people don’t need (or even want) to know about which hardware is better than which other hardware or what OS to run.
Most people are happy to just rely on the advice of others on such matters.
Just like, I don’t need to know how repare a car, that’s what engineers are there for. I just need to know the basics (oil change etc).
When Steve Control Freak Jobs finally disappears a lot will change very quickly. I wouldn’t even be surprised if limited licensing of OSX clones is considered.
I have a question here.
Why would a sticker on the box make you consider it an “upgrade” version, but a clause in the EULA won’t? What is the difference? What are the legal, or at least moral, grounds on which that makes sense?
Because the sticker is clearly visible prior to purchase while the EULA is not. Therefore, the customer is fully aware of the limitations and the “upgrade” limitation is not a post-sale restriction.
That’s a fair point, but the presence of something “clearly visible prior to purchase” is not what makes an upgrade version and upgrade version. Rather, it’s the respective clause in the respective EULA. The sticker is just what helps buyers distinguish between the different versions of the product on the shelf.
The point is that its only valid if the customer can tell that difference prior to purchase. The EULA is usually not shown when you purchase the product.
Again, this is the part where many of you make the wrong assumptions. As I showed in my article on Dutch law, several Dutch lawyers explained to me that the EULA constitutes as “algemene voorwaarden”, or “terms of use”, which are treated differently than ordinary contracts in consumer law.
The difference is that they do NOT need to be presented to the user, no do they need to specifically agree to anything. It is exactly like, for instance, the rules in a supermarket or mall. You only have to make the terms of use generally available for easy viewing – and in the case of software, even a simple text file in the .zip file is enough, as long as it can be printed for later viewing.
Of course, this is the Dutch situation, and may not apply to other countries.
No we’re not, we’re just not talking about Dutch law. We’re talking about actually sane countries where you cant force customers to abide by arbitrary contracts clauses AFTER the purchase has already taken place.
Except that supermarket and malls do not dictate what you can do with a product AFTER purchase. Man, Dutch law must be seriously screwed up or you talked to the wrong people.
You realize that the outside of the box says you need an Apple Macintosh computer to install OS X, right? If labeling on the outside of the box is the hurdle to convince you Psystar is in the wrong, Apple already met it.
Yes, and that game I bought for my PC tells me I need Windows in order to play the game. Does that mean I’m not allowed to install it under WINE?
What you are referring to are the system requirements. They have absolutely NOTHING to do with the EULA.
The outside of the box also says, and I quote:
How about that.
I know, so in The Netherlands, the Apple probably has a leg to stand on, since the requirements for “terms of use” are met (terms are included, printable, and mentioned). However, I still don’t think a Dutch judge will side with Apple in The Netherlands.
So if I buy a mouse whose label says I need Microsoft Windows XP or newer for it to work, am I not allowed to use it on anything else? Mindboggling, as this is effectively tying, since a company is forcing me to use the products of another company to use theirs.
FYI, there is nothing wrong with tying your product to the products of another company. The console gaming industry proves this point quite nicely.
The simple fact is, companies do have the right to restrict how you use their products. It has been litigated repeatedly. Go take a look and see how far the bnetd guys got.
Oh, you mean like how Sony lost the legal battle against that PlayStation emulator Bleem?
http://en.wikipedia.org/wiki/Bleem!#Sony_lawsuit
I’m sorry, how does that prove that there is something wrong with tying your products? As a matter of fact, it seems your example proves what I’m saying. Sony went out of their way to prevent anyone from being able to play Playstation games on non Sony hardware. Was Sony in some way sanctioned for that behavior? No? Maybe because tying products isn’t inherantly illegal?
Again, I’m not sure how any of that is relevant besides proving my point. Are you trying to say that this is applicable in the Pystar case? How? Which claim of Psystar’s would be able to use this lawsuit as precedent?
You brought in Psystar – not me.
We are talking about product tying. You brought forth gaming consoles as an example of tying being allowed – and I showed you a high-profile lawsuit which stated that that tying is actually NOT allowed.
Psystar never came into our argument, so I have no idea why you’re bringing it in now – apart from the obvious fact of course that you want to shift the attention away from an argument you were losing, but I’ll forgive you for that.
Last time I checked, this entire article is about Psystar. Again, please don’t be disingenuous.
As I said in my previous post, which you did not respond to (which seems to be par for the course for you, why not try responding to the actual arguments instead of going off into random interludes):
“I’m sorry, how does that prove that there is something wrong with tying your products? As a matter of fact, it seems your example proves what I’m saying. Sony went out of their way to prevent anyone from being able to play Playstation games on non Sony hardware. Was Sony in some way sanctioned for that behavior? No? Maybe because tying products isn’t inherantly illegal? ”
The result of the lawsuit was that bleem could do something Sony didn’t want them to do, not that Sony did anything wrong.
Except it’s illegal. From wikipedia:
Basically, the idea isn’t that it doesn’t work on other operating systems, just that they cannot stop me if I want to use it on another operating system (and find a way to do so).
That was a different issue, they were going on about piracy, the ability to play on a local server without having bought a license.
You need to read your own quote. Certain tying arrangements are illegal, however it was also ruled that it is impossible for a company to have a monopoly on their own products. So the Sherman Act simply doesn’t apply.
Additionally, if you read that strictly (which you apparently want to do), then you have just outlawed accessories since accessories always require the “tied” product in order to function.
[/q]
Please don’t move the goal posts. You want to claim that tying is illegal and that companies can’t artificially restrict how their products can be used. Both of those claims are, on their face, invalid. There are certain situations where they could be true, but you’re going to need to prove that the circumstances in Apple’s case meets any of them. And so far you haven’t.
I wasn’t talking about Apple here.
It might be required, but it is not illegal for me try it on a different piece of hardware. The fact that I designed my software for Windows doesn’t mean I’m tying it to Windows. Saying in the EULA that it cannot be used on anything but Windows is. And, again, that doesn’t really apply to Microsoft’s Office and IE and whatever else they do, because, as you said, it’s their own company.
No. I said that tying is illegal. I never said what Apple does is tying. I said it might be copyright misuse. Abusing their copyright on OS X to force the buyers to buy their hardware.
Let me post the more details:
In the original case, one company was doing exactly like Apple: “Morton’s patent license required that licensees use only salt tablets produced by Morton”. The courts ruled that they will not aid Morton in enforcing its patent. In this particular case (Lasercomb America Inc. v. Reynolds 911 F.2d 970, 15 USPQ2d 1846), the court ruled that you can apply the same reasoning to copyright infringement cases.
So, my argument is, Apple should not be aided in enforcing its copyright, until it removes the “don’t use it except on Apple hardware” clause from its EULA, at which point this whole trial will have no merit.
Edited 2009-03-10 00:03 UTC
Generally, like the article said, an ‘Upgrade’ version checks for previous installations of the software.
If you’ve got software already installed, then you’ve already agreed to an ELUA, and that is what the article is trying to simplify the fact of.
I find especially the following part of the US law interesting:
It seems that the ‘adaptation’ part refers to changing the software. And if so, it would seem I am allowed to change the software in such a way that it does not display the EULA to me, as this can be seen as “an essential step in the utilization” (since with the EULA, I cannot install it on such a machine, but without it I can). Which would circumventing the EULA be legal.
JAL
I would like to commend the author on a well written and I feel balanced piece. (if you criticise a badly written piece you should also commend those which you feel are well written)
What I paticularly liked was the clear distinction of what were his own views and what was ‘fact’
The right question to ask is:
Will the action of installing MacOSX in a non-Apple machine constitute a copyright breach?
Having legally purchased the OS at a shelf, without agreeing to anything, the EULA is simply an agreement with me and Apple. They can deny to support this installation, but they cannot get me to court for copyright reasons. In more than a few countries even EULA means next to nothing: you didn’t read it before buying, you did not sign it, there were no witnesses and the event was not recorded anywhere.
It’s not about breach of copyright, it’s about breach of the terms of the license you purchased form Apple. And, yes, Apple can ask a court of law to force you to stop using their software because you breached the license terms. They won’t, because it will cost them significantly less to just let you do whatever the hell you want with the software, but technically they absolutely can get you to court over that.
