Apple Cease-And-Desists Stupidity Leak

Remember Apple's "free, plus $19.95 shipping" updater CD for Mac OS X 10.1? Turns out it's actually a full version of the operating system (which helps explain why it's so large) but it adds an extra little package called "CheckForOSX." Remove that and you can install 10.1 on any disk -- or at least, that's the secondhand version I got of what used to be at MacFixIt's Nov. 20 report, which yesterday was taken down after a note from Apple's lawyers. Here's the cease-and-desist story. We've included Apple's letter, below.

Apple cites the Lanham Act (see below) and I have no idea what that covers. But Bill Innanen pointed out on a mailing list that the operating system might be said to violate its own access control rights under the DMCA:

...since the possession of the tools to violate a copyright has been criminalized, we have yet another case of circular legal "logic." The only tool necessary to violate this particular copyright is the very operating system that the copyrighted software (the updater/full-installer) installs (or an earlier version of same).

(Just pop open the installer package with the built-in "context sensitive menu" module, find the CheckForOSX module and drag it to the trash can. Voila!)

Is the possession of MacOS X v10.1 or its installer illegal because it can be used to violate its own copyright?

(Well, actually by the letter of the law in 1201(2) I think you'd have to argue that Mac OS X 10.0 was "primarily" designed to circumvent the access controls in the 10.1 update... but it's still pretty funny.)

Bill goes on to point out: "The problem that this converted updater fixed is that there are reported problems with 10.1.1, and with a 10.0.x and the updater you can't backtrack. With the 10.1 full installer you can."

Apple's lawyers write:

We represent Apple Computer, Inc. ("Apple") with respect to its intellectual property matters. Recently, it has come to our attention that you are providing unauthorized instructions concerning the modification of the Mac OS X 10.1 update software (the "Software") on your website. Specifically, it appears that you are providing instructions for converting Mac OS X 10.1 update Software to a full install version of Mac OS X from your web site in violation of the Copyright Act and in violation of your software license agreement with Apple.

You should be aware that Apple has never authorized you modify the Software. Moreover, by providing instructions on how to modify and circumvent restrictions within the Software, you are infringing Apple's copyrights in violation of the Copyright Act and engaging in acts of unfair competition in violation of the Lanham Act. Additionally, Apple's license agreement, which you accepted upon purchasing a copy of the Software, specifically prohibits you from copying, decompiling, reverse engineering, disassembling, modifying or creating derivative works of the Software.

Consequently, on behalf of our client, we demand that you cease and desist from publishing or distributing the above-referenced materials. We believe that this is a very serious matter, thus we ask that we receive confirmation in writing from you that you have removed the infringing material from your web site.

Thank you for your prompt cooperation on this matter.

Comments

Well, duh.

[boinger]

What they should have done is a package-by-package analysis of the install and tell what each part does. Leave it to the discussion board and newsgroups to establish what taking out a piece does.

Once again, Apple has too...

[toupsie]

Before the bashing begins, remember that Apple has to protect its intellectual property in these little matters in order to protect it when the big boys start violating Apple's TOS or IP. Its a stupid, jerky thing to do but the sharks^H^H^H^H^H^Hlawyers would eat Apple alive if it dropped the ball on the protection of its IP.

This is great

[jayhawk88]

Large companies covering up for stupid mistakes with threats of litigation truly is the comedy of the new century.

OK, so IANAL, but that seemed almost nice

[chancycat]

Take the following:

Consequently, on behalf of our client, we demand that you cease and desist from publishing or distributing the above-referenced materials. We believe that this is a very serious matter, thus we ask that we receive confirmation in writing from you that you have removed the infringing material from your web site.

Seemes like Apple is at least not trying to crush them. I give them points for being nice lawyers.
Same time, they really goofed, so they can afford to drive any more (bad) publicity on this matter.

Re:Well..

[czardonic]

Publishing information about this does qualify as providing a mechanism to circumvent a copy control mechanism.

Every time I hear this, I am more convinced that it would never stand up against a 1st amendement challenge. So the information can potentially be missused. So what?

Re:how many lawyers does it take...

[ConceptJunkie]

Given the progress being made in finding ways around "protection" schemes, the only two possible scenarios in the future are:

1. Companies find another, intelligent way of dealing with intellectual rights issues.

2. The USA (and elsewhere) will become a corporate-financed police state.

Apple's lawyers can and will complain all they want, but it seems to me that the folks who put together the CD are to blame. It's getting to the point where even a little bit of technical knowledge about software brings the lawyers down like a load of bricks.

I hack software regularly, and perhaps do some things which are technically illegal, but don't involve using software that I don't have a license for. Is it technically illegal to have a copy of the MSDN Windows 98 release so I don't have to pull out Windows 3.1 floppies for my upgrade CD every time I want to reinstall Windows 98 for my kids? Probably. Am I stealing anything I didn't pay for? No. Would Microsoft's lawyers destroy me if they had a chance? You bet.

