Now that all the nastiness of the discovery phase is behind us in the Apple vs. Psystar case, both parties are trying to get the case settled before it goes to court, much like the recent Vernor vs. Autodesk case. Both Apple and Psystar have filed motions asking for a summary judgement.
In its motion for a summary judgement, Psystar more or less takes the exact same approach as Vernor, claiming that Apple sold their copies of Mac OS X to Psystar, instead of licensing them, and that as such, the First Sale Doctrine (section 109 of the US Copyright Act) and the Reproduction Exception (Section 117 of the US Copyright Act) apply.
In case you don’t recall what these two mean, this is how I put it in the Vernor vs. Autodesk write up: “The first Sale Doctrine dictates that owners of copyrighted material may resell this material, despite the monopoly copyright holders have over said material. The Reproduction Exception states that owners of software may make any copies necessary to use the program. Without the latter, you would be unable to run software without breaking copyright law.”
More specifically, the Reproduction Exception states that you are allowed to make a copy (or authorise someone to do so) of a copyrighted computer program, provided 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”. Psystar argues that therefore, the steps it takes to get Mac OS X Leopard to run on its computers do not constitute as copyright infringement (Apple’s claim), because those steps are “essential […] in the utilization of the computer program [Mac OS X Leopard] in conjunction with a machine [the Psystar computer]”.
Furthermore, Psystar states that because of the First Sale Doctrine, they are allowed to resell copies of Mac OS X Leopard that they legally purchased. Section 109 of the US Copyright Act does not make any reference to it only being valid for individuals, and not for commercial entities (like Psystar); a claim often made by those in support of Apple.
Psystar also dismisses Apple’s claim that the clone maker is in violation of the Digital Millennium Copyright Act. “Apple cannot assert claims under the DMCA for circumvention of a technological protection measure because such claims can be brought only when the circumvention is for the purpose of and has the effect of infringement,” the motion reads, “Circumvention alone is not a violation of the DMCA; only circumvention to gain unauthorized access to that which copyright protects is actionable.”
Psystar further dismisses Apple’s claims of trademark infringement, and makes a pretty strong case there, too:
Psystar uses Apple’s trademarks and trade dress to describe Apple’s products, which Psystar resells. This is nominative fair use. It is not the basis for a claim for either trademark infringement or trade-dress infringement. Just as the owner of a Honda Accord may describe the Accord he is reselling as a “Honda Accord” and may include pictures of the Accord in his advertisements (and just as the owner of a used-car dealership may do the same), Psystar, the owner of copies of OS X
Leopard, may describe these copies as “Mac OS X Leopard” and may include pictures of OS X Leopard in its advertisements. The harm at which the Lanham Act is addressed – a
misrepresentation as to origin or sponsorship of the defendant’s goods that confuses the public – is not present here because Psystar nowhere represents that OS X Leopard is its own product rather than Apple’s.
Apple’s motion for a summary judgement is pretty much (as expected) the exact opposite of Psystar’s. Apple insists that Psystar violates copyright and the DMCA. Apple of course points to its Software License Agreement, and claims that it is licensing its software, not selling it.
There is no genuine factual dispute that Psystar makes unauthorized copies of Mac OS X and then installs those copies on computers its sells to the public. Nor is there any genuine factual dispute that, in order to make these illicit copies run on its computers, Psystar modifies Mac OS X, circumvents Apple’s security protections and distributes the circumvention technology to Psystar’s customers. Because it cannot dispute these facts, Psystar attempts to justify its conduct by relying on the doctrines of “copyright misuse”, “first sale” and “essential steps”. Psystar’s arguments are contrary to established law and have been squarely rejected by the courts.
Apple’s motion dismisses the arguments regarding the Reproduction Exception, but it’s all based on the Software License Agreement; heck, even copying to RAM is considered a breach of copyright by Apple, because the computer in question is not an “Apple-labelled computer”. Most – if not all – of Apple’s claims hinge on the applicability and validity of the terms in its SLA.
The interesting thing is that throughout the entire motion, Apple maintains that Psystar is making illegal copies (the word “pirated” even occurs), but that’s only because Apple believes its SLA makes installation of Mac OS X on non Apple-labelled computers illegal. Apple makes it seem as if Psystar only bought like three copies of Mac OS X, and then copied those ten thousand times, and sold those copies. This is of course false, but it is a nice effort to conflate the Reproduction Exception with piracy.
All in all, whereas Psystar’s motion is built on the US Copyright Act and some of its exceptions, Apple’s motion relies heavily on the Software License Agreement. This case bears a remarkable resemblance to the Autodesk case, and this case is also mentioned in Psystar’s motion. In that case, it was established (multiple times) that the AutoCAD software was sold, not licensed. If Judge William Alsup comes to the same conclusion in this case, Apple’s motion more or less crumbles like an old cookie.