Am I, the customer, being clearly informed about the EULA and it’s contents before purchasing? No, thus it is not a valid contract until I actually install and read the EULA, if even ten.
The EULA is not a contract, per se. It is a document describing the terms under which you are given the license you’ve purchased. The license always comes with these terms (well unless a court deems some of them illegal). In most jurisdictions (for example, as it seems according to Thom, in the Netherlands) the licenser needs to make the terms generally available and doesn’t have to get your agreement prior to purchase. If the law where you live differs then you may have a point. In most places it doesn’t though.
<Awesome double post>
Edited 2009-03-09 13:28 UTC
I haven’t purcased a license. Does it say on the box that I do? Does the clerk inform me of this? Does the box say that where I can find the contract terms?
Not counting the Dutch, who are apparently morons, most countries has limitations on how much a company can deceive the customer.
I’d argue that in most places it does, especially when it comes to post-sale limitations. In no other industry can a company impose restrictions on what you can do with a product after you’ve purchased it. Sure, they can void your warranty but that’s all.
T
You never purchase software. Ever. You purchase a license to use said software. I mean, I don’t even know what you think you’re purchasing. It’s a virtual product. There is nothing tangible (except for a license and sometimes a distribution medium) that you can own.
The burden of proof is on you.
Really. I can surely remember a time when there was no license nonsense.
Electrons are tangible.
I’m really tired of this bogus argument. What do you own in a book? Is ink tangible? Is anything tangible? After all, it’s all just atoms.
There’s NO difference to print media other than the way the information is stored. Everything is else is just bullshit from a greedy industry that think it’s more special than it is.
No it isn’t. The burden of proof is on the company attempting to impose unsound limitations after purchase.
Pray tell, when exactly was that time?
If you are purchasing the electrons or atoms of the medium on which the software come, then running the software would be illegal, because it would mean you are making a copy without the consent of the copyright holder, wouldn’t it?
In books you own the medium – the book itself, and an implied license to “playback” or “use” the content (e.g. the novel). The reason there are no explicit licenses for books is that, because you don’t need special device to “decode” and “use” the content – just your eyes, and therefore what constitutes use and what constitutes copying is very much clear. Not so with software, as I already mentioned.
Oh for f–k’s sake, not the proof that will decide the Apple vs Psystar case. Give one concrete example of a consumer law that requires a licensor to explicitly get your agreement to the terms of the license prior to the purchase.
Yes, the outside of the box does. You really should go to a store and actually look at the boxes of Apple’s software, you seem to be completely ignorant on the topic.
The EULA is not a contract, per se. It is a document describing the terms under which you are given the license you’ve purchased.
This is evidently not true in the US, and it is probably not true in other Anglo Saxon jurisdictions. In the case of Softman, the defendant had bought a copy of Adobe software. He then broke up the package and resold it one bit at a time. There was no claim that he had violated copyright by duplicating it unlawfully. He had simply bought a CD with packages A and B on it, then sold package A to one person and package B to another, which was explicitly forbidden in the EULA.
Adobe sued on the grounds that the EULA forbade such behaviour. The EULA was said to be binding for exactly the reasons given above, that the copies were transferred as licenses not sales of copies, so the EULA simply recorded the conditions of license. The court ruled against Adobe on the grounds that Softman had only bought a copy of the software, but not installed it. Not having installed it, Softman had not entered into the contract whose terms are given in the EULA, and was thus not bound by it. He had however bought his copy, and thus had the right to resell it as a bundle or in detail.
There was no breach of the EULA because Softman had not clicked through and entered into that contract.
So in the US the situation is interestingly different from what Thom describes for Holland. There is no doubt that until you click through, you have not entered into the EULA contract and are not bound by it. This is why Softman won.
http://en.wikipedia.org/wiki/Softman_v._Adobe
“selling as individual units the software titles that were purchased from Adobe as a single boxed ***“Collection” ***. The individual titles had their own CDs.”
http://www.linuxjournal.com/article/5628
“So does this mean Linux users can break up a hardware/software bundle, keep the hardware to run Linux on and sell the software? Yes, says attorney Wendy Seltzer, Fellow of the Berkman Center for Internet & Society at Harvard Law School. “It makes a strong case that the licenses purporting to restrict resale in this manner are not valid licenses–so the transactions are in fact sales, and the buyers are not subject to the “license” conditions. It helped that Softman hadn’t even had to click a clickwrap”, Seltzer said in an e-mail interview.”
—–
#1 Psystar install the OS and Agree to the term of EULA.
#2 they are not breaking an Apple system/bundle as they buy the OS *upgrade* only and not the hardware
#3 Apple is not suing Psystar over it’s EULA.
Charges copyright, trademark infringement, violation of OS X software license ( << not the same as EULA )
http://www.computerworld.com/action/article.do?command=viewArticleB…
“In an order signed on Friday, U.S. District Court Judge William Alsup gave Psystar the go-ahead to amend its lawsuit against Apple. According to Alsup, Psystar may change that countersuit, which originally accused Apple of breaking antitrust laws, to instead ague that Apple has stretched copyright laws by tying the Mac operating system to its hardware.”
http://www.computerworld.com/action/article.do?command=viewArticleB…
It’s all just an oppinion.
It doesn’t bring any new information about the subject.
The big ‘issue’ is that even if you have an EFI PC or have an EFI dongle, you need to decrypt some core parts of Mac OS X binaries to have it boot and be usable.
This requires binary patching the kernel or a special kernel extension decrypter (dsmos.kext or appledecrypt.kext).
Isn’t this covered by the legality of reverse engineering?
This is a great reply, because it is what this analysis (intentionally or unintentionally) leaves out.
I think this case would be different if it was just a guy going and buying a copy of Mac OS X and installing it on his Dell. But it’s not. It’s on a whole different level.
Psystar is buying copies of Mac OS X and reselling them. (According to copyright law, this is okay.) Psystar is preinstalling Leopard on the machines. (Uh oh – this means there was an EULA.) Psystar is modifying parts of Leopard to get it to load. (Hacking the system, changing the system to point to Psystar servers, etc… Uh oh.) I just don’t see how Psystar wins at all.
Sure, if they had just bought copies of Leopard and sent you a Leopard-compatible machine so you can do the work yourself – this might not be an issue. But that is not what is going on here.
Guys, nerds, OSSers – Apple is not trying to shut down people from going and installing Leopard on their netbook or whatever. That is not what is at issue here.
Psystar is going down.
Uh oh? That’s only a problem if the EULA is actually enforcable. Modifying something and reselling it is not a copyright violation, as long as it’s not a copy that you’re reselling. Same way I can buy a book, change some text and then sell it to someone else. I can, of course, not pretend that the changes I made are in the original or that I’m the original author but that’s a different story.
For simplicities sake I’m ignoring DMCA since it has no effect in most of the world.
So lets get it straight.
1. You have no idea what is actually written on the boxes of Apple’s software.
2. You have an extremely poor grasp of copyright law (fyi, modifying a book and then selling it is copyright infringement, regardless of whether you pretend the changes are in the original or not).
3. You have decided to ignore a major law in the jurisdiction in which the lawsuit in question is happening because it completely destroys your arguments.
So the only real question is, why is someone with such a poor grasp of the facts of the case and the relevant laws in question spending so much time commenting on it?
No, you’re the one with the poor grasp. It’s not copyright infringement since I am NOT making a copy.
It is perfectly legal to sell the same book that I bought that I have, for example, “modified” by making remarks in.
Probably because I know more about copyright law than you do.
This article is written from a US perspective, but most common law countries (England, Scotland, Canada, Ireland, Australia, etc) will see things from a similar perspective and would also regard the EULA as a second agreement that Apple is attmepting to enforce post-sale. What’s not exactly clear to me is how the EULA can be enforced and what remedy would be available to Apple if I should breach it.
Under English law, a legally enforceable contract requires all of the following: offer, acceptance, consideration (something of value) and an intention to create legally binding relations. It’s not remotely clear that all of these conditions are met when I click on the EULA acceptance button; in particular, as no consideration has been exchanged between Apple and me, I cannot see how the agreement could be enforced under our contract law.