How long before it is illegal to use RegEdit? How long before it is illegal to use "dir"?

Did the lawyers even read the description?

[j7953]

In their letter, they only talk about reverse engineering and modifying the software and such. Ok, so that's illegal. But no one modified any software here, you just say "hey, don't install this package."

I also don't see how this could violate Apple's license agreement. I'm sure that MacFixIt does have an OS X license, so it's not like they installed the software without a license -- they just chose to install it in a different way. A way that Apple made possible by making the package optional.

You're a little confused though.

[aidoneus]

remember that Apple has to protect its intellectual property

No, they don't. Copyrights and patentsdo not have to be defended (remember gif, mp3, etc?). It's a good idea to defend them along with patents, or else you can lose out big time (Frauenhoffer and mp3). Trademarks and servicemarks are the only things that need to be defended, lest they be diluted and become generic (kleneex, asperin, etc). Now the law that's being cited, the Lanham Act, is a trademark law so a defense seems reasonable until you realize that they're using a trademark law to prop up a copyright argument. Something about that doesn't seem quite right. Maybe they need to go back to law school.

Re:You're a little confused though.

[Shimmer]

The point is that you don't lose a copyright just because you decide not to enforce it in some situations.

Compare with trademarks, which can be lost if they are not consistently protected.

-- Brian

Re:Well..

[Bobo the Space Chimp]

If they couldn't make it illegal to tell you how to build an atom bomb, how could they make it illegal to tell you how to delete one file?

Apple within its rights - and balls for them

[Durindana]

Keep in mind, the folks at MacFixIt must by definition have applied this modification (and that's what it is, specified in the EULA, whether you "feel" it's a mod or not) to be able to publish information on it. The act of publishing the info is not illegal, but the actual package removal was.

Also, this is not only copyright infringement - the letter cites the Lanham Act, which makes it illegal to engage in unfair competition. That's essentially what MacFixIt (and now Slashdot, incidentally) has done - forced Apple's full OS X 10.1 product to compete unfairly with a $19.95 CD. It's a law usually used in advertising administrative law, but it does fit here. Apple doesn't need the DMCA on this one; and given their "piracy is a social problem, not a technological one" stance, they're probably glad for that.

I, for one, would like to see some support on these boards for a major manufacturer, with as much IP as any other, who doesn't give a rat's ass about the DMCA and sells its own "unprotected" MP3 player. Would most companies do that? In this case, Apple has a need to defend its IP - otherwise, they have shown they really do think different.

Re:Apple within its rights - and balls for them

[MikeBabcock]

Making a copy of the CD for your own use is not a violation, by any interpretation of the law in most states and definately not up here in Canada.

Making that copy and skipping over one file while doing it is legally equivalent to creating a backup of a CD and not including song #6 on it because you don't like it.

If the latter is illegal, then the former may also be. Proving that they did this and didn't just simulate the situation, or make it up out of their heads, or just observe it being done by someone else is another issue entirely.

Re:Apple within its rights - and balls for them

[radish]

I agree that the process of deleting this package to get a cheap install is most likely illegal, but why is publishing the process a problem?

It's illegal to murder someone. But should I be prosecuted for posting a website saying "If you hit someone in the head with a brick several times, they will die"? Or what about "If you put your foot hard on the gas pedal and don't use the break, you'll probably end up breaking the speed limit". Seems to me that the responsibility lies with the person actually doing (or not doing) the bad thing, not the person advertising the possibility.

Re:Eh?

[Mr. Sketch]

First of all, I don't suspect most people would consider removing a package from an operating system 'modifying the software' or any of the other list of things stated.

I would agree. Because if I don't like, say, the calculator program and I delete that after installing 'the Software' and install a calculator program that I like better, is that 'modifying the software'? By their logic it sounds like it is. When is 'the Software' no longer 'the Software'? After I install it, am I then permitted to modify it? Would I be in violation of my license agreement if I delete calc.exe after installing 'the Software'?

This sounds like a load of hot air to me.

I couldn't have said it better.

Straight from the mouth of Steve Jobs

[cygnus]

didn't Steve Jobs just say something like, "Any security scheme that's based on secrets will be broken sooner or later." about the iPod's lax copy management scheme?

so did Apple do this on purpose, or are they just being hypocrical? seems like the latter.

Free Speech anyone?

[uslinux.net]

Like many, I have to vigorously disagree with Apple on this one. If they did NOT want it to be installable, they should have done a good job preventing it (or not releasing enough to allow it to be a full install - duh!). After all, providing ONLY the updated packages instead of the ENTIRE OS seems like it would have been smarter.