Suppose Pystar won the case, couldn’t Apple just change their selling procedures in future products to clearly indicate they are licensing the product instead of selling the product, and add some more legal blocks?
Then this whole process would just simply restart all over again when they made the changes.
It doesn’t really matter, as Apple (and pretty much every other software vendor) already claim this. Luckily for us (the end-users), as long as vendors continue to sell us copies of their software, we still fit into the definition of “owners of a copy” as Title 17 Section 117 of the US Code states.
I think this is one reason we’ve seen such a push from vendors toward a Software as a Service (SaaS) model. It’s like the program manufacturer saying “if you don’t own a copy of the software, then we can enforce whatever restrictions we’d like on you.”
The funny part is, software makers are perfectly capable of presenting its customers with a contract they have to explicitly sign, in which it is exactly detailed what the customer may do and what the software maker will do. In fact, contracts like this are signed all over the world, every day.
…in the enterprise world.
Software companies know full well that they can screw over individual customers like us, because we don’t have the legal power and financial reserves to take them on. However, large enterprises who sign software support contracts are a different story. Here, software makers need to take all the proper legal precautions to avoid getting sued.
It’s a simple case of software companies not needing to act to the letter of the law with mere end users, because we pose no threat to them. However, in the enterprise world, this is different, and all of a sudden, software companies *magically* do it properly.
It’s a dirty business.
You, the individual customer, are not the powerless victims of Big Software. If the licensing terms of one vendor are too onerous, you can switch to a different vendor’s products, or use Free/Open-Source software (ideally, anyway; sometimes it’s more difficult than others, I admit). If the terms of a specific vendor’s EULA starts to cost them large numbers of customers, if they are rational, they’ll change those terms.
In a capitalist economy, it’s you-the-consumer’s job to keep large companies honest as much as it’s anyone else’s.
Edited 2009-10-12 19:50 UTC
Agreed. Precisely so.
The only thing I could possibly add is that it is perhaps a moral duty for those of us who know these facts to advise other mere end users who may not be as aware that they have an attractive alternative which completely avoids all of this dirty business.
Wouldn’t work. We are testing the validity of restrictions in an unsigned contract.
Restrictions being the removal of rights otherwise held.
If Psystar loses because they installed MacOS X on non-Apple hardware, we are all doomed. This would be the first confirmation that U.S. law has become so muddled as to permit restrictive non-signatory terms of use contracts.
If Psystar loses on those grounds, then you will rather quickly start seeing legal disclaimers where non existed prior. McDonald’s boxes will have a EULA inside the box that you should read, but to which you agree merely by opening the box ( and it says McDonald’s can’t be held responsible for making you sick, or for that fried chicken head in your salad ).
Psystar could still lose on other grounds without this effect occurring, but I see little wrongdoing on Psystar’s part for that result.
Apple accused Psystar of every wrongdoing possible, regardless of any factual basis for the claims. Apple also included the anonymous John Does ( original hackers ), which indicates that Apple thinks that their patented technology can’t be hacked.
We can blame the RIAA for this mess, ultimately. The recording industry’s narrow-minded dictation of the DMCA legislation made circumvention of digital media protection mechanisms illegal. Problem is that this has been previously granted as a right the consumer possesses for interoperability – a right the DMCA does NOT implicitly revoke.
Now, it is up to a judge to determine the meaning of the DMCA clause, which is a dangerous proposition.
Hopefully, the judge sees that the original intent of the DMCA clause is to provide punitive relief in cases of piracy – NOT to prevent interoperability.
Before the DMCA it was perfectly legal to do whatever was needed to make one product work wherever – unless you signed away that right. Sometimes, though, the court would even ignore your contract – making the claim that you, as a person, did not possess the right to sign away your rights… which is all the better!
–The loon
“All in all, whereas Psystar’s motion is built on the US Copyright Act and some of its exceptions, Apple’s motion relies heavily on the Software License Agreement.”
This comment is factually incorrect. If anything, Apple’s copyright claims regarding first sale in it’s motion are extremely compelling. Specifically, the first sale doctrine allows someone to sell the copy they “own.” However, Psystar is selling both the copy they own (i.e. the disk they bought from Apple) as well as the copy they installed on the computer. Unless they purchased the copy installed on the computer, which is impossible since Apple did not and would not install that copy, they they are committing copyright infringement every time they sell a preinstalled copy of OS X.