I greatly agree on the scope of this case, but not on the implementation of the logic. Non Free Non OSS SW determines how and where you get to install it. That seems to be the case with anything that has a receipt or serial number. Heck the prime reason that The Mac OS has not required a serial number was because for nearly the first twenty years the OS ran exclusively on Apple Branded HW ( with a brief extension into clones) Apple is the Hardware, and the MacOS is the Software. This is pretty easy. And I think we can all agree on those two points. Last month I saw someone on the train with a Vaio laptop running MacOS hacked, and running xp in VMware. Assuming that he bought his software he is in compliance not by the letter but by the intent of the law. Apple is not looking for him and his type – And I am assuming that he bought the SW. Undoubtably Sony Makes a MacOS compatible device. But that is not what they are trying to do. Sony is just doing the best that it can. Sony is a real company.
Apple is correct in trying to stop Psystar from making unlicensed clones. Because Apple did all of the hard work and all of the engineering and especially all of the marketing and as such they deserve all of the profits on their SW. Now if I decide to buy a Sony or build a Mac compatible unit myself then I deserve to run it but I do not have the right to re sell it as ‘My product’. Apple the hardware side is not under any moral obligation to let Psystar ride their engineering. Apple took all of the risk and they deserve all of the profit. Where was Psystar during the PPC days or during the bad old days. If I took the Free Open Source SW quagga and told the world that it was as good as cisco well that could be true. But if I sold Quagga/Zebra software in the cisco router space then I would expect cisco to hire a well paid lawyer to sue me down to a smoking hole in the ground.
There is NOTHING in the MacOS that the F/OSS software movement cannot replicate with some effort. The MacOS is essentially yet another unix. It is not because of the tight integration between HW & SW it is because of the well written abstraction of the HW from the SW. If you are willing to take the steps to make your Debian or Suse or Fedora work as well as a Mac then bring it. Bring it and share it. At that point you might be willing to bundle it as your own distro.
So suppose that you make your very own ‘Cortland’ distro (a NY State variety of Apple) and it is successful. Some people buy CDs some people download your .ISOs people are writing you checks and grants – on the balance you luckily recoup most of your expenses. Next thing you know someone clones all of your work and calls it ‘Empire’ (another NY State variety of Apple)
Do you owe them anything because what you built was made from a reference spec? <PERSONALLY> I feel that Psystar should Man Up and make their own distro, Like Shuttleworth/ Ubuntu or write Linux SW that functions like the Mac desktop – iLife apps or whatever. The more that they cloud this with noise about the SW license the dumber it gets. Apple is NOT GNU or F/OSS and neither is Windows or Novell or Lotus or anything that comes shrink wrapped with a EULA
The implications are going to be far reaching
All fine and dandy, but what has “There is NOTHING in the MacOS that the F/OSS software movement cannot replicate with some effort.” to do with the case at hand?
Psystar isn’t an Open Source company. They even use a proprietary license for their “retail hackintoshes”. Although the case is about the validity of after sale license conditions, this doesn’t mean it automatically is related to FOSS. If a license is deemed void, the software doesn’t automagically become Public Domain or Free Software.
The magic of Apple is limited hardware support on preselected components, with a pretty UI on top of their UNIX. This is also already available in the FOSS world. Get supported hardware and install/get-a-preload-with a nice WM/DE on top of a *Nix. Same result.
Yup I was a windy there. I agree Psystar is not even remotely OSS, I suspect that they are playing the the whole F/OSS sentiment with a fist in a velvet glove. There is very little case to be made for SW transfer after sale. My view (as a developer) is similar to Wil Shipley – of delicious monster. As a matter of fact I prefer F/OSS in the workplace. I Like not having to reinvent the wheel and having the option to learn from someone else’s well written code. That is OUR dog in this fight. We can learn and give back – it is a positive feedback loop. Much SW for the Mac is hella overpriced (like photoshop and most of the music apps) and that is a negative feedback. It adds the price of another base model Mac to the cost of a workstation.
If However I was going to sell a copy of SW then I sort of have to give the disk serial number and box. Why would I sell an App or an OS if I planned on still using it?
I disagree that the the magic of Apple is select HW and SW integration the proof of that lies in the ease that Apple has switching the code base from Motorola 68K (in Many Macs even in 1995) to Motorola PPC 1994-2005 and Intel chips — That seems like a large investment in well written code. Those are some hard dues to pay. That r&d is why I do not like why psystar is playing at.
“Because Apple did all of the hard work and all of the engineering and especially all of the marketing and as such they deserve all of the profits on their SW.”
Psystar is buying their copies of OSX. Apple is getting profit from their hard SW work.
What is also happening, is Apple is not making a profit from their crappy (many dead ibooks) hardware because of tying SW to HW.
———————————-
“It may be reasonable, for example, for a vendor of gas tanks to be able to forbid, by a contract entered into at the time of sale, anyone but an authorized agent from recharging the tank.”
I don’t like that idea exactly, Ford gas stations? Nope. If there were a open or government standard, that a vendor had to meet then make that a law.
———————————–
Can I install OSX on an Asus motherboard installed in a Mac pro case? How about an apple motherboard (http://www.dvwarehouse.com/Apple-Motherboard-c-245.html) in a HP case? Does it matter who made the hard drive? Does an “Apple labeld computer” mean the logo when it boots up?
Anything Apple can do, Microsoft should be able to do? I await the days of the Microsoft PC which only works on “Microsoft labeld computers.” Ask yourself, why limit this to software. Maybe your next dictionary will only be legal to read under Merriam-Webster lights.
Well that is odd because I do not seem to be suggesting anything remotely extreme or unreasonable. The Mac OS comes at a deep subsidy without a lot of hassles about what you can install it on. I do not think that it phones home invades my privacy or even requires a serial number. Heck I _could_ install it on every Mac and PC in the house for the same $129. I do not even want to think what Microsoft would give me for the same 129 U.S.Dollars.
Software is vastly different than a book. When I have a book I generally have one copy – I cannot give one away (or sell or transfer it) and then go to the library grab one of the shelf and say ‘see-ya’ I own this.
I am speaking more to the lines of Apple HW. YOU can install whatever you buy on whatever you want. That if I was a lawyer (my dad is) I know that I would not even send a paralegal or even a legal secretary to think about telling you what to do with a copy that you bought.
HOWEVER when a company starts a business model on the back of the RD that comes from another company, well that is just bad ethics. No Apple does not own the x86 reference instruction set but they do own the OS you buy a license.
This is real simple a company or a copyright holder has the right to protect their copyright or trademark. McD could sell a whopper and BK can sell a big mac, but I cannot open a McG and sell both the Whopper and the Big Mac. Well I could but it is not a sustainable business model. Psystar can do what they want but Apple likely has better paid lawyers and also has the law on their side. What would you do if it was your copyright.
Its not really about Apple or Psystar. The particular case is, but the fundamental issue is not. The issue comes up, as Thom says, in clear form in the question: should MS, having decided to sell retail copies of Office, be able to stop you installing them under Wine?
As to making money from Apple’s efforts, objections to this are pure nonsense. Every Mac retailer, every Mac software developer does this. It is true that Jobs always had problems with this, always felt that there was something not quite right about Mac developers. But this was pure nuttery on his part.
Apple is not obliged to sell OSX at all, or for any particular price, or adopt any particular method of distribution, or release developer SDKs. It makes a commercial choice on what to do in all these respects, so do others in the surrounding parts of the industry. If it doesn’t like the opportunities it is creating for them, it can always change how it sells. As an example, it does not sell Filemaker for Linux. No-one thinks it has to.
The issue is solely this: having decided to sell OSX at retail, for reasons best known to itself, what limits can it place, and what limits should we want it to be able to place, on what we install it on?
For me, when there are viable alternatives, I always vote with my wallet when a vendor tries to put ridiculous restrictions on my usage of the product I purchased (fair and square) from them – restrictions that only benefit the vendor, and have nothing to with public health and safety (as Thom pointed out).
I go to their competitors who do not put those restrictions on me.