Does this make it illegal for me to walk into the Apple store at the mall and tell people they can do this? If there was code being disseminated which would break the protection (DeCSS for instance), then *maybe* I could see it as a violation of the DMCA (Note: I *disagree* with the DMCA, but from a judge's point of view, I could still see it as a violation). But, simply stating how to do it seems like it should be protected as free speech.

How come printed newspapers get more lienency than electronic sites? If the NYT or Washington Post print Top Secret classified information which could KILL people, it's protected under the First Amendment. But, if someone even thinks of explaining how to circumvent a piece of software, it's not protected? Perhaps if it was printed in the newspaper?

Re:Well..

[Mr_Matt]

I think a valid question here is "what exactly is a copy control mechanism?" The current definition seems to be something like "anything that prevents unauthorized use of blank" which of course, necessitates the definition that merely using said blank is in its origin making a copy. Otherwise it's access control, not copy control, right?

A logical extension of the above definition would apply to analog books (you know, ink on paper, that kind of thing :) If mere use constitutes "copying", then simply reading a book could be viewed as unauthorized copying. This of course is patent nonsense, and explains why the DMCA is the Digital Millenium Crap Act, and not applicable to other media. The question I see is, why the hell is digital use any different from analog use? I can see where Apple doesn't want to give away its operating systems for free, but why use specious copyright laws to cover for their screw-ups? Aren't there better ways to CYA? :)

EULA?

[TheTomcat]

Apple's license agreement, which you accepted upon purchasing a copy of the Software, specifically prohibits you from copying, decompiling, reverse engineering, disassembling, modifying or creating derivative works of the Software.

*headscratch*
Semantics aside (who's to say that by not installing something, you're "reverse engineering"?), since when do you agree to software EULA at purchase time?

I haven't installed OSX10.1, but any other EULA I agree to presents itself before I open the CD enveloppe, or when I run the installer.

Does Apple really make you agree to the EULA at PURCHASE TIME?

Now I'm confused?

[twakar]

If I understand this correctly, MacFixIt posted instructions on how to make it easier to install the OS X Upgrade. Since when are written instructions illegal? Wouldn't this fall under "It's illegal if I build a bomb, but not illegal if I tell you how to build a bomb"? Protected speech, NO?

That being said, why are some of the early posters saying that Apple must do this? Why must they muzzle someone whose only intent was to assist others in making it easier to install legitimately acquired software. I cannot see how there was any reverse-engineering, decompilation, or anything of that nature. There isn't even a derivative work as the CheckForOSX utility was merely deleted, never altered or anything. As for the EULA, there was a story yesterday that basically said these silly EULAs are non-binding, in most cases. Am I out in left field on this one?

Corporate Responsibility?

[Greyfox]

Although personal responsibility has not been in vogue in recent years, it is still typically the response of the courts that you are responsible for your actions. A lot of the laws that have come down recently seem to be designed to absolve corporations from similar responsibility.

Here we have Apple, whose job it is to provide hardware, software and updates for both. Now what you're telling me is that if Apple doesn't know how to do its job correctly, they think it should be illegal for anyone to point that fact out. And it's not just Apple, if anyone things I'm just picking on them. Choose any company that's filed a non-patent related IP lawsuit in the past few years and in nearly every case, the suit originated because someone pointed out that they weren't doing their job very well (and provided details.)

Re:how many lawyers does it take...

[Anonymous Coward]

Maybe things will change when lawyers start personally getting "Cease and Desist" letters over their office software/systems. I doubt they'd go back to hand searching through law books and court histories.

In the mean time welcome to "The United States of Incorporation"

I'm sorry but that makes no sense

[donutello]

If you're not convinced of its ridiculousness yet, just substitute Microsoft for Apple and Windows XP for Mac OS X.

Apple is perfectly entitled to want to ship certain things for Mac OS X, of course and they are perfectly entitled to make sure they get the revenue from their software, etc. and of course they are perfectly entitled to put stuff on their CD to prevent it being used any way they don't want it to be.

However, what they are not entitled to do is force a website to stop pointing out blatant and obvious holes in their prevention mechanisms.

security philosophy vs litigation philosophy

[Lepruhkawn]

There seems to be a common philosophy among license security engineers that goes kinda like this, "Most people are honest. We can't stop someone who really wants to crack our stuff. We want to prevent the honest people from being tempted to violate the license agreement."

That philosophy seems to work well in certain environments (my companys sells SW strictly to semiconductor companies, for instance) but not in others (PC gamers and Chinese Windows users).

At some point, a company has to weigh how much they spend making sure someone doesn't use their stuff for free against how much potential revenue is lost due to "theft." If the first is greater than the last, it MAY not be worth making your stuff more secure.