And that is simply one point from Apple’s motion. I’d highly recommend anyone intelligent enough to actually care about this stuff (i.e. anyone who is talking about unsigned contracts shouldn’t apply) to read the motion and look at groklaw’s analysis. Thom’s dribble is, as usual, factually inaccurate and an abomination of a legal analysis.
You just lost all your credibility.
Why have they lost all credibilty?
I’m sure there are quite a few OSNews readers who also read Groklaw.
The level of informed opinion & debate about this and other issues such as Software Patents is very high.
Because groklaw thinks Psystar is in the wrong and provides actual real legal reasons. This infuriates the people on OSNews who believe that they are correct and anything that disputes that is bad. How else could Thom’s “analysis” be taken seriously by anyone who can actually think.
PJ has started writing drivel like this:
“This is what I saw from the beginning, that this is an attack on the GPL and on FOSS, using Apple as a smokescreen […] I have believed from day one that Psystar’s real goal is to undermine or destroy Open Source licenses, particularly the GPL. That was SCO’s goal too.”
The black helicopters are strong in that one. I’m sorry, but if you write unsubstantiated nonsense like that, then you lose credibility, no matter the good work she’s done (and does).
She equates licenses like the GPL to EULAs, and as anyone with a sane mind will tell you, that’s utter bullshit. I find it very, very odd that someone like PJ is writing such nonsense – in fact, I first thought her site had been hacked or something.
I’m sorry but do you know what the word unsubstantiated actually means? You can agree or disagree, but to say that she provides no substantiation is, as per usual for you, factually incorrect.
The GPL (and other open source license) and EULAs rely on many of the same legal principles. Which, if you knew anything about contract law, you’d understand. Now, go do some actual research on how the Autodesk ruling and first sale rights with respect to software will effect redistribution licenses like the GPL.
Oh, you mean like this?
http://www.osnews.com/story/22233/The_Difference_Between_EULAs_and_…
The GPL is NOT, I repeat NOT, in ANY WAY like an EULA.
The point continued to be contested, and obviously, continues to be contested. The fact that you wrote and published an article supporting your own point of view does not in any way constitute a proof of your position.
I know, but he asked me to do research. I did. For that article.
I beg to differ. They are both written using letters which form words. Last I looked, that qualified as “any way”.
Wow, you posted an article you wrote to prove your point. Now, lets look at the actual analysis on the article, we’ll start with legal citations. Oh, wait, there aren’t any. Let’s look at a language analysis between the different types of contracts. Oh, no quotes from any of them. Well, there are some charts.
Thom, look, I know that you have an opinion on this. Unfortunately, you are utterly incapable of backing up your opinion in a way that would pass the smell test of even a first year legal student. Your article lives in a fantasy world that pretends that who you distribute your software to or whether it is providing additional rights or removing rights matters. It simply doesn’t. The EULA and the GPL are contracts and need to be analyzed as contracts. If you’d like to actually do some real research and cite real laws and real court cases and real contract language and then compare how a SLA will be effected by the first sale doctrine versus something like the GPL, I’d be happy to read it. But if you’re just going to repeat the asinine drivel you normally post, then it’s a waste of everyone’s time.
\golf_clap{}
The differences between the GPL and an EULA are very important in this matter. Stating that both of them look like contracts does not make them the same from a legal standpoint.
The difference between an EULA and the GPL is that a GPL violation is automatically a *copyright* violation, whereas a violation of an EULA *could* be a copyright violation, but it could also be a mere *breach of contract*.
Breach of contract is not illegal. Copyright violation is illegal.
I can cite you every case in which the GPL has been tested in any court in any country in the world. Because the GPL *grants* rights you would not have under default copyright, violation of it means you are violating copyright. This core notion of the GPL has been upheld by courts all over the world, and it. Has. Never. Failed.
When it comes to cases in which the EULA has been involved, you’ll see numerous cases going against the EULA, numerous cases going for the EULA; in general, it’s all very muddy and nobody really knows what it all means.
On top of that comes the fact that the manner in which you agree to an EULA is very questionable, whereas agreement with the GPL is an unimportant point; mere users do not need to agree to the GPL (as it does not restrict usage in any way), and developers/distributors can not disregard it because that would mean they would violate copyright.
This is not an analysis, this is pure and simple fact, proven time and time again in all those GPL court cases.
Edited 2009-10-12 20:40 UTC
Actually, it does.
So now I’m sure you’re going to cite the relevant case law showing that a GPL violation is automatically a copyright violation, right? But, I’ll let you off the hook for that one and simply ask you why any of this is even relevant since I never said the an EULA and the GPL are the same. I said “[t]he GPL (and other open source license) and EULAs rely on many of the same legal principles.”