For instance, like so many other people, I have an iPod. At first, I did plenty of purchases from iTunes (along with ripping a bunch of stuff from my extensive CD collection). But once I discovered that many of the tunes purchased from iTunes could not be played in anything but iTunes or my iPod, I stopped all purchases from iTunes.
If not playing music on my iPod, I generally prefer playing the music on programs like Songbird, aTunes, Banshee, and others, over iTunes (the program), because I find iTunes to be bulkly, slow, and ugly.
So now any MP3 downloads I purchase are entirely from either Amazon or eMusic (both have zero DRM and will play on anything).
I do realize that Apple recently signed an agreement with the big 4 record companies where they do not have to have DRM. But I’ve seen nothing when perusing iTunes that indicates the downloads don’t have the previous restrictions.
Until Apple makes it crystal clear that downloads from iTunes come with no restrictions for what the tunes are played on or with what software, I will never purchase anything from iTunes.
It’s that simple.
I have one question for all the Apple people in here:
Why on EARTH are you guys defending Apple? Would you do the same for Microsoft Office and its EULA that says it may only be installed on Windows? would you support Microsoft if they sued a retailer who sells Linux machines with legal copies of Office pre-installed through WINE?
Seriously, I have no idea why you would defend a company that is trying to limit your rights in such an unreasonable manner. It’s truly beyond me.
Perhaps because we don’t think it’s unreasonable? And yes, I would support Microsoft in enforcing their EULA too. If you don’t like the terms you need to agree to, don’t use the product, it’s really simple.
Seriously, I have no idea why the people not defending Apple think you have the right to ignore the terms under which a manufacturer licenses and distributes their products. You have no right to Apple’s software, or Microsoft’s or any other companies.
Otherwise, I hope to see all kinds of articles on here about how the Linux developers should just ignore the, for example, ZFS and Dtrace licenses, and just include them in Linux. Because, you know, it’s just not fair that Sun isn’t providing their software under the license that the Linux folks would prefer.
Do you disagree with the lawsuits against Linksys failing to honor the GPL? Because your line of reasoning seems to say that Linksys has every right to ignore the GPL since it is inconvenient to them.
I see you don’t understand open source. Let me make it simple.
Open source licenses: grants rights on a copyrighted work that you would not have under copyright law.
EULAs: take rights away on a copyrighted work that you would have under copyright law.
That’s an enormous difference. By law, consumers are granted rights. Apple takes these rights away for the sole purpose of harming consumers by limiting choice and advancing lock-in.
This is in NO WAY comparable to GPL lawsuits.
As I understand it, the GPL and the EULA rely on the same fundamental premise – in the absence of a licensing agreement of some kind, you have no rights to do anything with the software.
You have no right to use it, no right to modify it, and no right to distribute it. In some jurisdictions you have the right to reverse engineer the software, but since this implies use, this ‘right’ may have been practically legislated away – see the Blizzard Glider bot lawsuit.
The GPL grants you the right to use, modify and distribute the software subject to its terms, and the EULA grants you limited rights to use the software, subject to its terms.
I think the fundamental issue here is whether there is an implicit ‘right to use’ attached to software products.
When you buy a software product, do you automatically receive the right to use it as you see fit? I don’t think copyright law provides for this at all – especially where ‘usage’ involves making one or more copies, whether in system RAM or on disk.
Personally, I think the law is broken in this regard, but AFAIK existing case law in various western countries pretty much supports this interpretation.
How would there not be? Can you think of *anything* where purchasing a product doesn’t give you the right to use it? If I buy a sandwich, I have the right to eat it. If I buy a book, I have the right to read it. If I buy a CD, I have the right to listen to it.
If I buy a piece of software – I don’t automatically have the right to run it? That implies a specific exemption somewhere in the law for software…
CDs and software require making ‘ephemeral copies’ in device buffers, RAM etc. in order to support most ‘use’ models.
Rightsholder groups maintain that this copying requires a license. Preventing such use is considered to be unenforceable, but it is actually one of the key supports for this interpretation of the law – i.e. ‘You need a license to use software and digital media products.’
This is how they differ from a sandwich or a car engine, and why EULAs and restrictive terms of use can be attached to software and digital media when there seems to be no such phenomenon in the ‘physical’ world.
I’m not saying that this is a good thing – in fact its pretty egregiously overreaching and stupid – but this is the situation that is being codified into laws around the world.
Yes, you do automatically get such a right. Look at the section of the US Copyright law quoted in the article and by one other poster here. It says:
it is not an infringement [of copyright] 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 provided:
(1) that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner
Copyright law generally is implemented to accord with an international convention, so this is probably true in most jurisdictions.
I understand open source quite well thank you very much. You, however, are purposefully avoiding the point of what I wrote.
Whether the license grants or removes rights is completely immaterial, the concept is respecting the license. If you feel that you have a right to infringe on Apple license, regardless of the reason, then you should have no qualms about someone else infringing on the GPL, regardless of the reason.
I can assure you that Linksys feels that their inability to distribute a modified Linux without releasing the source is just as detrimental to them as your inability to install OS X on whatever machines you want to.
Seriously, the fact that you can rationalize a difference between the two says much more about your understanding of open source and respecting software developers than it does mine.
Finally, you’re going to have to do a lot more than simply state that Apple’s EULA in some way harms consumers. I’m afraid that your opinion carries no weight with me or many other people on this planet. Such comments sound more like hyperbole attempting to appeal to fear than a rational, coherent argument.
Actually, if the Apple license falls under copyright misuse, then Apple is prevented from enforcing it until they take care of the misuse.
Limited monopolies, enforced through the abuse of copyright, can do nothing but harm the market. Competition is known to improve the market, not allowing it hurts the market.
You tell me, how does Apple EULA _help_ consumers? By limiting their choice of hardware to one?
And if the sun goes supernova tomorrow then we’re all dead. Problem is, the chances of either happening are essentially zero. Or, you can actually give a coherant argument as to why there is even a hair’s breadth chance of Apple’s license falling into the category of copyright misuse when there is already court precedent on these very issues?
I’m afraid you’ve lost me. How is their hardware choice limited to one? Did every other hardware manufacturer suddenly go out of business? Oh, wait, you mean every manufacturer who includes OS X. Well, yes, there is only one of those. As there was only one manufacturer of Palm OS devices. For all intents and purposes there is only one manufacturer of Tivo products. Only one manufacturer of Playstations, Xboxes, Wiis. I guess we better start forcing Microsoft and Sony to start cross licensing their consoles so there is some competition.
So here’s some advice if you decide to respond. First, I don’t need to prove that their EULA helps consumers since I never made that assertion. The lack of harm does not indicate the creation of help. Second, you need to dissassociate with this idea that just because you want something in a different packaging the manufacturer is obligated to provide it. As I’ve given half a dozen products that you can only get from a single provider you need to prove that somehow that is causing harm in the market, even when there is credible competition between different products in the same market (i.e. computers with OS X versus computers with Windows, the different game consoles, Tivo versus other DVR makers, Palm OS versus other handheld OSes).
Better yet , let reality and the judge repsond :
“In an order signed on Friday, U.S. District Court Judge William Alsup gave Psystar the go-ahead to amend its lawsuit against Apple. According to Alsup, Psystar may change that countersuit, which originally accused Apple of breaking antitrust laws, to instead ague that Apple has stretched copyright laws by tying the Mac operating system to its hardware.”
http://www.computerworld.com/action/article.do?command=viewArticleB…..
And if the sun goes supernova tomorrow then we’re all dead. Problem is, the chances of either happening are essentially zero. Or, you can actually give a coherant argument as to why there is even a hair’s breadth chance of Apple’s license falling into the category of copyright misuse when there is already court precedent on these very issues? [/q]
I’ll bite. I’ve given you my precedent. Where’s yours? I had given it two pages ago, but you ignored it. I explained it in my previous post again.
Does Palm sell the OS separately? Does Sony, MS or Nintendo sell the operating system of those consoles separately from the hardware? Not as far as I know. Then why in God’s name would you bring it up?
Fair enough. But I thought that you had such a view. My bad if you do not.