Perhaps there is a disconnect in Apple about how tight to make things. I'd like to hear the Apple engineers their speak up about it.

Re:Thanks, Apple

[Syberghost]

So you are not going to buy an iBook to run Linux on because Apple have an OS upgrade CD (with a license that says that it can only be used for OS upgrades I would imagine) that can be modified (thus breaching the aforementioned license) to install a full MacOSX 10.1 on any Mac instead of only on Macs with 10.0 preinstalled.

No, I'm not going to buy an iBook because Apple uses lawyers to bully a journalist into killing a story on bogus legal grounds because it exposes something stupid Apple did.

Their action doesn't prevent anybody from pirating their software; if you're going to pirate a copy of the upgrade disk, you'd certainly be equally willing to pirate a copy of the full disk.

Or perhaps you were never going to buy an iBook to run Linux on anyway, but thought you would post that ill conceived reasoning anyway?

Think what you want; I have a saved shopping cart on Apple's web site for the iBook, and mailing list posts in a local LUG's list asking if anybody else around here is running Linux on one, and if so what distribution they recommend. That's an awful lot of work to go to for something I am "never going to buy".

But if you use the upgrade CD to install the OS when you don't have OSX, then you are breaking the law. I can't put it any simpler than that.

That's very true. But if you're willing to break that law, you're just as willing to pirate it from a full disk as from an upgrade. They won't sell you the upgrade disk unless you have purchased the OS, remember?

Publishing details that enable people to break the law is a moral issue though.

Yes, and it's one where the law has usually sided with the Constitution and against the censor. Or did you forget about the First Amendment?

No-one can prevent you from printing details on how to build an atomic bomb, or make nerve gas in your kitchen, but you can't publish "delete this file and you can install what you already purchased from an alternate disk". Does that strike you as logical? It must, since you're asserting that disagreeing with it is illogical.

Perhaps you should spend a few more minutes pursuing the logic before you assume I didn't.

Re:Apple isn't in the wrong here...

[Thr34d]

You're wrong. Apple gave you the CD for an upgrade (intended purpose). You have modified what was given you without Apples permission to use the media in a way hat was not intended. To do a full install from scratch.

Sure, we can be the slashdot crowd and say Apple deserves what they get for being so niave. But, that dosen't make what they are doing with the order wrong or unjustified.

Re:how many lawyers does it take...

[ignatzMouse]

2. The USA (and elsewhere) will become a corporate-financed police state.

• Corporations with more rights than people.
  
• Police able to search and detain citizens at will without cause or oversite. (Current law, Japanese American Internment)
  
• Intelligence agencies that sponsor the overthrow of nations that attempt to control their own natural resources. (Chile, Iran, Nicaragua, Cuba(failed) etc...)
  
• A government that ignores international law and refuses to sign treaties on global warming and chemical weapons.
  
• Citizens that don't agree to fight for corporate interests are jailed and if people protest they are shot. (Vietnam)
  
• A government that sponsors dictators and helps sponsor them by promoting the sale of illegal drugs to its own citizens. (Contra Cia Cocain connection, Cambodia, Afghanistan)
  

Oops! Too late.

Apple did the right thing with their update

[maggard]

Honestly I'm glad that Apple didn't put elaborate protections all over their update. As we've seen time & time again these heavy-handed mechanisms just get in the way of the legitimate users, invariably bollix up some percentage of systems and don't deter determined pirates.

So was Apple stupid? No. Customer-service oriented? Yes. Ease-of-use oriented? Yes. Transparency-of-upgrade-process? Yes. Safe-and-reliable-installer prioritized? Yes.

Heck, I'd think the /. crowd would be thrilled there isn't some elaborate product activation scheme or big encrypted block of material. Yeah, it's easy to defeat and steal the product. On the other hand if one's determined it's trivial enough to copy a buddies CD or download the original.

Hey - Apple ENCOURAGED folks to pass along their update! They didn't do what so many other vendors do and require proof of purchase. They didn't charge some outrageous rate. They didn't even go the MS route and call it a new OS. They even stated they'd have made it free for download if it wasn't so honking big.

All Apple did was ask (ok, in a heavy-handed legal fashion but that's how the legal system works) a website to take down directions for circumventing their security mechanism. I've no doubt numerous other companies send out reams of the same boilerplate every day asking folks to stop posting how to crack their demos or post their passwords.

And here we have folks bustin' on 'em.

So - what SHOULD they have done? Would folks REALLY prefer encrypted material doing who-knows-what after some onerous registration process and limited distribution? Crow all you want that Apple "gave away" their product, they went about their technology in a far more responsible way then many others. Think about that the next time you install an MS/Sun/Irix/IBM/HP/Compaq/Unisys/etc. OS.