Again, irrelevant to the point.
Again, irrelevant.
And, again, irrelevant, but I’d be highly amused for you to provide actual Sheppardized citations showing the numerous cases going against EULAs.
The manner you agree with an EULA is, barring a few exceptions, not at all questionable and if you’d actually read Psystar’s motion you’d see that even they agree to that point. It’s tough to argue with someone about law when they continue to spout utter falsehoods about it. And, I’m sure you’ll find, particularly regarding the actual point (first sale doctrine w.r.t GPL), how you agree to the GPL becomes very important.
You’re right about one thing, it’s not analysis. It’s also, unfortunately, arguing for an enormous straw man that you managed to erect and then somewhat successfully pull down.
It’s funny that you call out on Thom for not backing up his claims, while not giving any evidence yourself. Now with respect to your arguments.
Because EULAs and the GPL look like contracts they are the same? What sort of argument is that? So all contracts are the same?? Furthermore “free software licenses are not contracts” [see wikipedia on software licenses and the references therein].
The same article also states that EULA cases are usually disputed however it does not provide a citation. However in a lot of european countries EULAs are considered not valid due to the nature of the contract (it only takes rights away from you, while not giving you any rights (you already have the right to use the software when you buy it)). [you could read the german wikipedia article on this if you need citations]. So at least in a lot of countries Thom’s argument was correct.
Why do you guys always come up with the “I can do anything I want in Europe” argument.
JUST ONE EXAMPLE
In The Netherlands, an EULA constitutes as a contract, and as such, you need to treat an EULA according to Contract Law
“the EULA I agree with by clicking “I agree” is actually a valid contract according to Dutch Contract Law
Effectively, if PsyStar was a Dutch company, Apple would have legs to stand on to legally force them to stop distributing Mac OS X Leopard pre-installed.”
I’ve given evidence many times. Go ahead and look at my other posts. I quote extensively from statute and legal opinions. There is generally no point in providing citations for something this basic though. But since you asked…
From the very first line of the Wikipedia article for “software license” (http://en.wikipedia.org/wiki/Software_license)
Or, the very first line of the Wikipedia article for EULA (http://en.wikipedia.org/wiki/Eula)
Now, I never said all contracts are the same. And contracts almost always enter into some other areas of law and thus must be read with those laws in mind. However, both EULAs and the GPL involve copyright law and the redistribution of software. They are both contracts, specifically contracts of adhesion. Furthermore (from West’s Encyclopedia of American Law, edition 2.) (http://legal-dictionary.thefreedictionary.com/Adhesion+Contract)
So, under what legal doctrine would you like to claim that EULAs and the GPL don’t use the same legal instruments to be effective?
Considering that the lawsuit in question takes place in the United States, there is no way to construe Thom’s argument as correct. Looking at European law is equally a fruitless exercise.
+1 for selective quoting.
You conveniently leave out the fact that the wikipedia article explicitly states that FOSS licences are not contracts. Same as PJ from Groklaw and many other lawyers as well as the FSF (http://lwn.net/Articles/61292/). But you just left that out because it didn’t fit into your argument. Doesn’t make you very credible.
Same when you quote the passage which includes the statement that the issue of EULAs has resulted in different rulings, e.g. Softman v. Adobe (2001) and Novell, Inc. v. CPU Distrib., Inc. (2000) in favour of first sale and [Davidson & Associates v. Internet Gateway Inc (2004)] in favour of EULAs.
So your statement that EULAs enforcability is undisputed is false.
No matter what the Wikipedia article and PJ might say, a license, once it gets to court, is a contract and is going to be judged that way. The fact that a license is a unilateral grant of rights really doesn’t mean very much. Particularly since a copyright holder will argue that an SLA uses the very same laws to do what it does (i.e. the software is leased to the end user and the SLA is the license giving them the right to use the software). Now, perhaps you’d like to answer the actual point which is:
So, under what legal doctrine would you like to claim that EULAs and the GPL don’t use the same legal instruments to be effective?
Because so far, I see a lot of people dancing around avoiding it completely.
I never said EULAs haven’t resulted in different rulings, I said that there is no question that they are, by default, enforceable in the United States. All the the cases you quoted that rule “against” EULAs do no such thing, they simply say that an EULA cannot trump first sale rights. However, they implicitly assume that the EULA is, on it’s face valid and that the end user must have accepted it. A part of a contract may be ruled invalid without the rest of it receiving the same treatment. So how about you go and answer the actual substance.
1. Under what legal framework is an SLA and the GPL legally structurally dissimilar
2. Where in the United States has an EULA been ruled entirely invalid
And please, Sheppardized cases only.