As I said, since Apple is selling the OS separately, that means it already provides it in a different packaging. If you want not to sell it except bundled with the hardware, that’s fine. Selling it separately and then saying “oh, but, wait, you can’t use it except with our hardware” is not.
Although I’m on Apple’s side on this issue, your facts are wrong: Palm OS was not only on many devices, legally, Palm spun it off into a separate company and that company sold it to other Palm OS device makers.
Remember the Sony Clie, the Handspring Visor, and numerous other PDAs that used the Palm OS? (You don’t? That’s because you’re a whippersnapper. 😉 ) The only reason why you only see Palm making them now is because the PDA market dried up, making everyone leave except Palm in the Palm OS PDA market, and nobody else was interested in making phones with it. (Though the first PalmOS phones were also not made by Palm, but a small company that no longer makes such phones to my knowledge.)
I guess I can qualify as Apple person so I’ll respond.
I’m defending Apple’s position much more because it’s the rules of the game than because it’s Apple’s position. Using a piece of software is not an inalienable right. It’s up to the author (or rather the owner of the copyright) of the software to decide who they grant the privilege (yes, I know, all of you will jump on this particular word and tear me a new one, but if you think about it for every piece of software in one way or another you have to qualify to use it – whether it is people having certain hardware, or people having certain software, or people willing to pay x amount of money, or people willing to put x amount of work, or any number of those) to use it.
I’m a dedicated Apple user (one who’s been following the rules, well, most of the time) and if schmucks like Psystar manage to erode Apple’s ownership of Mac OS X, I’ll either have to put up with a WGA lookalike or I’ll be forced to use an inferior OS, because Apple had abandoned their PC business (yeah, I know, that las one is not all that likely, but still).
And lastly, I defend Apple’s position because it’s against people who are making money off of the work of others. Neither me, nor Apple give a flying f–k that pimply nerd in their mom’s basements use arcane hacks to get Mac OS X to work on their fancy netbook (or whatever). So it’s not about persecuting individuals and crushing their rights, as everyone seems to see this, but instead it’s about stopping and punishing a bunch of crooks, who, as I said, are profiting off of other people’s work.
Why are *you* defending those crooks is equally beyond me.
“Why are *you* defending those crooks is equally beyond me.”
Psystar crooks? They legally purchased the copies of Mac OS X. They did not steal them. Then they installed those copies on their Mac-like hardware, and sold the hardware and the installation (as a service).
Pystar did not steal anything. Apple got paid for each copy of Mac OSX. And the mac compatible hardware has nothing to do with Apple – again, nothing was stolen from Apple.
Now, Pystar might have violated a restriction put on OSX via the EULA. Now it’s in court, and the court will decide whether Pystar violated the EULA, or even if the EULA is even enforceable. That last bit is particularly relevant to everyone else. EULAs essentially remove consumer rights that are already protected by the law.
It can be well argued that those who attach EULAs to their product are the ones who are crooks, because they are violating consumer rights protected by the law.
But again, the courts will decide these issues. Until then, nobody in this case are crooks. Even if the courts rule against Pystar, Pystar are still not crooks, because this is a civil case, not a criminal one. If the court rules against Pystar, they will have been deemed to have violated Apple’s EULA (which by necessity, will have been ruled to be enforceable. If not, the case is irrelevant), they will not have been deemed to have broken the law (which is what makes one a crook).
And, once more, EULA often run contradictory to consumer rights, and the law.
Edited 2009-03-09 20:18 UTC
They are, some of them, at least being consistent. They really do think that any software manufacturer should be allowed to place any restrictions he wants to in the EULA and have the courts enforce them. It is difficult to see their reasoning. Its not clear that such a provision is necessary to the health of the industry, in the way that copyright arguably is. And its not clear that there would be any social benefits to it, though there might be many to a supplier by reduction of competition.
We do in consumer protection law commonly restrict what agreements companies can make with their customers. In the UK, for instance, no agreement which limits the consumer rights you have in law will be valid.
There is no evidence that the ability to restrict what we do with software in way of installation of one authorized and purchased copy is either a necessary or desirable power for companies to have.
What I’m curious about is why Psystar cannot claim copyright misuse and slam dunk the case. From Lasercomb America v. Reynolds:
“Thus, we are persuaded that the rationale of Morton Salt in establishing the misuse defense applies to copyrights. In the passage from Morton Salt quoted above, the phraseology adapts easily to a copyright context:
The grant to the [author] of the special privilege of a [copyright] carries out a public policy adopted by the Constitution and laws of the United States, “to promote the Progress of Science and useful Arts, by securing for limited Times to [Authors] . . . the exclusive Right . . .†to their [“original†works]. United States Constitution, Art. I, §8, cl. 8, [17 U.S.C.A. §102]. But the public policy which includes [original works] within the granted monopoly excludes from it all that is not embraced in the [original expression]. It equally forbids the use of the [copyright] to secure an exclusive right or limited monopoly not granted by the [Copyright] Office and which it is contrary to public policy to grant. Cf. Morton Salt, 314 U.S. at 492 .
Having determined that “misuse of copyright†is a valid defense, analogous to the misuse of patent defense”
To me, it seems obvious that Apple is trying to secure a limited monopoly, by forcing people to only use OS X on their hardware. It’s identical to Morton Salt Co. v. G.S. Suppiger, except it applies to copyright, and in Lasercomb v. Reynolds the judge stated that the same restrictions apply to copyright.
the issue is that they put MacOSx instead of Linux/Solaris/BSD/QNX.
Nothing to see here. Move on.
…. should be ruled null and void and unenforceable if the restrictions put in place by the EULA run contradictory to consumer/customer rights that are protected by the law.
Also, the distributor of said EULA should be ruled to be in violation of the law, and subject to applicable penalties, and the EULA removed from circulation/distribution immediately.
But in the meantime, I try to vote with my wallet, and avoid EULAs, DRM, or other restrictions that impede my fair usage of the product.
The article seemed to miss one important point: what the law says is required to create a legal contract in regards to usage rights of a copyrighted material…
Did you by a “Copy of a Copyrighted Material” (CCM) at purchase, or a license? What determines this? By law, the manner of purchase makes the primary determination.
If you bought a CCM you cannot be forced to behave in a certain way regarding your usage of the product ex post facto, making the EULA basically illegal – but there are some finer points, of course.
A license contract must be made before the time of purchase as a condition of usage rights and the license, itself, must be the purchased item, explicitly. You can’t be forced to change this later, even if you do have the right to do so.
If the receipt says “Apple MacOS X 10.5.2 DVD,” it is implied to be CCM, by law. I have signed nothing that states otherwise. Once the sell is complete the item is governed under the laws which govern all CCMs. Those laws MUST provide a way for the original seller to transfer the material to another set of laws, otherwise I am the only one that can cause such a modification, ex post facto, via my signature, and in contractual agreement with the authorizing party.
You CAN agree to have purchased a license if you purchased CCM, no problem. BUT you CAN NOT be forced into doing so. You own a CCM, you have your rights now! USE THEM OR LOSE THEM!
Think about it:
I can’t give you a receipt for “The Great Gatsby – Audio Tape,” let you leave with your tape, and then when you play it at home have a little note that says you cannot play with anything other than a Radio Shack branded tape player… even though you just did! I can’t do that even if I “allow” you to listen to up to five minutes without an “infraction”… You own your copy!
I can’t sell you a normal book and tell you that you MUST use a specific brand of contact lenses, or a G.E. light bulb just by having the requirement written on the first few pages.
So why can I force you to use a program on a specific machine in such a manner??
I can’t!! Not ex post facto, in the very least! I CAN certainly require you to sign an agreement of license in ADVANCE, but I must follow the laws governing such licensing.
AND, in so doing, I CAN NOT sue you for copyright infringement when you violate that contract. Nope. Can’t do it. You had a license to my copyright!!
Instead, I have to sue you for violating the contract. BUT, I have to PROVE I had a contract with *YOU*. And I have to PROVE that certain REMEDIES were enumerated in the signed contract, AND that such REMEDIES were *LEGAL*.
Who here has ever had to sign a contract?? Probably most of you have had to go through the process.