Re:Apple isn't in the wrong here...

[ShieldWolf]

I totally disagree. If he created a program that allowed you to convert the installer you would have an arguement, however he is merely pointing out how it could be done, e.g. if I tell you how to pick a lock, that is perfectly legal, but I am not allowed to sell you a lock pick.

-Shieldwolf

Yes they are.

[Chris Burke]

Apple is in most certainly in the wrong here, in as much as it is wrong to be stupid, lazy, and legally defensive of the first two failings.

Look, ignore for a second that the label on the CD reads "10.0 -> 10.1 upgrade" or somesuch. The fact is that you legally purchased a CD that contains the entire 10.1 operating system. It is the fully functional operating system, and the only requirement for having 10.0 is an artificial one that is easily removed. Does Apple wanting it to just be an upgrade CD change the fact that it is the entire OS + 1 package? Not at all.

It's like overclocking. You might buy a processor that is labeled as 1GHz, but it can run at 1.2 if cooled properly. Does the fact that the vendor would rather you buy the actual 1.2GHz part make a difference? They sold you a device with a capability, and you are using it.

Or it'd be like if Stephen King was doing his online book thing, but his "preview" was actually the entire book, with a note to please not read past page 47.

Or it'd be like a video card upgrade that came in the form of a completely new computer, but you were expected to only take out the video card and leave everything else in your closet.

If Apple really wanted the upgrade CD to be just an upgrade CD, it should have contained only the data necessary to make the change, like every other software upgrade I've ever seen in my entire life. That they didn't do this is a sign of laziness on their part, not moral obligation on mine.

They sold me a CD containing data, and I'm using it. I'm not copying anything they didn't sell me; I'm not giving it to someone who didn't pay; I'm not modifying their code and redistributing it. If it is, well, that wouldn't surprise me, but that doesn't mean Apple isn't wrong.

What _would_ be wrong was if I (probably as a reseller) bought a bunch of the upgrade CD's, and resold them as the full thing (at full price). You'll note that in the case of CPU overclocking, the chip makers have made that distinction, and while they make overclocking harder for everyone, they only really care about the dishonest resellers.

I think the only protective action that Apple could take that would put them in the right would be if they stated they would not give technical support to those who used the upgrade CD to do the full install.

Think about Time To Market

[valmont]

You gotta give Apple developers some credit for crying out loud. If they packaged the upgrade the way they did, running the risk of someone mucking with their packages, it clearly had to be because it was easier *and* faster to do it that way.

Mac OS X 10.1 is a pure Jewel of an Operating System, and I for one like to see frequent major upgrades that acutally render my work more productive. And this one sure did.

Chances are I am not the only one thinking that.

So Apple saved time and figured their money would be better spent on lawyers sending out semi-generic cease-and-desist letters, rather than delaying the release of their upgrade by a few more months and miss the X-Mas rush.

Are they dumb? NO. It's about money. Time-to-Market translates directly into money. I'm sure they knew the risks they were taking and carefuly measured them.

Does the fact that they released a full working version of an operating system on a demo-disk harm the user in any way? NO. But that's what is unconsciously implied: "oh Apple made a quick upgrade hack that can easily be worked around, quick hacks are dumb, quick hacks are bad, so *I* as a geek, must absolutely go out there and make a big fucking fuss out of it so I can look cool and get some publicity out of it". Again, this is not microsoft quickly hacking their "Passport architecture", loading it with obvious security holes to make a deadline, thereby harming the greater computer user community, we're talking about a legitimate software upgrade that happens to give you more, MUCH more than what you bought.

Exploiting this for any other purpose than recovering from a failed upgrade is *wrong* and, indeed illegal. Beside, keep in mind that even if leveraging this weakness to shorten the installation process to recover from a broken upgrade may be *very* convenient *and* tempting, doing it the regular way, which was installing OS X 10.0.x and *then* using the OS X 10.1 upgrade as just that, an upgrade, still works. While this appears to be a cool, convenient hack to share with close friends and family to save them time, I do believe this information to be a little too sensitive to be permantently published on a web site for everyone to leverage. Again, this is *not* like a security hole, this is publishing information which deliberately violates the Software License Agreement.

MacFixIt most likely understands that.

Are they trashing freedom-of-speech? FUCK NO. Stay real guys and look at this whole thing for what it really is: a very simple, dumb hack which violates a very clear, simple, software license agreement. Software Vendors have those agreements so they can actually make money off of the shit they make. Duh.

MacFixIt handled the situation very maturely but anyone here invoking "freedom of speech" rights for this particular case is merely making a devious use of one of our most cherished inallienable rights, and such behaviour can easily become one day its most threatening enemy.

This simply doesn't make sense...

[ellem]

OK so Apple gets lazy with their installer.