Generally you have to initial several items, and/or you have to have an uninterested party play as a ‘witness.’ Not all contracts have the same requirements, naturally, many only require a signature. BUT, they ALL require AT LEAST a signature. Be that in ink, or electronically.
Oh.. electronically means I can just hit “I Agree” and I just signed the contract!?!?
NO!! There are legal requirements regarding electronic signatures!
One requirement is encryption!! YES IT IS **REQUIRED**. No encryption, no signature!
From the “SEAL”, U.S. Law
Not exactly the best example, but I’m lazy.
Sec 3(g)(1) is the biggest killer:
How does MacOS X identify you as being you?? You are not required to so much as enter your name, and THEN you are in no way required to prove you entered your OWN name, nor to prove you were legally permitted to sign such an agreement.
So the electronic signature is broken, by U.S. law at the very least.
THEN, where is the signature from an authorized party?? WHERE IS Apple’s SIGNATURE???
Muwahahah!! NOT PRESENT NOT PRESENT!!
OOPS.. NULL AND VOID!
hmm.. so… no EULA == no license == purchase was CCM == YOU HAVE RIGHTS!
All this would be fixed if Apple were to place, clearly, on their MacOS X box: “MacOS X 10.5.2 License.” And a nice little footnote stating that you must sign a contract BEFORE you can buy the software 🙂 You would need to have your license ready, or you would need a verifiable electronic method…
If you buy something that says “Apple MacOS X 10.5.2” You BOUGHT “Apple MacOS X 10.5.2.” Being a copyrighted material, the law automatically distinguishes between a copy(CCM) and the copyright itself, so the product purchase is “CCM of Apple MacOS X 10.5.2, the storage medium, the container, and all contents therein, governed under all applicable laws.”
When you buy a CCM, you can NOT be FORCED to change that into a RUL ( Restricted Usage License ). BUT, there is NO requirement from the authorizing party to make it easy for you to use their product if you don’t do such a thing ( unless they say it is easy to use and install 😉 ).
Apple’s method of selling at retail suggests a CCM sell is taking place, once you purchase this – all is well. Clicking “I Agree” isn’t legally binding, not unless a credit card or something is used to assure you are who you say you are within all legal requirements.
So, as usual: Go Psystar!!
–The loon
Inasmuch as your comment was painful to read (must you bold every other word), you have a very warped view of contracts.
The reason EULAs have been challenged in the past is because the terms were considered additional terms, whose notice came after the contract was formed. In the SoftMan case, they had no notice of the terms, therefore no contract is formed.
They had not been challenged on the count of the impossibility of knowing acceptance – i.e. the very purpose of a signature.
Contracts never required signatures – offer, acceptance, consideration and intention to enter a legal relationship is all that is needed for a contract. For example, bidding at a auction house – there is a contract when you bid for something and win (multiple, sequential contracts in fact). You *do not* need to sign a contract for it to be valid. Carlill v Carbolic Smoke Ball, for example, there was *NO SIGNATURE* – Carbolic has an open-ended offer to the world, and there wasn’t a need to signify acceptance by notice (or signature on that notice, for that matter). See UCC Sec. 2-207(1) – informal acceptance is still acceptance, even without a signature.
So when is signature necessary? In proving there is acceptance to a contract. If X tells Y he wants 50 widgets, Y says “Yeah, sure” – there is offer and acceptance. But when Y builds and delivers the 50 widgets, X says, “What? When did I order widgets?”. The lack of a written contract in this case works against Y. It is not that X and Y didn’t have a contract, Y just can’t prove the contract exists and the terms are as originally agreed.
In the case of Psystar, it is clear they have seen the EULA – if not at installation, the many statements on their website indicates that they very well know of the terms of the EULA. Whether the EULA is enforceable is a different matter altogether (one that judges disagree themselve), but quite certainly the lack of signatures *isn’t*
Sorry, but in the cause of renouncing ones rights, a signed contract or witnessed consent is required in most cases.
Yeah, I went overboard with the bold ( I’m OCD, happens – sorry ).
In any event, I see that I have edited my comment to the point of removing the important factors, hehe… hrm…
That being that the common understanding established upon purchasing a piece of software is that you are purchasing a copy of that software. It is not made evident until too late that it is a license. Failure to satisfactorily establish a license agreement prior to purchase and transfer of a CCM is the fault of the seller.
Also, when the seller accepts payment and transfers a CCM, they have agreed to certain terms of the sell. Mainly that they have not violated any laws in the transfer, but also that they are satisfied in the transfer of the CCM. If they are still requiring further effort on the part of the purchaser, then those requirements are void unless they have been contractually required in advance.
There are legal standards here regarding what is and is not being purchased. If you have a receipt for a copy of a copyrighted product, the law states that you have many rights regarding that ( and software has been given special attention in those laws, by providing compatibility clauses ).
The legal standard for licensing of a copyrighted or patented work is well established, and requires advance negotiation. When a case goes to litigation the burden of proof must be met – the plaintiff must provide proof of a licensing arrangement. This is where signatures are important ( and my entire last post ).
What Apple, Microsoft, and many others attempt is to sell a CCM at retail, then get you to sign away your rights immediately. You have no such requirement, so the EULA is meaningless if you do not agree to it. Some countries ( such as Australia ) have terms of use laws regarding software. The U.S. is still well behind, which is why there is such a question.
If the U.S. uses the Australian method, they will be overthrowing the very purpose of many laws already made – to protect the rights of the consumer.
The U.S. laws regarding terms of use are a bit confusing, but boil down to being that no rights can be taken from anyone if they are explicit in the law – without prior agreement, but those agreements can provide extra rights to the consumer ( such as source access, with condition ). A signature only matters in litigation. This can be ANY legal method for identifying an individual as having accepted the terms ( which is why I included the SEAL section in my last post ) and ensuring the content of the agreement at the time the agreement was made ( no live documents are allowed in law; even though the agreement may change, the original agreement must be kept to show that one has agreed to be held liable for such an agreement ).
Remember, when you pay $120 for MacOS X, you just paid that money to use the software. You have a right to do so, and no one except YOU can take that right away. You are permitted to do whatever you must to use that product HOWEVER you want. You cannot expect Apple to support you – they have no such requirement unless they state they will support any configuration ( they don’t ).
Who is Apple to say that I can’t install that copy on another machine?? They can’t say anything, and this is well accepted as truth. So then, when a company does it, and sells those machines, what laws are they violating?
They made no special contracts with Apple to limit their rights ( and took special steps to avoid this – at the advise of their very intelligent lawyers ).
They made no agreement of any kind that said they were licensing MacOS X from Apple. They purchased COPIES, at retail. The box clearly says “Apple MacOS X [version].” It is not prominently displayed that you are only purchasing a “restricted use license.”
In fact, the legal standard is that the actual sell item name must include the word ‘license.’ I ran into this personally, which is why I know these areas of copyright, anti-trust, and contract law fairly well ( even if I am rather bad at explaining it [ money is well spent on lawyers sometimes ] ).
The lack of the word ‘license’ on my receipt allowed me to transfer an $11,000 piece of software from one machine to another, against what the EULA said ( I had to hack the program for compatibility ). I didn’t think once that it might be a problem when I did it, of course – and I knew nothing of law at that point ( I was 20 ). That company now knows to include license on the receipt AND to require a signature upon selling the software package.
Anyway, I *REALLY* hope Psystar wins this one hands down, they need to. If they lose, we lose too many rights as consumers. Sure, Apple will just make a few adjustments ( such as ensuring that the product name, as sold at retail, includes ‘license’ ) which will still hurt Psystar – but at least you know where you are standing when you see the product on the shelf.
–The loon
BTW: I do understand that proof, in these cases, is merely by a preponderance of the evidence.
( Wow, how did I NOT misspell that on the first try?!? )
Edited 2009-03-10 05:04 UTC
SoftMan applies as case law only insofar as cases are similar to SoftMan v Adobe. The author clearly didn’t take pains to even describe the case, no less give a more clear link with the present case.
In Softman v Adobe, what happen was that SoftMan took purchased Adobe products, ripped the CD and packaged Adobe software with other software to be resold. This contravened Adobe’s EULA prohibition on resales. However, the courts ruled against Adobe because 1) the EULA was only seen when the CD is executed – so because there was no notice, there was no contract, and 2) there was no harm caused to Adobe. Consumers who can’t purchase SoftMan’s compilations would simply have to purchase individual software titles. There was no violation of copyright, and all the software were purchased legally.
In the Psystar case, there is notice: Psystar installed OS X. They clearly knew the existance of the EULA. They are many cases of shrinkwrap EULAs being enforced (ProCD v Zeidenberg, for example), so it isn’t a clearcut case of EULAs being unenforceable.
And contract claims isn’t what Apple is gunning for in this case (yes, its there, but not the biggest part of their case against Psystar). Quite simply, the payouts from winning contract cases are low (most likely, recalls of the software titles sold). Instead, Apple is pursuing copyright claims (including DMCA) against Psystar (Psystar modified Apple’s software without permission) as well as trademark and trade dress claims. Apple has a solid case on those.
The only way Psystar can win this against Apple is that if they succeed in their copyright misuse (for anti-competitive purposes) case against Apple. But courts tend to act conservatively, especially if any ruling made in Psystar’s way would so royally f–k so many business models (not just Apple’s), I would mark it as unlikely.
As for EULAs, the courts have in the past been very reluctant to rule on the general legality of shrink wrap contracts, if I was one of those pining for the end of EULAs (which, btw, would also include the GPL/LGPL), I would not hold my breath.
Another great reply in this thread.
I don’t know why folks keep making this all about – “Apple is telling me what to do with the software I buy.” Cause that is not at all the issue. Apple isn’t suing any of the OSX86 guys. Nor the maker of EFI-X or whatever.
Thanks for your summary of the real issues at stake.
I think that Apple restricting what systems their software should be run on does not hurt the market so much as Apple’s market for their software.
Apple does not care if you run linux, Windows, whatever, on their hardware, but they only want their software run on their hardware.
How this hurts the market, I don’t understand. How a company that has such a small share of the hardware and software market could be monopolizing, I also don’t follow.
Y’all are crazy.
Posted this before, btw, but here it is again:
http://www.copyright.com/ccc/viewPage.do?pageCode=cr10-n
You argue that the courts should do what’s best for consumers.
I agree.
I do not agree that forcing Apple to allow OS X to run on any machine is best for consumers. Apple built OS X to make its computers more desirable in the marketplace. The company spent many millions of dollars, far more than it makes on sales of the OS, on development and continuing improvement.
If the law were what you say it should be, Apple would never have built OS X at all. Then where would consumers be? They’d be stuck with Microsoft or Linux or some flavor of Unix. Or perhaps Be OS. Not a very good outcome for consumers.
In addition, there would be no iPod, not iPhone, USB may still not be available on computers, writable disc drives may not have ever happened, we still could be using DOS.
If the court rules as you suggest there two possible outcomes: Apple will stop selling its OS and ship it installed only, meaning intermediate upgrades will cease.
Apple will sell its OS to all comers but raise the price and stop development. Eventually, Apple could fail, meaning no more great new consumer electronics devices from that company. Sony will be the ruling power in that arena.
Protecting intellectual property DOES help consumers.
But Apple’s attempts to use their own intellectual property to promote their own sales is not comparable to the music or film industry’s attempts to use DRM squeeze the last possible buck out of consumers with daffy protective management that reduces the value of their wares to everyone.
If I build a boat ad sell it to my neighbor for the $5000 I spent on materials, plus $1000 for labor, he has a right to use it on any pond he wants to.
If I build an operating system for $386 million and I sell it to my neighbor for $386 million, he has a right to use it on any machine he wants to. If he pays me $120 for the right to run it on his own computer, I will agree that he can use it on his own computer.
But he does not have the right to run it on thousands of computers to help sell those computers in competition with me until he pays me the $386 million for the whole shebang.
It’s that simple.
That’s an inaccurate comparison. Try this:
If you buy 30 Mercury boat engines, you can absolutely install them into any hulls you wish and resell them as 30 complete boats. You can even modify the engines to get them to fit properly. Mercury doesn’t have the right to force you to install their engines only on certain brands of hulls…
Ditto if Psystar buys 5,000 copies of OSX, they have every legal right to install it on 5,000 computers and resell those computers.
But what about if you modify and possibly compromise the Mercury engines the way you want and them resell them as Mercury engines? Is it your right to be able to do that? What happens when the modified Mercury engine blows up… who’s responsible??
Naturally, if your modifications were unsafe or caused accidents than you WOULD be liable.
Exactly the same for Psystar; if the modifications to OSX cause computers to blow up, then Psystar, not Apple, is liable.
Your point?
Where lies the Apple – Psystar liability? They are using MacOS, which is branded by Apple. You supposedly bought a retail version of MacOS-there is some inherent liability back to Apple. If MacOS installed on Psystar computers inflicts damage in some way, it WILL be associated with Apple. Apple has a right to protect themselves. Psystar is an opportunistic little company with no money. Even if they are 100% liable, they would not be the target.
Do have any evidence that consumers are being being physically harmed by Psystar’s OSX computers? Even the slightest hint that the products could be dangerous?
Or are you just making stuff up?
What you are missing is that Psystar is installing retail copies of OSX as an agent of the end customer.
Should I be allowed to install Windows XP for someone without permission from MS?
Same thing.
What you’re missing is what the restriction is. The only purpose of that is to take choice away from its customers, choice over something totally unrelated. Somebody put it quite nicely, saying that it would be akin to book publishers saying you’re only allowed to read their books with their prescription glasses.
Not allowing customers to make a choice is something that most legal systems frawn upon.
No, they are *including* a retail copy. They are installing a hacked version of their own, trying to side step the legality by saying that a license was purchased.
Should it be legal for me to buy Windows Home Basic hack it to Ultimate (on the same install media), remove Validation and install it as an ‘agent’ for someone else and profit from it? If Psystar wins, then it seems that it would be okay too.
Should it be legal to sell hacked software if the original was purchased and included (insert some copyright court case here)?
And the terrorists will have won! Less FUD, more informed opinions. If Psystar wins, it just means that companies like Microsoft and Apple will not be allowed to dictate what operating system or hardware I run the software I bought separately. (Yes, you are not allowed to run Microsoft Office on any other OS than Windows. The Windows version anyway)
no, no, no
Too many of you have yourselves utterly confused –
which is exactly what Apple wants and needs to win this case.
Psystar purchases each and every copy of OS X from Apple – they just happen to re-sell those copies of the OS. Which is why all who purchase Psystar PC’s with OS X installed receive physical media(discs) of the OS and its original retail packaging.
So, to really make your analogy accurate, what if you spent $386 million developing your OS and decided that the fair price for which to sell it at anonymous retail was $129. Then, Psystar comes along and pays you full retail price for 4 million copies of your OS. You have now re-couped your entire development investment from one, single customer along with a handsome profit. Now then, how schizophrenic of a businessman would you have to be to attempt to sue this customer of yours out of existence??
Schizophrenic – that’s exactly what Apple is now. They are banning Software from the iPhone App Store left and right – meanwhile the iTunes Store has all manner of explicit content available.
Moving on to other issues –
that comment about “a EULA” vs. “the GPL” is equally ludicrous.
A EULA is just what it says it is: an alleged agreement between a producer and a consumer, the end user. Said consumer is always free to re-sell, as a whole or in parts, anything they have previously purchased.
Furthermore, the act of re-selling does not constitute any sort of “distribution” or “licensing” – it is simply the selling of used goods, not even subject to sales taxes – not even when it is a corporate entity that is doing the re-selling – its just that simple. (Note that the use of the term “used” goods is a legal distinction solely for the purpose of determining which transfers of goods are taxable and in no way implies that the goods have been “used” in the common sense – i.e. “put to use.”) And as established above, this is the nature of the relationship between Apple and Psystar – producer(Apple) and consumer – OS Maker(Apple) and its customer. It just so happens that Psystar is re-selling the OS as used merchandise whilst selling its own custom-built PC’s as new merchandise. But, this re-selling of the OS is a relationship between Psystar and its customers – a 2-party relationship that Apple has no part in – a relationship that Apple has no jurisdiction over whatsoever – it’s just that simple.