Some guy figures this out and posts it on a popular Mac site.

Apple releases the dogs after them?

Why?

OSX runs on a few (seemingly very few) APPLE machines. It's not like this hack alows you to install OSX.1 on your shiny new Dell P4 1.8mHz machine.

You still have to have invested in Apple HW.

The botom line is Apple should have never tried to charge anyone for what is a Service Pack anyway.

OSX was a train wreck of sloth and missing parts.

OSX.1 is what they should have released in the first place. Hell, Apple should be sending OSX.1 Full Install disks to everyone who has registered OSX! Problem solved.

Apple has made YAM (Yet Another Mistake.)

Re:how many lawyers does it take...

[quinto2000]

>If the US government was in bed with corporate America, why are businesses saddled with excessive regulations and taxes?
Prove it. Corporate welfare is larger than any other form of welfare. The big corporations get more tax breaks than the average American, that's for sure. And where, exactly, would we be without the limited regulations that we currently have?

Don't forget that although Ralp Nader )through organizations like Public Citizen) pressured car companies into improving their safety under strong opposition, a year later the car companies themselves were trumpeting the safety features that they had been *forced* to implement! Provide some evidence to back up the assertion that we have "excessive regulation" and "high taxes" for corporations. The fact is that government involvement is needed: economists acknowledge that the market does not solve all problems alone. I am in favor of reducing the entitlement complex that corporations seem to have, however.

Re:how many lawyers does it take...

[quinto2000]

Gun manufacturers are, however, enablers. For them to reject all responsibility makes no sense. If I give a young child a bottle of poison, am I not to blame when they ingest it? How about an adult, who might not be cognizant of all of the dangers of the poison?

This is exactly the same, if you don't take care of security, it will bite you in the ass and it's no-one's fault but yours. If you leave your door open at night in a dangerous neighborhood, you cannot absolve yourself of responsibility when all of your stuff is stolen. It doesn't make it your fault altogether, but you certainly share the blame.

No, they're not

[3am]

The correct analogy is if the cashier at a store gives you a $20 instead of the single that you were supposed to get in your change. Or buying a car from someone and finding an expensive watch between the seats.

It is morally wrong to keep it. It is stealing, no matter how clever your arguments are to the contrary.

It is very, very simple. Apple sells you an upgrade CD. They - through incompetence or ignorance - included the whole OSX 10.1 install. You inadvertently receive something you didn't pay for. Keeping it (or similarly, installing it without paying for a copy) is stealing.

Re:No, they're not

[Chris Burke]

The correct analogy is if the cashier at a store gives you a $20 instead of the single that you were supposed to get in your change. Or buying a car from someone and finding an expensive watch between the seats.


For that analogy to be even close to correct it would have to be the case that Apple -accidentally- put the entire functional Mac OSX 10.1 on the CD. Since I doubt this is the case -- that the only difference is the CheckForOSX package attests to this -- your analogy is "correct" only for definitions of the word opposite the accepted usage.

Your analogy might be in the same hemisphere as reality if they willfully put the watch in the car, but asked you to kindly just leave it where it is between the seats. Or better, they're selling you the watch, but the box it comes in happens to be a Mercedes.

If it seems like only a complete idiot would do that, then you understand my point -- there is nothing illegal going on, just Apple being very, very dumb.

It is very, very simple. Apple sells you an upgrade CD. They - through incompetence or ignorance - included the whole OSX 10.1 install. You inadvertently receive something you didn't pay for. Keeping it (or similarly, installing it without paying for a copy) is stealing.

Well, you're right about the simple part, at least. They sold me a CD containing the entire 10.1 operating system, I paid for that CD, and now I'm copying that data to my system. MY system, the one who paid for it. There is nothing on that CD that Apple didn't knowingly give me, and to call it stealing to use that which was knowingly sold to you for the purpose for which it was intended is insane.

I mean, the idea of illegal copying of software being stealing is dubious in and of itself (since copying software leaves the original intact), but here not only is there no loss, I'm not even gaining a single bit of information that I didn't pay for!

Re:No, they're not

[killmenow]

Likewise, Apple sold me a CD. The CD is mine. The fact that they tossed a bonus OS on there is there problem, not mine.

But if a condition of the sale was that you have an already existing copy of 10.0, and you then use the CD to install without having a prior version of OS X, you are stealing. It's just the same as buying the "upgrade" version of Office and using a [cr|h]ack to get around the check for the preexisting version.

However, what gets me thinking Apple is in the wrong here is that telling someone how to turn off the check is no more illegal than it is to tell you how to make your own cable descrambler out of parts from Radio Shack. It is not reverse engineering as it is simply using the tool they provide you. It is not [cr|h]acking.

You should be aware that Apple has never authorized you modify the Software.

It is this statement that has me confused. In today's modern OS world, what constitutes modifying the software? If I change my video driver, am I modifying the OS? If I dig into some menus and turn on some arcane feature of the OS (like enabling a console window for instance) am I violating the copyright, or taking advantage of a built-in feature? I think it's insane to say turning [off|on] a feature or deleting some executable that is not needed to run the OS is somehow in violation of copyright law.

And certainly just telling someone how to do it when I've not signed an NDA is only possibly violating the DMCA because it's an incredulously asinine law.

Re:No, they're not

[WNight]

Useless laws like the DMCA aside, if you buy software you are legally entitled to do anything with it that you could do with a book.

If CheckForOSX annoys you, remove it. Just the same as you might scribble in the margins of a book, or rip out a page that offends you.

If the seller intends otherwise, then they need to make it a clear part of the pre-sale agreement. EULAs and any software which try to enforce them are void at best, and illegal at worst. (Preventing someone from doing something they are entitled to do until they give you something of value (your compliance) is extortion, the same as if I demanded $50 before I'd let you use your computer which I had snuck in and passworded the night before.)

The only reason this hasn't been pursued is that nobody with enough money has been annoyed by EULAs.

Not everything which harms a company is illegal (though the way they whine, it soon will be) nor is it necessarily immoral. Imagine if you stood outside a major electronics store handing out a competitors fliers, with a lower price that the first store had promised to match. Of course, they always hope nobody tracks these deals down, but they have no right to sue you for you activities, they made the deal and should have made sure they could honor it.

Re:No, they're not

[sg3000]

If that's a condition of the sale, then they shouldn't sell you the upgrade unless you have 10.0. You should have to show a UPC symbol or something. Giving you the full 10.1 and in the shrink-wrap license saying you need 10.0 before you can use it is silly.

Wait, so you're saying that although Apple gave you the full install, and they relied on your honesty to use that updater only if you have a full copy of the previous version, you should have the right to install the full OS because they provided it to you?

Here Apple is, trusting users with a simple updater -- and remember, they're the same company company shipping the iPod, an MP3 player with virtually no copy-protection -- and you're saying that since they had the nerve to trust you with the full version, they deserve to be ripped off.

That's a great argument for software companies to do whatever it takes to restrict distribution of their software. Kind of like how Microsoft ties XP to your hardware profile (hope you weren't one of the ones complaining about that!).

People who advance the argument you just did are the reason why record companies and software companies assume people will pirate anything they can, and to hell with honesty.

Re:So could I post them?

[LordNimon]

Deleting a file is making a derivative work. If I scan a copyrighted image, and I crop that image, I have created a derivative work by deleting part of the original.

At the end of the day...

[Anonymous Coward]

Apple took a shortcut to get an update out faster, and is now paying for it. Next time, the updater probably won't include the full OS, and will be more of a hassle, so customers lose out.

I really couldn't care less whether the original posting was illegal or not, and what Apple's legal standing is regarding the C&D.

The original posting told people how to get OS X for free, without ever buying the software. Either you support that type of piracy (I don't) or you shouldn't be painting Apple out to be the villian here. They are a wronged party, responding perhaps incorrectly. But make no mistake that the original error was on the part of those people who posted the story in the first place.

I'm usually a big free-speech advocate, but every once in a while I get too tired of people trying to justify what is just plain wrong.

Re:how many lawyers does it take...

[Nonsanity]

Looking at Apple's summary of their EULA:

...Apple's license agreement, which you accepted upon purchasing a copy of the Software, specifically prohibits you from copying, decompiling, reverse engineering, disassembling, modifying or creating derivative works of the Software.

And looking at the instructions to make a 10.1 install CD from a 10.1 updater:

1. Using instructions posted on this page, create a disk image of the Update CD.
2. Delete the CheckforOSX file from the Essentials.pkg file in System/Installation/Packages folder of the image file. [You need to use the Open Package Contents contextual menu item to access this file.]
3. Burn the image to a CD using Disk Copy.

One might come to the conclusion that burning the modified files onto a new CD is copying the "Software" and therefore in violation of the EULA. Arguing that making a personal backup copy is permitted might get into some grey area if that backup is altered. But unless you give or sell your modified CD to someone else, I can't see that as being a violation.

Chris Innanen
(Son of Bill Innanen)

Re:how many lawyers does it take...

[jallen02]

I would blame you for giving the child the poison in the first place. And hey, I don't have any problem not chugging down windex when I buy it. I don't chug stuff I don't know about and I can stop any children in my immediate vicinity from ever obtaining that by MY count.

No I can't stop others from doing this but its a moot point.

I think I should be able to demand a certain level of common sense from the human beings around me. Obviously that does not happen.