The GPL is just what it says it is: a legally binding software license between software distributors and others with intent to re-distribute the software. If no re-distribution is going to take place, the GPL basically has no effect.
The issue that has confused so many people here is that there are hundreds of Open-Source Software Vendors who are, legally speaking, both the 2nd party(“licensee”) in a GPL relationship with some poeple and the 1st party(“distributor”) in a GPL relationship with others, all whilst they are simultaneously the 1st party(“producer”) in a EULA-type relationship with their customers. Being stuck in the middle like this is an odd situation for the Vendor. Their “licensee” status in the GPL creates steep limits on just exactly what restrictions they can impose as a “producer” in their own EULA. This brings us to the reason why we “freetards” champion the GPL so much – these “limits on restrictions” to the “producer” translate to “guarantees of freedom” to the end user. So, almost all Vendors in this situation choose to automatically elevate all of their customers to the status of “software developers” and simply pass along the full GPL license as their EULA. The consumer has an intrinsic right to give up their “developer” status and to be just “a consumer” – in which case the GPL is only their EULA – imposing no restrictions on them at all as “a consumer” – and they are free to do anything to or with the software. But keep in mind that the moment they distribute, sell, rent, license, sublicense, transmit, or even give away the software to 3rd parties they are effectively “re-elevating” themselves to the status of “developer” and are again bound by the terms of the GPL as their license.
(Note which action was left out of the list: re-sell!! That’s right – the exact same loophole that Apple or oranges alike must abide by applies in the “GPL as a EULA” situation too.)
The end user is always free to re-sell the software, and is no longer bound to any EULA or license agreements of any kind – it’s just that simple. Note here that “giving away” your copy of the software of the software once and only once while keeping no copies for yourself legally constitutes the act of “re-selling,” but simply for $0 or at no charge. In this way we are also assured that no such kind deed is punishable in any way.
How many of you would feel comfortable purchasing and driving a new car off of the lot if it came with some “legally binding” EULA that stated you could never ever re-sell it and you would only use 93 octane gasoline in it. Of course you wouldn’t feel comfortable with that but you needn’t even worry about it because the most basic of consumer laws guarantee you the right to re-sell anything no matter what. This case demonstrates a EULA that denied you basic rights and in so doing the EULA cannot possibly masquerade itself as “legally binding.” Some will say that comparing a software product to vehicle product is not valid and those who say that are flat out wrong. The only real difference is that most software is easily copied so if and when you re-sell it, you cannot retain copies of said software for you own personal use.
Which brings us to the total and utter insanity inherent in the comment about rights to copy software to disk or in RAM.
Those persons who make such overreaching statements about [lack of] consumer rights never cease to astonish me. I believe they are victims of the misconception that going around talking like anti-consumerist billionaire’s will help them to earn that first billion dollars in this life – it won’t.
It only serves to alienate you from your humanity.
That quoted bit from law about rights to make any such copies necessary to make proper use the software is right on the mark and can scarcely be worded in any other way. For you see, just to use any software you copy those little bits quite a lot. If the software came to you on a disc, you copy most or all of those bits to your hard drive by simply installing it. When you go to run that software, your Operating System must copy those bits up into RAM. But wait, RAM just isn’t good enough for modern performance requirements, so those bits will be copied again into the L2 cache of your CPU – and copied yet again to L1 cache – and some of those lucky bits will be even be copied even more and will be briefly stored in physical registers on your CPU. For those of you keeping score, that’s 6(six) copies of those little bits you have there just to get to run the software.
But I digress…
Apple’s win here would be our loss, All of Us.
P.S. Psystar isn’t just a maker of “Mac clones.” Their product line includes Windows and Linux PC’s and at the time when the publicity started rolling in, you actually had to choose an Ubuntu PC where the OS was provided “at no cost” and add Mac OS X – for an extra $129 – to cover the full retail price, of course – to arrive at the now infamous “OpenBox Mac.”
Edited 2009-03-11 06:14 UTC
I understand the argument put forward for why Apple should not be able to enforce any restrictions of use from the sale of its stand alone software, in this case OSX. And further more, I agree with your argument. I do not want to be dictated to regarding how I can or should use a product I have legally purchased.
However, your argument does not distinguish between for personal use vs for profit. In the case of Pystar, they are using Apple’s software, installed on their hardware, to sell their product and compete directly against Apple.
If Pystar was not using Apple’s software in this way, would they still have a legitimate business?
Is it right for a company, like Pystar to use Apple’s own software to compete and take further business away from Apple?
I say no, not without proper license from Apple, which it has not given.
Psystar doesn’t need a license to install OSX on their computers. You think every single computer maker has an agreement with Microsoft to install Windows? They don’t, and they don’t need one.
Nor do they need a license with Intel to resell Pentium processors, nor do they need a license with Nvidia to resell graphic cards, nor do they need a license with Kingston to resell RAM…
You are patently (har har) wrong. You do need a license to install it on a computer. As does anyone who wants to install Windows. The agreement is called EULA.
That’s the whole point of the lawsuit, isn’t it?
IMO, based on past legal cases and current law, the EULA can not legally dictate which brand of hardware must be used.
Exactly, but I don’t know if it is to use the software to compete against Apple’s hardware so much (even though Apple doesn’t like it). The fact that Pystar hacks the code, and parts of the OS to work. Is the code Pystar pre-installed IDENTICAL to the code that Apple sells?? No? Then how can Pystar legally reverse engineer, modify it and resell it? Reverse engineering is often not illegal in itself. For an individual, I doubt Apple cares much, but they are basing their business model around it. The EULA isn’t the basis of the lawsuit.
This has further implications than just Apple-vs-Pystar. Another car analogy (since I work for an automotive company): A small company reversed engineered the engine controller code, made modifications and was reselling the code as a performance upgrade. It bypassed many safety and emissions related functions. The original manufacturer lawyers went ballistic. It never made it to court.
Should it be legal to resell modified engine controller code that was already ‘sold’ with the vehicle? The manufacturer did the R&D, testing, safety and emission certification.
Who’s responsible when the vehicle is resold to someone unknowing that the air bags and emissions are no longer functional and they get into an accident? They will first go after the original manufacturer, and then the burden would rest on them to prove that the engine controller code was tampered with.
If Psystar were bypassing OSX’s consumer safety features or EPA regulated specs, you’d have a good point.
LOL.
How do you know what Psystar is doing? In essence, they are bypassing processes (safety?) in OSX to redirect updates to their own hacks. They are NOT using OSX unaltered. It would be different if they sent you a empty harddrive and the sealed box and let you install it. Psystar is only in this for the short haul and to make a quick buck off of Apple.
Yeah, that’s probably why they went into a complicated lawsuit with multiple high-profile lawyers against one of the richest companies in the world.
Yeah, they’re really in for the short haul and quick buck. Give me a break.
So you think Psystar is paying legal fees upfront ?? Give ME a break….
Do you think a team of expert lawyers see Psystar’s business model of shitty hackintoshes as a prosperus plan? They want Apple to settle out of court. Psystars lawyers know that this would be cheaper for Apple. Then they get their cut.
It was APPLE that started the predatory heavy-handed legal proceedings, not Psystar.
The thing you’re missing is that in the course of acquisition and use of all sorts of computer components, we all make money from each other. We write software – we use IDEs. We assemble parts into proper machines. We install operating systems and software and charge for doing it. We go in and fix malware infected machines, using anti virus software, or disk recovery software. We charge.
You will never get your head around this if you keep thinking it is mainly about Apple. It is not, the issues of principle are about the industry as a whole. The way to think about this is, after you figure out you want Apple to have a given power, figure out what will happen to the industry if everyone has that power, and uses it. Think about MS, think about Adobe, think about hardware vendors, ATI or Intel or nVidia.
Then start thinking about publishers of books, people who make drugs, people who make tools.
Then you’ll get a feeling for what really is socially desirable and what’s not.