Jeremy

Re:how many lawyers does it take...

[Anonymous Coward]

For those who are completely uninformed. Corporations are protected and have all the same rights you do. Corporations are souless spiritless entities who aren't responsible for their actions. So they can dump nuclear waste in your yard, not keep records, and are not accountable except for lawsuits. Lets see lawyers work for money and corporations have all of it. Can you see where this is going?

So what is the solution? We must educate ourselves on the issues, write our congressmen and go to their offices to visit them face to face. Yes I do this. You must vote and educate your neighbors. Together in the end we will make a difference but it is a slow process and takes lots of effort. If your not part of the solution don't bitch when you have no rights. Never forget our system is for the people, by the people. When the people lay down the corporations and government will run right over them.

For the naysayers who don't believe their one voice helps imagine how much worse it would be if there were no voice at all... You can be assured if it weren't for the few people fighting for your rights you wouldn't have the small fragment of them that still exist. The more the people are tread on the more people will join the fight and educate themselves. In the end the people will prevail, I have faith in at least that one thing. If it weren't for that I wouldn't still live here.

And don't let the socialist trick you into believing capitilism makes people greedy. My dogs and cats are greedy without any knowledge of ownership. They decided their toys are theirs not me. Ownership isn't the problem it is unnacountable corporations which we did not originaly have in this country.

Surprised at the reaction of some...

[Maktoo]

This really surprises me.

I'm surprised by the fact that people think Apple is wrong in this.

When you buy a $100 cubic-zirconium ring, and then take it home only to find out it's a real diamond... do you take it back? Yes. If you don't you're stealing.

Apple is selling an *upgrade* to an Operating System. People pay $20 for this upgrade. If those people turn around and modify it so that it's a Full Install... then they are getting a $100 product.

Is Apple getting the $80 they deserve from the people modifying their CDs? No. Therefore... those people are morally obligated to not do that.

Whether it's legal or not... I don't care, I assume it's not. However, it's morally wrong... so on those grounds, Apple certainly has a case.

Re:Surprised at the reaction of some...

[Lewis Daggart]

Forgive me, did I hear you correctly? Did you say taht anyone who believes that it is morally wrong must 1) Be a christian 2) be stupid I'm sorry to burst your bubble, but I know many people on both sides that just dont fit that description. Once you've bought the CD, its yours -- short of using it as a disc to chop someones head off with, you can do whatever you want to/with the CD, as well as the information obtained off if it(at least on your computer). If you want to modify part of the CD or the program it creates, that's your right Um.. not last time I checked. Sure I fully believe in open source code and freedom of information. However, when you use that updator, you specifically agree to their terms before you can procede. Those terms wave your rights to do whatever the heck you want to with their (yes, their) software. Until sutch a time comes when they change the license agreement, it will continue to be, morals aside, technically ILLEGAL for someone to use the upgrade as a full OS. On one last note, I hope there are more people in he world who would return that diamond that someone accidently sold them. Free information is a noble goal, but by using the software, you've agreed to play by their rules. Don't cheet.

Re:how many lawyers does it take...

[crayz]

They certainly should have taken the instructions off of their website, as they clearly violated the EULA in getting the instructions, and encouraged others to do so by posting them.

So what? If I say "smoking marijuana makes me feel good, and if you smoke it, it will make you feel good too" I just described an illegal action, and encouraged others to engage in it. But that is free speech, and is in no way, shape or form illegal.

Re:Dear Website Owner

[kimihia]

Drag it to the trash bin? What's wrong with that?

A user tells the computer what to do - a computer does not tell the user what to do.

There are two exceptions:

• You are using Windows
• You are h4x0ring someone elses system

I can ``rm -rf /'' if I want to (and I have root permissions). That's an example of the operating system being done as it is told.

I don't see Apple letting a person (with appropriate permissions) being able to drag the entire operating system to the rubbish bin as being a problem. It's their computer - not OSX's.

Re:Hold on, check where the costs are coming from

[twinpot]

Remember! The US has the SINGLE MOST EFFECTIVE health care system in the world. And it's far from perfect, but thanks to federal research, and even the system it's under, people are living longer and healthier than ever before.

Err.... bollocks. That would be France you were thinking about, with Italy ranked number two (or so says a relatively recent survey). This survey had the US in number twenty or thirty something. France spends way less than the US on health care (as a % of GDP), but seems to have, according to this survey) a much better healthcare system.

Give me Trash or Give me Death!

[WillSeattle]

Trash is violating DMCA. You can use it to bypass copyright protection...

No, the DCMA violates my constitutional rights. The constitution trumps everything.

And I can trash any file I darned well want, with the possible exception of the license file itself.

Noone can take away my right to delete code. They will remove my trash can from my cold dead hands.

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